author: PARK, Judge.

text:
    YELLOW CAB COMPANY OF LOUISVILLE, INC. and Michael J. Woods, Appellants, v. James W. CRUME et al., Appellees. James W. CRUME, Cross-Appellant, v. Albert VOGT et al., Cross-Appellees.
    Court of Appeals of Kentucky.
    April 1, 1977.
    Rehearing Denied July 1, 1977.

      James Highfield, Ed Rectenwald, Fred E. Fisher, Louisville, for appellees.
    Joseph Davis, L. Stanley Chauvin, Jr., Louis N. Garlove, Louisville, for appellants.
    Before HOWARD, LESTER and PARK, JJ.
   PARK, Judge.

This case arises out of a series of rear end collisions between four vehicles traveling in the same direction on a four lane street in the City of Louisville. At the close of all of the evidence, the circuit court directed a verdict on the issue of liability in favor of the plaintiff who was the driver of the third vehicle in line, against the owner and operator of a taxicab which was the fourth vehicle in line. The circuit court also directed a verdict in favor of the operators of the first two vehicles in line. The jury then returned a verdict on the issue of damages in favor of the plaintiff, Crume, against the Yellow Cab Company and its driver, Woods, for $47,624.09. The Yellow Cab Company and Woods appeal on the ground that the circuit court erred in directing a verdict against them in favor of Crume. They also claim the circuit court erred in directing a verdict in favor of the first two drivers, Miller and Bickett. In a cross-appeal, Crume also claims that it was error to direct a verdict in favor of Miller and Bickett.

The four vehicles were being operated in a southerly direction on Twenty-Second Street. In the vicinity of its intersection with Algonquin Parkway, Twenty-Second Street is a four lane street with two north bound and two south bound lanes of traffic. South of Algonquin Parkway, Twenty-Second Street intersects Dixdale Avenue. South of Dixdale Avenue, Twenty-Second Street curves to the left or east and becomes Bernheim Lane. The four lane street continues as Bernheim Lane in an easterly direction to Dixie Highway, a main north-south artery.

For traffic traveling south, Twenty-Second Street and Bernheim Lane appear as a single continuous four lane street. At the point where the four lane street curves to the east and becomes Bernheim Lane, Twenty-Second Street continues to the southwest as a two lane side street.

All four vehicles were traveling south on Twenty-Second Street — Bernheim Lane with the intention of making a right turn onto Dixie Highway at its intersection with Bernheim Lane. There were three separate collisions. The first and second vehicles (Miller and Bickett) collided; the second and third vehicles (Bickett and Crume) collided; and the third and fourth vehicles (Crume and Woods) collided. The first impact occurred between the two lead vehicles, Miller and Bickett. However, there is a dispute among the parties as to whether the second impact was between Crume and Bickett or whether Crume was first struck by Woods and propelled into Bickett’s automobile. There is also dispute with respect to the lane in which each vehicle was traveling immediately prior to the various impacts. However, it is clear that all of the vehicles were either in, or attempting to get in the curb or outside right lane of traffic in order to make a right turn at Dixie Highway.

The first question presented is whether the circuit court erred in directing a verdict in favor of Crume against the Yellow Cab Company and its driver Woods. This question involves two issues: (1) Was Woods negligent as a matter of law? (2) Was Crume free from contributory negligence as a matter of law? The second question is whether the circuit court erred in directing a verdict for Miller and Bickett on the ground that any negligence on their part was not a substantial factor in causing Crume’s injuries.

Woods testified that he had been following Crume in the median or inside left lane of traffic on Twenty-Second Street. In describing his collision with Crume, Woods testified:

“A. Well, at Dixdale there I was going to turn right on Dixie so I proceeded to turn the signal on and pull over into the right lane, and I got all the way over in the right lane except for about my left rear wheel. Mr. Crume pulled over all the way along, you know, all of a sudden like; and the next thing I heard there was a crash and Mr. Crume came to an abrupt stop and I hit him in the rear end.
* * * * * *
Q.34 What did you see Mr. Crume’s car do after he cut across in front of you?
A. Come to an abrupt stop.
Q.35 Now, what did your taxicab do when Mr. Crume came to an abrupt stop?
A. Hit — well, it just hit Mr. Crume in the rear end.
* * * * * *
Q.159 Were you checking your mirror at any time when you were making this cut across from one lane in to the other?
A. Yes, sir.
A. 160 When were you checking your mirror?
A. When I — right before I decided to change lanes.
Q.161 Alright. About how many car lengths were you behind the Crume vehicle when you started cheeking your mirror?
A. About two, two and a half.
Q.162 Alright. And which mirror was it that you checked?
A. Rear-view inside.
Q.163 When you were about two and a half car lengths behind?
A. Yes, sir.
Q.164 Alright. Then you looked in your mirror. Then you looked ahead and the Crume vehicle was coming to a halt; is that correct?
A. Yes, sir.”

Woods further testified that his left front fender struck the rear bumper of Crume’s pickup truck.

Crume testified that he was following Bickett’s automobile in the right or curb lane of Twenty-Second Street. As they approached Dixdale Avenue, both Crume and Bickett pulled into the inner or left lane of traffic in order to go around an automobile which was turning right into the two lane continuation of Twenty-Second Street. At that point Crume observed that Bickett was following Miller’s pickup truck which was also being operated in the median or left lane of traffic. As the street continued into Bernheim Lane, all three vehicles attempted to get into the curb or right lane of traffic.

Crume testified that, as Bickett entered the right lane of traffic, he saw Miller’s pickup truck pull in front of Bickett. Crume did not see any signal given by Bickett, and he testified that Bickett’s automobile blocked his view of any signal that Miller might have given. Crume further testified that Bickett brought his automobile to a stop when Miller’s pickup truck cut in front of him. Crume testified:

“Q.198 At least, you said when Mr. Bickett apparently realized or saw the pickup truck coming across that Mr. Bickett began to stop and also turned his vehicle to the right as far as he could get over against the curb?
A. That’s true.
Q.199 And you don’t really know — or at that point you don’t really know whether the pickup truck had actually contacted Mr. Bickett’s car or not?
A. No. I seen he was pretty close.
Q.200 But Mr. Bickett did come to a stop, what you describe as something less than a panic stop or an abrupt stop, and at that time there was no contact between your vehicle and Mr. Bickett’s vehicle at all?
A. No, sir, there wasn’t.
Q.201 Then after Mr. Bickett remained stopped there for some time and you remained stopped there for some time you were struck from the rear by the cab?
A. Yes sir.
Q.202 Then that impact is what knocked you into the rear of Mr. Bickett?
A. That’s true.
Q.203 And up to that time there had been no contact between you and Mr. Bickett?
A. No sir, it hadn’t.
Q.204 And the entire impact between your car and Mr. Bickett’s took place in the extreme right hand or curb lane of traffic?
A. He was all the way over and I was more in the right lane than I was in the left. I hadn’t completely got in the right lane.”

Crume estimated that he had been stopped “about three seconds” when he was struck from the rear by the Yellow Cab. Crume testified that he looked in his rear view mirror before changing lanes, but Crume stated that he never was aware of the taxicab prior to being struck. According to Crume, all of the vehicles were traveling at approximately 20 m. p. h. before slowing to change into the right or curb lane of traffic. He estimated that he was three car lengths behind Bickett as they started to change lanes, and that he brought his truck to a stop six feet behind Bickett’s car.

Bickett testified that he was in the right or curb lane of traffic on Twenty-Second Street when he passed through the intersection at Algonquin Parkway. Bickett stated that he never moved into the median or left lane of the street. According to Bickett, he continued to operate his car in the curb or right lane of traffic until Miller’s pickup truck suddenly cut in front of him without signal or other warning. The right rear of Miller’s pickup truck made slight contact with the left front of Bickett’s car. He then brought his car to a stop. He was not aware of being struck by Crume’s pickup truck until he inspected the vehicles after all of them were stopped. Bickett further testified:

“Q.66 How far ahead of you was Mr. Miller?
A. It was probably I was off to his bumper — I mean back fender.
Q.67 And you came on around the curve?
A. Yes.
Q.68 And you were still about the same—
A. Yes.
Q. Were you overtaking him?
A. No.
Q.70 Were you pulling even with him?
A. I would say yes.
* * * * * *
Q.79 Did you ever blow your horn?
A. Where.
Q.80 When he began to cut over?
A. No.
* * * * * *
Q.92 Well, what I’m trying to distinguish, Mr. Miller didn’t make a sudden hard turn, did he? Did he just ease over in that lane just like everybody said they were doing changing lanes?
A. I guess it was more or less an easing.
Q.93 He was just easing it over, and you saw him gradually beginning to ease his truck over; didn’t he?
A. Why gradually, I don’t know what you mean — where he was. He was probably on the line to begin with.
Q.94 All right, sir. And you knew he was coming over there, didn’t you?
A. No, I didn’t until he come over. * * * * * *
Q.101 How many times had you traveled over that same road?
A. Probably every day, four or five years or however long its been there.
Q.102 And you were up on his right rear wheel with the front of your bumper, I guess? Is that about the way you were traveling along?
A. I would say yes.
Q.103 And your intention was to turn right onto Dixie Highway; wasn’t it?
A. Right.
Q.104 And generally speaking the traffic that goes through there at that time of day does turn right onto Dixie Highway; doesn’t it?
A. Yes.”

Bickett was never aware of the presence of Crume or the Yellow Cab to his rear prior to bringing his car to a stop.

