author: REED, Justice.

text:
    James R. YOCOM, Commissioner of Labor, Commonwealth of Kentucky, Movant, v. BURNETTE TRACTOR CO., INC., Respondent.
    Supreme Court of Kentucky.
    May 23, 1978.

      Kenneth E. Hollis, Gen. Counsel, Kentucky Dept, of Labor, Frankfort, Bert T. Combs, Tarrant, Combs & Bullitt, Louisville, Thomas M. Rhoads, Rhoads & Rhoads, Madisonville, for movant.
    Hal Warren, Warren & Warren, Fulton, for respondent.
   REED, Justice.

The principal issue contested by the parties is whether KRS 338.101 excuses the state inspection officials administering the Kentucky Occupational Safety and Health Act from securing a search warrant or court order if they propose to engage in an unconsented search of a place of employment whose health and safety conditions are statutorily regulated for the benefit of the employees working therein.

The Court of Appeals held that both the Fourth Amendment of the United States Constitution and Section 10 of the Constitution of Kentucky required a search warrant or court order “based upon a showing of probable cause” to permit a search and inspection by the concerned government officials of the closed areas of business premises “In the absence of any showing that the business ... is inherently dangerous, . or in the absence of any showing that their business was subject to federal or state regulation and/or license, or pervasively regulated or an industry with a long history of regulation, . . .” We agree with the well-reasoned opinion of the Court of Appeals and adopt it as the opinion of this court.

We hold, however, that the standard to determine the probable cause required for issuance of the requested search warrant or court order is different from that relevant in other contexts. The standard should be considered because this element is inextricably interwoven with the ultimate question to be settled, which is, under what showing may a government inspector enter and, in effect, search private business premises for violations of health and safety standards enacted for the protection of workers employed in and exposed to the health and safety conditions of the premises. We will, therefore, confine our subsequent discussion to this extension of the Court of Appeals’ opinion, which we have approved and adopted.

The seminal cases relied on by the Court of Appeals are Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967) and See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967). The majority opinion in both cases was authored by Mr. Justice White and issued the same day. Each of these opinions discussed the requirement of “probable cause” for the issuance of a search warrant. In Camara, an inspection of private premises in the administration of a city housing code was sought. In See, an inspection of a locked commercial warehouse in the administration of a city fire code was sought. In Camara the majority said:

“In cases in which the Fourth Amendment requires that a warrant to search be obtained, ‘probable cause’ is the standard by which a particular decision to search is tested against the constitutional mandate of reasonableness. To apply this standard, it is obviously necessary first to focus upon the governmental interest which allegedly justifies official intrusion upon the constitutionally protected interests of the private citizen.” 387 U.S. 523, 534, 87 S.Ct. 1727, 1734, 18 L.Ed.2d 930 (1967).

In the case before us, the governmental interest at stake is to prevent even the unintentional development of conditions which are hazardous to the health and safety of employees. The governmental inspection program at issue is aimed at securing employer compliance with minimum standards for the health and safety of employees, unlike a search pursuant to a criminal investigation. 387 U.S. 523, 535. A decision to search private property must be justified by a reasonable governmental interest. “But reasonableness is still the ultimate standard. If a valid public interest justifies the intrusion contemplated, then there is probable cause to issue a suitably restricted search warrant.” Id. at p. 539.

In Camara, the Supreme Court held that an area inspection was a “reasonable” search of private property within the meaning of the Fourth Amendment. It also held that “probable cause” to issue a warrant to inspect existed if reasonable legislative or administrative standards for conducting an area inspection were satisfied with respect to a particular dwelling. In See, the same court in dealing with inspection of private commercial premises said:

“We therefore conclude that administrative entry, without consent, upon the portions of commercial premises which are not open to the public may only be compelled through prosecution or physical force within the framework of a warrant procedure. We do not in any way imply that business premises may not reasonably be inspected in many more situations than private homes, nor do we question such accepted regulatory techniques as licensing programs which require inspections prior to operating a business or marketing a product.” 387 U.S. 541, 546, 87 S.Ct. 1737, 1741, 18 L.Ed.2d 943 (1967).

