text:
    LEXINGTON MACK, INC., and Mack Financial Corporation, Appellants, v. Sam MILLER, Appellee.
    Supreme Court of Kentucky.
    June 10, 1977.
    Rehearing Denied Oct. 7, 1977.
    Joseph M. Scott, Jr., Stoll, Keenon & Park, Lexington, for appellants.
    Marcus Mann, Mann & Turner, Walter Turner, Salyersville, for appellee.
   JONES, Justice.

This appeal involves the sale of a 1972 Mack dump truck by Lexington Mack, Inc. to Sam Miller. The motive for the purchase of a new truck by Miller was to trade in a 1971 Mack truck, which due to its size and weight, was illegal on the highways of this Commonwealth.

The trial court ruled that Miller suffered loss of use of the 1971 Mack trade-in truck from August 18, 1972, until December 18, 1972, in the amount of $4,756.50. The trial court also held that Miller was entitled to the fair value of the 1971 trade-in truck in the amount of $8,356.26. Lexington Mack, Inc., and Mack Financial Corporation prosecute this appeal. The thrust of their argument is that the Uniform Commercial Code is the law applicable to the facts of this case.

In the late summer of 1972 Sam Miller experienced overweight problems with his 1971 Mack truck. The 1971 truck weighed 76,000 pounds. When loaded with 24 tons of coal the gross weight was 124,000 pounds. That was far in excess of the legal limits of 30,000 pounds on Magoffin County roads. As a result of a number of citations for overweight, Miller decided to trade the 1971 Mack truck for a new, smaller 1972 Mack truck which he could operate legally on Kentucky highways. He contacted Lexington Mack, Inc., with whom he had previously dealt, about a trade-in. A salesman for Lexington Mack, Inc. informed Miller that he would have to bring the payments on the 1971 truck up-to-date or it would not be accepted in trade. Miller owed Mack Financial Corporation a total of 12 payments in the amount of $1,182.16 each. He then wrote a check to Mack Financial Corporation for the past due installment and negotiations were continued.

The trade-in and sale were consummated on August 18, 1972. At that time Miller executed a promissory note and security agreement. He was given credit for his 1971 trade-in and then agreed to pay to Lexington Mack a balance of $30,051.60. This sum was to be paid in monthly installments of $981.72 commencing on October 1, 1972. Miller also executed a financing statement and an off-road affidavit. Three days later, an employee of Lexington Mack testified that he mailed to the Magoffin County Court Clerk the bill of sale, manufacturer’s certificate of origin, financing statement, off-road affidavit and a check for $6.35, the amount required for registration and recording its lien. The county clerk testified he never received the check and the documents. Employees of Lexington Mack testified that neither the check nor the documents were returned to them. On August 18,1972, an employee of Lexington Mack drove the 1972 Mack truck to Magoffin County, where Miller accepted delivery and signed the documents. He began using the truck to haul coal on a number of jobs within the county. In a period of three months Miller had either driven or had the 1972 Mack truck driven approximately 2,000 miles. However, during that period the 1972 truck was not used for a period of approximately five weeks. This was due to lack of work in the county, local disputes over damage to roads by overweight coal trucks, and the collapse of a bridge. Miller could not use the 1972 truck outside Magof-fin County because the temporary license tags had expired and the truck was not properly licensed. Miller did, however, borrow some license tags from a friend and continued to use the truck in Magoffin County.

Late in October, through its analysis of delinquent accounts, Lexington Mack discovered that Miller had not made any payments on the 1972 truck. Lexington Mack had been notified earlier by Mack Financial Corporation that Miller’s check in the amount of $1,182.16 had been returned for insufficient funds and that Lexington Mack would be required to pay that amount. When Miller was contacted by Lexington Mack he acknowledged his default and refused to make any payments. His excuse for failure to make the payments was that he had not received title papers to the truck. He also contended that the $1,182.16 check was to have been included in the $30,051.60 pay-off figure. This was the first notice Lexington Mack had that the title documents were not received by the Magoffin County Court Clerk.

When Miller refused to relinquish possession of the 1972 Mack truck, Lexington Mack filed suit. It obtained an order of delivery and repossessed the truck. After timely notice Lexington Mack sold the 1972 truck leaving considerable deficiency owed to Lexington Mack. Miller counter-claimed for the value of his 1971 truck plus his lost profits during the period he was deprived of its use.

Lexington Mack argues that the sale of a motor vehicle and the rights and duties of the parties to such a sale are governed by the Uniform Commercial Code Sales Article, KRS Ch. 355.2. This court agrees, and has so held in Hicks v. Kentucky Farm Bureau Mutual Insurance Co., Ky., 455 S.W.2d 452 (1970). KRS 355.2-401(2) provides that:

“Unless otherwise explicitly agreed title passes to the buyer at the time and place at which the seller completes his performance with reference to the physical delivery of the goods, despite any reservation of the security interest and even though a document of title is to be delivered at a different time or place * *

Thus the sale occurred and title passed to Miller at the time of delivery. Miller did not reject the truck, but used it to haul coal. KRS 355.2-606 provides that acceptance occurs when the buyer “fails to make an effective rejection” or “does any act inconsistent with the seller’s ownership”. Having accepted the truck, Miller became obligated to pay the contract price. KRS 355.-2-607(1). At no time thereafter did Miller attempt to revoke his acceptance of the truck pursuant to KRS 355.2-608. On the contrary, Miller refused to deliver possession of the truck to Lexington Mack, stating that only a court order could force him to do so.

Miller contends that, because the Magoffin County Court Clerk never received the title documents from Lexington Mack as required by KRS §§ 186.190 and 186.200, he could not get the 1972 truck licensed and therefore could not use it. Citing Harlow v. Dick, Ky., 245 S.W.2d 616 (1952), Miller argues that his inability to get the truck licensed constituted a failure of consideration sufficient to warrant recision of the contract. KRS § 186.190 and KRS § 186.200 prohibit the sale or transfer of a motor vehicle without the simultaneous delivery of copies of the bill of sale to the County Court Clerk. These statutes are revenue measures designed to insure the payment of the motor vehicle usage tax at the time of registration. Siler v. Williford, Ky., 350 S.W.2d 704 (1961). They are entirely separate and distinct from the provisions of the Uniform Commercial Code governing sales. KRS Ch. 355.2.

In Harlow v. Dick, this court held that:

“If the purchaser did all that he reasonably could to obtain these (title) papers and was denied them, ... in our opinion he proved a failure of consideration and was entitled to rescind the contract or recover damages for its breach.”

The facts in this case are distinguishable. The record clearly demonstrates that Miller had consistently failed to register and license his trucks when title papers were provided. Further, Miller was able to and did operate his truck in Magoffin County regardless of his ability to get the truck properly licensed. Whether the non-delivery of title papers under these circumstances constitutes a failure of consideration entitling Miller to rescind the contract, however, is a question we do not have to reach. The Harlow case was decided before the enactment of the Uniform Commercial Code. Article II of the Code provides the manner in which a contract for the sale of motor vehicles may be rescinded. Miller did not revoke his acceptance of the truck nor did he attempt to exercise any of the buyer’s remedies provided under the Code. Miller’s failure to make any payments toward the purchase of the truck constituted an unjustifiable breach entitling Lexington Mack to the full remedies provided by the Code and its security agreement. Having validly exercised these rights, Lexington Mack, Inc., and Mack Financial Corporation are entitled to recover from Miller those amounts owed them.

This court is of the opinion that the trial court’s findings of fact and conclusions of law are clearly erroneous.

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

All concur.


source: Caselaw Access Project

author: PALMORE, Justice.

license: Public Domain

text:
    Mark BROWN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    July 1, 1977.
    Rehearing Denied Oct. 7, 1977.

      Jack Emory Farley, Public Defender, Frankfort, Mark A. Posnansky, Asst. Public Defender, for appellant.
    Robert F. Stephens, Atty. Gen., Frankfort, Robert W. Hensley, Asst. Atty. Gen., Frankfort, for appellee.
   PALMORE, Justice.

The appellant, Mark Brown, and his brother, James H. (Jim) Brown, III, were jointly indicted for the murder of Bryant Dudley. Cf. KRS 507.020. In a separate trial Mark was found guilty and sentenced to 20 years in prison. He appeals.

The verdict was returned under an instruction directing the jury to find the defendant guilty of murder if it believed beyond a reasonable doubt that (a) he and Jim conspired to kill Dudley, (b) in so doing Mark intended to promote or facilitate Dudley’s death, and (c) pursuant to and in execution of that conspiracy and while it existed, Jim killed Dudley by shooting him with a shotgun. The word “conspiracy” was defined as follows: “A conspiracy occurs when two or more persons agree that at least one of them will engage in conduct which constitutes a criminal offense or attempt to commit an offense.”

Mark’s counsel objected to the instruction on the conspiracy theory, and one of his principal contentions on this appeal is that the evidence was insufficient to support a finding that there was a conspiracy between Mark and Jim to kill Dudley. He contends also that the trial court erred in denying his request for an instruction on 2d-degree manslaughter (KRS 507.040, which defines this degree of homicide as “wantonly” causing the death of another). Other arguments are that the trial court erred in submitting the case to the jury under an indictment that did not sufficiently charge the offense in question and in failing to instruct on the defense of intoxication under KRS 501.080. Incident to this latter point Mark contends that under the principle of Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), the Commonwealth had the burden of proving his sobriety as a necessary element of the crime of murder, and that in the absence of its having sustained that burden the conviction violated his right of due process. Despite, however, valiant and resourceful advocacy by his appellate counsel we find no merit in any of these points.