Miller testified that he was operating his pickup truck in the median or left hand lane of traffic. As he passed a car that was turning right into the two lane continuation of Twenty-Second Street, Miller started to change lanes so that he could make a right hand turn at Dixie Highway. Miller testified that he turned his turn signal on prior to starting into the curb or right hand lane of traffic. Miller testified:

“Q.58 Now, shortly before this accident occurred you were in the left center most lane intending to change lanes in to the right side, right lane?
A. Correct.
Q.59 And that your pickup truck was equipped I believe, with what we call west coast type mirrors?
A. That is correct.
Q.60 That is a big mirror that sits on each side of the door and hangs out about the size of a cigar box or something?
A. That is correct.
* * * * * *
Q.64 I assume from the fact that Mr. Bickett was over there in the right lane that you didn’t see his automobile before you started to cross?
A. I did not.
Q.65 And presumably his automobile would have been in the blind spot in the mirror?
A. This is possible.
Q.66 Because you did look in the mirror?
A. Yes sir.
* * * * * *
Q.72 Now at some point and time after you starting changing lanes did you ever see the Bickett automobile or was there anything that called your attention to the fact that it was there?
A. When the tires started screaming I glanced in my mirror again and I seen the cars were there.
******
Q.16 Put your initials there.
A. At the time I started to pull over I heard a tire screaming. I glanced into my side view mirror. This truck, it has already been testified was equipped- with rear-view mirrors. I glanced over there. I seen him, Mr. Bickett’s car. Very close behind it I seen what later turned out to be Mr. Crume’s * * * Immediately after hearing the tires scream I heard a large crash, the sound being back like that. Looking in my mirror again I noticed there had been a collision of the cars, I pulled into the curb, stopped and went back.”

Miller did not observe any collision between Crume and Bickett or Crume and the Yellow Cab. Miller concedes that the right rear of his pickup truck came into contact with the left front of Bickett’s automobile.

This court concludes that a jury issue was raised with respect to the negligence of each of the drivers. According to Wood’s theory of the case, he had almost completed bringing the taxi into the curb or right hand lane of traffic when Crume cut in front of him and brought his truck to an abrupt stop. The position of the vehicles after the accident lends some credence to Woods’ theory. The taxicab was stopped entirely within the right lane of traffic while Crume’s automobile was still partially in the median or left lane of traffic. Under KRS 189.380(1), both Woods and Crume were under a duty not to turn their vehicles from a direct course upon the highway by changing lanes until such movement could be made with reasonable safety. Both drivers had a duty to maintain a lookout ahead and to the rear in attempting to change from the left to the right lane of traffic. Lockridge v. Mercer, Ky., 438 S.W.2d 486 (1968); Campbell v. Markham, Ky., 426 S.W.2d 431 (1968); Hainline v. Hukill, Ky., 383 S.W.2d 353 (1964). As he had a duty to maintain a reasonable lookout to the rear, Woods was not necessarily negligent when he looked in his rear view mirror rather than maintaining a lookout ahead at all times. It was for the jury to determine whether Woods was acting as a reasonably prudent man under the traffic conditions at the time.

The jury could have believed from the evidence that Crume should have seen the collision between Miller and Bickett developing in front of him if he had been maintaining a proper lookout. The jury could also have believed that a reasonable lookout to the rear would have revealed that Woods was already turning his taxicab into the right or curb lane. Under such circumstances, there would be a jury issue whether Crume could attempt to change lanes with reasonable safety under the circumstances. For the foregoing reasons, the court concludes that the circuit court erred in directing a verdict for Crume against the Yellow Cab Company and Woods.

Miller’s argument that he was not responsible for Crume’s injury is not based upon any claim that he was not negligent. Miller states that any negligence on his part was not a substantial factor in causing Crume’s injuries. This argument is based upon Crume's testimony that he and Bick-ett were both able to bring their vehicles to a gradual stop without colliding. While this testimony may be binding on Crume, it would not be binding on the Yellow Cab Company and Woods on their cross-claims for contribution against Miller. The fact that both Crume and Bickett may have actually stopped before being struck from the rear by the Yellow Cab does not lead to the conclusion that Miller’s collision with Bickett was not a substantial factor in the collision between Crume and Woods. Crume would not have brought his car to a halt but for the fact that Bickett had stopped in the street because of the collision with Miller. According to Woods, Crume brought his automobile to an abrupt stop. All three collisions occurred within a very few seconds of each other. All three of the collisions occurred in close proximity to each other. There was a jury issue whether any negligence on the part of Miller was a substantial factor in causing the collision between the Yellow Cab driven by Woods and Crume’s automobile. S. W. Corum Hauling, Inc. v. Tilford, Ky., 511 S.W.2d 220 (1974); Stunson v. Easley, Ky., 469 S.W.2d 58 (1971). For the reasons set forth in S. W. Corum Hauling, Inc. v. Tilford, supra, the decision in Donegan v. Denney, Ky., 457 S.W.2d 953 (1970) is clearly distinguishable.

A closer question is presented relating to any negligence on the part of Bick-ett. According to Bickett, there is no evidence that he was negligent. Bickett takes the position that Miller was solely responsible for the initial collision with his automobile and that, in any event, he was able to bring his automobile to a gradual stop in such a way that the following car, Crume, was able to stop without incident. This court does not agree that there was no evidence of negligence on the part of Bick-ett. According to his own testimony, Bick-ett pulled up even with the rear bumper of Miller’s pickup truck. Bickett was not warranted in assuming that Miller would not attempt to change lanes, cf. Capps v. Violett, Ky., 488 S.W.2d 695 (1972). This is particularly true since Bickett knew that most traffic turned right at Dixie Highway. Bickett was driving in Miller’s “blind spot” with his front bumper even with Miller’s rear bumper. Under the circumstances, a jury might believe that Bickett did not exercise ordinary care to avoid collision with Miller. Furthermore, Crume testified that Bickett had been driving in the median or left lane of traffic, and that all three vehicles were attempting to change lanes. Miller testified that he gave a turn signal before commencing to change lanes. If Bickett was following Miller in the median or left lane, then he must have changed lanes and attempted to overtake Miller on the right. Under all of the circumstances, this court concludes that there was a jury issue with respect to Bickett’s negligence. For the reasons set forth above with respect to any negligence on the part of Miller, we also conclude that there was an issue whether any negligence on the part of Bick-ett was a substantial factor in causing the collision between Crume and Woods’ Yellow Cab.

As a directed verdict was granted in favor of Bickett and Miller, their attorneys did not have an opportunity to argue the question of damages. Consequently upon a retrial of the case, the question of damages must be submitted to the jury as well as the issue of the negligence of each of the four drivers.

The judgment of the circuit court is reversed on the appeal and on the cross-appeal.

All concur.


source: Caselaw Access Project

author: HOGGE, Judge.

license: Public Domain

text:
    James Edward NELSON, Movant, v. Paul E. MARTIN, Respondent.
    Court of Appeals of Kentucky.
    April 1, 1977.
    Discretionary Review Granted June 29, 1977.

      Stanley R. Hogg, Creech & Hogg, Ash-land, for movant.
    David 0. Welch, Ashland, for respondent.
    Before HOGGE, COOPER and REYNOLDS, Judges.
   HOGGE, Judge.

This appeal arises from an action for wrongful death filed by the appellant, on behalf of the estate of the deceased, Douglas Nelson, against appellee, Paul E. Martin. Upon completion of the pleadings, defendant moved for a summary judgment. Copies of the motion, supporting affidavits, and notice that a hearing would be held on the motion on January 31, 1976 were served on counsel for appellant. The appellant failed to appear at the hearing on the motion and failed to timely submit memoranda or supporting affidavits. After consideration of the pleadings, memoranda, and affidavits of record on January 31, 1976, the court entered summary judgment for the defendant and the plaintiff appeals.

During the afternoon of August 9, 1975, decedent, Douglas R. Nelson, left his home in Greenup County, Kentucky in the company of his cousin, Robert Rayburn. They proceeded in Rayburn’s automobile to Chesapeake, Ohio. Sometime during the evening Rayburn was arrested for driving under the influence of alcohol and placed in jail in Irontown, Ohio. Nelson was not arrested and was left without transportation.

Nelson was not seen again until sometime after 5:00 a.m., on August 10, 1975. According to testimony of appellee, he first saw Nelson lying about 25 feet away in the southbound lane of Route 2 in Greenup County, Kentucky. He applied his brakes, skidded 20 feet, and struck Nelson, dragging him approximately 50 to 60 feet. Ap-pellee stopped, removed Nelson from the highway, went to a nearby house and telephoned police and an ambulance, then returned to the scene of the accident to await the police and ambulance. Nelson died en-route to the hospital.

The appellant, James Edward Nelson, Administrator of the Estate of Douglas R. Nelson, filed his complaint on October 2, 1975, alleging appellee negligently operated an automobile which struck and killed Douglas R. Nelson. On January 19, 1976 appellee filed a motion for summary judgment with supporting affidavits. The motion was set for hearing on January 31, 1976 and notice was given. On January 31, 1976 a hearing was held on the defendant’s motion for summary judgment. Through an oversight, attorney for plaintiff failed to appear. On February 2, 1976 the court entered an order directing that the motion for summary judgment stand submitted upon the record as of January 31, 1976 and set the matter for hearing on February 21, 1976. On February 18, attorney for the appellant moved the court to permit him to file a response to the Motion for summary judgment and supporting affidavits. On February 21, the court overruled plaintiff’s motion and entered an order granting defendant’s motion for summary judgment. It is from that judgment plaintiff below appeals.

The evidence is that the deceased had not been to bed since arising early on the morning of the 9th of August; that the autopsy revealed that the decedent’s blood-alcohol level was .10%; that the speed of the appel-lee’s automobile immediately before the accident was approximately 20 miles per hour; that, due to fog and darkness, visibility was limited to 25 to 60 feet; and that when the decedent was first seen by the appellee he was lying across the road. In the order granting summary judgment, the court ruled that the decedent was contribu-torily negligent as a matter of law and that the doctrine of last clear chance was not applicable in this situation.