We will now apply the teaching of Camara and See to requirements of Section 10 of the Constitution of Kentucky. The controlling standard is reasonableness. In the case before us, the governmental agency’s demand for access will be measured, in terms of probable cause to issue a warrant, against a flexible standard of reasonableness that takes into account the public need for effective administration of the particular regulation. The decision to intrude, however, will represent the determination of a neutral magistrate and not the unfettered discretion of an enforcement inspector.

We do not foreclose prompt inspections, even without a warrant, that the law has repeatedly upheld in emergency situations. See Camara, supra, at 539, 87 S.Ct. 1737. We hold that the probable cause requirement may be satisfied by demonstrating that the place to be inspected is of the general type due for inspection under statutory or administrative standards setting up categories of places subject to inspection and bearing a rational connection to the goal sought to be achieved by the Kentucky Occupational. Health and Safety Act. We specifically reject the Respondent’s contention that a showing of “reasonable ground of suspicion of violation” in the particular premises is required before probable cause to inspect is deemed satisfied.

As extended by this opinion, the decision of the Court of Appeals is affirmed.

      .(1) In order to carry out the purposes of this chapter, the commissioner, or his authorized representative shall have the authority:
      (a) To enter without delay and advance notice any place of employment during regular working hours and at other reasonable times in order to inspect such places, question privately any such employer, owner, operator, agent, employe, or employe’s representative, and investigate such facts, conditions, practices, or matters deemed appropriate to determine the cause of, or to prevent the occurrence of, any occupational injury or illness.
      (b) To administer oaths, take depositions, conduct hearings, take photographs, review any and all accident and illness records, and secure any other evidence deemed necessary to evaluate any occupational safety and health hazard in order to ascertain whether any person has violated any provision of this chapter or regulations issued pursuant thereto.
      (2) If an employer refuses such entry, then the commissioner may apply to the Franklin Circuit Court for an order to enforce the right of entry.

      . Chapter 338 KRS.

      . The opinion of the Court of Appeals is reported as Yocom v. Burnette Tractor Co., Inc., Ky.App., 555 S.W.2d 823 (1976).

      . June 5, 1967.

      . The requirement of “probable cause” would apply equally to a court order permitting a search or inspection. For all practical purposes, “search warrant” and “court order” are synonymous.

      . The seizure of unwholesome food; compulsory smallpox vaccination; health quarantine; summary destruction of tubercular cattle, are examples of conditions analogous to “exigent circumstances” justifying a warrantless search or seizure.


source: Caselaw Access Project

author: WILHOIT, Judge.

license: Public Domain

text:
    AMERICAN COLLECTORS EXCHANGE, INC., and Torami, Inc., Appellants, v. KENTUCKY STATE DEMOCRATIC CENTRAL EXECUTIVE COMMITTEE, an Unincorporated Association, and William L. Sullivan, Martha Layne Collins, John Y. Brown, Jr., Daniel D. Briscoe, and Blanche Mahoney, Individually and as Representatives of the Class of Persons Composing the Kentucky State Democratic Central Executive Committee, an Unincorporated Association, as of on or about November 14, 1974, Appellees. AMERICAN COLLECTORS EXCHANGE, INC., and Torami, Inc., Appellants, v. AUTER, SMALLEY AND STENGEL, INC., Appellees.
    Court of Appeals of Kentucky.
    Jan. 6, 1978.
    Rehearing Denied Feb. 24, 1978.
    Discretionary Review Denied June 6, 1978 and June 27, 1978.

      Kenneth S. Handmaker, Carl W. Brown, Louisville, for appellants.
    Thomas C. Carroll, Louisville, for Kentucky State Democratic Central Executive Committee.
    Bill V. Seiller, Louisville, for Auter, Smalley & Stengel, Inc.
    Before HOWARD, REYNOLDS and WILHOIT, JJ.
   WILHOIT, Judge.