In May of 1976 Mark Brown had an apartment on Vine Street in Maysville, though it seems that he also had a room at his mother’s home on Jersey Ridge Road. He and his brother Jim were young men and had a circle of friends who visited Mark’s living quarters on Vine Street. Mark kept marijuana at the Vine Street apartment, and the evidence suggests that he was regularly engaged in selling it. At some time in April of 1976 Mark noised it about that somebody had “ripped him off” and stolen his supply of “reefers,” that he thought Dudley had done it, and that he was going to “bump him off.” Having received word of this talk, Dudley went to see Mark and assured him that he was not the guilty party. During this stormy meeting Mark was brandishing a .45-caliber pistol and threatening to shoot Dudley for having stolen the marijuana, but Dudley and Mark’s girl-friend were able to get him calmed down and Dudley convinced him, at least temporarily, that he was not the thief.

On Sunday night, May 16, Mark began complaining to his friends that he had been ripped off again, that someone had broken into the apartment and stolen $600 or $700 worth of valuables, and that when he found out who had done it he was going to “blow their head off.” On the morning following this break-in (which would be Monday, May 17) a witness named Tolle stopped in to see Mark about an automobile Mark had been wanting to buy, and Mark told him about the robbery and said if he found out who did it he would get even. Mark was extremely angry over the rip-off. On this occasion Robert Collins also was present at the apartment, and Tolle heard Collins tell Mark that he had come up there the night before and found no one at home, but had seen Dudley either on the porch or walking down the street in front of the house.

Later on during this same day (Monday, May 17) Robert Collins was riding around in an automobile with Mark, Jim and Dudley. During this ride Mark and Jim were asking Dudley if he had stolen the drugs and Mark was pointing a .45-caliber pistol in the general direction of Dudley. Dudley, incensed, denied it and said, “This is the second time you all have had me out questioning me about something like this and had a gun in ihy face. If you don’t quit doing it, I am going to have both of you killed.” At this development Collins became apprehensive and insisted that he be taken back to his own car, after which he went home.

On Tuesday, May 18, Mark told Ricky Bellew that someone had broken into his house and stolen some drugs, and he was going to “get them.” During this conversation, in the course of discussing whether he knew who had done it, Mark indicated that he suspected Dudley or some other individual he did not name.

At some time around 10:30 to 11:00 P.M. of May 18 Chan Warner and Earl Black, friends of the Browns, were standing on the street in Maysville when Mark and Jim drove up in Jim’s car and asked if they had seen Dudley. Warner told them that he thought Dudley was at the home of his (Dudley’s) girl-friend, Anna (Pete) Corde. Either Warner or Black asked the Browns “if they had anything to get high on,” to which Mark replied in the negative and explained that he “had gotten ripped off of everything he had,” referring to marijuana. During this discussion Mark said he knew who had done it and that he was going to “get them.” He did not, however, say that Dudley was the suspect to whom he was referring.

Anna Corde testified that Dudley had been at her home all during the evening of Tuesday, May 18, until about 10:00 or 10:30 P.M., when Mark Brown came to the door and asked for him. Dudley, who was scantily attired, put on some more clothes and told Anna he was “going up to Mark’s to do some chemicals” (to “get high”) and would be back in 15 minutes to half an hour. She never saw Dudley again.

Except for Mark and Jim Brown, neither of whom testified, the last persons known to have seen Dudley alive were four boys who came to Mark’s apartment between 11:30 and 12:00 P.M. on Tuesday, May 18, and remained there about 15 minutes. When they arrived, Mark and Dudley were in the kitchen and, according to one of the visitors, were “snorting” something into their nostrils and staggering around. Dudley in particular was “pretty messed up.” Jim was in the living room and “didn’t appear to be messed up.” Jim mentioned that he was about to go to Lexington, so the visitors departed.

Between 3:00 and 3:30 A.M. on Wednesday, May 19, Mark and Jim Brown arrived at an apartment in Lexington occupied by four of Jim’s friends, where they slept on a couch for the rest of the night.

Later in the day after the Browns had awakened they sat around and listened to some records and then at some time after noon returned to Maysville. At one point during this visit Mark went out to his brother’s car and fired a shotgun, explaining afterward that he wanted to check the safety mechanism of the gun and found that it “didn’t work.” Also during this sojourn in Lexington, at Jim’s instance one of the other boys traded a shirt and a pair of boots with him.

On Thursday afternoon, May 20, Jim Burden and Darrell Davis were in Mark’s apartment and heard a conversation in which Mark, referring to the recent theft, “said he knew who it was and that it was a black person, and that it was taken care of.” Later on that night Davis heard that Dudley was missing.

Robert Collins, who evidently enjoyed Mark’s confidence, testified that on Friday, May 21, Mark called him on the telephone and told him that he (Mark) and Jim had been riding around with Dudley and had stopped out on Morton’s Lane; that while they were questioning Dudley at that place Jim became “hostile” and shot Dudley with both barrels of a shotgun; and that he (Mark) had either shot or shot at Dudley a couple of times with a .45. That night, which Collins says was “between Friday night and Saturday morning . . . early in the morning,” Collins accompanied Mark out to Morton’s Lane in order to help him find Dudley’s body and bury it. According to Collins, Mark looked along the side of the road but was not able to find the body.

At some time before Dudley’s body was found Collins repeated the substance of the above described conversation with Mark to William Castle, who so testified.

On May 26, after being advised of his rights, Mark submitted to an interrogation by Detective William Lewis, of the Kentucky State Police. He admitted that he and Jim had brought Dudley to his apartment on the night of May 18 and that he and Dudley had sat in the kitchen and snorted some “angel dust,” which he described as a “mixture of drugs, leftovers, more or less.” Afterward, he said, Dudley and Jim helped him make up a bed in the bedroom and then Dudley left. Mark and Jim then went on to Lexington and Mark had not seen Dudley since. He denied knowing Dudley’s whereabouts or having had anything to do with his disappearance.

Dudley’s body was found just off Morton’s Lane on May 27. He had been shot twice in the back with No. 6 shot from a .12-gauge shotgun. The pieces of wadding found in the body had come from Federal brand shotgun shells. No .45-cali-ber bullets were located, but two .45-caliber shell casings were found near the road. The weapon from which th°y had been ejected was not discovered. No spent shotgun hulls were found.

Jim Brown owned a .12-gauge twin-barreled shotgun at the time Dudley was killed. A search of Mark’s apartment on May 29 turned up, among other things, two No. 6-shot Federal shotgun shells and an empty Federal .12-gauge shell box marked for No. 6 shot.

There was more evidence, but the foregoing narrative summarizes enough to demonstrate beyond sensible question that there was abundant testimony to justify an instruction and a guilty verdict on the theory that Jim Brown killed Dudley pursuant to a prearrangement between himself and Mark that one or both of them would do it. To counsel for Mark at both the trial-court level and in this court the word “conspiracy” seems to have conjured up visions of mystery and deep significance that we find ourselves simply unable to comprehend. It is not necessary, in order to prove a conspiracy, to produce evidence of the actual conversations or communications between the conspirators. In this instance, for example, the conduct of Mark and Jim Brown during the events preceding the murder of Dudley clearly evinced a mutually-understood community of purpose. Mark had expressed an intention to “blow the head off” the thief. He thought Dudley was the culprit. Jim was with him every step of the way. He assisted in the interrogation on Monday, while Mark was brandishing a .45-caliber pistol at Dudley. He knew Mark was threatening to kill Dudley. He took Mark in his car to carry Dudley off to Mark’s apartment and then to the death scene, where the accusatory interrogation continued, and in the end Jim shot and killed Dudley. From these outward circumstances it is entirely reasonable to infer that the Browns had planned and agreed on what they were going to do. But even if there had never been a spoken word between them that could be characterized as an express agreement or plan to kill Dudley, obviously the end result of their course of action was contemplated by both of them in advance and was in every sense a joint undertaking. If that did not amount to a conspiracy, the writer of this opinion has wasted nearly 40 years in the wrong profession.

Actually, Mark could more easily have been convicted as an aider and abettor. Ordinarily it is more difficult to convict an accessory before the fact than an aider and abettor, because the occasion for resorting to the accessory theory is that the defendant in question was not present at the time the crime was committed. Here, however, the accessory was present as an aider and abettor. The absence of an instruction on that theory was a gratuitous windfall in Mark’s favor.

We perceive no basis for an instruction on manslaughter of any degree. Had there been any evidence sufficient to create a reasonable doubt that Mark intended the death of Dudley, an instruction on 2d-de-gree manslaughter might have been appropriate. Mark himself was about the only person who could have provided such testimony, as only he could have known what his intention was. But he chose not to testify, and certainly he is in no position to claim that the jury should have been invited to speculate that he really did not intend to have Dudley killed, but only wanted to scare him half to death. It is oúr opinion that there was no evidence to raise a reasonable doubt as to whether the homicide was intentional. The only question was the identity of the guilty party or parties.