Appellant sought to introduce two additional affidavits, after the January 31 hearing on the motion for summary judgment, however the court ruled on the motion on the record as of January 31, 1976. The first of the affidavits sought to be introduced by the appellant was pure hearsay and, as such, was in violation of CR 56.05 wherein it provides that all supporting affidavits must be made on personal knowledge of the affiant and set forth such facts as would be admissible in evidence. The other affidavit, that of Terry Miller, was to the effect that the affiant had driven over the road where the accident occurred shortly after the accident and that, although there was patchy fog, the fog at the scene of the accident when he passed was “not bad” and that visibility was approximately 100 feet. This testimony does not bear directly on the visibility at the time and place of the accident and may only, at best, imply that the visibility at the time and place of the accident was better than the testimony of the other witnesses indicated. It is upon this affidavit alone that appellant predicates his claim that there exists a material issue of fact on the question of last clear chance so as to render the summary judgment in error.

Neither of the above affidavits, however, were of record either on January 31, 1976 when the hearing was held, or on February 2, 1976 when the court ordered the case would stand submitted for consideration as of January 31, 1976. In the February 2nd order, the court gave the parties until February 21st to prepare to come before the court to argue on the record as it then stood.

Appellant cites the case of Conley v. Hall, Ky., 395 S.W.2d 575 (1965) in support for his contention that it was error for the court to refuse to accept for consideration the affidavits he submitted on February 18, 1976. In that case the court held:

This case was not finally ‘heard’ on the motion [for summary judgment] until October 11,1962, because it was not ripe for decision until that date. By that time the plaintiff had filed two additional depositions which conclusively established a genuine issue of a material fact.

At pages 581-82 the court explained:

We do not mean to say that the ‘hearing’ under CR 56.03 is not terminated until the court rules on the motion. The ‘hearing’ date generally is the cut-off time for the filing of additional material, as in Mills v. Reserve Life Insurance Company, Ky., 335 S.W.2d 955 (cited above). This contemplates however, that a hearing actually be held and that the merits of the motion are ready for final submission.

In this case there was an actual hearing, even though plaintiff failed to attend the hearing, and an order entered February 2nd, clearly stated the motion for summary judgment would stand submitted on the record as of January 31,1976, thereby prohibiting the parties from filing anything additional thereafter. Accordingly, we find no error in the trial court’s refusal to accept additional affidavits submitted by the appellant on February 18, 1976.

Without the affidavit of Terry Miller, there is obviously no genuine issue of a material fact. There was no other evidence that the appellee did or could have discovered the peril of Nelson in time to avoid the accident, so as to bring this action within the last clear chance doctrine.

Additionally, the relevancy of Miller’s affidavit, if admitted in the record, would be subject to very serious question. He stated that he did not see the accident nor the body at the scene of the accident, but he did remember meeting an ambulance near the scene. Assuming this to be the Wright ambulance, it would have been some twenty to thirty minutes after the accident that Miller saw the accident scene, and the ambulance, as it was shown in evidence, that it took Wright some fifteen to twenty minutes to reach the accident after he had received the phone call. Thus his testimony as to visibility at the time of the accident would lack relevancy.

The decision of the Boyd Circuit Court is hereby affirmed.

All concur.


author: LESTER, Judge.

text:
    Ancil DUNN, Movant, v. Jay CONLEY, Jr., Respondent.
    Court of Appeals of Kentucky.
    April 1, 1977.
    Discretionary Review Granted June 29, 1977.
    Ronald G. Combs, Cooper, Gullet & Combs, Hazard, for movant.
    Cordell H. Martin, Hindman, for respondent.
    Before HOWARD, PARK and LESTER, Judges.
   LESTER, Judge.

Ancil Dunn sustained injuries while driving on Kentucky Highway 80 when the car owned and operated by Goldie Compton Collins collided with the right side of Dunn’s vehicle. Dunn sued Collins. Jay Conley, Jr., as administrator of the Estate of Goldie Compton Collins, became party defendant by substitution due to Collins’ unrelated death prior to trial. The jury returned a verdict for the defendant. Dunn then moved the court for a judgment notwithstanding the verdict or for a new trial. The court sustained plaintiff’s motion for a new trial and upon retrial the jury awarded plaintiff damages of $103,-081.34. Defendant appeals from the judgment citing as error the grant of the new trial. We reverse since in our opinion substantial evidence supported the first verdict and no other ground existed to justify setting the original verdict aside.

The parties agree that at about nightfall on November 21, 1972, three vehicles proceeded west on Kentucky Highway 80 near Knott County, Kentucky. The lead vehicle, a pickup truck operated by Jay Conley, Jr., rounded a curve and pulled over onto the wide shoulder on the right-hand side of the road in order to check his mailbox. Just beyond the mailbox, a small side road which leads to Jay’s residence joins the Highway. From this point, the parties dispute the events leading up to the accident. Appellant claims that Goldie, who had been following her friend Jay, put on her signal to turn right onto the road to Jay’s house when appellee, having come from the bend at a high rate of speed went partially over onto the shoulder in an attempt to pass Goldie on the right. Appellee counters asserting that he had slowed his car to about 10 miles an hour when, the car in front of him crossed over the double yellow lines completely out of his lane. He assumed that he could continue safely, but Goldie suddenly swerved right thus causing the crash.

The course of this litigation, which has involved two trials in essentially the same manner, but with opposite results, has had an unusual procedural history. After the court had ordered another trial, the defendant moved the court to advise him of the error which compelled its decision so that he might avoid the error on retrial. The court then informed the defendant that in granting the new trial, it did not rely on two of the grounds stated in plaintiff’s motion, erroneous instructions, or a juror allegedly absenting himself from the rest of the jury during deliberations. While we admit that this narrows the field of possible errors, it does little to enlighten either the defendant or this Court.

Appellee seems to claim that at the first trial, the court directed a verdict for him on the question of negligence and only submitted the issue of damages to the jury. Therefore, to follow the appellee’s logic, the jury, by ignoring the trial court’s instructions, committed such misconduct so as to necessitate a new trial. Appellee has steadfastly maintained that the facts entitled him to a directed verdict. Perhaps this diligence caused the second counsel for the appellee in his brief to mistakenly attribute to the trial judge a statement made by the prior attorney for the appellee in his closing argument. From this misquote stems the appellee’s theory about the directed verdict. However, even a cursory glance at the record reveals that counsel, at both trials, argued the matters of negligence and damages. The court in the second trial, after overruling motions for a directed verdict, instructed the jury as to the duties of both parties. Although we have not been furnished with the instructions in the first trial, we assume that appellee would have at some time during the second trial mentioned to the court that he had received a peremptory instruction on negligence had this in fact happened.

The verdict not being sustained by sufficient evidence, or being contrary to law, provides the only ground on which the trial court could have based the order of another trial. Consequently, in light of the conflicting testimony, which would permit a verdict for either party, Woods v. Asher, Ky., 324 S.W.2d 809, 811 (1959) disposes of this appeal. In that case, the Court wrote:

It is the function of the jury to determine questions of credibility and issues of fact where the evidence is conflicting. While the trial court has a broad judicial discretion in granting or refusing a new trial, it may not set aside a verdict of a jury because it does not agree with the verdict if there was sufficient evidence to support it.

We reverse the judgment and direct the court to enter judgment for defendants on the original verdict.

All concur.


text:
    DEPARTMENT FOR HUMAN RESOURCES Commonwealth of Kentucky, Appellant, v. Sarah Fletcher MOORE et al., Appellees.
    Court of Appeals of Kentucky.
    April 8, 1977.
    Rehearing Denied July 1, 1977.

      J. William Hernandez, Dept, for Human Resources, Office of the Counsel, Frankfort, for appellant.
    Paul F. Fauri, Michael C. Davis, Appalachian Research and Defense Fund of Kentucky, Inc., Prestonsburg, for appellees.
    Before HOWARD, LESTER and PARK, JJ.
   LESTER, Judge.

On November 10, 1974, the Department for Human Resources petitioned the Martin Circuit Court pursuant to KRS 199.600 for an involuntary termination of the parental rights of Bennie and Sarah Moore. Judge Sparks heard the evidence and on December 11, 1975, signed orders terminating the parental rights of the appellees to each of their nine children. The parents then moved the court to make additional findings of fact and amend the judgment or in the alternative moved for a new trial pointing to the failure of the court to find the facts specifically as required by CR 52.01. Judge Hazelrigg who had been elected to succeed the retiring Judge Sparks, heard the motion and ordered that a transcript of the evidence be prepared and that a supplemental hearing be held for additional testimony. On May 7, 1976, the court made findings of fact and conclusions of law and entered an amended judgment which set aside the judgments terminating the parental rights of appellees and ordered the nine infant children returned to the appellees. The Department appeals from this judgment.

The record in this case chronicles the life of a poor mountain family — too many children in too small a space, an unstable marriage, and the absence of the conveniences, facilities or knowledge that attends a comfortable income. Yet in order for the Department to succeed in the termination of parental rights, it must show more than the existence of poverty. It may be that if the Department had put on the case that the facts warranted Judge Hazel-rigg would have rendered a judgment in accordance with the Department’s petition. However, we do not believe that the evidence here demonstrates sufficient neglect for us to find that the circuit court abused its discretion.

