author: HOWERTON, Judge.

text:
    Richard William CONLEY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    March 17, 1978.
    Discretionary Review Denied Sept. 12, 1978.

      Jack Emory Parley, Public Defender, Commonwealth of Kentucky, Thomas R. Lewis, Asst. Public Defender, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., John W. Stewart, Asst. Atty. Gen., Frankfort, for appellee.
    Before HOWERTON, WILHOIT and WINTERSHEIMER, JJ.
   HOWERTON, Judge.

Appellant was sentenced to life imprisonment on July 9, 1976, after pleading guilty to a charge of murder. This appeal is from an order of the Boone Circuit Court overruling appellant’s RCr 11.42 motion.

Appellant raises three questions on this appeal. All three issues are interrelated, and generally refer to the offer and acceptance of appellant’s plea of guilty.

Appellant charges that the trial court erred in overruling his motion, because the record indicates that his guilty plea was accepted without first determining that the appellant actually understood the law in relation to the facts. A similar contention is that appellant’s plea was not entered voluntarily, knowingly, intelligently, or willingly.

If these two alleged errors were the only points raised on this appeal, we would summarily affirm the trial court. The record contains the “Waiver of Future Proceedings .' with Petition to Enter Plea of Guilty” which was signed by appellant and his counsel. The record also contains the transcript of the examination of appellant and his counsel to support the finding in the judgment “that the defendant understands the nature of the charges against him, that the defendant’s plea is voluntary, that the defendant knowingly and voluntarily waives his right to trial by jury, privilege against self-incrimination, and right of confrontation, and that there is a factual basis for the defendant’s plea.”

The record indicates that the requirements of Boykin v. Alabama, 395 U.S. 283, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), and the requirements of RCr 8.08 have been met. On these points, the record is complete enough to affirm the trial court’s action of overruling the 11.42 motion without an evi-dentiary hearing.

Appellant does raise a third issue, however, which requires further consideration. This issue also creates four sub-questions which will be considered by this court.

Appellant asks, “Did the trial court err to appellant’s substantial prejudice by overruling his RCr 11.42 motion although the record indicated that appellant was in need of additional psychiatric evaluation at the time the guilty plea was entered and the trial court failed to conduct an evidentiary hearing to determine appellant’s competency to plead guilty?”

Two of our criminal rules must be considered in the discussion of this question. They are RCr 8.06 and RCr 8.08. RCr 8.06 reads in part,

If during the proceedings there are reasonable grounds to believe that the defendant is insane, the proceedings shall be postponed and the issue of sanity determined as provided by law.

RCr 8.08 reads in part,

A defendant may plead not guilty or guilty. The court may refuse to accept a plea of guilty, and shall not accept the plea without first determining that the plea is made voluntarily with understanding of the nature of the charge.

Appellant raised the question of his sanity on the day he was indicted, February 27, 1976. Appellant was examined by a psychiatrist on March 3, 1976 for the purposes of determining his competence to stand trial and his criminal responsibility and mental state at the time of the incident. The psychiatrist concluded that appellant was competent to stand trial, but he recommended additional evaluation regarding appellant’s mental state at the time he strangled his victim.

The additional examination was ordered on June 28, 1976, but appellant pled guilty on July 7, 1976. There is nothing in the record to indicate that the examination was ever conducted.

The four sub-questions created by appellant’s issue are as follows: (1) Is there a stricter mental standard for entering a guilty plea than for standing trial? (2) Since the trial court had ordered a further sanity hearing, should the trial judge have had “reasonable grounds” to believe that the appellant was insane and thereby postpone the proceeding, or refuse to accept his guilty plea? (3) Was the appellant entitled to a hearing on the psychiatrist’s report in order to question and challenge the doctor’s conclusion that the appellant was sane enough to stand trial? Finally, we must decide whether or not an evidentiary hearing was necessary in order for the trial court to properly overrule the appellant’s motion regarding these questions.

As to the first point, it has already been determined in Kentucky that there is no higher mental standard required to enter a guilty plea than there is to stand trial. Littlefield v. Commonwealth, Ky.App., 554 S.W.2d 872 (1977) and Short v. Commonwealth, Ky., 519 S.W.2d 828 (1975). Appellant had been declared mentally competent to stand trial, and without additional or new factors being present at the time of the plea proceedings, we cannot say that the questionable mental state of the appellant at the time of the murder made the plea involuntary or without the requisite understanding.

The fact that a further psychiatric examination had been ordered for purposes of establishing a defense need not alone provide the “reasonable grounds” required by RCr 8.06 to cause the trial court to stop the proceedings. After all, the trial court had an excellent opportunity to observe the appellant during the proceedings to determine if there was any hesitation, misunderstanding, involuntariness or incompetence associated with the plea. It may be that the appellant had two possible defenses, insanity and/or drunkenness, if he had gone to trial. Also, he received the maximum sentence following his plea. However, he was aided by competent counsel, and no favors were promised for his plea. The high standards of RCr 8.08 were met. The record indicates that the plea was properly made and accepted. The transcript of the plea proceeding reads as follows:

JUDGE NEACE: Mr. Zevely, have you explained the charges to Mr. Conley?
MR. ZEVELY: Yes, Your Honor, I have.
JUDGE NEACE: Have you explained to him his constitutional rights?
MR. ZEVELY: Yes, I have.
JUDGE NEACE: In your opinion, does he understand the nature of the proceedings?
MR. ZEVELY: Yes, he does.
JUDGE NEACE: Do you know any reason why he should not enter a plea of guilty to the indictment as amended?
MR. ZEVELY: No.
(At this time, Judge Neace questioned Mr. Conley and explained his rights to him.)
MR. ZEVELY: Mr. Conley has completed the Waiver of Further Proceedings with Petition to Enter Plea of Guilty, and we would ask that this be filed in the record.
JUDGE NEACE: Let it be filed. Mr. Conley, has this form been signed by you?
MR. CONLEY: Yes.
JUDGE NEACE: Do you understand the contents of it?
MR. CONLEY: Yes.
JUDGE NEACE: Did you in fact on February 21, 1976, commit the offense of murder by strangling Patricia James?
MR. CONLEY: Yes.
JUDGE NEACE: Let a plea of guilty be entered. The Court will set formal sen-fencing for Friday, July 9, 1976, at the hour of 9:00 a. m.

The third sub-issue basically contends that the appellant was denied due process of law because no hearing was conducted on the question of his sanity to stand trial, thereby denying him the opportunity to challenge the reported conclusion that he was sane. Appellant’s argument is supported by cases involving a court of inquiry and a lunacy inquest. It is true that when such “hearings” are conducted, the accused has the right to be present and to cross-examine the witnesses. Hill v. Commonwealth, Ky., 474 S.W.2d 95 (1971) and Denton v. Commonwealth, Ky., 383 S.W.2d 681 (1964). There was no court of inquiry or lunacy inquest involved in this action. Appellant was not about to lose his liberty by being involuntarily committed to a mental institution.

Our Supreme Court has held that RCr 8.06 requires a “hearing,” if there are “reasonable grounds” to believe a defendant is insane. Matthews v. Commonwealth, Ky., 468 S.W.2d 313 (1971). See also, Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966). No error would exist if the trial court had chosen to conduct a hearing. If a hearing had been held, the appellant would have had the right to examine the psychiatrist. But, was it error not to conduct a hearing?

The criminal rules allow the trial judge a wide latitude in determining in the first instance whether or not to require that the accused be examined. The question therefore remains whether or not there were such “reasonable grounds” as to require the trial court to order additional proceedings on the appellant’s competency to stand trial. Pate, id., and Matthews, supra, require a hearing when such doubt exists. If it is not obvious, it must be called to the attention of the trial court. In this case, the appellant raised the question, but when the psychiatric report indicated appellant could stand trial, this fact was apparently accepted by all. No evidentiary hearing was ever requested, and the only additional request for inquiry was again made by the appellant and for the sole purpose of determining his sanity at the time he committed the murder. See also, Blankenship v. Commonwealth, Ky.App., 554 S.W.2d 898 (1977).

The trial judge had no “reasonable doubt” concerning the appellant’s sanity to stand trial or to plead guilty. He questioned him and observed him, and had considered the doctor’s report. There were no obvious “grounds” as there were in the case of Via v. Commonwealth, Ky., 522 S.W.2d 848 (1975). If the trial judge ever had any personal doubt about appellant’s sanity, it was reasonably removed by the facts presented in the report and by the conclusion in the report.

When we look at the entire situation in this case, we cannot say that the trial judge overlooked any obvious sanity question, or that he abused his discretion in any way. Furthermore, we are not inclined to rule that an evidentiary hearing must be held in any and every case where one has been examined by a psychiatrist on a question of sanity to stand trial, especially when the result of the examination is negative and when no additional request is made for further examination on the same question, and when no additional request is made for a hearing. Any such request must be made before the trial or guilty plea.

RCr 11.42(5) provides for an evidentiary hearing on the motion to vacate, if issues of fact cannot be determined on the face of the record. Here, the record of the motions, the reports, the signed plea, and the colloquy between the trial court and the appellant make it clear that an evidentiary hearing was not necessary.

For the foregoing reasons, the judgment of the trial court is affirmed.

All concur.


source: Caselaw Access Project

license: Public Domain

text:
    Luther David EARL, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    April 7, 1978.
    Discretionary Review Denied Sept. 12, 1978.

      Damon A. Vaughn, Henderson, for appellant.
    Robert F. Stephens, Atty. Gen., Reid C. James, Asst. Atty. Gen., Frankfort, for ap-pellee.
    Before HOWERTON, LESTER and REYNOLDS, JJ.
   HOWERTON, Judge.