Precisely the same rationale applies to the argument that Mark was entitled to an instruction to the effect that if he was so intoxicated (on drugs) at the time of the killing that he was incapable of a criminal intent he should be acquitted. As explained in Jewell v. Commonwealth, Ky., 549 S.W.2d 807 (1977), intoxication is one of several defenses provided by the Kentucky Penal Code in which the burden of proof to negate the defense is cast on the Commonwealth, but in order for the defense to be raised, so as to call for an instruction placing the burden on the Commonwealth, there must be something in the evidence reasonably sufficient to support a doubt based on the defense in question. Likewise, it was further explained in Isaacs v. Commonwealth, Ky., 553 S.W.2d 843 (1977), that in order to call for an instruction on a lower degree of or lesser included offense within the crime charged, there must be something in the evidence reasonably sufficient to justify a doubt based on the theory that the crime committed was of a lower degree or lesser culpability. Whether one is referring to one of these affirmative “defenses” or to a lesser offense, the evidentiary situation and burden of proof are the same. Evidence suggesting that a defendant was guilty of a lesser offense is, in fact and in principle, a defense against the higher charge, though it is not a “defense” within the technical meaning of that term as used in the Kentucky Penal Code, cf. KRS 500.-070.

Other than the fact that Mark was “snorting” drugs with Dudley in the kitchen of Mark’s apartment the night Dudley disappeared, and probably was “high”, there was no evidence whatever to suggest that either then or at the time of the shooting he did not have the capacity of forming a criminal intent.

Whatever may be its other infirmities, Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), does not stand for the proposition that the prosecution is required to produce evidence negating every fact and circumstance that could serve either to reduce the degree of or to raise an absolute defense to the crime charged. Once there is evidence sufficient to create a doubt, yes — then the state has the burden of proof and there must be an instruction so casting it. This is true of every defense excepting those which the statutes provide may be proved by the defendant “in exculpation of his conduct.” KRS 500.070. When a defense is presented in the form of an instruction on a lesser offense, there is an instruction to the effect that if the jury finds the defendant guilty but has a reasonable doubt as to the degree, it must find him guilty of the lesser. Under no circumstances does a defendant have the burden of proof, as in the instance of the Maine statute involved in Mullaney.

With respect to the question of intoxication, relative sobriety (that is, within the context of mental competency) is the usual and normal state of mankind in general. The law gives recognition to this fact of life in the form of a presumption, the effect of which is that in the absence of evidence to the contrary there is no reason to doubt that at any given time or place a defendant was in sufficient possession of his faculties to be accountable for his actions. Hence there is no occasion for an instruction on the subject. As we understand counsel’s Mullaney argument, it is that this has the effect of casting the burden of proof on the defendant, because without any evidence either way the jury has no alternative but to proceed on the unproved premise that the defendant was not incapacitated. The answer to that contention is that unless and until there is evidence reasonably sufficient to ground a doubt in that respect the defendant’s mental capacity at the time of the offense is not in issue. The existence of the presumption does not impose the burden of proof on the defendant, but only the burden of showing that there is a genuine issue of fact, which is a far cry from the burden of proof.

The indictment alleged that Mark and Jim Brown “murdered Bryant Victor Dudley,” without specifying the manner or means by which they did so. As counsel for Mark points out, KRS 507.020 enumerates more than one way in which murder can be committed, and RCr 6.10 requires an indictment to contain “a plain, concise and definite statement of the essential facts constituting the specific offense with which the defendant is charged.” Unquestionably the indictment was defective, but that does not mean it failed to state a public offense or was insufficient to support a conviction. The old Code of Criminal Practice, under which Duncan v. Commonwealth, Ky., 330 S.W.2d 419 (1959), was decided, did not provide as liberally for amending indictments as do the Rules of Criminal Procedure, nor did it authorize a bill of particulars as now provided in RCr 6.22. Trial counsel for Mark having made no effort to require further specification by the Commonwealth, it is to be presumed that he was fully aware of what the prosecution intended to prove. The indictment was loose, but not invalid. See Wylie v. Commonwealth, Ky., 556 S.W. 2d 1 (1977).

The judgment is affirmed.

All concur.

      . There was also a general murder instruction (to which no objection was offered) on the theory that Mark himself killed Dudley, either intentionally or in the course of wanton conduct creating a grave risk of death under circumstances manifesting extreme indifference to human life.

      .It was later determined that the boots traded by Jim Brown bore traces of Type A blood, which was the same type found in blood samples recovered at the scene where Dudley’s body was discovered.

      . Dudley was black. The Brown boys are white.

      . They had gone to college together, and Collins said that he “used to buy marijuana” from Mark.

      . “Mullaney v. Wilbur, 421 U.S. 684 [95 S.Ct. 1881, 44 L.Ed.2d 508] (1975), does not forbid States from requiring the criminal defendant to present at least some evidence to raise a factual issue with respect to heat of passion or self-defense.” Hankerson v. North Carolina, -U.S.-, fn. 3, 97 S.Ct. 2339, 53 L.Ed.2d 306 (decided June 17, 1977).

      . And even when the issue is raised and an instruction is required, the initial presumption does not lose its force, in the sense of requiring the prosecution to come forth with countervailing proof, “unless the evidence tending to support the defense is of such probative force that [otherwise] the defendant would be entitled to a directed verdict of acquittal.” KRS 500.-070(1).


author: STEPHENSON, Justice.

text:
    INTERNATIONAL ASSOCIATION OF FIREFIGHTERS, LOCAL 526, AFL-CIO and Richard Wilson et al., Appellants, v. LEXINGTON-FAYETTE URBAN COUNTY GOVERNMENT, Appellee.
    Supreme Court of Kentucky.
    July 1, 1977.
    Rehearing Denied Oct. 7, 1977.

      John Frith Stewart, Linda J. Wallbaum, Segal, Isenberg, Sales, Stewart & Nutt, Louisville, for appellants.
    James T. Hodge, Commissioner of Law, Charles D. Weaver, Jr., Director, Division of Litigation, Lexington-Fayette Urban County Government, Lexington, for appellee.
   STEPHENSON, Justice.

Without the intervention of a jury, the trial court found the appellant union local in contempt of court for the violation of a temporary restraining order. The trial court imposed a fine of $10,000. We affirm.

International Association of Firefighters, Local 526, AFL-CIO, is a chartered affiliate of the International Association of Professional Firefighters. The local union consists of 340 members of the fire department of the Lexington-Fayette Urban County Government.

A staff member of the international union on the day of his arrival in Lexington advised the mayor that the membership of the fire department would be on strike the next day. Lexington then instituted an action in Fayette Circuit Court against local 526 and certain individuals and obtained a restraining order prohibiting any work stoppage or strike by the named defendants, all other members of the fire department, and all other persons acting in concert with them.

Later, there was an organized strike of more than 300 members of the fire department for a period of 10 days.

In a contempt proceeding for violation of the restraining order, a motion for jury trial was denied, and after an evidentiary hearing, the trial court held the local union and many of the members in contempt. The individuals were fined and given jail sentences which were suspended. They do not appeal. The local union was fined $10,-000.

The local union argues that the trial court erred in adjudging the local union guilty of civil contempt, that the punishment imposed is indicative of criminal contempt, consequently, the local union was constitutionally entitled to a trial by jury when the fine imposed was in excess of $500, citing among other authorities Miller v. Vettiner, Ky., 481 S.W.2d 32 (1972). We are of the opinion Miller is dispositive of this case. We are not disposed to analyze here the local union’s argument with regard to the difference between civil and criminal contempt. Our opinion in Miller covers that subject in great detail.

As to the right to jury trial, we believe the local union did not fully understand the holding in Miller, at page 35:

“To recapitulate, what we are holding is that when the existence or non-existence of a contempt, civil or criminal, requires the resolution of a factual issue the trial court may itself resolve that issue upon the basis of a hearing in which the alleged offender is afforded a fair opportunity to present a defense, but may not in such a case inflict a fine greater than $500 and incarceration for more than six months except upon the unanimous verdict of a jury finding the offender guilty beyond a reasonable doubt. We do not deal with cases in which the contempt is committed in the immediate presence of the court or in which the factual basis for the finding of contempt is otherwise conclusively established, except to point out that in such cases it is imperative, incident to the right of appeal, that the facts be shown by a proper record.” (Emphasis ours.)

In this appeal, the local union concedes that the union members participated in the strike in violation of the restraining order. Thus there was no factual issue for the trial court to resolve in reaching the determination that the local union was in contempt. The limitations imposed in Miller dealt with situations where the trial court resolved a factual issue as to guilt of the contempt and specifically did not deal with a ease such as this where “the factual basis for the finding of eontempt is otherwise conclusively established.” It is implicit in Miller and we hold that where a jury is required to resolve the factual issue of contempt, the jury only finds guilt or innocence. Upon a finding of guilt, the penalty is imposed by the court.

The rationale of the point at which a jury trial in contempt proceedings is constitutionally mandated is characterized by the distinction in the penalty imposed of “petty” or “serious” punishment. Before serious punishment may be inflicted, the con-temnor must first be found guilty beyond a reasonable doubt by a jury.

Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522, (1968), discusses the distinction with respect to the penalty of imprisonment, a penalty of six months being deemed petty, and a penalty in excess of six months deemed serious requiring the intervention of a jury.

Muniz v. Hoffman, 422 U.S. 454, 95 S.Ct. 2178, 45 L.Ed.2d 319 (1975), involved a situation similar to the one presented here. A labor union was denied a jury trial in a contempt proceeding, and after a finding of violation of an injunction, a fine of $10,000 was imposed. There the court is affirming the imposition of the fine. The court said:

“ . . . [W]e cannot accept the proposition that a contempt must be considered a serious crime under all circumstances where the punishment is a fine of more than $500, unaccompanied by imprisonment. It is one thing to hold that deprivation of an individual’s liberty beyond a six-month term should not be imposed without the protections of a jury trial, but it is quite another to suggest that, regardless of the circumstances, a jury is required where any fine greater than $500 is contemplated. From the standpoint of determining the seriousness of the risk and the extent of the possible deprivation faced by a contemnor, imprisonment and fines are intrinsically different. It is not difficult to grasp the proposition that six months in jail is a serious matter for any individual, but it is not tenable to argue that the possibility of a $501 fine would be considered a serious risk to a large corporation or labor union.”