The Department in making out its case offered evidence from nine witnesses. The complaining witness, Loretta Martin, in November of 1973, received a phone call which resulted in her investigating the Moore’s home situation. She found the children living in three separate homes and in one of these, Mrs. Moore’s grandmother informed Mrs. Martin that she did not have enough space to keep the children any longer. Mrs. Martin then obtained two temporary custody orders covering all nine children and despite some procedural irregularities, the children have remained in the custody of the Department. Mrs. Martin testified as to the unsanitary condition of the children as she found them and the lack of progress that she felt Mr. and Mrs. Moore had made in providing a home which would have allowed them to regain custody of their children, but she had never personally observed the Moores as a family unit. Sally Mueller, a social worker, visited the house four times prior to the removal of the children and found Mrs. Moore at home twice. Mrs. Mueller testified that she observed adequate physical furnishings. Mary Schmidt, a social service supervisor, viewed the home once before the Department took the children but did not testify that she had witnessed any neglect. Lila Adams, a home health nurse for Martin County Health Care and a neighbor of Mrs. Moore, offered the most extensive statement tending to show that the children did not receive proper care. Mrs. Adams had made numerous visits to the home both in her professional capacity and as a friend. She told of the unhealthy environment of the home and that Mrs. Moore occasionally overlooked administering medicine to her sickly infant twins. She also said that she noticed that the older boys frequently missed school, that Mr. Moore’s drinking caused Mrs. Moore on many occasions to take the children out of the home and that during the time of Mr. Moore’s imprisonment for child neglect, Mrs. Moore would often leave the children unsupervised for extended periods of time to go to the store. However, Mrs. Adams also expressed a strong desire to adopt one of the children should the Moores’ parental rights be terminated. None of the remaining witnesses, foster care workers, had observed the Moore children in the home with their parents.

Unfortunately, the people who could have presented the most informative evidence about the Moores’ family life had left the employ of the Department and did not testify. Mrs. Mullins, a homemaker, had been placed in the Moore home and had substantial contact with the Moore family, but she did not appear although she had been subpoenaed. Raymond Kirk, the social worker who had been directly involved with the Moores from 1972 to 1973, could not be brought into court. Nor could the Department obtain the presence of Dan Warzenski whose social work reports interjected one of the most troublesome aspects of this case. On the whole, the bulk of these reports indicate neglect, but in his last report of October 18, 1972, we find this statement:

. I’m real (sic) uncertain about proceeding with a dependency hearing at this point and I feel we have handled the case inadequately. We have but heresay information and the witnesses I had in mind are leaning towards leaving the children in the home. Maybe I was wrong and exaggerated the weaknesses too much .

Clearly this language undercuts Mr. War-zenski’s prior accounts and sheds doubt on the Department’s entire case.

Appellant in its brief argued that the judgment of Judge Sparks could not be reversed by Judge Hazelrigg unless clearly erroneous. Apparently realizing that Carpenter v. Evans, Ky., 363 S.W.2d 108 (1962) held directly contrary to this position appellant in its reply brief next expounds the theory that since Judge Hazelrigg essentially tried the case upon depositions, the Court of Appeals can review the record and make a de novo determination. The Department selects a paragraph from 7 Clay, Kentucky Practice, 3rd Ed. Civil Rule 52.01 at 162 (1974) to support this proposition. However, nothing in that paragraph suggests so radical a result when we take into account that it reads,

(i)t is submitted that the “clearly erroneous” criterion is sufficiently elastic to permit the reviewing court to adopt a method of review which best fits the questions involved and the particular facts in the specific case under consideration. Certainly the court should not ignore the findings of the trial judge simply because his conclusions were based on testimony taken by deposition. On the other hand, the reviewing court should not be bound by the trial court’s findings if convinced the doubtful credibility of the witnesses has led the trial judge to a wrong conclusion. As a practical matter, the Kentucky Court of Appeals will probably review a case tried on deposition according to its concept of what is most appropriate and fair in the administration of justice.

With the proper standard of review in mind, we next turn to the applicable statutes KRS 199.600 and 199.011. KRS 199.600(1) provides, “(i)n a proceeding involving a neglected or abandoned child, as defined in KRS 199.011, the circuit court may terminate all parental rights of the parents of such child . . . ” KRS 199.-011 defines an abused or neglected child to be

a child whose health or welfare is harmed or threatened with harm when his parent, guardian or any other person: inflicts or allows to be inflicted upon the child, physical or mental injury by other than accidental means; creates or allows to be created a risk of physical or mental injury to the child by other than accidental means; commits or allows to be committed an act of sexual abuse upon the child; willfully abandons or exploits such child; does not provide the child with adequate care and supervision; food clothing and shelter; education; or medical care necessary for the child’s well being .

The wording of these statutes leads us to the conclusion that in proceedings of this nature the trial court has a great deal of discretion to determine whether the child fits within the abused or neglected category and whether the abuse or neglect warrants termination. But in terminating parental rights, the court must state specifically the facts which justify its decision. This Judge Sparks did not do. Judge Hazelrigg reviewed the transcript of evidence and heard additional testimony at a supplemental hearing. In making the findings of fact, he decided that the Department had not made the required showing. Even if we may have reached a different result, we cannot find so convincing a case in the tangled evidence of this record to allow us to reverse the court below.

Judgment is affirmed.

All concur.


author: GANT, Judge.

text:
    Lucien J. CERWIN et al., Appellants, v. Merrill TAUB et al., Appellees.
    Court of Appeals of Kentucky.
    April 8, 1977.

      S.Arnold Lynch, William H. Ballard, Lynch, Sherman, Cox & Fowler, Louisville, for appellants.
    R. Lawrence Baird, Tarrant, Combs & Bullitt, Louisville, for appellees.
    Before GANT, HOWERTON and WHITE, JJ.
   GANT, Judge.

This is an action which wandered through various chambers of the Jefferson Circuit Court for 52 months and concerns a foreclosure action on the Mayflower, a large apartment-hotel in Louisville, in which a restaurant was operated as a separate business.

On March 13, 1972, IIT, a real estate investment trust, whose trustees are Appel-lees herein, filed a foreclosure action against Ormsby, Inc., the mortgagor of a $620,000.00 mortgage on the aforesaid Mayflower. The Appellants were made defendants in this action as holders of a $255,-000.00 junior lien on this property. On March 31, 1972, a receiver was appointed for the Mayflower and on June 13, 1972, a receiver was appointed for DCL Enterprises, Inc., a tenant which operated a restaurant on the premises and which corporation was thereby placed in receivership. On May 19, 1972, a default judgment was entered against Ormsby, Inc. on behalf of IIT and a sale ordered to satisfy this judgment. The Appellants were awarded a default judgment on a cross-claim on June 13, 1972. The property was sold on June 19, 1972, after spirited bidding, and the Appellants became the successful bidder for the sum of $765,000.00. Appellants were apparently bidding for and on behalf of an assignee who subsequently ran into difficulty and was unable to perform and this occasioned a default in performance on behalf of the Appellants after the sale was confirmed on July 14,1972. It should be pointed out that this assignment was never made a part of the record and the assignee was not a party to this action, although he was a party to a companion action which was considered at the same time but never consolidated with this action.

After Appellants failed to perform, the Appellees moved to set the sale aside on October 27, 1972, and asked the court to resell the property for the account of and at the risk of the Appellants.

On November 17, 1972, the Appellants moved the court to be permitted until January 3, 1973, to comply with their original purchase and on November 20, 1972, an order was entered which provided, inter alia, as follows:

(1) That the confirmation of the first sale be set aside;

(2) That the $5,000.00 cash deposit paid by the Appellants at the first sale be applied to the costs and interest of the action;

(3) That the property be resold “for the account of and at the risk of the original purchasers, except that the purchaser at such sale shall be required to make a cash deposit of $50,000.00 with the Commissioner at the time of the sale unless such purchaser be the plaintiffs”;

(4) That the Appellants be given until January 3,1973, to comply with their bid, in which event this order would be set aside.

The Appellants were apparently unable to comply with their bid at the first sale and on January 8, 1973, the property was resold and IIT was the only bidder, purchasing the property for $520,000.00.

It is important at this time to stop and consider the parties before the court as of the time of the entry of the order above referred to, November 20, 1972. The original action was against Ormsby, Inc. and it had been disposed of by the default judgment. DCL had been placed into receivership and the order of receivership dated June 13, 1972, clearly removed DCL as a party. The sole entities with whom the court was dealing on November 20, 1972, were the appellee, mortgagor; Appellants, junior lienholder and purchaser at the first sale; and the two receivers, one for Orsmby and one for DCL.

The Commissioner’s report of sale was filed on January 8,1973, and from that time until the second sale was confirmed without objection on August 10,1973, the only activity in this action was the filing of various claims with the receivers and orders establishing fees and payment of various sums to and on behalf of the receivers. In November of 1973 and March of 1974, the two receivers were released and discharged and this action again lay dormant until October 4,1974. From that time until June 6, 1975, various motions were filed and orders tendered and finally an agreed order was entered referring this matter to the Commissioner of the Jefferson Circuit Court for his ruling on certain questions posed therein and, in effect, on all of the motions and tendered orders which had been previously filed. The Commissioner filed his report on December 8, 1975, in essence holding that all matters concerning the amount of the deficiency, credits, counter-offers, etc., would have to be held in abeyance until the court passed on whether the order of the court entered on November 20, 1972, was a final order from which an appeal could have been taken at that time or an interlocutory order, and that only after the court determined that matter would the Commissioner take under consideration the amount of deficiency to which the plaintiffs are entitled.

After a request by the Appellants to modify the November 20, 1972, order and tender of an order declaring that the November 20, 1972, order was, in fact, a final order, the court, on July 23, entered its order declaring that the November 20,1972, order was a final order within the meaning of CR 54.01 at the time of its entry and that this July 23, 1976, order was a final order, appealable, and that there was no just reason for delay in its entry. It is from this July 23, 1976, order that the Appellants appeal.

The Appellants raise two issues in their briefs and by their oral arguments heard by this Court. The first is that the November 20, 1972, order of the Jefferson Circuit Court was an interlocutory order and not final and appealable within the meaning of CR 54.01 since it did not adjudicate all the rights of all the parties. Second, Appellants urge that if this Court determines that this order was interlocutory and therefore subject to later modification, the Appellants, as defaulting bidders at the first judicial sale, should be relieved from liability for any deficiency at the second sale because of the increase in the required cash deposit from $5,000.00 to $50,000.00 on the grounds that this was a material change in the terms of the sale.

Simply stated, the Appellants urge that the November 20, 1972, order was not a final order under the provisions of CR 54.02 as it involved multiple parties, multiple claims, and failed to include the magic words “There is no just reason for delay” and “This order is final.” Appellees contend that the November 20, 1972, order was, in fact, a final order within the definition contained in CR 54.01 in that it adjudicated all of the rights of the parties in the action then pending.