A jury found Luther David Earl guilty of first degree manslaughter, and fixed his punishment at ten years in the penitentiary. From that judgment, Earl appeals citing three alleged errors.

First, the appellant argues that there was an error in the instructions given to the jury. It is undisputed in the record that appellant shot and killed his brother-in-law, Paul Bean. The issue in dispute in the case concerned whether or not appellant had acted in self-defense. A self-defense instruction was given. Thereafter, the instruction was limited or qualified in that the jury was told that the appellant was not entitled to a self-defense claim if he:

began the encounter by first shooting at Paul Bean when he did not believe it to be necessary in order to protect himself from deadly, physical force he believed Paul Bean was then and there about to use upon him .

Appellant argues that there was no evidence to support this instruction. We have reviewed the record and cannot agree. A review of the record shows that there is much conflicting evidence as to the sequence of events on the date of the shooting which preceded the actual wounding. It was within the jury’s prerogative to decide whom to believe as to these details. Brannon v. Commonwealth, Ky., 400 S.W.2d 680 (1966). Additionally, appellant argues that the limitation instruction was ambiguous. While the instruction might have been more concise in its language, we believe that it was sufficiently clear to allow the jury to make the determination warranted by the facts in the record.

In support of his position that the instruction on self-protection was erroneous, the appellant also cites, Pace v. Commonwealth, Ky., 561 S.W.2d 664 (1978). The appellant argues that in Instruction # 2, the inclusion of the phrase, “and that in so doing he was not privileged to act in self-protection,” was inadequate to serve as a complete instruction on the law of self-defense. We would agree with this point, and the Supreme Court’s opinion to this effect in Pace, id., is clear. In Pace, id., however, there is no indication that there was any separate instruction on self-defense delivered to the jury. In the case sub judice, a specific instruction on self-protection was given, and that instruction constitutes a verbatim reproduction of the sample self-protection instruction contained in Palmore, Kentucky Instructions to Juries, § 10.02, p. 342, with the exception of the qualification appended to Instruction # 2 by the trial court. See also, Palmore, supra at § 10.09, p. 352, 353 and K.R.S. 503.060(3) which provide for such qualification. The qualification appears to be appropriate and allowed the jury to be instructed on the whole law of the case, particularly in regard to self-defense.

Second, appellant objects to an “Allen charge” given by the judge to the jury during a recess of their deliberations. The jury began its deliberations at 11:04 a. m. At 12:20 p. m., the jury returned and made several inquiries of the court, and then resumed its deliberation at 12:30. At 2:15, the jury returned to the courtroom and reported that they had not reached a verdict. The following then occurred:

THE COURT: Without telling the Court how you have voted, I want you to tell the Court the numerical division.
MR. WELLS: Seven to five.
THE COURT: Do you feel, Mr. Foreman, if you were given additional time to deliberate that you can possibly reach a verdict?
MR. WELLS: It is doubtful, Your Honor. It might change a little bit, but I don’t know.
THE COURT: At this point, ladies and gentlemen of the jury, the Court wants to make a remark or two to you in general terms. What I have to say to you should in no way influence your decision for the Commonwealth or for the defendant or against the ■ defendant. But, I would like to point out to you that you are aware that this trial is expensive, both to the Commonwealth and to the defendant. You twelve ladies and gentlemen were chosen by both sides to decide this issue, and I know of no better qualified people to make such a decision as is necessary in this case. I am sure that you realize that it must be decided by someone, either now or in the future. Perhaps if you could return and deliberate a little longer, you could reexamine your views in this case and give every consideration to the opinions of your fellow jurors. With these remarks in mind, I will ask the jury to return to the jury-room and continue your deliberations for awhile longer to see if you are able to reach a verdict. (T.A. 716-17)

Our state’s highest court has followed the majority of jurisdictions and approved of “Allen” type instructions and has made it clear that the real concern is whether such an instruction, given during the deliberations, has a coercive effect. As was stated in Abbott v. Commonwealth, Ky., 352 S.W.2d 552 (1961), “[t]he ultimate test of coercion is whether the instruction actually forces an agreement on a verdict or whether it merely forces deliberation which results in an agreement.” See also Freepartner v. Rutledge, Ky., 405 S.W.2d 290 (1966). We believe that the instruction given by the trial court in this case was not coercive in the sense that it forced an agreement on the verdict, or that it would influence the jurors to decide the case for or against the appellant. The language used by the trial judge was clearly addressed to all jurors. We find no hint of coercion toward the minority group. It is important to note that the judge was unaware of the posture of the majority and the minority. The term “Allen charge” derives its meaning from the case of Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896). In that case, a charge similar to the one in question here was found to be free of prejudicial harm. We find no error in the instruction given to the jury, for we fail to find that it coerced an agreement on the verdict.

Appellant directs this court’s attention to the recent decisions of People v. Gainer, 19 Cal.3d 835, 139 Cal.Rptr. 861, 566 P.2d 997 (1977), and U. S. v. Seawell, 550 F.2d 1159 (9th Cir., 1977). Although both decisions are on point, neither decision is controlling in this action, and both decisions are contrary to recognized Kentucky authority. This court is not disposed to eliminate the use of “Allen” instructions in Kentucky, as the California court did in Gainer, supra. Furthermore, we find the facts of Gainer, supra, to be distinguishable from the case sub judice.

There were two objections to the “Allen” instruction given in Gainer, supra. The primary objection, and the one found to be most prejudicial, was an admonition to the minority jurors. The trial court stated,

If much the larger of your panel are for a conviction, a dissenting juror should consider whether a doubt in his or her own mind is a reasonable one, which makes no impression upon the minds of so many men or women equally honest, equally intelligent with himself or herself, and [who] have heard the same evidence with the same attention and with an equal desire to arrive at the truth and under the sanction of the same oath.

In including such a statement in the instruction, the trial judge directs the jurors to include the position of the majority of jurors in their deliberations. The one or more “hold out” jurors are told that in reaching a conclusion as to whether or not a reasonable doubt exists, they are to weigh not only the arguments and evidence, but also their own status as dissenters, which is a consideration both rationally and legally irrelevant to the issue of guilt. Had such a statement been made by the trial court in the present action, we would find the instruction prejudicial and reversible.

The second point condemned in Gainer, supra, is present in this action. That is that the “case must at some time be decided”. Although the California court declared that an “Allen” type instruction should never again be read in a California courtroom, it did concede in Gainer, supra, 19 Cal.3d at 855, 139 Cal.Rptr. at 872, 566 P.2d at 1008, that, “the statement does not threaten to distort the process of jury decisionmaking to the same degree as the admonition to dissenters. Accordingly, a per se rule of reversal is not required when only this erroneous statement is included in otherwise correct instructions, even if given to a deadlocked jury.”

Appellant has cited Seawell, supra, as supportive of the proposition that a request by the trial court for a jury foreman to reveal its numerical division is reversible error per se. We cannot agree that this was the basis for reversing Seawell, supra. The error was in the fact that the trial judge delivered a second “Allen charge” which was found to be too “coercive.”

The real question on this appeal is also whether or not the comments of the trial judge were coercive to the point of actually forcing an agreement on a verdict, or whether the comments merely encouraged deliberation which ultimately resulted in an agreement. We conclude that any errors committed by the trial judge were harmless in this case. His request' for information regarding a numerical division was merely for the purpose of determining whether or not there was in fact a deadlock and the extent of the deadlock. He was unable to determine from his question in which way the deadlock existed and which side was in the minority. It would be preferable to omit an implication that a hung jury would require an expensive retrial of the case. This is not necessarily true, but we do not find this fact to be reversible error in this case. We do not find the trial court’s comment that “you could reexamine your views in this case and give every consideration to the opinions of your fellow jurors” to be at all like the admonition given in Gainer, supra, which would necessarily encourage jurors to consider the numerical division or the weight of opinion among the jurors in forming or reexamining the views of minority jurors to conform with the majority to reach a decision.

Third, appellant argues that the participation of private counsel employed by the victim’s family in the prosecution of the appellant was prejudicial error. We disagree.

The record clearly shows that the privately employed attorney simply assisted the Commonwealth’s attorney. He in no way exclusively assumed the Commonwealth’s attorney’s role. A line of early cases in this Commonwealth held that privately employed attorneys may participate in trial of the Commonwealth’s cases if done with the assent of the Commonwealth’s attorney. See Catron v. Commonwealth, 140 Ky. 61, 130 S.W. 951 (1910); Tackett v. Commonwealth, 227 Ky. 249, 12 S.W.2d 289 (1928); and Fields v. Commonwealth, 225 Ky. 655, 9 S.W.2d 990 (1928). Indeed, as early as 1864, the state’s highest court held that the employment of private counsel to assist the public official was not against public policy. Price v. Caperton, 62 Ky. 207 (1864). Although the arguments against this tradition were not apparently the same there, in Goehring v. Commonwealth, Ky., 370 S.W.2d 822 (1963), the Court of Appeals again acknowledged that the rule in this state was that the family of a victim could employ an attorney to assist the Commonwealth’s attorney. We are not persuaded that there is sufficient argument for changing the rule.

The judgment of the circuit court is affirmed.