With this rationale we agree and hold that in a disputed factual situation imprisonment beyond six months shall be considered serious punishment requiring submission of the issue to the jury to determine guilt or innocence. Prospectively, we hold that in a disputed factual situation the limitation of a $500 fine without imprisonment, as set out in Miller, is no longer applicable. The determining factor will be whether the fine is “petty” or “serious” and that will be determined within the context of the risk and possible deprivation faced by a particular contemnor.

We are of the opinion that the imposition of the fine of $10,000 is “petty” with respect to the contemnor, a local union with membership in excess of 300 members for a strike of 10 days in violation of a restraining order.

That portion of Local No. 1667, United Auto Workers v. Kawneer Co., Inc., Ky., 490 S.W.2d 747 (1973), in conflict with this opinion is overruled.

We do not regard Otis v. Meade, Ky., 483 S.W.2d 161 (1972), as applicable to this state of facts.

The judgment is affirmed.

All concur.


text:
    Ingrid Anger SULLIVAN et al., Appellants, v. James LEVIN, Intervenor, Appellee.
    Supreme Court of Kentucky.
    July 1, 1977.
    Rehearing Denied Oct. 7, 1977.
    See also, Ky., 555 S.W.2d 263.

      G. Murray Turner, Louisville, for appellants.
    James Levin, pro se, Levin & Yussman, Louisville, for appellee.
   PALMORE, Justice.

The appellants, Ingrid and John P. Sullivan, were the .parties to a divorce action which was brought by Mrs. Sullivan in June of 1974 and culminated in a dismissal at the instance of both parties on January 24, 1975. They appeal from an order awarding a fee of $6250 to Mrs. Sullivan’s attorney, James Levin, against the Sullivans jointly and severally.

The case began and continued for some six months with great bitterness and turmoil between the husband and wife. It ended on a note of sweetness and light between the Sullivans and acrimony on their part toward her lawyer. Upon learning that there had been a reconciliation and that his client wished to dismiss her action Mr. Levin moved for and received permission by the trial court to file an intervening petition against both of the Sullivans demanding a fee of $10,000 for his costs and professional services in behalf of Mrs. Sullivan.

The intervening petition was later supported by Mr. Levin’s affidavit estimating that he had spent 136 hours on the case and had suffered much abuse and emotional trauma in the process. The Sullivans were allowed one week in which to file a counter-affidavit. Meanwhile, they secured another lawyer. No counter affidavit having been timely filed, the trial court entered an order reciting that it was “familiar with all of the ramifications of the ease” and awarding Mr. Levin $6250, including fee and any costs incurred by him. Some days later the Sulli-vans filed a counteraffidavit and their counsel’s affidavit to the effect that the untimeliness of their response had resulted from inadvertence and excusable neglect. They moved that the order allowing $6250 to Mr. Levin be set aside. After a non-evi-dentiary hearing the motion was denied. There was never at any time a hearing relating to the financial resources of the Sullivans, nor is there any evidence in the record from which an assessment of such resources could have been made.

The Sullivans devote considerable argument to the proposition that an intervening petition, particularly against one’s own client, is not an appropriate procedural method for recovering an attorney’s fee. That certainly is true. Nonetheless, we agree with Mr. Levin’s contention that the trial court was authorized to treat it as a motion, so we need not dissipate any further time on the procedural aspect of the argument.

The only statutory provision for the allowance of an attorney fee by the court in a divorce proceeding is KRS 403.220, which was taken verbatim from § 313 of the Uniform Marriage and Divorce Act and reads as follows:

“The court from time to time after considering the financial resources of both parties may order a party to pay a reasonable amount for the cost to the other party of maintaining or defending any proceeding under this Act and for attorney’s fees, including sums for legal services rendered and costs incurred prior to the commencement of the proceeding or after entry of judgment. The court may order that the amount be paid directly to the attorney, who may enforce the order in his name.”

The official comment following this section of the Uniform Laws explains that its purpose “is to authorize the payment of costs and a reasonable fee by one party to the other party’s attorney if the court, after considering the financial resources available to both parties, determines the order to be necessary. The section extends authority to make several orders for costs and fees at different stages of the proceedings, and permits an attorney to enforce the order directly.”

“The provision . . . which sanctions the assessment of attorney’s fees was intended to equalize the status of the parties to the dissolution proceeding. . . . the dissolution of marriage statute, in an effort to eliminate the inequities resulting from the termination of the relationship, provides for attorney’s fees . . . when the relative status of the parties involved indicates the need of such.” In re Marriage of Franks, Colo., 542 P.2d 845, 851-852 (1975).

It is readily apparent that the authority of the court to order the payment of an attorney’s fee in a divorce action does not exist for the protection of the attorney, but is strictly for the benefit of the client. So far as we are advised, the power of a court in such a proceeding to fix the fee payable by one of the parties to his own attorney has never been authenticated in this jurisdiction, and it is not conferred by KRS 403.220. To the extent, therefore, that the allowance in this case was assessed against both of the Sullivans it was clearly outside the scope of the litigation and thus beyond the trial court’s jurisdiction of the subject-matter.

With regard to the husband, who was the party against whom the trial court was empowered to assess all or any part of the fee payable by the wife, it was an error to attempt such an allowance without any evidence from which it could be determined that there was a need for it. In other words, the allowance is authorized by the statute only when it is supported by an imbalance in the financial resources of the respective parties.

The award against Sullivan was erroneous on a second and more fundamental ground as well. A lawyer’s duty to represent the interests and wishes of his client comes ahead of his entitlement to a fee. In the course of that representation he should not do, and in fact is not authorized to do, anything his client would not have him do. A court must assume, of course, that when a lawyer purports to act for a client he has the client’s authority, but when it is brought to the court’s attention by the client, or by another counsel retained by the client, that the attorney is asking the court to do something the client does not want done, then simple common sense dictates that the court should not thereafter let it happen. Yet that is precisely what took place in this case. The moment Mrs. Sullivan indicated her resistance to the motion made by Mr. Levin it should have been denied. We reiterate, the right to have a fee assessed against the other party belongs exclusively to the client. It is not a choice that may be exercised by counsel himself.

The judgment is reversed with directions that the motion be denied.

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

      . CR 24.

      . 9 U.L.A. 497.


author: PALM ORE, Justice.

text:
    Mary Lee P. OLIVER, Appellant, v. Daniel T. YATES et al., Appellees. Daniel T. YATES and J. Smith Hays, Jr., Cross-Appellants, v. Mary Lee OLIVER, Cross-Appellee.
    Supreme Court of Kentucky.
    July 1, 1977.

      David B. Redwine, Winchester, for appellant and cross-appellee.
    William Hays, Winchester, Robert H. Hays, Lexington, for appellees and cross-appellants.
   PALM ORE, Justice.

On a joint petition by the appellant, Mary Lee Oliver, and her husband, Ralph Oliver, the Clark Circuit Court dissolved their marriage. Cf. KRS 403.150(3). Before the decree was entered the parties executed a settlement agreement which provided, among other things, that each party would pay his or her attorney fees. The decree approved the settlement agreement and specified that “each party shall pay his own attorney,” but it further provided that the original counsel for Mary Lee Oliver (whom she had meanwhile discharged) “shall reserve and have the right to bring the issue of the value of his services before this Court by motion in this action at a later date.”

Shortly after the dissolution decree was entered the appellees (and cross-appellants), Daniel T. Yates and J. Smith Hays, Jr., the attorneys mentioned in the decree as original counsel for Mrs. Oliver, moved the trial court to award them a reasonable fee for their services to her. An affidavit detailing the services performed was filed in support. In due course the court entered findings of fact, conclusions of law and a judgment against Mrs. Oliver awarding the attorneys a fee of $6,000. Following proceedings incident to a timely motion to set aside the judgment the trial court entered a final order to the effect that the reasonable value of the attorneys’ services to Mrs. Oliver was $6,000 but that it would be improper for the court to adjudge a recovery of it in behalf of the attorneys against their own client. Both sides appeal.

Our opinion in Sullivan v. Levin, Ky., 555 S.W.2d 261 (decided today) is dispositive. When the attorneys originally representing Mrs. Oliver were discharged by her they ceased to have any interest in or entitlement to be heard on any matter pending in that particular litigation. Their entitlement to a fee and what that fee should be were foreign to the subject-matter of the proceeding and not within the authority of the trial court to consider. Therefore, to the extent that it determined the amount of the fee the judgment as amended by the subsequent final order was in error.

The judgment is reversed on the appeal and affirmed on the cross-appeal with directions that the motion for allowance of a fee be denied.

All concur.


author: JONES, Justice. STERNBERG, Justice,

text:
    Delia G. BELCHER, Kathleen V. Lawton and Clay D. Sharp, Appellants, v. Delmas GISH, Individually, and as Superintendent of the Central City Board of Education, and P. A. Shaver, Jr., William M. Shaver, Marion F. Tinsley, Morris Richey, and Dan Carroll, Individually, and as Members of the Central City Board of Education, Appellees.
    Supreme Court of Kentucky.
    July 29, 1977.
    Rehearing Denied Oct. 7, 1977.