As the Court has previously pointed out, the entities involved in this litigation on November 20,1972, were the Appellants, the Appellees, the receiver for Ormsby, Inc. and the receiver for DCL Enterprises, Inc. The case of Atlantic Trust Co. v. Chapman, 208 U.S. 360, 28 S.Ct. 406, 52 L.Ed. 528 (1908), which case was cited with approval in the case of Crump and Field v. First National Bank of Pikeville, 229 Ky. 526, 17 S.W.2d 436 (1929), held that a receiver “is an indifferent person between the parties; an officer of the court appointed on behalf of all parties . . . the creature, and arm, of the court.” It is the opinion of this Court that the receiver for Ormsby, Inc. and the receiver for DCL were not “parties” within the definition of multiple parties as required by CR 54.02.

We are then faced with the question of whether there were multiple claims as required for CR 54.02 to apply. It is true that numerous suppliers and materialmen had filed claims herein with the two receivers for Ormsby, Inc. and DCL but none of these persons were parties to this action and their claims merely awaited apportionment from the funds received when the property was ultimately sold and required administrative acts on behalf of the receivers only. It is our opinion that these were not claims within the meaning of CR 54.02.

There are numerous cases in Kentucky holding that an order directing property to be sold in satisfaction of a judgment was, in fact, a final judgment and that the only purpose of retaining the case on the docket was to enforce the judgment. In Elam v. Acme Weil Drilling Co., Ky., 411 S.W.2d 468 (1967), we find the following language:

That judgment not only “definitely settled the issues between the parties, * * but also specifically ordered the property sold in satisfaction of the * * * judgment.” Johnson v. Beattie et al, 265 Ky. 264, 96 S.W.2d 762. It was a final judgment since it determined the rights and authorized enforcement. McCormack v. Moore, 273 Ky. 724, 117 S.W.2d 952. There was nothing more for the Court to adjudicate, therefore, the judgment put an end to the controversy between the parties. Adkins v. Carol Mining Company, 281 Ky. 328, 136 S.W.2d 32. The order to the Sheriff to sell the property was a direction to perform an administrative act. The necessity to enter his report did not prevent the judgment from being final and appealable.

See also Sickmeier v. Merchants and Mechanics Loan and Building Assn. of Newport, 291 Ky. 182, 163 S.W.2d 475 (1942), involving a resale of property after the purchaser at the first sale failed to comply, in which the Court of Appeals determined that the order of resale was final and ap-pealable.

The only objections raised to the November 20,1972, order were apparently oral objections made by the Appellants in open court, according to the affidavit filed by attorneys for the Appellants. The record contains no written objections, nor was any action taken by the Appellants pursuant to CR 59.05 to perfect a motion to alter or amend the judgment or to vacate the judgment and enter a new one within ten days after the entry of the judgment. No appeal was taken from that judgment and it is the opinion of this Court that, inasmuch as the November 20, 1972, order was final, the second point raised by the Appellant is moot.

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

All concur.


author: WHITE, Judge.

text:
    ALL-AMERICAN MOVERS, INC., Jimmy Creech, and Glen D. Creech, Appellants, v. Commonwealth of KENTUCKY, ex rel. Ed W. HANCOCK, Attorney General, Appellee.
    Court of Appeals of Kentucky.
    May 20, 1977.
    Rehearing Denied July 1, 1977.
    Rose & Martin, Williamsburg, for appellants.
    Ed W. Hancock, Atty. Gen., Kenneth A. Howe, Jr., Asst. Deputy Atty. Gen., William W. Pollard, Asst. Atty. Gen., Frankfort, for appellee.
    Before WHITE, HOWARD and COOPER, JJ.
   WHITE, Judge.

This action arose when the Attorney General of the Commonwealth of Kentucky filed suit pursuant to Ky.Rev.Stat. § 15.060 [hereinafter cited as KRS] to recover monies paid to appellants. However, before discussing the issues in this case, it is appropriate to describe the factual background.

During the last half of 1971, the Commonwealth of Kentucky was preparing for occupancy of the then new Capitol Plaza Office Building in Frankfort, Kentucky. Competitive bids were solicited via invitations to bid pursuant to KRS 45.360 for the moving of certain effects of state agencies from their present locations to the Capitol Plaza Building. Among the recipients of these invitations was Glen D. Creech, president of All-American Moving and Storage d/b/a Hulette Transfer.

All-American Moving and Storage did submit a bid and as a result, on November 17, 1971, the Division of Purchases, Department of Finance, Commonwealth of Kentucky, awarded Price Contract No. PCT 532-1272 to All-American Moving and Storage for “. . . moving services of various state agencies from their present location to the Capitol Plaza Building.” (emphasis added)

Jimmy Creech, who is the son of Glen D. Creech, testified in his January 9, 1974 deposition that in February of 1972 he contacted then Governor Wendell Ford and discussed with him the movement of some two million dollars worth of new furniture from storage in the Capitol Plaza basement parking area into the Plaza Building. Creech testified that following this conversation, he then agreed orally with Commissioner of Finance Donald Bradshaw that the Creech organization would proceed to move the new furniture into the Capitol Plaza Building at the rate of $28.00 an hour per four-man crew. This rate of compensation was roughly twice that contained in PCT No. 532-1272. In their depositions, both Governor Ford and Donald Bradshaw denied the substance of Creech’s testimony.

On March 13, 1972, the appellants actually began to move the furniture within the Capitol Plaza Building. Soon thereafter, questions arose between certain union personnel and the Creech organization over jurisdiction concerning moving of the furniture. This dispute was amicably resolved and has no bearing on the alleged oral contract before us now.

In order to receive payment under this alleged oral contract, it was necessary to prepare purchase orders (DP’s) which would be rejected unless they contained a contract number. It is unclear from the record as to how it was done, but the purchase orders submitted for payment bore the contract number PCT 532-1272. The listed number of hours worked had also been increased in order to compensate for the lower rate of pay under PCT 532-1272.

This contract was modified twice, once on July 19,1972, when the name of the vendor was changed to All-American Movers, Inc., and again on December 21, 1972, when it was extended to cover the calendar year 1973 and also to cover all state agency moves in the Frankfort, Kentucky area. However, contract number PCT 532-1272 was never intended to and did not cover the moving of furniture within the Capitol Plaza. It is undisputed that the Creech organization did in fact render extensive moving services within the Capitol Plaza Building.

Appellee, Commonwealth of Kentucky, tendered and appellants, Glen D. Creech and All-American Movers, Inc., accepted payments nominally pursuant to PCT 532-1272 as follows:

1. Check No. 1,481,922
All American Moving & Storage.$ 5,264.00
2. Cheek No. 1,484,345
All American Moving & Storage, dba
Hulette Transfer . 5,264.00
3. Check No. 1,650,467
Hullette (sic) Transfer. 25,344.00
4. Check No. 1,661,499
All American Moving & Storage, dba
Hulette Transfer . 8,472.00
5. Check No. 1,575,000
Hulette Transfer . 3,360.00
6. Check No. 1,581,868
Hulette Transfer . 27,052.80
7. Check No. 1,626,040 .
All American Moving (sic), Inc. 4,256.00
8. Check No. 1,637,189
All American Movers, Inc._ . 81,668.00
9. Check No. 1,732,813
All American Movers. 14,112.00
10. Check No. 1,795,130
All American Movers. 7,168.00
11. Check No. 1,824,223
All American Movers .. 139,852.60
12. Check No. 1,973,153
All American Movers . 60,488.15
TOTAL.$377,301.15

Appellant Jimmy Creech returned to ap-pellee Commonwealth of Kentucky $9,808.00 as an admitted overcharge on DP 121393, thus making the net amount of payments made to appellants nominally pursuant to PCT 532-1272 total $367,493.05 ($377,301.05 minus $9,808.00).

Lloyd Price, accountant for appellants Glen D. Creech, Jimmy Creech, and All-American Movers, Inc., admitted in his deposition that only $65,266.53 was due to be paid to appellants for hours of work in fact done and packing services actually rendered under the terms of PCT 532-1272.

On May 10,1973, appellee Commonwealth of Kentucky canceled PCT 532-1272. Suit was filed on August 8,1973 by the Attorney General to recover monies improperly paid. The counterclaim of appellants for additional amounts due was dismissed on May 22, 1974, by the trial court on the grounds that sovereign immunity prevented suit against appellee founded on an oral contract. Summary judgment holding All-American Movers, Inc., Glen D. Creech, and Jimmy Creech jointly and severally liable for an overpayment of $299,716.92 was rendered on July 18,1974. It is from that judgment that this appeal results.

The parties to this appeal have argued the issue of sovereign immunity and the propriety of the summary judgment in this case. Since for purposes of appellee’s motion for summary judgment the appellee admitted that the amount in excess of $65,-266.53 was paid for work performed pursuant to various informal contractual arrangements entered into by the parties, there is no genuine issue of material fact remaining in controversy. Neither do we accept the appellants’ contention that each of the purchase orders (DP’s) were in themselves lawfully authorized written contracts as required by KRS 44.270(1), for it is clear that in the context of this case the purchase orders were only the means of obtaining payment for services rendered under a contract. The only question left for discussion is whether, as a matter of law, the appellants were entitled to maintain a counterclaim against the Commonwealth based on an oral contract.

The Commonwealth maintains, and appellants do not deny, that Foley Construction Company, Inc. v. Ward, Ky., 375 S.W.2d 392 (1964), sets forth the law of this jurisdiction as to sovereign immunity. Simply stated, it is that one cannot sue the Commonwealth on a claim unless sovereign immunity has been waived, as it has been on lawfully authorized written contracts. See KRS 44.270(1).