All concur.


author: WINTERSHEIMER, Judge.

text:
    Katherine Rout McCORD, Susan Jane Turner, Elizabeth Wilson, and Woodford Save the Land Association, Inc., a non-stock, non-profit corporation of Kentucky, Appellants, v. PINEWAY FARMS, a partnership, Louise H. Ward, James S. Bird, Lee W. Harper, and Leonard K. Nave, Individual partners trading and doing business under the firm name and style of Pineway Farms, and William E. Crain, Clerk of the County Court of Woodford County, Kentucky, Appellees.
    Court of Appeals of Kentucky.
    April 7, 1978.
    Discretionary Review Denied Sept. 12, 1978.

      Edward F. Prichard, Jr., William L. Graham, Prichard, Murrell & Graham, Frankfort, W. Henry Graddy, IV, McCauley & Elam, Versailles, for appellants and for Jenny Sue Given and John A. Dearinger, amicus curiae.
    Leonard K. Nave, William A. Hoskins, III, Nave & Hoskins, Versailles, for appel-lees.
    Alex F. Talbott, Louisville, for Louisville and Jefferson Co. Planning Commission and Jessamine County-City of Wilmore Joint Planning Commission, amicus curiae.
    Before HOGGE, HOWERTON and WIN-TERSHEIMER, JJ.
   WINTERSHEIMER, Judge.

This appeal is from a summary judgment entered March 22, 1977, on a petition for a declaration of rights, initially filed August 13, 1976, regarding the application and interpretation of agricultural zoning statutes.

In March, 1976, appellee Pineway Farms contracted to purchase a 140 acre tract of land in Woodford County, fronting on Highway 33 and Scotts Ferry Road. On April 16,1976, the appellees lodged for record in the County Clerk’s Office a plat for a division of this tract, to be known as Pine-way Farms. The plat had not been submitted to or approved by the Woodford County Planning and Zoning Commission. The plat recited that it was a division of land for agricultural purposes, with the said purpose to include, but not be limited to, one dwelling per tract. The plat indicated that the land would be divided into eighteen separate units. Seventeen of the tracts ranged in size from five acres to six acres, with the eighteenth tract containing 53.2 acres. Most of the large lot lies behind the smaller lots. The plat provides for eighteen new driveways with access to Scotts Ferry Road and Kentucky Highway 33. On August 13, 1976, the appellants sought a declaration of rights to construe the zoning laws against the appellees.

The following legal questions are presented:

1) Did the trial court commit reversible error when it ruled that this action was suitable for a summary judgment?
2) Did the trial court commit reversible error in ruling that the interpretation of the language of KRS 100.111(22) was a legislative function rather than a judicial function?
3) Was there an actual or justifiable controversy, sufficient to allow a declaratory judgment proceeding?
4) Did the trial court correctly define the words “a division of land for agricultural purposes” as those words are used in KRS 100.111(22)?
5) Did the trial court commit reversible error when it ruled that the Woodford County zoning ordinance’s density requirements for agriculturally zoned land did not apply to the tract now defined as Pineway Farms?

This Court reverses the judgment of the trial court and remands this case for further proceedings.

The trial court committed reversible error when it decided that there were no genuine issues of material fact, and that the movant was entitled to a judgment as a matter of law.

It is well settled that the party moving for a summary judgment has the burden of establishing the fact that there is no genuine issue and he is entitled to a judgment as a matter of law. All doubts must be resolved against the moving party. Even though the trial judge may believe that the party opposing a motion for summary judgment may not ultimately prevail at trial, he should not render a summary judgment if there is a material issue of fact. The trial court must examine the evidentiary material, not in order to decide any issue of fact, but only to determine if a real issue does exist. The party moving for a summary judgment should not succeed unless the right to judgment is demonstrated with such clarity that there is no room left for controversy, and it is clearly established that the opposing party cannot prevail. 7 W. Clay, Kentucky Practice, CR 56.03 (3rd Ed. 1974).

Here, the appellees offered affidavits of persons who were considering purchasing a tract of Pineway Farms. This alone created the first question of fact concerning the purpose of the land division, since three of the prospective purchasers stated that they planned to purchase lots in order to build a house. The other prospective buyer was a real estate salesman who was interested in selling to other potential buyers. The record also indicates the possible factual dispute relative to the advertising of the lots as residential building sites. The appellees argue that, without exception, the prospective buyers indicated their intention to live on the land and to grow crops. If nothing else, this creates a question of fact which is not satisfactorily resolved by the trial court.

Additionally, the appellants offered counter-affidavits relative to the possible invia-ble economic status of a five acre tract, and the existing situation in the county as to agricultural assessments and related matters. The trial court ignored such counter-affidavits.

Further, it appears that a substantial question as to the proper filing of the plat of the division of land, in possible violation of the county zoning requirements, was raised in the record, but not addressed by the trial court’s decision.

It appears that the trial court simply recites the language required to support the rule, and in fact, the record is to the contrary.

This Court believes that the trial judge erred in holding that the interpretation and construction of a statute is a legislative rather than a judicial function. Certainly, any such judicial activity must be consistent with the reasonably clear meaning of the statutes, as measured by the constitutional limitations which may be involved, however, the interpretation of KRS 100.111(22) is a proper judicial function. Clearly, the courts should not legislate, but the courts must interpret. It is necessary for the courts to provide reasonable interpretation of the language used by the legislature, where a legitimate controversy arises as to the meaning of the language used, until the legislature can expand its own definition, it if so desires.

To the extent that the trial court granted a summary judgment, it was error, in an action to construe a statutory exemption, to fail to provide a meaningful definition to the words “division of land for agricultural purposes” appearing in KRS 100.-111(22). The very substance of this case involves the statutory construction of KRS 100.111(22) as it applies to the facts here. The statutory definition of subdivision is designed to mandate that the prior planning and zoning requirements and subdivision regulations of a local planning authority be applied to all significant land divisions. The pertinent exemption is for a division of land for agricultural purposes into parcels of five acres or more, not involving a new street. Clearly, the legislature wished to exempt the legitimate farmer who divides part of his farm real estate among the members of his family. The entire plan of KRS Chapter 100 is a scheme for land use control. The exception in KRS 100.111(22) is designed to insure that any division of agricultural land is made for the purpose of protecting agricultural interests. Here, Pineway Farms lies entirely within an agriculturally zoned area, so designated by the local governing body. If this matter is permitted to go to an evidentiary hearing, the appellants’ arguments that Pine-way Farms is intended to be a high priced residential subdivision, composed of large country estates, and is an obvious attempt to use the agricultural purpose exemption in the statute as a loophole to skirt the intent of Chapter 100, may be fully explored by legitimate trial techniques. Evidence can be produced by both sides, relative to the question of whether the proposed division changes the entire character of the agriculturally zoned area, without proper supervision by the local planning and zoning commission.

The trial court committed reversible error when it ruled that the Woodford County Zoning ordinance’s density requirements for agriculturally zoned land did not apply to the farm now divided as Pineway Farms. Since Pineway Farms is located in an A-l agricultural zone, it is subject to the county zoning ordinance, which restricts development according to ownership, purpose and density. It would appear that the proposed land division violates the ownership and purpose provisions, and exceeds the density requirements of the ordinance. The plat as filed in this matter may be improperly filed, and if the division of land contemplated by the plat was in violation of the statute and the county zoning requirements, then both the division and plat may be legally void. Additionally, the county zoning ordinance limits the construction of residences on agriculturally zoned lands to farm dwellings, occupied by farm owners. If the proposed division is not composed of farms, then the residences constructed thereon are not farm dwellings, and the developers cannot convert residential tracts into farms by simply calling them farms. The trial court was in error in its conclusion that the density requirement applied only to undivided lands. KRS 100.203(1) provides that the contents of zoning regulations must be uniform in the zone in which they are imposed.

There is a real and immediate actual controversy existing as to what constitutes compliance with the zoning laws under the circumstances presented here. The action is brought under the declaratory judgment provisions of KRS 418.040 through KRS 418.050. The issues of whether the appel-lees properly complied with the statute in lodging the plat for record, and whether the appellee, Crain, complied in putting it to record, make the appellants’ complaint a proper one for judicial determination.

This litigation presents an issue as to whether the proposed division of real estate was, in fact, a division of land for agricultural purposes, as contemplated by that exemption to the zoning laws. The determination of that issue requires a full eviden-tiary hearing, with an opportunity for all litigants to properly explore the issues raised. It is clear to this Court that there are substantial genuine issues of material fact to be carefully examined. The appel-lees are not entitled to a judgment as a matter of law.

The judgment of the trial court is reversed and this case is remanded for further proceedings consistent with this opinion.

All concur.


author: PARK, Judge.

text:
    Charles MESSAMORE, Appellant, v. PEABODY COAL COMPANY and Workmen’s Compensation Board of Kentucky, Appellees.
    Court of Appeals of Kentucky.
    April 28, 1978.
    Rehearing Denied Sept. 1, 1978.

      J. Quentin Wesley, Wesley & Simpson, Morganfield, for appellant.
    Thomas L. Ferreri, Mills, Mitchell, Turner & Donan, Madisonville, for appellee, Peabody Coal Co.
    Before COOPER, GANT and PARK, JJ.
   PARK, Judge.

On March 5, 1974, the appellant, Charles Messamore sustained a work-related injury while employed by the appellee, Peabody Coal Company. The Workman’s Compensation Board found that Messamore had suffered a permanent injury to his left leg. The board also found that this injury would not limit his occupational opportunities to obtain the kind of work he was customarily able to do. The board made no award of income benefits for occupational disability under subparagraph (b) of KRS 342.730 (1), but it did award him income benefits for functional disability under the “price tag” statute, subparagraph (c) of KRS 342.730 (1). Messamore appeals from a judgment of the Union Circuit Court affirming the award of the board.