      William P. Donan, Donan & Vick, Green-ville, for appellants.
    Sam T. Jarvis, Jarvis, Cornett & Payton, Greenville, F. C. Bryan, Bryan & Fogle, Mount Sterling, for appellees.
   JONES, Justice.

Mrs. Belcher, Mrs. Lawton and Mr. Sharp prosecute this appeal from an order and judgment sustaining the Central City Board of Education’s motion for summary judgment. The principal question presented is the validity of a regulation adopted by the Central City Board of Education at its monthly meeting on December 5, 1972. That regulation provides:

“Effective immediately, all personnel of the Central City School System shall be required to retire at the end of the school year in which they reach the age of 65 years with the exception of anyone at present under special contract.”

On December 15,1972 the superintendent wrote a letter to Belcher, Lawton and Sharp informing them of the board’s adoption of the regulation.

At the beginning of the school year 1973-74, Belcher, Lawton and Sharp, teachers in Central City’s school system, were more than 65. On May 1,1973 a registered letter signed by the board’s chairman, secretary, and superintendent was sent to Belcher, Lawton and Sharp. That letter follows:

“According to School Law KRS 161.-720(4), after July 1, 1973 you will no longer be on a continuing service contract but rather on a limited contract, therefore there is no legal obligation on the part of the Board of Education to re-employ you. After due consideration, the Board has decided not to renew your contract effective July 1, 1973.
We thank you for the many services you have rendered in the past to the Central City Schools.”

Belcher, Lawton and Sharp requested the superintendent to inform them the reason for their discharge. They also expressed a desire to continue teaching for the 1973-74 school year. On June 4, 1973, the superintendent and the board notified them that:

“The Central City Board of Education has adopted a policy of not hiring teachers whose status changes from a continuing to a limited contract basis.
“Since you are in this classification, you were not rehired for the school year 1973-1974.”

It is the contention of Belcher, Lawton and Sharp that the age policy adopted by the Central City board is invalid. They assert that it violates the Kentucky Constitution as well as the United States Constitution. It is also their contention that the regulation is in conflict with the compulsory retirement age for teachers as defined in KRS 161.600.

The Kentucky Constitution provides that, “The General Assembly shall, by appropriate legislation, provide for an efficient system of common schools throughout the state.” (Ky.Const. Section 183.) Pursuant to section 183, the legislature enacted laws that outlined duties, powers and limitations of various boards of education within the state. These are compiled in Chapters 156 through 163, Kentucky Revised Statutes.

Among other duties, boards of education are empowered to “make and adopt, and may amend or repeal rules, regulations, and bylaws of its meetings . . . and for the qualification and employment of teachers and the conduct of pupils. . . . ” KRS 160.290.

For those teachers who have “toiled long in the vineyard,” the legislature provided a plan for their tenure and retirement. A pertinent provision applicable to this controversy reads:

“The term ‘continuing service contract’ shall mean a contract for the employment of a teacher which shall remain in full force and effect until the teacher resigns or retires or reaches the age of 65, . . . .” KRS 161.720(4).

There is no ambiguity in this provision. It is the opinion of this epurt that it means a continuing service contract ends by operation of law on the sixty-fifth birthday. After age sixty-five the teacher reverts to a non-tenure status, and may be employed at the discretion of the Board of Education upon a limited contract for one year at a time. The cloak of tenure falls from his shoulders, and his reemployment on a yearly basis is dependent on the grace of the board of education. At age seventy the compulsory retirement provision is activated. KRS 161.600. The relation of a teacher and a board of education is contractual. Any legal rights which a teacher has to employment as such must rest on contract. He has no vested right to employment to teach in the absence of contract.

Whether the age policy adopted by the Central City Board of Education is for the best interest of the school system is for it to decide. It is not the function of this court to substitute a policy for that of the board. The legislature reposed that function in its charge.

The right of Belcher, Lawton and Sharp to tenure under a continuing service contract terminated on their sixty-fifth birthday. The Central City Board of Education gave each of them the required notice before May 15, 1973, that they would not be employed for the school year 1973-74. KRS 161.750(2). When that notice was received by them they had neither a continuing nor a limited contract.

In view of the foregoing conclusions the trial court properly sustained the Central City Board of Education’s motion for summary judgment.

The judgment is affirmed.

REED, C. J„ and CLAYTON, JONES, LUKOWSKY, PALMORE and STEPHENSON, JJ., concur.

STERNBERG, J., dissents.

STERNBERG, Justice,

dissenting.

On December 5, 1972, the Central City Board of Education adopted a regulation which provided:

“Effective immediately, all personnel of the Central City School System shall be required to retire at the end of the school year in which they reach the age of 65 years, with the exception of anyone at present under special contract.”

The appellants Belcher and Lawton were each over 65 years of age prior to the 1972-73 school year. The appellant Sharp had his 65th birthday during the 1972-73 school year. Each of them had been teaching under a continuing service contract. The term “continuing service contract” means a contract to teach which remains in full force or effect until the teacher resigns or retires, or reaches the age of 65 years, or until it is terminated or suspended. KRS 161.720(4). Each of the appellants, being 65 years of age or older at the end of the 1972-73 school year, had lost continuing-service-contract status. KRS 161.720(4). Consequently, subsequent employment was pursuant to a limited contract. KRS 161.-750(1). A “limited contract” means a contract for the employment of a teacher for one year only or for that portion of a school year remaining at the time of employment. As to the status of a limited contract teacher, it is provided in KRS 161.750(2):

“Any teacher employed under a limited contract and ineligible for a continuing contract shall at the expiration of such limited contract be deemed re-employed under the provisions of KRS 161.720 to 161.810 for the succeeding school year at the same salary plus any increment or decrease as provided by the salary schedule, unless the employing board shall give such teacher written notice on or before the fifteenth day of May of its intention not to re-employ him; upon request by the teacher, such written notice shall contain the specific reason or reasons why the teacher is not being re-employed. Such teacher shall be presumed to have accepted such employment, unless he shall notify the board of education in writing to the contrary on or before the fifteenth day of June, and a written contract for the succeeding year shall be executed accordingly. (Enact. Acts 1942, ch. 113, § 4; 1944, ch. 98; 1964, ch. 41, § 4; 1970, ch. 169, § 1.)”

Each of the appellants received a letter dated December 15, 1972, advising them of this regulation and also advising them that none of them would be hired for the school year beginning July 1, 1973. Even though the appellants made known to the Board that they desired to continue teaching as they had been, they were advised that they would not be rehired because of their change in status from continuing to limited contract.

The appellants filed suit in the Muhlen-berg Circuit Court seeking a reinstatement to their respective teaching positions, for compensation, and for punitive damages. Appellees’ motion for a summary judgment was sustained. Hence, this appeal.

As taken from their brief, appellants’ complaints are:

“I. Did the lower court err in overruling appellants’ motion for a summary judgment and sustaining appellees’ motion for a summary judgment?
(A) The regulation enacted on December 5, 1972 is violative of KRS 161.600 and is clearly arbitrary and discriminatory and is void.
(B) Age discrimination is arbitrary and capricious and bears no relation to the purpose of education.
(C) The regulation violates the due process clause of the Fourteenth Amendment of the United States Constitution.”

The permissive and compulsory retirement ages for teachers are set out in KRS 161.600. In substance, this statute provides:

“Retirement conditions — (1) Any member who has attained the age of sixty (60) years and who has completed five (5) years of service as a teacher in Kentucky subsequent to July 1, 1941, may retire upon written application to the board of trustees of the teachers’ retirement system. Any member shall be automatically retired as of July 1 following the end of the fiscal year in which he attains the age of seventy (70). Providing, however, That a person reaching age seventy (70) and having fewer than five (5) years of Kentucky service shall receive a refund of his accumulated contributions as provided in subsection (7) of KRS 161.470 in lieu of a retirement annuity.” (Emphasis added).

The Kentucky Constitution provides that, “The General Assembly shall, by appropriate legislation, provide for an efficient system of common schools throughout the state.” (Ky.Const. § 183). Accordingly, the General Assembly has set aside and delegated to the various boards of education the duties, powers and responsibilities to carry out this design. KRS 160.290. Thus, the Central City Board of Education could adopt such rules and regulations pertaining to the qualification and employment of teachers as do not conflict with the United States Constitution, the Kentucky Constitution, or the Kentucky statutes.

In Board of Education of Harrodsburg v. Bentley, Ky., 383 S.W.2d 677 (1964), we said:

“ * * * We have neither the right nor the inclination to substitute our view for the Board’s view as to the exercise of its sound discretion as it relates to matters within the province of the Board’s responsibilities. It does become our function to examine the regulation and determine whether it is unreasonable or arbitrary, and therefore illegal. * * * ”

Illustrative is Johnson v. Dixon, Ky., 501 S.W.2d 256 (1973), in which Howard Johnson and his wife, Janet, both natives of Barren County, Kentucky, were employed by the Hart County Board of Education on one-year contracts to teach at the secondary level. Near the end of the school year they were told by the superintendent that they would not be reemployed at the secondary level because there were two Hart County natives who were available for the positions, and the Board’s policy was to give preference to Hart County natives. The Johnsons were advised they could be employed to teach at the primary level, but they refused. Instead, they brought an action charging that the denial of re-employment at the secondary level was arbitrary and discriminatory and in violation of their constitutional rights. In disposing of the case, this court said:

“Our conclusion is that such a policy would be unconstitutionally discriminatory and preferential, in violation of Sections 1, 2 and 3 of the Kentucky Constitution.”