Appellants, however, cite to the case of Commonwealth v. Barker, 126 Ky. 200, 103 S.W. 303 (1907), as authority for their position. In Barker it was held that where the state was the plaintiff, then the defendant became at once entitled to maintain any counterclaim he had against the state, even though he could not have set up the counterclaim as an original cause of action because of sovereign immunity.

Appellee argues that Foley has overruled Barker, but we cannot accept this contention. Instead we feel that Barker is distinguishable from Foley, and hold that appellants, in a proper situation, could counterclaim against the Commonwealth.

The question here is whether there was in effect a valid contract for the services that appellants rendered in moving, co-ordinat-ing, and repairing the new furniture in the Capitol Plaza Building. This court takes judicial notice of the fact that the legislature in KRS 44.270(1) limited suit only on “lawfully authorized written contracts.” We also note that KRS 45.360(3) provides in part as follows: “No purchase or contract shall be binding on the state or any agency thereof unless approved by the division [of purchases] or made under general regulations which the department of finance may prescribe.”

There has been no allegation or proof that KRS 45.360(3) has been complied with. We hold, therefore, that this alleged oral contract is void because it is against public policy.

Payments made under such a void agreement can be recovered and the acceptance of benefits conferred upon the Commonwealth does not work an estoppel. KRS 15.060; Cf. Board of Education of Floyd County v. Hall, Ky., 353 S.W.2d 194 (1962).

We find no merit in appellants’ claim that the judgment of the trial court had the effect of taking private property without just compensation. Creech testified in his deposition of January 9, 1974, at 26, that: “Actually there should have been another contract, but in order to have another contract, that means it had to be put out on bid.” This shows he knew he was entering into this agreement as a volunteer for services not properly authorized.

The only evidence in this record as to the money properly payable under Price Contract No. PCT 532-1272 indicates that the amount is $65,266.53 instead of $67,776.13. Therefore judgment should be entered for the Commonwealth for $302,226.52 ($367,-493.05 minus $65,266.53).

The judgment is affirmed as modified.

All concur.


author: WILHOIT, Judge:

text:
    Ronald HARROD, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    June 3, 1977.
    Rehearing Denied July 1, 1977.
    Thomas E. Clay, Louisville, for appellant.

      Robert F. Stephens, Atty. Gen., William W. Pollard, Asst. Atty. Gen., Frankfort, David Armstrong, Com. Atty., 30th Judicial Dist., Louisville, for appellee.
    Before HOWARD, LESTER and WIL-HOIT, JJ.
   WILHOIT, Judge:

Ronald Harrod was indicted by the Jefferson County Grand Jury on one count of trafficking in a controlled substance and on three counts of trafficking in narcotics.

Following a trial on October 6, 1976, the jury returned a verdict of guilty on the three counts of trafficking in narcotics and not guilty on the trafficking in a controlled substance count. The jury recommended sentences of five years on each of the narcotics counts. The trial judge entered judgment in accordance with the jury’s recommendation on October 15, 1976, ordering that the sentences be served consecutively, for a total term of fifteen years. This appeal has been brought from that judgment.

During the period between June 26, 1975 and July 14, 1975, Ronald Harrod allegedly engaged in four narcotics transactions with Officer Gary Marksbury. Officer Marks-bury was engaged in undercover work as a member of the narcotics squad of the Louisville Police Department.

At trial, the proof consisted of testimony by police officers regarding the purchases and the care and custody of the exhibits. A deposition of the chemist who analyzed the drug samples was read to the jury, over appellant’s objection. Various motions for a directed verdict of acquittal were overruled at the conclusion of the Commonwealth’s case. The defense offered no proof.

Appellant insists that the admission of the deposition of the chemist over his timely objection was reversible error. Counsel for appellant was served with a “Notice, Motion and Order” on July 12, 1976. The order had already been signed by the trial judge, setting July 23, 1976, at “9:30 a. m. or shortly thereafter” as the appointed time to depose the chemist who had performed the analyses of the suspected drugs. As grounds for taking the deposition, the Commonwealth had stated in its motion:

1. The Chemist, John Fischer will be unable to appear as a witness for the Commonwealth on the day of trial.
2. Testimony of John Fischer is material and necessary in order to prevent a failure of justice.

Counsel for defendant immediately notified both the court and the assistant commonwealth’s attorney that he was “on orders” to attend the Ordnance Officer Advanced Course at Aberdeen Proving Grounds, Maryland, and would be unavailable to represent the defendant on the date assigned for the deposition. He then filed objections to the taking of the deposition and a motion for a protective order. In addition to stating that counsel for the defendant was to be out of the jurisdiction on July 23, 1976, the objections to the notice-motion-order also attacked the sufficiency of the notice. The objections were overruled and the motion denied. There is nothing in the record to indicate why another date for taking the deposition was not set. The deposition was taken on the appointed day with neither the appellant nor his counsel present.

The right of a defendant in a criminal prosecution to confront and cross-examine the witnesses against him is essential to a fair trial and is protected by Section 11 of our Constitution as well as the Sixth Amendment to the United States Constitution. This right has been so carefully guarded that formerly the Commonwealth was not permitted at all to take and use the depositions of its witnesses at trial. Kaelin v. Commonwealth, 84 Ky. 354, 1 S.W. 594 (1886). The better and modem view is to permit such procedure but to ensure thereby full protection of the rights of personal confrontation and cross-examination of the witness by defendant. RCr 7.12; Noe v. Commonwealth, Ky., 396 S.W.2d 808 (1965).

We believe that the trial court should have set the taking of the deposition of the chemist at a time when defendant’s counsel could have been present. There was no showing by the Commonwealth as to why in the period from July 12 to the date of trial in October another time could not have been set for this deposition. Even aside from the problem with the taking of the deposition, its admission into evidence at trial was clearly erroneous. There was no showing whatsoever made by the Commonwealth of the existence of any of the requisite circumstances for use of a deposition at trial under RCr 7.20. The Commonwealth argues that the burden is on the defendant to show that the witness was available at the time of trial once' it has secured an order to take his deposition. Quite the contrary, the prosecution must not only show the witness’s unavailability at time of trial but that it has made a good faith effort to obtain his presence at the trial. Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968).

Appellant next contends that the court should have sustained his motion to dismiss counts II and III of the indictment charging trafficking in a schedule II drug known as Dilaudid and a schedule II drug known as Demerol. Neither Dilaudid nor Demerol is specifically listed by name in KRS 218A.070, nor does the record contain any competent evidence indicating that these substances are included within one of the various compounds scheduled in KRS 218A.070 or any schedule adopted by the state board of health pursuant to that statute. These counts, according to appellant, do not therefore charge an offense as required by RCr 6.10 and should have been dismissed.

In support of this position appellant cites United States v. Huff, 512 F.2d 66 (5th Cir. 1975). In that case the court held that a count in an indictment charging the defendant with unlawful possession of “methylen-edioxy amphetamine, a Schedule I controlled substance” did not charge an offense. Methylenedioxy amphetamine, a different drug from 3, 4 methylenedioxy amphetamine, the drug actually listed in Schedule I, was not a controlled substance. The court concluded that the count consequently charged nothing more than an act which is legal.

In this case, however, both Dilaudid and Demerol are trade names for substances listed in KRS 218A.070 and as such are included within the substances listed there under the terms of KRS 218A.030 which provides that “controlled substances listed . in the schedules ... in this chapter are included by whatever official, common, usual, chemical, or trade name designated.” We hold, therefore, that Counts II and III of the indictment charged an offense within the meaning of RCr 6.10. If appellant wished to know within what particular scheduled substance the Commonwealth believed Dilaudid and Demerol to be included, RCr 6.22 affords him a means to obtain this knowledge. It should be noted that in this case appellant did move for a bill of particulars but asked for no information concerning the inclusion of Dilaudid or.Demerol within the statute. Of course, at trial the prosecution would have to prove by appropriate evidence that Dilaudid and Demerol are included within the substances listed in KRS 218A.070.

Further, we do not believe that the counts of the indictment as written in any manner prejudiced the substantial rights of the appellant. The indictment sufficiently informed him of the nature of the charge against him so as to enable him to prepare a defense and it sufficiently stated that offense so as to bar a future prosecution for the same offense. Johnson v. Commonwealth, 299 Ky. 72, 184 S.W.2d 212 (1944).

Finally, appellant claims that the Commonwealth has failed to properly establish the chain of custody of the various narcotics samples admitted into evidence. A complete chain of custody of this evidence tracing its possession from the time it was obtained from the defendant to its final custodian must be established or the samples may not be admitted, Henderson v. Commonwealth, Ky., 507 S.W.2d 454 (1974); 29 Am.Jur.2d Evidence Section 774 (1967). On retrial the Commonwealth should show this chain of custody.

For the reasons stated above the judgment herein is reversed.

All concur.

      . See Dorlands Illustrated Dictionary (24th ed. 1965).


text:
    KENTUCKY HIGH SCHOOL ATHLETIC ASSOCIATION, Appellant, v. HOPKINS COUNTY BOARD OF EDUCATION and its Individual Board Members, namely, Walter Prowse, Elbert Rhodes, Richard Harris, Bill Brown, Brandon Nuttall, Robert Edmiston, Oda Inglis, and Patrick L. McNeil, Superintendent, Hopkins County Schools, Floyd Brown, Jr., Principal, Madisonville-North Hopkins High School, and James G. Meyer, Head Football Coach, Madisonville-North Hopkins High School, Lige Erwin Shadowen and Todd Lige Shadowen, Appellees.
    Court of Appeals of Kentucky.
    June 3, 1977.

      Phillip D. Scott, Lexington, for appellant.
    Jerry P. Rhoads, William R. Thomas, Madisonville, for appellees.
    Before MARTIN, C. J., and PARK and VANCE, JJ.
   PARK, Judge.