On this appeal, Messamore asserts that the board erred in failing to award income benefits for occupational disability. In addition, this appeal presents serious procedural questions involving multiple petitions for reconsideration of the board’s award and the finality of the award for purposes of appeal.

I

A chronological history of the case is essential to an understanding of the procedural maze through which the parties journeyed:

July 12 Original opinion and award
July 19 Peabody Coal files petition for reconsideration
July 21 Messamore files petition for reconsideration
August 2 Board “sustains” both petitions for reconsideration and enters order amending award of July 12
August 6 Messamore appeals by filing petition for review in the Union Circuit Court
August 13 Peabody Coal files second petition for reconsideration
August 30 Board sustains Peabody Coal’s second petition for reconsideration and amends award for second time

Messamore did not appeal from the board’s order of August 30, taking the position that the board was without jurisdiction to consider Peabody’s second petition for reconsideration filed after Messamore had taken his appeal to the circuit court on August 6. In its final judgment, the circuit court both affirmed the board’s award on the merits and dismissed the appeal because of Messamore’s failure to appeal from the board’s last order of August 30. The circuit court took the position that the second petition for reconsideration destroyed the finality of the board’s order of August 2, and that Messamore was required to file an appeal from the last order of the board on August 30.

Messamore first contends that he did not have to appeal from the order of August 30 because Peabody did not have the right to file a second petition for reconsideration. According to Messamore, the right to appeal from an award of the board could be frustrated if a party were permitted to file successive petitions for reconsideration before the board. A similar problem was presented to this court in Tube Turns, Division of Chemetron v. Quiggins, Ky.App. (decided today). In that case, the employee filed a timely petition for reconsideration setting forth certain errors in the award. The board entered an order sustaining the petition for reconsideration and corrected the award in the exact manner requested by the employee. The employee then filed a second petition for reconsideration raising a new issue. In effect, the employee was contending that he asked for inadequate income benefits in his first petition for reconsideration. This court held that, within fourteen days of the original award, the employee was required to set forth all errors relied upon (KRS 342.281) and that the employee was barred from filing a second petition for reconsideration.

This case is clearly distinguishable from the facts in the Tube Turns case. The board did not grant the specific relief sought by Peabody in its first petition for reconsideration, which was based upon what was deemed to be a mathematical miscalculation in the award. The board’s opinion and the award of July 12 described the income benefits payable to Messamore as follows:

the sum of $19.47 per week from December 8, 1974; ($236.00 X 55% = $129.80 X 12½% = $16.23) for a period of 340 weeks, (12½% for permanent injury to plaintiff’s leg) . . . . (Emphasis added)

Peabody asserted that the award of $19.47 per week for 340 weeks was a clerical misprision and that the award should be $16.23

The board’s order of August 2 purported to sustain both Messamore’s and Peabody’s petitions for reconsideration. However, the effect of the order of August 2 was to deny Messamore’s contention that he was entitled to income benefits for occupational disability. The board’s order of August 2 did recognize that the original award of July 12 had not been computed correctly under sub-paragraph (c) of KRS 342.730 (1). For total loss of use of a leg, an employee was then entitled to 55% of average weekly wages for 340 weeks, subject to the maximum weekly benefits limitation of KRS 342.740. Under subparagraph (c) 22, in cases of permanent partial loss of use of a member, the employee was entitled to income benefits for “a period proportionate to the period benefits are payable for total loss or total loss of use of the member as such partial loss bears to total loss.” The board’s order of August 2 amended the award of income benefits to read as follows:

the sum of $84.00 per week from December 8, 1974 (12½% X 340) (12½% for the permanent injury to the plaintiff’s leg)

Having found that Messamore had suffered a 12½% partial loss of use of the left leg, the board should have awarded $84.00 per week (the maximum benefit payable under KRS 342.740) for 42½ weeks (340 weeks X 12½%). Although this was the obvious intent of the order of August 2, that order failed to spell out precisely the period for which income benefits would be payable.

The board’s order of August 2 granted new relief and contained an error not present in the original award. Peabody’s second petition for reconsideration was based upon the failure of the order of August 2 to specify the termination date for the payment of benefits. On August 30, the board purported to sustain Peabody’s second petition for reconsideration and attempted to amend its award of benefits to Messamore to read as follows:

the sum of $84.00 per week from December 8, 1974 (12½% for the permanent injury to the plaintiff’s leg), for a period of 42.5 weeks .

When the board amends an award following a petition for reconsideration and makes a different award of benefits, the parties should not be foreclosed from seeking to correct a new error which did not appear in the original award. See Goodrich v. Industrial Accident Commission, 22 Cal.2d 604, 140 P.2d 405 (1943); Hutchins v. State Industrial Accident Commission, 163 Or. 419, 97 P.2d 944 (1940). Peabody was entitled to file a second petition for reconsideration under the particular circumstances of this case. The second petition was addressed to an error which did not appear in the original award and which could not have been raised by the first petition for reconsideration.

Messamore next contends that he did not have to appeal from the order of August 30, because the board lost jurisdiction to take any further steps in the case when he perfected his appeal from the amended award of August 2, by filing a petition for review in the Union Circuit Court on August 6. Jerry’s Drive In, Inc. v. Young, Ky., 335 S.W.2d 323 (1960); Pittsburg & Midway Coal Mining Co. v. Rushing, Ky., 456 S.W.2d 816, 818 (1969). On the other hand, Peabody points out that its second petition for reconsideration was filed on August 13, within the fourteen day period for filing a petition for reconsideration following the order of August 2. KRS 342.281. According to Peabody, the filing of its second petition for reconsideration destroyed the finality of the award so that no appeal could be taken until after the board’s ruling on the petition for reconsideration. Yocom v. Payne, Ky., 512 S.W.2d 517 (1974); Smyzer v. B.F. Goodrich Chemical Co., Ky., 474 S.W.2d 367 (1971); and Commonwealth, Department of Mental Health v. Robertson, Ky., 447 S.W.2d 857 (1969).

In order to determine whether the filing of Peabody’s second petition for reconsideration destroyed Messamore’s pending appeal in circuit court, consideration must be given to the facts in the three cases cited by Peabody. In Yocum v. Payne, supra, both the employer and employee filed petitions for reconsideration. The Special Fund did not file a petition for reconsideration, but did file a petition of appeal in the circuit court within twenty days after the last order of the board ruling on the petitions for reconsideration filed by the employer and employee. The court held only that the Special Fund’s time for appeal was extended when the other parties filed petitions for reconsideration. There is nothing in the opinion indicating that the filing of a petition for reconsideration would destroy a pending appeal. In the Smyzer case, the employer filed a timely petition for reconsideration. The employee filed no petition for reconsideration, but did file an appeal to circuit court within twenty days after the board overruled the employer’s petition for reconsideration. The filing of the employer’s petition for reconsideration destroyed the finality of the original award so that the employee’s time to appeal did not begin to run until the ruling on the petition for reconsideration. Again, there was no appeal pending at the time the petition for reconsideration was filed.

The facts in this case are closer to those involved in Commonwealth, Department of Mental Health v. Robertson, supra. In the Robertson case, the employer filed a petition for review in the circuit court on the same day that the employee filed a petition ■ for reconsideration with the board. The court held that the filing of the petition for reconsideration destroyed the finality of the award, and that the circuit court properly dismissed the employer’s appeal. In the present case, Peabody’s second petition for reconsideration was filed seven days after Messamore had appealed by filing a petition for review in the circuit court.

We believe that the holding of the. Robertson case should be limited to cases in which the petition for reconsideration before the board and the petition for review to the circuit court are both filed on the same day. The Robertson decision has the merit of obviating the necessity of an inquiry into which petition was filed at an earlier hour. On the other hand, we do not think that a party should be put to the expense of filing a second petition for review in circuit court merely because the other party files a petition for reconsideration before the board some days later.

In this case, justice and fairness would permit the circuit court to consider the merits of the appeal and the board to correct a patent error appearing on the face of its order. The board did not act improperly when it corrected the patent error in its order of August 2. Likewise, the circuit court acted properly in considering the merits of Messamore’s appeal.

In the future, we believe that the problem can best be solved by following the federal practice adopted in cases in which a notice of appeal is filed prior to the filing of a timely motion for new trial or motion to alter or amend judgment. That rule has been stated as follows:

If notice of appeal is given, the subsequent filing of a motion for a new trial, even if otherwise timely, is ineffective because jurisdiction of the case is no longer in the district court. The preferable procedure in that situation is to allow the motion to be filed in the district court. If the district court considers the motion favorably it then can ask that the case be remanded from the appellate court so that it may grant the motion.

11 Wright and Miller, Federal Practice and Procedure § 2821 (1973). See also Hattersley v. Bollt, 512 F.2d 209, 215-16 (3d Cir. 1975); 6A Moore, Federal Practice ¶59.09 [5] (2d ed. 1974). In the future, if the board desires to grant a timely petition for reconsideration filed after another party has perfected an appeal to circuit court, the board should indicate to the circuit court that it desires to so rule. In that event, the circuit court should remand the case to the board so that it may act on the petition for reconsideration. In such cases, the party filing the petition for reconsideration with the board should also file a cross-appeal to the circuit court in order to protect that party’s rights in the event that the board does not request remand for the purpose of granting the petition for reconsideration. The cases in which this procedure should be followed will be relatively rare because most appeals are not perfected until after the time for filing a petition for reconsideration has elapsed.