These two appeals, which' have been consolidated, are from judgments of the Jefferson Circuit Court. The first is from a judgment dismissing two third-party complaints. The second is from a judgment entered upon a jury verdict. Both appeals arise out of a project of the Kentucky State Democratic Central Executive Committee to raise money through the sale of art prints of works by noted Kentucky artists. To this end, the Executive Committee entered into two contracts, one with American Collectors Exchange, Inc., which was to act as purchasing agent for the Committee, and the other with Torami, Inc., which was to act as distribution agent. Each of the contracts was signed on behalf of the Executive Committee, an unincorporated association composed of 52 members, by William L. Sullivan, its chairman, and Martha Layne Collins, its secretary. The contracts were signed on behalf of the respective corporations by Robert B. Wheeler, president of both. Torami is a wholly owned subsidiary of American Collectors Exchange.

According to his testimony, Mr. Wheeler, acting on behalf of Torami, orally contracted with Auter, Smalley and Stengel, Inc., an advertising agency, for advertising services and materials in furtherance of the project. These services and materials were supplied prior to February 8, 1975. When payment was not received, Auter, Smalley and Stengel on April 8, 1976, brought suit against American Collectors Exchange and Torami for $7,813.33.

American Collectors Exchange and Tora-mi filed a third-party complaint seeking to join the Executive Committee in its own name as a party defendant for contribution. On motion of the Executive Committee this complaint was dismissed. Later, another third-party complaint was filed by American Collectors Exchange and Torami. This complaint, also for contribution, named as defendants William L. Sullivan, Martha Layne Collins, John Y. Brown, Jr., Daniel Briscoe, and Blanche Mahoney, individually and as representatives of the class of persons composing the Kentucky State Democratic Central Executive Committee. The named class members moved for dismissal of this complaint and their motion was granted. The trial court’s dismissal of the two third-party complaints is the subject of the first appeal.

The original action then proceeded to trial before a jury which returned a verdict in favor of Auter, Smalley and Stengel against American Collectors Exchange and Torami for the full amount claimed. Judgment was entered in accordance with the verdict. This judgment is the subject of the second appeal.

I.

With respect to the first appeal, we believe the court properly dismissed the initial third-party complaint because under the law in this jurisdiction an unincorporated association cannot be sued solely in its own name. Business Realty, Inc. v. Noah’s Dove Lodge #20, Ky., 375 S.W.2d 389 (1964). Our conclusion as to the second third-party complaint, however, is otherwise. This third-party complaint not only properly asserted a claim under CR 14.01, but also appears to have met the initial prerequisites of CR 23.01 and 23.02 for the maintenance of a class action. We do not agree with the contention that venue was improper because the headquarters of the Executive Committee is in Frankfort and the only one of the named individual members of the Executive Committee who was summoned did not reside in Jefferson County. Under CR 14.01, a third party against whom contribution or indemnification is sought may be joined regardless of whether the venue provisions of KRS 452.480 are met as to the third party. Goodwin Brothers v. Preferred Risk Mutual Insurance Co., Ky., 410 S.W.2d 714 (1967).

Study of our case law reveals a rather curious development which bears on the capacity of the Executive Committee as an entity to be made a party defendant in this complaint. While not subject to suit solely in its own name, it appears that an unincorporated association may be sued through the device of a class action. When such a suit is otherwise capable of being maintained, not only can the members of the class who compose the association be brought before the court, but the association itself can be made a party. The association is deemed to have “sufficient legal entity” to be sued in this fashion. Local Union No. 500, etc. v. Wise, Ky., 269 S.W.2d 721 (1954); Lyons v. Bryan, Ky., 273 S.W.2d 838 (1954).

We, therefore, conclude that the court erroneously dismissed the second third-party complaint and that the Executive Committee as a separate legal entity from its membership is capable of being sued through the class action brought by that complaint.

II.