The Kentucky High School Athletic Association (the Association) appeals from a final judgment of the Hopkins Circuit Court which granted a permanent injunction. This case arose out of a dispute over the eligibility of the appellee, Todd Lige Sha-dowen, to participate in interscholastic athletic events during the 1976-77 school year as a student at Madisonville-North Hopkins High School (the School). The Association was permanently enjoined from declaring Shadowen ineligible and from imposing any sanctions against the School based upon Shadowen’s participation in any interscholastic athletic events at the School. This appeal raises serious questions of substantive and procedural law.

The Association is a voluntary unincorporated association composed of accredited secondary schools in the state of Kentucky. The Association has approximately 350 public, parochial, and private school members, including Madisonville-North Hopkins High School. By its membership in the Association, the School has voluntarily agreed to the constitution, bylaws'and rules of the Association. Among the rules adopted by the Association are rules respecting the eligibility of students to compete in interscholastic events. The rule in question in this case, By-law 6, Transfer, provides:

“SEC. 1. TRANSFER OF FIRST TEAM COMPETITOR.
Any student who has represented a secondary school in a first team game in any sport and who changes schools with or without a corresponding change in the residence of his parents shall be ineligible for thirty-six school weeks. If there is a corresponding change in the residence of the parents, the commissioner may waive the penalty in any case where there is evident injustice.”

It is the position of the Association that Shadowen is ineligible under this rule.

Shadowen’s parents were divorced by a judgment of the Lyon Circuit Court in September 1973. Under the terms of the divorce judgment, legal custody of Todd Lige Shadowen was granted to his mother. Sometime after the divorce, Shadowen accompanied his mother to a new residence in Sturgis, Union County, Kentucky. Sha-dowen was enrolled in the Union County School System during the 1974-75 and 1975-76 school years. During the 1975-76 school year, Shadowen was a first team performer in sports at the Union County High School.

On or about May 28,1976, with the agreement of his mother, Shadowen took up residence with his father and step-mother in Hopkins County. By an order of the Lyon Circuit Court entered September 1, 1976, nunc pro tunc as of June 8,1976, custody of Shadowen was transferred from his mother to his father, and the father became obligated to make monthly support payments directly to young Shadowen. On June 9, 1976, Shadowen enrolled at the School and has sought to compete in interscholastic sports at the School since that date.

On June 23, 1976, the Association’s Commissioner informed the principal of the Madisonville-North Hopkins High School by letter that Shadowen was eligible to participate in interscholastic athletics. On August 16, 1976, the Association’s Commissioner wrote the school principal a second letter which stated:

“The Commissioner may waive By-Law 6 only in cases where there is a corresponding change of address on the part of the parent. I am now informed that Todd was living with his mother in Sturgis while attending Union County High School and she did not move to Madison-ville.
Since there was no change of residence on the part of the mother, I have no authority to declare Todd eligible. Therefore, I must rescind my decision of June 23, 1976, and state that Todd is ineligible to represent Madisonville-North Hopkins High School in athletics until he has been enrolled there for a period of thirty-six weeks.”

Following the institution of this action, Shadowen at the trial court’s direction petitioned the Association for a rehearing on the question of his eligibility. By a letter dated September 22, 1976, Shadowen was informed that the appeals committee of the board of control had again held Shadowen to be ineligible to compete in athletic events during the current school year.

Shadowen moved his residence from Union County with his mother to Hopkins County with his father for personal reasons unrelated to his participation in interscholastic sports events. Shadowen’s transfer was free from any motive related to his athletic ability. Shadowen was not recruited by the School or anyone on its behalf. The record indicates that he wished to move to Hopkins County to live with his father so that he could marry. His mother was opposed to the marriage. Shadowen did marry Nina Simpson on June 12,1976, but they lived together for only a few weeks in Hopkins County. Since their separation, Shadowen has lived with his father in Hopkins County.

As a general rule, courts will not interfere with the internal affairs of voluntary associations. In the absence of mistake, fraud, collusion or arbitrariness, the decisions of the governing body of an association will be accepted by the courts as conclusive. 6 Am.Jur.2d Associations and Clubs § 27. Voluntary associations may adopt reasonable bylaws and rules which will be deemed valid and binding upon the members of the association unless the bylaw or rule violates some law or public policy. Louisville Board of Fire Underwriters v. Johnson, 133 Ky. 797, 119 S.W. 153 (1909). It is not the responsibility of the courts to inquire into the expediency, practicability or wisdom of the bylaws and regulations of voluntary associations. Norfolk & W. Ry. Co. v. Harris, 260 Ky. 132, 84 S.W.2d 69 (1935). These general principles are equally applicable to cases involving state high school athletic associations. State ex rel. Ohio High School Athletic Association v. Judges of Court of Common Pleas, 173 Ohio St. 239, 181 N.E.2d 261 (1962). Furthermore, the courts will not substitute their interpretation of the bylaws of a voluntary association for the interpretation placed upon those bylaws by the voluntary association itself so long as that interpretation is fair and reasonable. Lang v. International Photo Engravers Union of North America, Ky., 343 S.W.2d 385 (1960); Harrison v. Brotherhood of Ry. and S. S. Clerks, Ky., 271 S.W.2d 852 (1954).

Having these principles in mind, this court must answer two questions. First, is the transfer rule incorporated in By-law 6 a valid rule and regulation? If By-law 6 is valid, is the interpretation placed upon that rule in Shadowen’s case a reasonable interpretation? We answer both of these questions in the affirmative.

The transfer rule contained in Bylaw 6 is a valid regulation intended to eliminate the pernicious practice of recruiting high school athletes. In holding that a similar transfer rule was not arbitrary, the Louisiana appellate court stated in Marino v. Waters, La.App., 220 So.2d 802 at 806 (1969):

“The transfer rule of the Louisiana High School Athletic Association has been in effect since around 1920 when the youthful association moved to eliminate the recruiting of high school athletes. The transfer rule, in emphasizing the residence of the parents of the student, is by no means capricious and arbitrary. While it is a rational rule which has apparently produced good results, it is not for this Court to pass upon the merits of this particular rule. This is a matter to be determined by the members of the Association, and it is beyond the power of this Court to impose its ideas of what the rules of the Association should be.”

This holding was expressly approved by the Supreme Court of Louisiana in Chabert v. Louisiana High School Athletic Association, La., 323 So.2d 774 (1975). See also Paschal v. Perdue, 320 F.Supp. 1274 (S.D.Fla.1970); State ex rel. National Junior College Athletic Association v. Luten, Mo.App., 492 S.W.2d 404 (1973), approved in State ex rel. Missouri State High School Activities Association v. Schoenlaub, Mo., 507 S.W.2d 354 (1974).

Shadowen has not argued that the transfer rule set forth in By-law 6 is completely invalid. On behalf of Shadowen, it is argued that the Association has acted arbitrarily in applying the rule to the particular circumstances of his case. The trial court agreed with Shadowen, relying heavily upon the fact that there was no evidence of recruiting or other improper, influence upon Shadowen to cause him to transfer to the Madisonville-North Hopkins High School. In Bruce v. South Carolina High School League, 258 S.C. 546, 189 S.E.2d 817 (1972), the Supreme Court of South Carolina upheld the validity of the South Carolina transfer rule against a similar argument. The court stated:

“Respondents further charge that the rule is arbitrary in its application to them, because it was adopted to prevent the recruiting of athletes and no provision is made for review in individual cases, so as to grant relief from its provisions where, as in this case, the transfer is voluntarily made without the prohibited element of inducement.
“We are here concerned with the enforcement of a rule adopted by members of a voluntary association to govern competition among themselves in athletic events. The rule, to which the members agreed to be bound, clearly makes students, such as respondent, who transfer from one school to another without a bona fide change of residence ineligible to engage in interscholastic athletics for a period of one year. There are no exceptions or qualifications, nor is any discretion vested in League officials in its application. It applies to all schools and students alike. “In contending that, since they were not recruited and the rule was designed to prevent recruiting, it should not apply to them, respondents confuse the reasons which prompted the adoption of the rule with the method adopted to accomplish the desired goal. Prohibitive administrative difficulties, as well as others, resulting from a determination in each case of the reason prompting the transfer could have properly influenced the member schools to decide that the best method to accomplish the elimination of the evil of recruiting was to bind themselves to adherence to a rule without exceptions or qualifications. The merits of such a rule or the wisdom of its adoption are not for the courts to determine.” 189 S.E.2d at 819.

We agree with that statement of the law.

Under By-law 6, the Commissioner may waive the transfer rule “where there is evident injustice” if there is a corresponding change in the residence of the student’s parents. If there is no change in the residence of the parents, the Commissioner is granted no discretion of any kind. Rather than adopt a procedure which would require a subjective inquiry into the motives of every transfer, the Association has adopted an objective standard. If there has not been a change of residence by the parents, the transfer rule cannot be waived. If a student transfers from one school to another because of a change in the residence of his parents, the transfer is involuntary on the part of the student. The student has no real choice but to follow the change of residence of the parents. The Association did not act arbitrarily in applying the same rule to parents who were divorced and separated even if there was a change in legal custody. If there is no change in the residence of either parent, there is always a real question regarding the motive for the change in custody. In the present case, Shadowen was not compelled to change his residence from Union County to Hopkins County because of some reason beyond his control. The change of custody was the result of Shadowen’s own wishes. There was nothing involuntary in Shadowen’s change of residence from Union County to Hopkins County. Therefore, the Association did not act arbitrarily in applying the transfer rule to Shadowen.