The procedure outlined above would apply only to those cases in which no petition for reconsideration had been filed before the board at the time a petition for review was filed in circuit court. The board’s jurisdiction to consider a pending petition for reconsideration would not be defeated by the subsequent filing of a petition for review. A petition for review filed subsequent to a timely petition for reconsideration is a nüllity. Cf. 11 Wright and Miller, Federal Practice and Procedure § 2821.

II

Turning to the merits of Messa-more’s appeal, we find no error in the award of the board. Messamore had returned to full time employment earning more than he earned at the time of his injury. Although there was some limitation in the flexion of Messamore’s left knee, there was medical testimony that there was “a good chance” that these symptoms would gradually subside. There was ample evidence to support the board’s finding that his leg injury would not limit his occupational opportunities.

Messamore relies upon subparagraph (c) 27 of KRS 342.730 (1). Under that provision an employee is not limited to the benefits payable under the “price tag” statute, if the total or partial loss of use of a member affect his ability to labor or limits his occupational opportunities. In such cases, he is entitled to receive income benefits for permanent partial occupational disability under subparagraph (b) of KRS 342.730 (1), if such benefits are greater. Similarly, sub-paragraph (b) of KRS 342.730 (1) relating to income benefits for permanent partial occupational disability provides that the employee is entitled to “income benefits based on lost wages or body functional disability benefits, whichever is greater.” The two provisions are complementary, and we cannot substitute our judgment for the board’s decision that Messamore’s body functional disability entitled him to the greatest benefits under the “price tag” statute. The evidence was not so overwhelming as to compel a finding by the board that Messamore had suffered a permanent partial occupational disability within the scope of subpar-agraph (b) of KRS 342.730 (1). Couliette v. International Harvester Co., Ky., 545 S.W.2d 936 (1976).

The judgment of the circuit court is affirmed.

All concur.

      . KRS 342.281 provides:
      Within fourteen (14) days from the date of the award, order or decision any party may file a petition for reconsideration of the award, order, or decision of the full board. The petition for reconsideration shall clearly set out the errors relied upon with the reasons and argument for reconsideration of the pending award, order, or decision. All other
      parties shall have ten (10) days thereafter to file a response to the petition. The board shall be limited in such review to the correction of errors patently appearing upon the face of the award, order, or decision and shall overrule the petition for reconsideration or make such correction within ten (10) days after submission.


author: REYNOLDS, Judge.

text:
    Gene C. ADKINS and Ina Mae Adkins, Appellants, v. ASHLAND SUPERMARKETS, INC., a Kentucky Corporation, d/b/a Ashland Foodland, Robert A. Craycraft, and Evelyn J. Craycraft, Individually and as Executrix of the Estate of Clayton B. Craycraft, Deceased, Appellees.
    Court of Appeals of Kentucky.
    May 5, 1978.
    Discretionary Review Denied Sept. 12, 1978.

      William A. Todd, Theodore B. Walter, Lexington, for appellants.
    David 0. Welch and Ralph T. McDermott, Ashland, for appellees.
    Before HAYES, REYNOLDS and HOGGE, JJ.
   REYNOLDS, Judge.

Upon a motion to dismiss, the Boyd Circuit Court, by order and judgment, dismissed the appellants’ complaint for failure to state a claim against the appellees. The propriety of that ruling is the sole question presented on this appeal.

The appellants, Gene Adkins and wife, Ina Mae Adkins, alleged that while Mr. Adkins was a guest in appellees’ grocery store it was robbed at gun point by a third person. Additionally, it was pled that the robber was known by the appellees as the person who had committed an armed robbery of the grocery store upon a previous occasion and was also accused of other armed robberies, one of which had resulted in injury to a victim, and that during the course of this armed robbery the appellees negligently and recklessly attempted to obstruct the completion of the robbery by disobeying directions and instructing their employees to disobey the robber’s directions and by becoming verbally quarrelsome with the robber. The complaint further alleged the robber was provoked by appellees’ actions until he discharged his pistol, thereby wounding the appellant, Gene Adkins. The store operator was killed and his wife was wounded, and this action was filed against the store corporation, the estate of the store operator and his wife.

The unusual question before us in this case concerns whether the basic duty of making business premises reasonably safe for invitees includes an additional duty not to increase risks of criminal activity by failing to comply with the demands of an armed robber. The appellees (defendants below) filed a motion to dismiss in response to appellants’ complaint. The issue, capably briefed by both parties before the trial court, tested the legal sufficiency of appellants’ claim. Accepting the facts of this case to be set as set forth in the allegations, we determine that appellees did not owe the appellants the duty that they contend and that no cause of action therefore existed. While it is well established that an owner or operator of premises is under an affirmative duty to make the premises reasonably safe for use by guests and invitees, a store operator is not an insurer for the safety of his patrons and is not required at his peril to keep the premises absolutely safe. The resistance in the case before us lacks the intensity of the action taken by a proprietor in an affray between the store operator and armed robbers wherein the court subsequently directed a verdict in favor of the proprietor. See Schubowsky v. Hearn Food Store, Inc., 247 So.2d 484 (Fla. App.1971). For additional authority, see Helms v. Harris, 281 S.W.2d 770 (Tex.Civ. App.1955). The Pennsylvania court in the case of Noll v. Marion, 347 Pa. 213, 32 A.2d 18 (1943) held that no cause of action existed where a bank teller disregarded the orders of a gunman who then opened fire and wounded a customer. The court reasoned that even though the customer may not have been injured if the bank employee had remained still, there was no act of negligence when the bank teller attempted to save himself and his employer’s property. The fact that the invitee was injured in the course of appellees’ resistance did not operate to negate their justification to act as they did, under the circumstances alleged in the complaint.

The factual allegations in this case do not bring it within a situation wherein the store owners (appellees herein) are under a special responsibility toward the one who suffers harm. Appellants have failed to convince us that Kentucky courts have adopted § 292, § 302B and § 449 of Restatement of Torts 2d and have cited Kelly v. Kroger Company, 484 F.2d 1362 (10th Cir. 1973) and Genovay v. Fox, 50 N.J.Super. 538,143 A.2d 229 (1958), which are supportive of their argument. Such cases, however, demonstrate the difference of authority among other courts, which we are not compelled to adopt. However, in the present case an analysis of the most distinguishing factors leads us to the determination that no absolute duty should be imposed upon appellees to accede to criminal demands. They could have either yielded their right and privilege of protecting themselves and their property, or they could have asserted the same right and privilege by attempting to resist the crime by a perpetrator upon them. Herein they chose a verbal resistance which was certainly less than a physical resistance and under most planes of rationality would not involve the same degree of danger as would physical actions. The case of Bennett v. Baker, 27 Ariz.App. 596, 557 P.2d 195 (1976) held:

[M]ere compliance with the demand of the criminal does not provide the desired assurance that the risk to an invitee will be substantially reduced. In short, the only persons who clearly benefit from the imposition of such a duty are the criminals themselves.

Therefore, in this case, appellees’ verbal resistance does not constitute a violation of a duty that may have been owed to appellants. We believe that to hold otherwise would abandon or so weaken the objective of social utility that store owners and proprietors would be coerced into offering total acquiescence to armed robbers for fear of civil litigation which, in effect, furnishes a criminal with an additional coercive advantage.

The judgment is affirmed.

ALL CONCUR.


text:
    E. W. SCRIPPS COMPANY, Vance Trimble, and Jim Blair, Appellants, v. Donnie CHOLMONDELAY, a minor, by and through his mother and next friend, Janet Carter, and Janet Carter, Individually, Appellees.
    Court of Appeals of Kentucky.
    May 26, 1978.
    As Modified June 20, 1978.

      Rodney S. Bryson, Ware, Bryson, Nolan, West & Hiltz, Covington, Bruce W. Sanford, C. Michael Deese, Baker, Hostetler & Patterson, Cleveland, Ohio, for appellants.
    Ronald R. Parry, Jolly, Johnson, Blau & Parry, Newport, for appellees.
    Before HOWERTON, LESTER and WHITE, JJ.
   HOWERTON, Judge.

This appeal arises from a libel judgment by the Kenton Circuit Court, jointly against the appellants, a publishing company, its editor and a reporter. The jury awarded the appellee $32,500.00 for compensatory damages, and $100,000.00 for punitive damages.

On April 18, 1974, the appellee, Donnie Cholmondelay (hereinafter referred to as Donnie), age 12, and Jeff Girdler (hereinafter referred to as Jeff), age 11, got into a fight. As Jeff proceeded to raise himself off the ground, Donnie hit him on the head. Apparently, this one blow caused Jeff to go into a coma, and to die approximately one year later. On April 29, 1974, an article about Jeff and the incident, which was written by appellant, Jim Blair, (hereinafter referred to as Blair), appeared in the Kentucky Post. The article stated that Jeff had been hit repeatedly on the head. Five months later, on September 21, 1974, another article, which was the object of this libel action, appeared in the Post. This article stated that Jeff’s head had been pounded over and over again against the pavement, and that Jeff had been savagely beaten into insensibility. Donnie’s name was never mentioned in either article.

Appellants allege a number of trial court errors, but we must first decide whether the libelous article should be classified as libel per se, or libel per quod. When that question is decided, we will either have accepted or disposed of most of appellants’ alleged trial errors.