The case at bar is not one where the Board is attempting to oust the incumbent, but is one in which the Board attempts to disqualify each person who attains the age of 65 years. The compulsory retirement age fixed by the resolution differs from the compulsory retirement age established by statute. It presents a serious issue which has not heretofore been presented to this court. The right of a state to establish a mandatory age of retirement is well established. Cf. 147 A.L.R. 299; Townsend v. County of Los Angeles, 49 Cal.App.3d 263, 122 Cal.Rptr. 500. The right of a district board of education to establish mandatory retirement at an age less than that provided by statute is not so well established.

The General Assembly of Kentucky has spoken on the subject, and we find that,

(1) Retirement is permitted at the age of 60 years. KRS 161.600.
(2) A continuing service contract tenure may continue until the age of 65 years. KRS 161.720(4).
(3) Limited contract tenure is permitted between the ages of 65 and 70 years. KRS 161.600.
(4) Compulsory retirement is at the age of 70 years. KRS 161.600.

The resolution of the Central City Board of Education does not say that persons teaching under a limited service contract status will not be employed. It says, arbitrarily, that persons 65 years of age or older will not be employed. This is a big difference — as a matter of fact, a 5-year difference. We ascribe to the proposition that there is a fundamental right to seek and pursue a lawful occupation; however, appellants have no fundamental right to teach in the Central City school system. That right comes to them by statute, which the Board cannot abrogate.

In Roppel v. Shearer, Ky., 321 S.W.2d 36 (1959), this court said, “Whenever the Board adopted regulations which conflicted with the statute, this court has consistently refused to sustain the regulations.” In Louisville & Nashville R. Co. v. Commonwealth, Ky., 488 S.W.2d 329 (1972), we held that, “A conflict exists between an ordinance and a statute when the ordinance permits conduct which is prohibited by statute or prohibits conduct which is permitted by statute.”

The prohibition provided by the resolution is employment beyond 65 years of age. The statute prohibits employment beyond 70 years of age. Thus, the resolution does not permit conduct which is prohibited by statute. It does, however, prohibit conduct which is permitted by statute in that it prohibits employment beyond 65 years of age, when the statute permits employment to 70 years of age.

The legislature has established the policy on age, and it is not within the authority of the Board to deviate from it.

I respectfully dissent.


author: STERNBERG, Justice.

text:
    Quford DAVIDSON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    July 29, 1977.
    Rehearing Denied Oct. 7, 1977.

      Jack E. Farley, Public Defender, Edward C. Monahan, Asst. Public Defender, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., Patrick B. Kimberlin, III, Asst. Atty. Gen., Frankfort, for appellee.
   STERNBERG, Justice.

The Letcher County Grand Jury indicted appellant for the murder of Gary Combs. KRS 435.010. On trial he was found guilty of willful murder and his penalty fixed at life imprisonment. The indictment against appellant and a codefendant, Butch Brock Thornsberry, is dated October 21,1974, and they were tried together on July 23 and 24, 1975. On the day the trial was scheduled to commence, counsel for appellant orally moved the court for a continuance, based on the absence of a material witness. His oral motion was reduced to writing. The prosecuting attorney objected to the continuance and to the written statement being read to the jury. Counsel for codefendant Thorns-berry likewise objected to a continuance. The court denied the continuance and denied appellant the privilege to read the statement to the jury. Appellant’s motion and grounds for a new trial, which included an objection to the court’s refusal of a continuance, was denied on July 30, 1975.

On this belated direct appeal appellant raises four issues. He contends that the trial judge abused his discretion in denying the continuance and that, by reason thereof, the judgment of conviction against him should be set aside and he be granted a new trial.

The absent witness is Mike Hale. In substance, appellant states that Hale was present when Gary Combs was shot to death and that he has tried continually since his indictment to locate and to contact Hale and have him present for the trial, all without success. He says that he first learned of Hale’s whereabouts on July 21, 1975; that he is working in a restaurant in the community of New Port Ritchie, Florida; and that he has not been able to contact Hale.

First of all, appellant claims to have first learned of Hale’s whereabouts on July 21, 1975. However, it was not until the case was called for trial on July 23 that the court first knew there was such a witness, much less that he could not be located. No subpoena for Hale’s attendance was secured by appellant until July 22, one day before the trial and at a time when he knew that Hale was out of the state. Such a request and issuance naturally was utter folly. The written motion for a continuance is not based on appellant’s firsthand knowledge of Hale’s whereabouts, but it is made from information furnished to him by someone else. At a prior term of court appellant announced ready for trial, without the presence of Hale. During the time and on the occasion that the difficulty occurred, which resulted in the death of Gary Combs, Hale was staying at the home of Brenda Strat-ton, but no showing was made that there was any attempt to locate Hale through that source. Brenda was present with Hale on the occasion when Gary Combs and some other young men came to her home inquiring about appellant. However, Brenda was not called on as a witness, nor was any reason shown why she was not used. The facts which Hale is supposed to be able to furnish are either cumulative or available from Brenda Stratton.

In the conduct of a trial the judge is vested with wide discretion. RCr 9.04. The granting of a continuance on account of absent witnesses rests within the sound discretion of the trial court, and his action will not be disturbed except where it is clearly shown that there has been an abuse of discretion. Cornwell v. Commonwealth, Ky., 523 S.W.2d 224 (1975). The record in the instant case does not reflect an abuse of discretion on the part of the trial judge in refusing to continue the trial as requested by appellant.

Next, appellant objects to the trial court’s instructions, contending, first of all, that the court should have instructed the jurors that they could find the appellant guilty of murder only if the Commonwealth proved beyond a reasonable doubt the absence of sudden affray and sudden heat of passion, and, secondly, that the court should have directed a verdict of acquittal on the murder charge.

RCr 9.54(2) provides:

“No party may assign as error the giving or the failure to give an instruction unless he has fairly and adequately presented his position by an offered instruction or by motion, or unless he makes objection before the court instructs the jury, stating specifically the matter to which he objects and the ground or grounds of his objection.”

In Hopper v. Commonwealth, Ky., 516 S.W.2d 855 (1974), this court said:

“* * * It is now the duty of the accused to assure himself that the jury is properly instructed at the time of submission. If the instructions do not meet with his approval, then he must timely offer other instructions or make known to the trial court his objection to those given, together with the grounds supporting his objection. Hopper failed to observe the mandate of RCr 9.54(2). Consequently, he did not preserve for appellate review any objection to the instructions given by the trial court.”

Preparatory to instructing the jurors on the law of the case, the trial court inquired of appellant’s counsel whether he had any instructions to offer, to which he replied in the negative. Thereupon, the court proceeded to instruct the jury without any instructions being offered by counsel for appellant or any objection from him to the instructions that were given. This issue was not preserved for appellate review.

The sequestering of a jury in the trial of a felony case is mandatory, unless otherwise agreed upon by all counsel. RCr 9.66. In the subject action the trial lasted two days. The jury was kept together overnight. In the affidavit filed with appellant’s motion for a new trial, he stated that he had discovered, and he asserts that one of the jurors, Joe Colbert, violated the sequestering order. The juror was named, but he was not brought before the court to verify his challenged conduct, nor was his written statement or affidavit relating to the facts of the alleged irregularity filed. As a matter of fact, the appellant did not reveal how he discovered the irregularity, if there was such an irregularity, or whether appellant merely learned through rumors that the sequestering order was violated. This sort of evidence is hardly sufficient to support a charge of violation of the sequestering order or to place on the Commonwealth the burden to show that no opportunity for the exercise of. improper influence existed. The irregularity was not called to the court’s attention until appellant filed his motion and grounds for a new trial. This was five days after the conclusion of the trial. No explanation is given as to why this matter was not sooner brought to the court’s attention. Also, there is nothing in the record to disclose when counsel first learned of the alleged irregularity. In Smith v. Commonwealth, Ky., 366 S.W.2d 902 (1962), this court held that since the question was raised for the first time in the motion for a new trial, it came too late. The action of the trial judge in denying appellant’s claim of error was proper.

Appellant contends that he did not receive effective assistance of counsel on his trial. In Foster v. Commonwealth, Ky., 507 S.W.2d 443 (1974), in dealing with a similar issue, we said:

“Foster filed a supplemental brief, pro se, in which he claims ineffective assistance of his trial counsel (a different lawyer than the ones prosecuting this appeal.) The trial court was not made aware of this complaint during the trial nor was this contention contained in the motion for a new trial, therefore this ground was not preserved for appellate review. RCr 9.22. * * *”

In Caslin v. Commonwealth, Ky., 491 S.W.2d 832 (1973), we stated:

“Another assignment of error is that appellant had inadequate legal representation. He cites several examples to support his contention. The question of inadequacy of counsel was never presented in the lower court. This is not an error therefore that is reviewable on direct appeal. * * *”

This point was not raised in the lower court and has not been preserved for appellate review.

The judgment is affirmed.

REED, C. J., and PALMORE, STEPHENSON, CLAYTON and STERNBERG, JJ., sitting.

All concur.


author: PARK, Judge.

text:
    Oscar R. WHILDEN et ux., Appellants, v. Ray COMPTON et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 4, 1977.
    As Modified On Denial of Rehearing March 25, 1977.
    Discretionary Review Denied June 8, 1977.