In Sturrup v. Mahan, 261 Ind. 463, 305 N.E.2d 877 (1974), the Indiana Supreme Court did hold the application of a transfer rule to a particular student to be unreasonable and arbitrary. This case can be distinguished on its facts. The Indiana Court found that the student’s transfer was necessitated by unavoidable circumstances unrelated to recruiting or any improper influence. In the present case, there were no unavoidable circumstances which necessitated Shadowen’s move from Union County to Hopkins County. Not only is the Sturr-up case distinguishable on its facts, but this court finds itself in agreement with the dissenting opinion of Chief Justice Arter-burn which stated:

“Too many courts and judges feel that they know how to run other people’s business better than they do. I frankly admit my ignorance as to how high school athletics should be operated and the problems involved therein. As long as a rule, law or regulation appears to make a reasonable classification to obtain a lawful objective or result it should not be struck down. Here the objective of the rule that does not permit a student to jump from one school to the other and participate in competitive athletics without his parents moving with him is meritorious and appears to me to be reasonable and does not involve a ‘suspect classification.’ ” 305 N.E.2d at 882.

No constitutional issue is raised in this case. The transfer rule is not based upon any “suspect classification.” It does not represent any improper discrimination against any group of persons. Participation in interscholastic athletics is not a constitutionally protected civil right. Albach v. Odle, 531 F.2d 983 (10th Cir. 1976); Oklahoma High School Athletic Association v. Bray, 321 F.2d 269 (10th Cir. 1963). Furthermore, such activity does not become constitutionally protected merely because the student athlete loses the opportunity to play in tournaments or to compete for athletic scholarships at the college level. Parish v. National Collegiate Athletic Association, 506 F.2d 1028 (5th Cir. 1975); Colorado Seminary v. National Collegiate Athletic Association, 417 F.Supp. 885 (D.Colo.1976).

For the foregoing reasons, the judgment of the circuit court permanently enjoining the Association from declaring Shadowen ineligible to participate in interseholastic athletic activities during the 1976-77 school year must be reversed. In addition to the substantive issues discussed above, there are important procedural problems raised by this appeal.

The original complaint was filed by Shadowen, through his father as next friend, against the Hopkins County Board of Education (the Board), its individual members, the county school superintendent, and the principal and head football coach at the School. The Association was not made a party to the original complaint. Shadow-en sought to enjoin the Board from denying him the right to participate in interscholastic athletic events at the School during the 1976-77 school year. The complaint specifically alleged that the Board was acting pursuant to a ruling of the Association that Shadowen was ineligible for the current school year. Following a hearing, the circuit court granted a temporary injunction enjoining the Board and the School from denying Shadowen the right to participate in interscholastic athletic events. It was error to grant the temporary injunction without making the Association a party.

The complaint on its face stated that the Association was claiming an interest in the question of Shadowen’s eligibility. The Association had declared Shadowen ineligible and was directing the Board not to play Shadowen. On the other hand, the circuit court was upholding Shadowen’s eligibility and directing the Board to permit Shadow-en to participate in interscholastic athletics. The Board was subject to a substantial risk of incurring inconsistent obligations so long as the Association was not a party to the proceeding. The Association was subject to service of process, and it could have been made a party to the suit. Therefore, under CR 19.01 it was mandatory that the Association be made a party to the action.

Normally, a trial court can rely upon the parties before the court to raise the question of joinder of necessary parties. However, in this case it should have been readily apparent that the original defendants would not be displeased with an injunction requiring them to permit Shadowen to continue participating in the interscholastic athletic activities of the School, particularly if the injunction could be used as a defense to sanctions by the Association.

Being aware of the situation that was developing, the Association filed a motion to intervene which was granted by the circuit court. After filing its intervening complaint, the Association filed a motion to dissolve the temporary injunction. For some reason which does not appear of record, an order was never entered either granting or denying the motion to dissolve the temporary injunction. Having failed to secure a ruling on its motion to dissolve the temporary injunction, the Association assumed that it was not entitled to any interlocutory relief under CR 65.07. The Association attempted to extricate itself from this procedural quagmire by suspending the School from further participation in the Association because the school had continued to play Shadowen in athletic events in violation of the Association ruling that Sha-dowen was ineligible.

The circuit court quite naturally concluded that the School should not be penalized for complying with the court’s temporary injunction. The circuit court granted a second temporary injunction which enjoined the Association from enforcing any sanctions against the School. Having for the first time an order which it could appeal, the Association sought interlocutory relief pursuant to CR 65.07. The Supreme Court entered an order dissolving the second temporary injunction, but that order of the Supreme Court did not affect the original temporary injunction granted to Shadowen against the Board and the School.

Further hearings were held in the circuit court. After holding that the action of the association declaring Shadowen ineligible was arbitrary, the circuit court enjoined the Association from interfering with Shadow-en’s participation on the school’s basketball team. Specifically, the Association was enjoined from preventing Shadowen and the School’s basketball team from participating in the district and regional basketball tournaments. Again, the orders of the circuit court affected persons who were not parties to the action. No recognition was given to the rights and interests of other teams that might be competing with the School during regular season and tournament play.

This case demonstrates that courts are a very poor place in which to conduct interscholastic athletic events, especially because this type of litigation is most likely to arise at playoff or tournament time. If an injunction or restraining order is granted erroneously, it will be practically impossible to unscramble the tournament results to reflect the ultimate outcome of the case. In almost every instance, the possible benefits flowing from a temporary restraining order or injunction will be far outweighed by the potential detriment to the Association, as well as to its member schools who are not before the court. Only in rare instances would the granting of the temporary restraining order or temporary injunction be a proper remedy.

In one respect, the judgment of the circuit court must be affirmed. The circuit court properly enjoined the Association from imposing sanctions against the School for playing Shadowen in compliance with the orders of the court. Even though the temporary injunction was improperly granted, it was the duty of the School to comply with the temporary injunction until it was dissolved. Karr v. Kentucky State Board of Dental Examiners, Ky., 469 S.W.2d 545 (1971). There is no question of collusion. For a time, the Association was represented by the same attorney as represented the School and the Board.

The judgment of the circuit court is reversed except for that portion of the judgment enjoining the Association from imposing sanctions against the School for playing Shadowen in conformity with the temporary injunction.

All concur.


author: VANCE, Judge:

text:
    Jim B. HARPER et al., Appellants, v. James A. MARTIN, Administrator, etc., et al., Appellees.
    Court of Appeals of Kentucky.
    June 10, 1977.

      James H. Lucas, Whayne G. Priest, Jr., English, Lucas, Priest & Owsley, Norman Harned, Bowling Green, Sam M. Ryan, Dept, for Human Resources, Frankfort, Dempsey Marks, Marks & Fleming, Clarks-ville, Tenn., for appellants.
    Reginald Ayers, Joe S. Garman, Bowling Green, Franklin P. Hays, Louisville, for ap-pellees.
    Before HAYES, HOGGE and VANCE, JJ.
   VANCE, Judge:

This is an appeal from a judgment directing the settlement of the Estate of Will Brown Martin. In 1965 Will Martin was declared incompetent. Appellee James A. Martin was appointed his committee and acted as such until the death of Will Martin on October 9, 1970.

On October 19, 1970 James Martin filed in the Warren County Court a final settlement of his accounts as Committee. The final settlement set forth a number of claims against the ward including the claim of James Martin for allowance of fees for regular and extraordinary services as committee. The settlement was properly advertised, laid over for exceptions and none being filed the settlement was approved by an order of the Warren County Court. No appeal was taken from that order.

James A. Martin was appointed administrator of Will Brown Martin’s Estate. When he transferred the property in his possession as committee to himself as administrator, he did not pay from the funds in his possession the claims which had been approved by the County Court including his own claim for fees. He later filed suit in Warren Circuit Court in which he set forth the County Court proceedings and requested authority to pay the accounts approved therein.

Various heirs filed counter-claims in which they sought to contest the allowances provided for in the County Court settlement.

The trial court approved all the allowances except the claim for regular services of James Martin as committee. He reduced that amount from $10,196.00 to $8,954.00. The trial court considered the propriety of the allowances and approved them upon the merits. It appears to us approval was proper because the approval of the final settlement in the County Court was a final disposition from which no appeal was taken. The County Court is vested with “exclusive” jurisdiction of the appointment and account of committees. KRS 387.210(1).

Andrews v. McCarty, 208 Ky. 25, 270 S.W. 466 (1925) which holds circuit courts have concurrent jurisdiction is not applicable because the statute in effect at that time has since been amended to vest exclusive jurisdiction in county courts. The judgment of a court vested with exclusive jurisdiction in a matter is not subject to collateral attack in another court. Well’s Adm’x v. Heil, Ky., 243 Ky. 282, 47 S.W.2d 1041 (1932).

The trial court found that the appellant Jim B. Harper was adopted at age 47 by Vera Harper, who was then suffering from terminal cancer, for the sole purpose of constituting him an heir at law of Will Brown Martin. The trial judge reasoned that Will Brown Martin was an incompetent at the time of the adoption and was unable to make a will and held that Jim B. Harper was not an heir at law of Will Brown Martin.

Minary v. Citizens Fidelity and Trust Co., Ky., 419 S.W.2d 340 (1967) reviewed the tortuous trail taken by the courts of this state in considering whether adoptive children should be permitted to inherit through as well as from their adoptive parents. It was held that when an adult is adopted solely for the purpose of making him an heir under the terms of a known testamentary instrument the practice is a subterfuge which thwarts the intent of the testator and cheats the rightful heirs. Minary dealt with a will whereas Will Brown Martin died intestate. It is true that he could not, because of his incompetency, have disinherited Jim Harper but it is equally true that he, while competent, did not prepare a plan for the disposition of his estate which would be thwarted by this adoption.

We think the rule in Minary is limited to testamentary dispositions and that Jim Harper, as the adoptive child of Vera Harper is entitled to share in the Estate of Will Brown Martin.

An issue was presented as to whether a promissory note executed by Clarence Stinson and wife to Will Brown Martin and an open account of Stinson to Martin were collectible. The trial court found that the indebtednesses were forgiven by Will Brown Martin before he become incompetent. We think the evidence supports the finding.

The adjudication that Jim B. Harper is not an heir at law of Will Brown Martin and is barred from inheriting from his estate is reversed. In all other respects the judgment is affirmed. A new judgment shall be entered in conformity with this opinion.

All concur.