Appellants contend that the article was libelous per quod, because it did not name the plaintiff. Their reasoning is that if any extrinsic evidence is needed to prove libel, then the article is libelous per quod, and special damages must be pleaded and proved. One interpretation of “per se” and “per quod” refers, respectively, to whether a defamatory statement is made on the face of the article, or whether extrinsic facts must be pleaded to explain that the statement is defamatory. If extrinsic facts must be supplied, then it is said innuendo must be pleaded, and the article is libelous per quod. The other interpretation is that a defamatory article is libelous per se, if it refers to a loathsome disease, a crime, un-chastity in a woman, or a business or trade. When the defamatory statement does not name the defamed person, that person must prove that the article refers to himself. Louisville Times Co. v. Emrich, 252 Ky. 210, 66 S.W.2d 73 (1933). This is called “colloquium.” Colloquium is not a part of innuendo, and therefore it does not affect whether the defamatory statement is per se or per quod. Curtis v. Iseman, 137 Ky. 796, 127 S.W. 150 (1910). In the case, sub judice, the article said that an older boy pounded Jeff’s head against the pavement, and that Jeff was “beaten into insensibility.” No extrinsic facts are needed to show that the statement is defamatory. Donnie’s friends and acquaintances who were familiar with the incident were certain to recognize Donnie as the unnamed perpetrator of the offense. Therefore, we conclude that the article was libelous per se.

Because the article was defamatory per se, appellants’ argument that the reasonably prudent editor and publisher were not warned of the article’s defamatory potential is without substance. Further, appellants’ argument that the appellee had to prove legal malice, according to KRS 411.051, and special damages is without merit.

In Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), the court held that when a private individual is defamed, the individual states have a legitimate interest in protecting the private individual’s reputation by applying the state’s own standard of liability. The trial 'court, in the instant case, instructed the jury that:

If you believe from the evidence that the statements contained in the article published by the Kentucky Post on September 21, 1974, were false, and that the defendants were negligent in investigating, researching, reporting and publishing the article, then the law is for the plaintiff, and you shall so find.

We believe this was a correct statement of Kentucky law as to compensatory damages for libel. Furthermore, appellants’ tendered instruction on this issue is substantially similar to the trial court’s instruction. Having studied the record, we conclude that there was substantial evidence of negligence on the part of appellants, so that the jury could have awarded compensatory damages without specific proof for each and every item of special damages.

Next, appellants contend that the article was substantially true. The evidence at trial was that the victim was hit once in the head, as the boys were wrestling on the grass. Blair’s description that the boy was savagely beaten is something more than poetic license. There was certainly substantial evidence for the jury to find that the article was false.

Also, appellants ask us to reverse the compensatory and punitive damage awards because they are so outrageously excessive as to shock the judicial conscience. Tilley v. Bell, Ky., 479 S.W.2d 901 (1972). It is sufficient to quote the trial court in its order denying a judgment notwithstanding the verdict. It stated:

No actual monetary damages were proven by the plaintiff. Due to remarks being made to him, and harassment at home, the boy went to his grandfather’s home in Mason, Ohio, where he attended school and did poorly. He also received some counseling, although the nature of the counseling was not made clear. Eventually, his mother and stepfather moved to Cincinnati, Ohio, where they now make their home. Unquestionably, the move was caused by the public reaction to the incident wherein the Girdler boy died. What were the actual damages sustained by plaintiff? This court thinks it to be self-evident that the plaintiff’s reputation was injured, as well as his standing in the community. He was personally humiliated and suffered a certain degree of mental anguish, as evidenced by the precipitous decline in his school work.

We believe the trial court was correct in not finding the award for compensatory damages excessive.

We need not decide the issue of excessive punitive damages because we believe the trial court erred by refusing to direct a verdict for the appellants on the question of actual malice and punitive damages. The trial court refused to eliminate the issue of punitive damages because the judge concluded that there was a “wide disparity between the testimony of the plaintiffs and the defendants, and the court does not feel that it should interpose its judgment in this matter. . . . ” Looking at the whole record, however, we do not believe the appellees presented any evidence of actual malice. The disparity referred to was between the testimony of Blair and the Police Chief, Mr. Webster, and Mrs. Girdler, the victim’s mother. Having been told by the victim’s sister, Charlene Girdler, that her brother had been hit repeatedly on the head, Blair testified that he attempted to verify this story by talking to the Police Chief and Mrs. Girdler, and that they supported his story that Jeff’s head had been pounded against the pavement. Both Chief Webster and Mrs. Girdler admitted talking to Blair, or to someone from the newspaper, but they denied telling Blair that Jeff had been savagely beaten, or that his head had been pounded against the pavement. It does not appear in the record that either witness gave Blair much detail about what took place during the incident. Furthermore, it does not appear from the record that Blair received any contradictory facts to what he had been told by Charlene Gir-dler, and the rumor he had heard. Therefore, even if we disregard all of Blair’s testimony about his efforts to verify the story, there is no testimony that shows that Blair was aware of any falsity. One reason for Blair’s problem in verifying the story was that the incident involved juveniles, so the police would not make the report public.

After the September 21st article had appeared, the appellee’s mother had requested of Blair that he print a retraction. Blair agreed to print her side of the story. However, the story was not printed because all parties thought it would just add to the appellee’s problems. It should be noted that as far as the accuracy of the report of the incident is concerned, the first article on April 29th was also false in that it reported that Jeff was repeatedly struck on the head. No one attempted to correct Blair on his facts, and he never learned otherwise until after the second story.

In Gertz, supra, the court held that while the states may impose their own standard of liability for compensatory damages, the states may not allow punitive damages unless actual malice is proven. “Actual malice” has been defined as “knowledge of falsity or reckless disregard for the truth.” Gertz, supra, 418 U.S. at 349, 94 S.Ct. at 3012. The court thereby held that for a private individual to recover punitive damages, he must meet the same burden of proof, actual malice, as a public official must meet to receive compensatory damage awards. In St. Amant v. Thompson, 390 U.S. 727, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968), the court wrestled with the term “actual malice” in its relationship to a reckless disregard for the truth. The court concluded that, “[rjeckless disregard . cannot be fully encompassed in one infallible definition. Inevitably its outer limits will be marked out through case-by-case adjudication, as is true with so many legal standards.” 390 U.S. at 730, 88 S.Ct. at 1325. The court’s opinion also provided, “. . . [Rjeckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. Publishing with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice.” Id. at 731, 88 S.Ct. at 1325.

Appellant’s attempt to verify his story, which he had received in part from Charlene Girdler, his basic extension of the unchallenged first story after Jeff had remained in a coma for five months, and his readiness to write another article giving the appellee’s side of the story are not examples of reckless disregard for the truth, nor do they indicate that Blair knew the story was false. The circumstances show more of a compassion for Jeff and his family, rather than any malice. Nowhere in the record is it stated that Blair was told what actually happened. While Blair’s reporting may not have met the proper standards for a journalist, we do not believe that his reporting was so reckless as to be malicious.

Because the record has not indicated any substantial evidence of actual malice on the part of appellants, we believe the trial court should have directed a verdict for appellants on the issue of punitive damages.

Therefore, we affirm the judgment as to the compensatory damages, but we reverse the judgment as to the punitive damages.

All concur.


author: MARTIN, Chief Judge.

text:
    Hugh JOHNSON, Appellant, v. MALONEY’S OF OLIVE HILL, INC., Appellee.
    Court of Appeals of Kentucky.
    Aug. 4, 1978.

      Truman L. Dehner, Hogge, Blair & Deh-ner, Morehead, for appellant.
    David O. Welch, Ashland, for appellee.

      Before MARTIN, Chief Judge, and HAYES and HOWARD, JJ.
   MARTIN, Chief Judge.

This case is now before the Court on the appellee’s motion to dismiss filed June 22, 1978. The stated basis of the motion is appellant’s failure to file a timely designation of record in accordance with CR 75.01. The appellant has not responded to the motion.

It appears from the record before us that appellant filed a notice of appeal on June 2, 1978. A designation of record was filed on June 13, 1978. This was one day beyond the ten days allowed by CR 75.01. It is apparent, therefore, that there was no timely designation of record. This brings us to a consideration of the propriety of the relief to be granted.

The law in Kentucky has been that failure to timely designate the record on appeal will result in a dismissal of the appeal. Timmons v. Allen, Ky., 449 S.W.2d 27 (1970); Motorists Mutual Insurance Co. v, Mercer, Ky., 462 S.W.2d 188 (1970). The harshness of the relief was not mandated as a mere punishment for a rule violation. Under the rules of civil procedure in force at the time Timmons and Motorists Mutual were decided, it was necessary to designate each and every part of the record to be considered on appeal. If there was no designation of record, there was no record for the appellate court to review. Without a record of what occurred below, the appellate court had no choice but to dismiss the appeal.

The situation is somewhat altered by the 1976 amendments to the rules. CR 75.07(1) now mandates that the appellate record shall contain the original record on file in the circuit clerk’s office plus the designations of the parties. CR 75.01 limits the required designation to “such portions of the evidence or proceedings stenographi-cally reported as he [the appellant] wishes to be included in the record on appeal.” This Court’s decision in Modine Manufacturing Company v. Thweatt, Ky.App., 547 S.W.2d 448 (1976), relieves the appellant of the necessity of filing a designation in cases where there were no stenographically reported evidence or proceedings in the court below because, in such cases, the circuit court’s record already contains all that is necessary for appellate review in the case. This record will come before the Court of Appeals under 75.07(1).

Therefore, it is now possible to bring a case before this Court without designation of record when the lack of stenographi-cally recorded evidence or proceedings would make the filing of the designation an empty exercise. The case of Webb v. Webb, decided with Modine Manufacturing Company, supra, ordered the dismissal of an appeal in which there had been a late attempt to designate stenographically recorded proceedings. Citing Motorists Mutual, supra, Webb continues the practice of dismissing cases for failure to designate when stenographically recorded proceedings were held in the court below. Further consideration indicates that the holding in Webb may be overbroad and should be limited.