With respect to the second appeal, we find no error in the failure of the trial court to direct a verdict for Torami against the claim of Auter, Smalley and Stengel. Torami asserts that it acted as an agent for a disclosed principal, the Executive Committee, in contracting with the advertising firm. It argues correctly that the law generally protects an agent from liability for lawful acts done within the scope of his agency on behalf of a disclosed principal. Potter v. Chaney, Ky., 290 S.W.2d 44 (1956). The difficulty with Torami’s position is that there was no true agent-principal relationship between it and the Executive Committee. The written contract between the two, while naming Torami as the Executive Committee’s “sole and exclusive agent for the promotion, sale and distribution of the Prints,” did no more than give Torami an exclusive dealership in return for its commitment to promote, sell, and distribute prints. The relationship which existed between Torami and the Executive Committee was more akin to what has been termed a “sales agency.” Stratton & Terstegge Co. v. Stiglitz Furnace Co., 258 Ky. 678, 81 S.W.2d 1 (1935).

Neither do we find that the court erred in refusing to instruct the jury that only Torami and not American Collectors Exchange could be held liable to Auter, Smalley and Stengel. The record reveals that, in addition to being a wholly owned subsidiary of American Collectors Exchange, Torami had no assets, employees, or even stationery. Mr. Wheeler’s only correspondence with the advertising firm was on the stationery of American Collectors Exchange. Further, there was evidence that Auter, Smalley and Stengel had never heard of Torami, which had not previously engaged in any business, until a bill for its services was sent to American Collectors Exchange. Under the circumstances, we believe the court could properly conclude that Torami was nothing more than an alter-ego or an instrumentality of American Collectors Exchange and properly refuse the requested instruction.

Since we have determined that Torami did not act as agent for the Executive Committee in contracting with Auter, Smalley and Stengel, it is unnecessary for us to consider the other alleged error in the instructions.

The judgment of the trial court against American Collectors Exchange, Inc., and Torami, Inc., in favor of Auter, Smalley and Stengel, Inc., is affirmed.

All concur.


author: HAYES, Judge.

text:
    COMMONWEALTH of Kentucky, Appellant, v. Donald C. SCHUMACHER, Appellee.
    Court of Appeals of Kentucky.
    Jan. 13, 1978.
    Rehearing Denied June 16, 1978.

      David L. Armstrong, Commonwealth’s Atty., by Steven B. Strepey, Asst. Commonwealth’s Atty., 30th Judicial Dist. of Kentucky, Louisville, for appellant.
    Edwin E. Schottenstein, McCrea & Schot-tenstein, Louisville, for appellee.
    Before COOPER, HAYES and HOWER-TON, JJ.
   HAYES, Judge.

This appeal is from an order of the Jefferson Circuit Court, dismissing an indictment against the defendant-appellee, Donald C. Schumacher, for violations of KRS 516.040, third degree forgery. The appellant, Commonwealth of Kentucky, urges this court to reverse the lower court because Schumacher’s alleged illegal activity did constitute the crime of forgery in the third degree, whereas the appellee Schu-macher argues this appeal should fail because the Commonwealth has not complied with the mandatory provisions of KRS 22A.020(4), which requires the Attorney General of this Commonwealth to participate in the appellate process in a criminal case. We shall consider the appellee’s position first.

Chapter 22A of the Kentucky Revised Statutes deals with the present Court of Appeals and, more particularly, KRS 22A.020 deals with appellate procedures.

KRS 22A.020(4)(b) states:

An appeal may be taken to the Court of Appeals by the state in criminal' cases from an adverse decision or ruling of the circuit court, but only under the following conditions: .
(b) Such appeal shall be taken in the manner provided by the Rules of Criminal Procedure and the Rules of the Supreme Court, except that the record on appeal shall be transmitted by the clerk of the circuit court to the attorney general ; and if the attorney general is satisfied that review by the Court of Appeals is important to the correct and uniform administration of the law, he may deliver the record to the clerk of the Court of Appeals within the time prescribed by the above-mentioned rules. (Emphasis added.)

There is nothing in this record that would indicate the Attorney General was or was not satisfied that review was required. There is no indication that the Attorney General’s Office has ever received this case prior to the appeal. The appellant has not seen fit to file a reply brief on this issue.

If KRS 22A.020 is unconstitutional, then the Commonwealth would not have to be concerned with the opinion or assistance of the Attorney General in the appellate process. In the case of Commonwealth of Kentucky v. Shobe, Ky.App., 24 Ky.L.Summ. 11 (Aug. 5, 1977), we suggested that KRS 22A.020(4) might be unconstitutional. Today, we so hold for the following reasons.