      Hobson L. James, L. A. Faurest, D. Michael Coyle, Elizabethtown, for appellees.
    Larry D. Raikes, Hodgenville, for appellants.
    Before PARK, VANCE and WILHOIT, JJ.
   PARK, Judge.

Oscar R. Whilden, Jr., and his wife, Ann Whilden instituted this action in the Hardin Circuit Court alleging that Ray Compton and his wife, Lillian Compton, had trespassed upon property owned by the Whil-dens. The Whildens sought to recover damages for the trespass and an injunction against any further trespass by the Comp-tons or their agents and employees. The dispute arose when the Comptons attempted to open a new access road to a trailer park which they owned and operated adjacent to the property of the Whildens. The Comptons’ predecessors in title were joined by third party complaints. The Nolin RECC was joined as a co-defendant because it cut trees in the process of providing electrical service to the trailer park. Following a trial before the court without a jury, a judgment was entered in the Hardin Circuit Court dismissing the Whildens’ complaint. The Whildens appeal.

This dispute can best be understood by reference to a sketch or plat which is attached to and made a part of this opinion. The property owned by the parties is located immediately south of the Fort Knox military reservation in Hardin County, Kentucky. Mr. and Mrs. Compton are undertaking to open a new access road to their trailer park at point “Z” on the plat. From point “Z”, traffic from the Compton’s trailer park would proceed southeastwardly along what is known as the Hinton Road to its intersection with the Safari Road. From the Safari Road, traffic could then proceed along one of the main roads into Fort Knox. The Comptons contend that Hinton Road is a public road and that their property abuts upon the right of way of Hinton Road. As the owners of property abutting on the right of way, the Comptons contend that they had a right to open the access road at point “Z”.

On the other hand, Mr. and Mrs. Whilden claim that Hinton Road is not a public road north of its intersection with Safari Road. The Whildens also assert that their property extends to the line “A-B”. Thus, the construction of the access road at point “Z” would constitute a trespass upon the property of the Whildens. On appeal, the Whil-dens raise two grounds for reversal of the judgment of the circuit court. First, the Whildens assert that the circuit court erred in holding that Hinton Road was a public road. Second, even if the Hinton Road was a public road, the circuit court erred in holding that the Whildens’ northeast property line did not extend beyond the east right of way line of Hinton Road.

Prior to 1943, the property north of the land in question was privately owned. Hinton Road extended north to the Vine Grove-Fort Knox Road. During World War II, the United States Government expanded the Fort Knox military reservation by acquiring the land immediately to the north and east of the Whildens’ farm, including the land of the Comptons. The army closed Hinton Road north of point “B” to public travel, but there was evidence that the Army continued to use Hinton Road in order to gain access to the reservation property. In the 1960⅛, the tract of land east of the Whilden property was declared to be surplus by the United States Government, and it was sold at public auction. The Comptons subsequently acquired a portion of this surplus government land, containing 20 acres.

There was no evidence that Hinton Road was established by statutory proceedings or that there had ever been any formal dedication and acceptance of Hinton Road as a public road. However, a public road can also be established by general and long continued use of a passway by the public. Sometimes the public road is established under the theory of dedication by estoppel. Freeman v. Dugger, Ky., 286 S.W.2d 894 (1956). The public’s right to use a passway may also be established by prescription by adverse user for a period of 15 years. Cummings v. Fleming County Sportsmen’s Club, Ky., 477 S.W.2d 163 (1972). In a memorandum opinion, the circuit court made the following finding:

“Without repeating all of the evidence in this case, which is voluminous, the Court will merely state that the evidence is overwhelming that Hinton Road has existed as a public road for more than 60 years.”

Under CR 52.01, this court cannot set aside the finding of the circuit court unless it is clearly erroneous.

In finding that Hinton Road was a public road, the circuit court relied upon a number of different facts in the testimony. Claude Hinton, a nephew of a former owner of the Whilden tract, testified that the Hinton Road had been used by the public for 60 years. A number of families lived along the road in the area now within the Fort Knox military reservation. One of the owners maintained a blacksmith shop business which was patronized by the general public. According to Claude Hinton, the county repaired or improved Hinton Road in 1922. Charles Roberts was familiar with the road in the 1930’s and testified that Hinton Road was served by a rural mail route and that the county would grade the road about once a year. A 1938 aerial photograph introduced into the evidence clearly shows that Hinton Road was open from the Safari Road to the Vine Grove-Fort Knox Road. Hinton Road was not a cul-de-sac as was the passway involved in Cummings v. Fleming County Sportsmen’s Club, supra, which was cited by the Whil-dens. There was also evidence that the Army has continued to utilize Hinton Road as a means of access into the Fort Knox military reservation. The finding by the circuit court that Hinton Road was a public road is not clearly erroneous, and it will not be set aside by this court.

Although the Army has blocked public travel over that portion of Hinton Road within the Fort Knox military reservation, the Army has continued to use the road as a means of egress and ingress. Hinton Road was not legally closed pursuant to KRS 178.070, Freeman v. Dugger, supra, nor was it abandoned or closed for a period of more than 15 years. Lovins v. Denney, 311 Ky. 48, 223 S.W.2d 352 (1949). The circuit court did not err in holding that Hinton Road north of the Safari Road was still a public road.

Even if Hinton Road is a public road, the Whildens assert that the access road is being built by the Comptons on land owned by the Whildens that is outside the right of way of Hinton Road. The Whildens’ argument is based upon the assumption that their boundary line commences at point “A” on the plat, runs thence to point “B”, and from there to points “C”, “D”, “E”, “F”, “G”, “H”, “Y”, “X” and “AA” before returning to the beginning at point “A”. Point “A” is very close to the edge of Hinton Road. However, as Hinton Road proceeds northwestwardly, it veers away from line “A-B” for some distance. At point “Z”, Hinton Road is 48 feet from line “A-B”. The Whildens’ predecessors in title had maintained a loading chute and tobacco beds in the area between the east edge of Hinton Road and the line “A-B”. The Whildens have mowed grass and cleaned the area east of the road since they acquired the property in 1962.

The Whildens’ claim is based in large part upon the fact that the line “A-B” follows a very old fence line. The existence of this old fence line on the east side of the road is not in dispute. In addition, the evidence also established that there has always been a fence line on the west side of the road between points “AA” and “BB”. The circuit court concluded that the two fence lines, “A-B” and “AA-BB”, marked the right of way of Hinton Road.

The Whildens attempted to establish the line “A-B” as their east boundary through the testimony of the surveyor, Urban E. Schaffner. The only other surveyor to testify, T. J. Patterson, was appointed by the court to survey the boundary. Patterson testified that he was unable to locate the boundary. The question presented is whether the circuit court was compelled to accept the conclusion of Schaffner that the line “A-B” represented the true boundary. This court concludes that there was substantial doubt as to the accuracy of Schaff-ner’s opinion at both point “A” and point “B”.

Schaffner testified that he located a stone in a post oak at point “C” as called for in the deed to the Whildens. From point “C”, Schaffner ran a line to a hickory marked with a nail at point “B”. Two reasons exist for doubting Schaffner’s location for point “B”. First, the Whildens’ deed calls for two post oaks, rather than a hickory. Second, as run by Schaffner, line “C-B” was 1,380 feet long rather than 80 poles (1,320 feet) as called for in the deed. As Schaffner could not locate the two post oaks called for in the deed, he was not justified in extending the call beyond the distance specified in the deed in order to reach the hickory tree at point “B”. White v. Philpot, 221 Ky. 529, 299 S.W. 173 (1927).

The location of the southeast corner of the Whilden property requires a discussion of an exception in the deed to the Whildens for a tract conveyed in 1931 by a predecessor in title to the Whildens. According to Schaffner, the exception or “sell off” tract was bounded by lines from point “AA” to “X” to “Y” to “I” and back to point “AA”. In Schaffner’s opinion, the Whildens owned the road and the property east of the road down to point “A”. This projection was referred to as the Florida Peninsula. Several things must be noted about these conclusions of Schaffner. First, Schaffner located point “AA” at a large black oak although the deed calls for stone rather than a black oak. It should be noted that the black oak at point “AA” is approximately 60 feet west of the fence post at “A” selected by Schaffner as the beginning point of the Whildens’ property. Second, the line “Y-X” as run by Schaffner had a length of 990 feet, some 23.1 feet less than the 61% poles (1,013.1 feet) called for in the deed. As located by Schaffner, point “X” is in the fence line between “AA” and “BB”. The 1931 deed calls for a stone in the road. If line “Y-X” was extended to the full distance called for in the deed, it would terminate in the middle of the Hinton Road. There is no justification for Schaffner’s assumption that Whildens’ predecessor in title did not intend to convey to the center of the Hinton Road. Hensley v. Lewis, 278 Ky. 510, 128 S.W.2d 917, 123 A.L.R. 537 (1939).

The deed to the Whildens contains a call to a stone. Schaffner did not find this stone, and the circuit court was not required to accept Schaffner’s conclusion that the stone should be located at the post at point “A”, rather than the large black oak at point “AA”, or some point in the center of the Hinton Road.