In a vast majority of appeals, the issues disputed by the parties cannot be resolved without reference to the transcript of the proceedings below. In such cases, the dismissal required by Webb is a sound and necessary practice and will be continued.

However, there are rare cases in which the issues to be decided on appeal do not require reference to any record beyond the clerk’s record, which will be forwarded to this Court without the necessity of designation. In such cases, it defeats the ends of justice to dismiss a worthy appeal for failure to comply with a procedural step which is a mere empty exercise in the context of that appeal. Such cases should not be dismissed.

The obvious difficulty will be determining which cases require examination of the transcript of proceedings and which do not. It appears that the most efficient method of defining the necessity of designation in an individual case is to place the burden of doing so on the attorneys involved.

This Court will continue to assume the necessity of the transcript of evidence or proceedings below (where such proceedings occurred) and will continue to dismiss cases for failure to timely and properly designate the record. However, if an attorney for an appellant is able to advance responsible argument as to why his case can be decided on the circuit clerk’s record alone (as defined in 75.07(1)), then the case will be passed to the merits. To emphasize, in his response to a motion to dismiss for failure to designate the record, appellant’s counsel must state why the circuit clerk’s record is all that is necessary for a decision on the appeal. If no sound reasons are advanced, the appeal will be dismissed.

This decision does not reduce but rather emphasizes the importance of the designation of record. The rules on designation are clear and straightforward, and there is no reasonable excuse for a responsible attorney’s failure to file a timely and proper designation or to request an extension of time under CR 6.02. The types of case defined by Modine Manufacturing Company and by this opinion are the sole and narrow exceptions to the rule.

In the present case, there has been no response to the motion to dismiss. The case involves a negligence accident that led to a two-day trial. The motion for a new trial, included in the partial record before us, is based on improper jury instructions and, apparently, the sufficiency of the evidence. On consideration, it appears that the appeal cannot be decided without reference to the transcript of the proceedings. There has been no timely designation of such proceedings for inclusion in the appellate record. Therefore, the Court orders that this appeal be dismissed.


author: HOGGE, Judge.

text:
    Perry and Mary PROBUS, Appellants, v. Joseph SIRLES, Appellee.
    Court of Appeals of Kentucky.
    Aug. 4, 1978.
    As Modified Oct. 13,1978.

      Charles M. Friedman, Richard J. Frockt, Frockt & Klingman, Louisville, for appellants.
    Gerald R. Toner, S. Lloyd Cardwell, Stites, McElwain & Fowler, Louisville, for appellee.
    Before MARTIN, Chief Judge, and HOGGE and WILHOIT, JJ.
   HOGGE, Judge.

Perry and Mary Probus appeal from an order of the Jefferson Circuit Court dismissing their complaint against the appel-lee, Joseph Sirles, in which they had sought damages for personal injuries resulting from an automobile accident. The ground for the order was that the Probuses were precluded from maintaining a suit for common law negligence by the provisions of the Motor Vehicle Reparations Act. Neither Perry nor Mary had rejected the Act’s limitation on their tort rights, as permitted by KRS 304.39-060(4), and it was, and is now, alleged that Perry and Mary are therefore bound by the provisions of the Act as they are an automobile owner/operator and user/operator, respectively.

Several arguments are raised in the appeal. These include the assertion that the application of the Motor Vehicle Reparations Act to appellants would violate their constitutional rights, and that Mary’s tort rights are not limited by the provisions of the Act.

At the time of the accident in question, Perry Probus owned an automobile, but had no policy of automobile insurance in force, as he was unemployed and unable to purchase coverage. Mary Probus also had no automobile insurance. She did not own a car and had only recently obtained an automobile operator’s license and, other than her efforts to learn how to drive and become licensed, had not yet begun to drive. At the time of the accident she was riding as a passenger in her husband’s car. Because of the contention that Mary was not an automobile operator user or operator and the fact that she was not a member of a household in which the operator of a motor vehicle had an insurance policy with basic reparations benefits coverage, appellants contend that there was no limitation on Mary’s tort rights.

The question presented to us has never been specifically answered in the reported decisions of Kentucky courts. In Fann v. McGuffey, Ky., 534 S.W.2d 770, 774 at n. 19 (1975), the Supreme Court made the following statement:

We leave open the question of how much operation or use will suffice to make one an operator or user who is fully subject to no-fault limitations on his rights of recovery, except to say that a person- who has not operated or used an automobile after July 1, 1975, the effective date of the act, could not constitutionally be deemed to have accepted such limitations.

However, the Supreme Court did state that the limitation upon recovery for pain, suffering, mental anguish, and inconvenience would not apply to an injured pedestrian unless at the time of the accident he owns or maintains an automobile, or is an operator or user in the sense that upon occasion he drives, uses, or has driven or used an automobile on the roadways of this state.

It is common knowledge that the process of learning to drive an automobile (or to operate any other new, complex piece of machinery) involves numerous practice sessions. One must learn use of the brake and gas pedal, to steer the car through streets, to park, and to coordinate these actions with observation of signs and highway signals in order to be prepared for the licensing examination. During this process the new driver makes use of Kentucky highways, and automobile accidents are always a possibility. The movement of the car in traffic, and under various roadway and weather conditions brings into play the very concerns which motivated enactment of the Motor Vehicle Reparations Act. KRS 304.-39-010.

We feel that the driving of an automobile by Mrs. Probus while preparing for her license, the fact that she is now a licensed driver, and presumably will continue to drive, make her an operator or user within the meaning of KRS 304.39-020.

The next issue raised by the appellants is whether a driver or owner of an automobile preserves his constitutional right to sue for damages caused by another in an automobile accident where he does not have automobile liability insurance coverage at the time of the accident and where the provisions of the Motor Vehicle Reparations Act would otherwise apply.

This court has had occasion to consider the question of whether an uninsured motorist is subject to the limitations of “no-fault” in Atchison v. Overcast, Ky.App., 563 S.W.2d 736, 737 (1977), in which we stated “[t]he plain intent of the above language [of KRS 304.39-030 and 304.39-060] is that all persons owning an automobile, whether insured or not, are subject to the limitations of “no-fault”, unless the owner actually rejects the limitation of his tort rights and liabilities . . See also Dixon v. Cowles, Ky.App., 562 S.W.2d 639 (1977).

The appellants allege that the no-fault insurance law violates certain sections of the Kentucky Constitution, including Sections 7, 14, and 54. The arguments raised by appellants have been considered by the Court of Appeals of Kentucky in Fann v. McGuffey, Ky., 534 S.W.2d 770 (1975) and have been rejected, on the grounds that any person who uses Kentucky highways impliedly consents to the conditions of Kentucky’s no-fault system.

The appellants next argue that a person may not be deprived of his constitutional right to file suit or defend an action under the Constitution of Kentucky for injuries where he is indigent and unable to afford liability insurance premiums. It is contended that KRS 453.190 recognizes the right of the indigent person to sue by granting the authority to allow a poor person to bring suit or defend any action without paying costs, and that so much of the No-Pault Act as denies the right to bring suit or defend an action on the grounds of economics is unconstitutional.

We recognize the fact that where a nonindigent person would have a right to bring suit or defend an action under similar circumstances, an indigent person may not be precluded from exercising the same right by his inability to pay costs. KRS 453.190; Lay v. Commonwealth, Ky., 506 S.W.2d 507 (1974). However, a nonindigent person who, like appellants, had elected to use Kentucky highways, and had not rejected the limitations on tort liability in the no-fault plan, would not be able to recover in tort as the appellants are attempting to do. By being precluded from bringing this suit, appellants are not being discriminated against by reason of economics, but rather are requesting privileges not available to a person who has been able to afford no-fault coverage, and has not rejected abrogation of his tort rights. Appellants had the right to reject limitations on their tort rights, but have not done so.

If appellants argument is construed as a complaint that, because of inability to pay premiums, they are precluded from obtaining any type of redress for their injuries, even the limited basic reparations benefits [which was held to be the law in Thomas v. Ferguson, Ky.App., 560 S.W.2d 835 (1978)], we are still of the opinion that their constitutional rights have not been violated. In Fann v. McGuffey, Ky., 534 S.W.2d 770, 778 (1975), the Court of Appeals recognized the state’s undoubted authority to place conditions upon the use of its highways, including the power to require liability insurance. Equal protection does not require identical treatment for all people; the state retains the power to treat different classes of persons in different ways if the classification has a reasonable basis. Robinson v. Board of Regents of Eastern Kentucky University, 475 F.2d 707 (6th Cir. 1973); Board of Education of Louisville v. Board of Education of Jefferson County, Ky., 522 S.W.2d 854 (1975). See also United States v. Kras, 409 U.S. 434, 93 S.Ct. 631, 34 L.Ed.2d 626 (1973); Ortwein v. Schwab, 410 U.S. 656, 93 S.Ct. 1172, 35 L.Ed.2d 572 (1973).

As the Supreme Court noted in Hess v. Pawloski, 274 U.S. 352, 356, 47 S.Ct. 632, 633, 71 L.Ed. 1091 (1927), “[Mjotor vehicles are dangerous machines, and, even when skillfully and carefully operated, their use is attended by serious dangers to persons and property.” The legislature could properly determine that that group of persons who are not financially prepared to assume responsibility for the risks to which the general public is exposed due to their driving shall not be permitted to use the highways without making provision for insurance.

The final issue raised by the appellants is that the no-fault insurance system violates Article I of the United States Constitution and the Fourteenth Amendment in that it abridges their privileges and immunities as citizens and impedes the flow of interstate commerce.