Section 109 of the Kentucky Constitution, inter alia, vests the judicial powers of this Commonwealth exclusively in one Court of Justice headed by a Supreme Court. Under Section 116 of the Constitution the Supreme Court only has the power to prescribe rules governing appellate procedure and jurisdiction for the entire Court of Justice. The only restriction on appeal by the Commonwealth set forth by the Constitution of Kentucky, as stated in Section 115, is that the Commonwealth may not appeal from a judgment of acquittal In a criminal case for any purpose other than securing a certification of the law. Therefore, when the legislature, by enactment of KRS 22A.020(4), attempts to establish rules of appellate procedure, it is contrary to the dictates of the Constitution.

Previous to the enactment of the Kentucky Criminal Rules of Procedure we had the Criminal Code of Practice which was in existence at the time of Commonwealth v. Jennings, Ky., 269 S.W.2d 285 (1954) cited by appellee as authority for dismissing this appeal.

The Criminal Code of Practice, § 337 stated:

If an appeal on behalf of the Commonwealth be desired, the Commonwealth’s attorney shall pray the appeal during the term at which the decision is rendered, whereupon the clerk shall immediately make a transcript of the record and transmit the same to the attorney-general, or deliver the transcript to the Commonwealth’s attorney, to be transmitted by him. If the attorney-general, on inspecting the record, be satisfied that error has been committed to the prejudice of the Commonwealth, upon which it is important to the correct and uniform administration of the criminal law that the Court of Appeals should decide, he may, by lodging the transcript in the clerk’s office of the Court of Appeals, within sixty days after the decision, take the appeal.

If this was the rule of practice today, the Commonwealth’s appeal would have to be dismissed. However, when we adopted the Criminal Rules of Procedure in 1962, we did not include § 337 of the Criminal Code of Practice. The legislature has attempted to rectify this by making Criminal Code § 337 for all practical purposes, a part of the statutory law of this Commonwealth. We believe this is not within the province of the legislature and is within the sole province of the Supreme Court of Kentucky. Therefore, that section of the Kentucky Revised Statutes, Chapter 22A, wherein the legislature of this Commonwealth has attempted to establish appellate procedure is unconstitutional.

We now turn to the second issue in this case, which must be decided — for if KRS 22A.020(4) is unconstitutional, and the Rules of Criminal Procedure, as they presently exist, do not incorporate Criminal Code of Practice § 337, then there is no authority existing presently that requires the Commonwealth Attorney to seek the approval or opinion of the Attorney General on appeals.

In order to discuss the issue of whether or not the facts of this case constitute forgery in the third degree, we will briefly state the necessary and important facts.

The indictment charged that Schumacher, Director of the School Food Service for the Jefferson County Board of Education, falsely made, completed, and/or altered a bid tabulation for milk and other dairy products with intent to defraud, deceive, or injure the Jefferson County Board of Education. The Commonwealth alleges that information given to the Board of Education, that J. W. Haywood and Sons would pick up empty plastic containers from milk sold to the school system and return a rebate of Vio of a cent each, was false, and that Schu-macher, as a result, knew that the information in the bid tabulation would be false. He signed the tabulation and presented it to the Board of Education for approval. The purchasing department of the Board of Education, of which Schumacher was not a member, compiled the bid tabulation, and it was signed by Schumacher in his official capacity as Director of School Food Services.

KRS 516.040 reads as follows: “A person is guilty of forgery in the third degree when, with intent to defraud, deceive or injure another, he falsely makes, completes or alters a written instrument.”

In contending that dismissal of the indictment was error, the appellant places great stress on the fact that, in its memorandum in support of the order dismissing, the trial court stated “that if the defendant is guilty of supplying false information verbally, the charge should be under KRS 523.100.” (Emphasis added.) Appellant contends that the Commonwealth was prepared to offer evidence that appellee did furnish false and misleading information, both verbally and in writing to the purchasing department.