The trial court made the following findings of fact:

“The property of the Plaintiffs has been fenced along the west side of the road, and a fence line existed along the east side of the road, although at places the road was some distance from the fence as it meanders around sink-holes and other obstructions.
“This Court sees no merit whatever to the claim of the Whildens. The Plaintiffs have proven no superior or any right to this land, and are claiming it just because it is there. It is rather apparent that, being the last residents on the road before the Reservation begins, they have decided to usurp the road and the unused land to the east of the road, and have convinced themselves in their own minds that it is theirs.
* * * * * *
“This Court is of the opinion * * * that'Hinton Road is a public passway and is bounded on the east by the old fence line and its extension, and that this is also the boundary line of the Compton land on the west; further, that the right-of-way of the passway on the west is the existing fence along the Whilden land and where the fence ceases to exist the ruts of the old road on to the Military Reservation boundary. The Court further finds that none of the parties have any right whatever to interfere with the free and unrestricted use of this roadway, and that the Comptons may use it and the right-of-way as ingress and egress to their property.”

In so holding, the circuit court relied upon the following rule enunciated by the Court of Appeals in a prescriptive easement ease:

“Where, as is usually the case, the pass-way is not enclosed, the extent of the user is necessarily marked by wagon tracks or beaten way, since there are no other evidences of continuous use under claim of right thereto, and there is no notice to the owner of the servient estate of either an adverse claim or use outside of the beaten path. But, when, as here, the beaten path was enclosed by fences forming a lane, all parties are thereby notified that the use under claim of right thereto extended not only to the beaten path, but to the fences, and, such use having been allowed to continue as a matter of right for the statutory period, in our judgment the adverse claim to use the lane as a passway ripened into a right.” Haffner v. Bittell, 198 Ky. 78, 248 S.W. 223 (1923).

The Whildens attack these findings by the circuit court on basically two grounds. First, it is unreasonable to assume that the right of way to the east of Hinton Road would leave 30 to 60 feet of vacant land. As the deed to the United States from the Comptons’ predecessor in title described the boundary by reference to the land of the Whildens’ predecessor in title, there must be a common boundary between the Comp-tons and the Whildens. Next, it is argued that the circuit court found the west boundary of the Comptons’ property to be the old fence line fixed by the line “A-B” on the plat. As the parties have a common boundary, the circuit court did make a finding of fact that the line “A-B” represents their eastern boundary.

Such reasoning completely distorts the circuit court’s findings of fact. First, the Whildens’ deed does not fix the eastern boundary of their property by reference to the land of the Comptons or their predecessors in title. Even if the old fence line shown by the line “A-B” on the plat represented the western boundary of the Compton’s property, it does not follow that the Whildens have proved title to all property west of that line. Because of the difficulty in locating the northern and eastern corners of the Whilden property, the circuit court clearly held that the Whildens had failed to prove title to any land east of Hinton Road. When the Whildens’ predecessors in title conveyed out the ten acre tract, they did so by reference to Hinton Road. The building of a fence near a road does not establish the fence as a boundary line when the deeds call for the road as the boundary line. Hensley v. Lewis, supra. In the present ease, neither the old fence line on the east side of the road (line “A-B”) nor the fence on the west side of the road (line “AA— BB”) has any particular significance in fixing the boundary between the property of the parties.

This court has carefully reviewed all of the exhibits as well as the transcript of the evidence. The court concludes that the circuit court did not err in dismissing the complaint.

The judgment of the circuit court is affirmed.

All concur.


author: HOWERTON, Judge.

text:
    Julia Lamb MASON, Appellant, v. Ernie MASON, Appellee. Julia Mason KIDWELL and Edgar Kidwell, her husband, Appellants, v. Ernie MASON and Myrtle Mason, his wife, Appellees.
    Court of Appeals of Kentucky.
    March 11, 1977.
    Discretionary Review Granted Sept. 13, 1977.
    Joseph E. Lambert, Mt. Vernon, for appellants.
    Jerry J. Cox, Mt. Vernon, for appellees.
    Before HOWERTON, GANT and PARK, JJ.
   HOWERTON, Judge.

Appellant, Julia Mason Kidwell, and Ap-pellee, Ernie Mason, were formerly husband and wife. On March 22, 1974 their marriage was dissolved in an uneontested petition filed by Appellant.

During their marriage, the parties acquired two tracts of land in Rockcastle County, Kentucky, both parties having been named as grantees on both Deeds of Conveyance.

In the divorce action, Mrs. Kidwell’s petition alleged the existence of marital property. However, in her deposition given in evidence, she said that there was not any marital property. The following is found in her deposition:

Q24. Is there any marital property involved in this litigation?
A. No. We lived together for twelve or thirteen years and he bought some property during that time and accumulated some money so far as I know [sic]. However, I am just anxious to be free and I don’t want anything he has, I want to be free so I can go and see my children whenever I want and he won’t let me.
Q26. Are you now asking the court to grant you a dissolution of your marriage with the respondent, Ernie Mason, and asking for nothing more than that?
A. That’s right.

Some two years later on March 27, 1976, Mrs. Kidwell filed suit in the Rockcastle Circuit Court seeking the judicial sale of this “jointly-owned and indivisible real property.” On April 23, 1976, Mr. Mason moved the court to re-docket the original divorce action to “correct the judgment entered herein so as to order the plaintiff to execute a deed to the defendant for his property. . . . ”

The court re-docketed the original divorce action and consolidated it with Mrs. Kid-well’s action, and thereafter granted Mr. Mason’s Motion for Summary Judgment.

We believe that the logic expressed in Dague v. Dague, Ky., 411 S.W.2d 941 (1967) under the old statute, is still applicable under the present law and that the procedure followed there is appropriate. Therefore, despite a two year delay in resolution of this property issue, the court properly entered this supplemental judgment.

The major issue before this court, and one of the points relied upon by the trial court in its judgment was whether or not Mrs. Mason-Kidwell had waived all rights to the marital property. It is our opinion that the record sustains the finding of the trial court that Mrs. Mason waived her interest in any marital property held by the parties during their marriage. There is sufficient evidence to sustain the finding that there was a waiver which necessarily includes the finding that Mrs. Mason’s actions were voluntary and intentional. This opinion is buttressed by the fact that it was brought to this court’s attention that Appellant was encouraged by her attorney during the divorce proceedings to seek her share of marital property and yet even with this advice, Appellant chose not to do so. Likewise, it is noteworthy that the final judgment used in the divorce decree which made no reference to property was prepared by Appellant’s own attorney.

For the above-stated reasons, judgment below is affirmed.

All concur.


author: GANT, Judge.

text:
    Mary R. PRIDDY, Appellant, v. Loretta C. SWIMME, Appellee.
    Court of Appeals of Kentucky.
    April 8, 1977.
    As Modified On Denial of Rehearing June 10, 1977.
    Discretionary Review Denied Sept. 13, 1977.

      Jack E. Ruck, Louisville, for appellant.
    Edward F. Rectenwald, Louisville, for ap-pellee.
    Before GANT, HOWERTON and WHITE, JJ.
   GANT, Judge.

The sole issue presented in this case is whether the trial court erred in failing to set aside a default judgment entered in this action under the facts and circumstances presented therein.

Appellant and Appellee were involved in an automobile collision on April 22, 1975, and on July 2, 1975, Appellee filed a civil action in the Jefferson Circuit Court against the Appellant. Summons was issued on the Appellee’s complaint and was attempted to be served at the address given in the accident report made by the police officers immediately following the accident, that address being a Louisville address. The original summons was returned with the notation that the Appellant was not found and the further notation “Moved Out — Address Unknown.”

Immediately thereafter, Appellee amended her petition and alleged that the Appellant had become a non-resident of Kentucky and requested summons be issued against the Secretary of State, furnishing to the Secretary of State the same address which was furnished to the Sheriff of Jefferson County and at which address the Appellee knew the Appellant did not live. The same police report which contained the address of the Appellant further contained her Indiana automobile plate number and the correct driver’s license for the Appellant. There was no showing herein that the Appellee made any attempt to secure from the proper authorities in Indiana the address given for the Appellant on either the registration plates or the driver’s license. Parenthetically, the address given on both of these was the address of the Appellant’s mother, and Appellant had returned to a house trailer owned by her mother and situated on the property of her mother at that address.

After process attempted by the Secretary of State was returned “Unclaimed,” Appel-lee proceeded to obtain a default judgment against the Appellant and damages were assessed in the amount of $11,571.33. In May of 1976, and within one year of the default judgment, the Appellant moved to vacate judgment pursuant to CR 60.02, on the grounds that the trial court lacked jurisdiction over the person of the Appellant and alleging that the judgment entered therein was void. It is from the order overruling this motion that this appeal was taken.

In an unbroken line of cases, including Hirsch v. Warren, 253 Ky. 62, 68 S.W.2d 767 (1934); Hertz’ You Drive It Yourself System v. Castle, Ky., 317 S.W.2d 177 (1958); and Begley v. Kilburn, Ky., 545 S.W.2d 926 (1976), the court has held that it is “mandatory that plaintiff furnish the Secretary of State the defendant’s correct address.” There has probably been some confusion as to the meaning of “correct address” and a confusion with this phrase and “last known address.” Certainly, where the plaintiff knows that the address furnished to the Secretary of State is not the correct address, and in this case where the return on the summons was “Moved Out — Address Unknown,” the plaintiff cannot say that she furnished the “correct address.” Both the Hertz case, supra, and the Begley case, supra, contain the statement that any judgment entered in such an action is void.

There was considerable evidence herein that the insurer knew of the pendency of the motion for a default judgment some ten to twelve days prior to the hearing thereon and that the attorney for the insurer elected not to raise objection to insufficiency of service at the hearing. There are no cases in this Commonwealth holding that notice to the insurer constitutes notice to the insured.

For the reasons above stated, the judgment herein is reversed and the case is remanded.

All concur.