The Commerce Clause of the United States is not to be construed as an absolute bar to any type of local legislation affecting travel in any manner. It has been said that “a state may exercise its power to make regulations for the protection of the health and property of its citizens against dangers arising from interstate commerce if such regulation does not conflict with federal legislation and does not impose a substantial burden on interstate commerce.” 15 Am.Jur.2d Commerce § 26.

In Chicago v. Atchison, Topeka, and Santa Fe Railway Company, 357 U.S. 77, 88, 78 S.Ct. 1063, 2 L.Ed.2d 1174,1183 (1958), it became apparent that local legislation imposing certain monetary costs for use of highways could be constitutionally upheld: “ . . . the city retains considerable authority to regulate how transfer vehicles shall be operated. It could hardly be denied, for example, that such vehicles must obey traffic signals, speed limits and other general safety regulations. Similarly the city may require registration of these vehicles and exact reasonable fees for their use of the local streets.” See also 7 Am.Jur.2d Automobiles and Highway Traffic § 21.

As the Supreme Court stated in Bibb v. Navajo Freight Lines, 359 U.S. 520, 523, 79 S.Ct. 962, 964, 3 L.Ed.2d 1003, 1006 (1959), “[t]he power of the State to regulate the use of its highways is broad and pervasive. The regulation of highways ‘is akin to quarantine measures, game laws, and like local regulations of rivers, harbors, piers, and docks, with respect to which the state has exceptional scope for the exercise of its regulatory power, and which, Congress not acting, have been sustained even though they materially interfere with interstate commerce.’ Southern Pacific Co. v. State of Arizona, 325 U.S. 761, 783, 65 S.Ct. 1515, 1527, 89 L.Ed. 1915.”

We do not believe the no-fault legislation imposes a substantial burden on interstate commerce, and there is no contention that it conflicts with any federal legislation. We hold that the legislation is not violative of the commerce clause.

Appellants contend that the Act deprives them of their constitutionally protected right to travel. Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972). The legislation in question is a regulation of one particular means of travel rather than as a general deterrent to the right to travel. We note that the Supreme Court has upheld a Maryland statute imposing automobile registration fees against the contention that it violated the right to travel. Hendrick v. Maryland, 235 U.S. 610, 35 S.Ct. 140, 59 L.Ed. 385 (1915). We do not regard the statute as “unreasonably burdening or restricting” a citizen’s freedom of interstate travel, Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969), and we hold that the Motor Vehicle Reparations Act is constitutionally valid.

The judgment is affirmed.

ALL CONCUR.


text:
    John L. WILLIAMS, Commissioner, Department of Banking & Securities, et al., Appellants, v. CUMBERLAND VALLEY NATIONAL BANK, London, Kentucky, et al., Appellees; James E. BROCK et al., Appellants, v. CUMBERLAND VALLEY NATIONAL BANK, London, Kentucky, et al., Appellees.
    Court of Appeals of Kentucky.
    Aug. 11, 1978.

      Bert T. Combs, Tarrant, Combs & Bullitt, Louisville, Robert E. Rawlins, Lexington, G. Lee Langston, Peter R. Held, Frankfort, Edwin F. Schaeffer, Jr., Kincaid, Wilson, Schaeffer & Hembree, Lexington, for appellants.

      Edward F. Prichard, Jr., William L. Graham, Frankfort, Larry C. Allen, C. R. Luker, Luker, Luker & Roberts, London, for appellees.
    Before MARTIN, Chief Judge, and COOPER and HOWARD, JJ.
   MARTIN, Chief Judge.

This is a consolidated appeal from a Franklin Circuit Court judgment denying the issuance of a bank charter to the London Bank and Trust Company. That judgment was entered on August 14, 1975, and provided:

The order entered by the defendant Sal-lee on May 20,1975, purporting to issue a bank charter, or to approve the articles of incorporation, or to issue, a certificate of authority to the other defendants in this action — to-wit, James E. Brock, Luke Keith, Jr., Charles F. Young, James A. Lewis, James C. Philpot, Don Young and Paul R. Smith, to engage in general banking business at London, Kentucky, is null, void and of no effect and is hereby set aside, reversed and held for naught and the defendants have no legal right or authority to engage in the operation of a bank thereunder.

During oral argument counsel for both appellants and appellees acknowledged that the Commissioner of Banking had in fact issued a charter and that the bank was presently operating in London, Kentucky.

These proceedings began on May 5, 1972, when six businessmen from London and one from Lexington filed an application pursuant to KRS 287.050 with the Department of Banking and Securities for approval of a new bank (“The London Bank”). The Second National Bank of London (since renamed the Cumberland Valley National Bank) protested the application. After a hearing on October 3, the Commissioner of Banking entered findings of fact, conclusions of law, and an order denying the application.

On August 3, 1973, six of the same individuals plus another businessman from London filed a new application to form a bank to be named “The London Bank and Trust Company.” The appellees, both of which are local banks, protested, and the Department held a hearing on December 14. On March 19, 1974, the Department’s hearing officer rendered a report favorable to the applicants. On the following day, Mr. Sal-lee, the new Commissioner, entered an order approving the application. The protestants then filed an appeal with the Franklin Circuit Court. Apparently, the charter was issued without the court’s knowledge, and the bank began operations on June 3 while the court was considering the case. This appeal followed the circuit court’s reversal of the Commissioner’s decision.

The issue before this court is whether the Franklin Circuit Court was correct in its determination that Commissioner Sallee acted contrary to his statutory responsibility under KRS 287.050 in recommending that a charter be issued. The circuit court held that the Commissioner violated KRS 287.050 because a similar application had been made and denied by a previous banking commissioner, and the hearing on the second application was not confined to the issue of changed conditions. The circuit court also reasoned that the applicants’ proof at the second hearing was substantially the same as at the first. The court found further error in that both the hearing examiner and the Commissioner did not address the issue of changed conditions in their decisions.

Any question concerning the validity of a bank charter is influenced by the decision of the Kentucky Supreme Court in Bank of Shelbyville v. Peoples Bank of Bag-dad, Ky., 551 S.W.2d 234 (1977). A further problem is whether a different standard applies to original bank charters under KRS 287.050 compared with licenses for branch banks under KRS 287.180(2). The Bank of Shelbyville case was a branch bank case, yet the court used an original bank charter case to support its holding. Therefore, we must conclude that the Commissioner’s duties under the statutes are the same.

Though the court in the Bank of Shelby-ville case recognized the bearing of the doctrine of res judicata on the administrative process of issuing bank charters, it determined that the doctrine’s application was inappropriate in that case. Citing Dink and Childers v. Palmer-Ball, Ky., 479 S.W.2d 897 (1972), the court ruled that the doctrine will not be applied “where substantial change of conditions or circumstances occur between two successive administrative hearings.”

Also in the present case, we are again faced with the responsibilities of the circuit court in the review of administrative agency decisions. As held in American Beauty Homes Corp. v. Louisville and Jefferson County Planning & Zoning Com., Ky., 379 S.W.2d 450 (1964), judicial review of administrative action should insure that the agency has not acted arbitrarily. The court further held that a lack of substantial evidence to support a decision was an arbitrary decision which warranted setting aside the agency’s decision. Therefore, it falls to the courts to determine if the agency had substantial evidence before it. Future applications for banking permits will be reviewed under this provision by the terms of KRS 287.062(4) (1976). This statute further provides by the exception to paragraph (3) that, in the future, upon the filing of a petition for review, the Commissioner shall not issue a bank charter or a branch bank charter until the review of the Commission’s decision has been completed by the courts. The only orders that may be issued'during the pendency of an appeal are those authorized by KRS 287.180 or 287.185, unless the court to which a review has been taken orders otherwise.

We believe that the following definition of substantial evidence sets a standard for judicial review under KRS 287.062. Kentucky State Racing Commission v. Fuller, Ky., 481 S.W.2d 298 (1972), provides at p. 308:

The test of substantiality of evidence is whether when taken alone or in the light of all the evidence it has sufficient probative value to induce conviction in the minds of reasonable men.

We further agree with the holding in Bank of Shelbyville v. Peoples Bank of Bagdad, supra, that repeated hearings before administrative agencies, brought about by changing commissions, were not intended by the legislative direction to the Commissioner of Banking. The denial of an application for a bank or a branch thereof shall operate as res judicata. An exception will be allowed only upon a showing of significant change of conditions or circumstances.

The trial court found, and we agree, that the proceedings before the Commissioner of Banking did not establish that there was a significant change of condition or circumstances between the hearings held in October, 1972 and December, 1973. The proof at the second hearing was basically the same as that produced at the first. There was no significant nor substantial difference shown. Unfortunately, the period of time from the 1972 application until this case was heard on appeal has been substantial.

Because of this long passage of time, we have no alternative but to reverse the judgment of the Franklin Circuit Court and return the case for determination of whether remedial action should be taken because of the issuance of the bank charter prior to the completion of this litigation. It is further directed that the Franklin Circuit Court should remand the proceedings to the Commissioner of Banking for a factual determination of whether there has been a significant change of conditions or circumstances since December, 1973, to warrant the issuance of a charter. This hearing shall be conducted in an open public forum giving all proponents and protestants equal opportunity to present their position. At the hearing the financial resources of the proposed incorporators shall be disclosed to all interested parties. To suggest that the Commissioner of Banking not disclose the financial resources of the proposed investors is an unjustified invasion of the judicial function, which is not warranted by the legislative directive to the Commissioner.

ALL CONCUR.