Appellee, on the other hand, draws the Court’s attention to a letter to counsel for the Commonwealth, which sets out facts the parties allegedly agreed upon, including the statements that the tabulation was prepared without the aid of any known written memorandum from Schumacher, and that the basis for the charge consisted of verbal misrepresentations. The letter is not signed by counsel for the Commonwealth, nor is there any certification of service on counsel for the Commonwealth. Under such circumstances, it is questionable whether the statements can be considered approved by the Commonwealth, thereby making the statements in them stipulated fact.

However, it would not appear necessary to determine whether the circuit judge in fact relied in part on the belief that the misrepresentations were verbal in dismissing the complaint, or whether that belief was an erroneous one, not agreed to by the Commonwealth, since the Circuit Court’s judgment can be upheld on other grounds cited by the court in its memorandum in support of its opinion.

As the penal code is quite new, we have no case decisions interpreting KRS 516.040 on this issue. However, the wording of the definitions of the three verbs used in the statute, as given in KRS 516.010, is quite enlightening:

(4) To “falsely alter” a written instrument means to change, without the authority of anyone entitled to grant it, a written instrument, whether it be in complete or incomplete form, by means of erasure, obliteration, deletion, insertion of new matter, transposition of matter, or in any other manner, so that such instrument in its thus altered form appears or purports to be in all respects an authentic creation of or fully authorized by its ostensible maker or drawer.
(5) To “falsely complete” a written instrument means to transform by adding, inserting or changing matter, an incomplete written instrument into a complete one, without the authority of anyone entitled to grant it, so that the complete instrument appears or purports to be in all respects an authentic creation of or fully authorized by its ostensible maker or drawer.
(6) To “falsely make” a written instrument means to make or draw a complete written instrument in its entirety or an incomplete written instrument, which purports to be an authentic creation of its ostensible maker or drawer, but which is not either because the ostensible maker or drawer is fictitious or because, if real, he did not authorize the making or drawing thereof.

All of the foregoing sections speak of acts without authority, and of falsely making documents to appear authentic creations of their ostensible maker or drawer. Defendant in no way altered, made, or even completed the tabulation other than indicating his approval of it by signing his name, which was within his authority as Director of School Food Service. As to the authenticity of the bid tabulation, its ostensible maker was the Purchasing Department, and appellant admits in its brief that it was the Purchasing Department that prepared it. If appellee did in fact submit written information to the Purchasing Department, which it used in preparing the bid, it has not been alleged that he was not authorized to submit data, or that he submitted it in such a manner as to make it appear that the data came from someone other than himself.

Appellant cites Moore v. Commonwealth, 92 Ky. 630, 18 S.W. 833 (1892) as authority that one may be prosecuted and convicted of forgery even though he signed his own name, if by signing the instrument or document he knew it contained false information and his reason for so signing was to defraud or cheat another. The actual holding of Moore is somewhat narrower:

It is therefore urged the request of the accused to direct the jury to find him not guilty should have been granted upon the ground that there was a fatal variance between the charge in the indictment and the evidence. In other words, that he was charged with making the paper without authority, while the evidence showed he was authorized to sign the clerk’s name to it, but that it was false. He had no authority, however, to make a false certificate. It could not have been conferred. Although he was authorized to sign the clerk’s name to witness certificates, yet, if he did so to a false one, made out by him, it was forgery. It, says Blackstone, is “the.fraudulent making, or alteration of a writing to the prejudice of another man’s rights.” Another leading writer says it is “the false making, or materially altering, with intent to defraud, or any writing, which, if genuine, might apparently be of legal efficacy, or the foundation of a legal liability.” .
The clerk himself would be liable to the charge of forging a false witness certificate, although signed by him, if it were in fact false. It purports to be an obligation upon the State. • If genuine, it evidences an indebtedness upon its part. One may be guilty of the false making of an instrument, although signed and executed in his own name, if it be false in a material part but calculated to induce another to give credit to it as genuine. .

Moore appears to deal with the making of a document which is authorized to be made only when a certain act takes place, i. e., when a witness attends court, which had not occurred. See also Commonwealth v. Wilson, 89 Ky. 157, 12 S.W. 264 (1889) in which a surveyor, who made a plat and certificate of a survey purporting to have been made by him, when in fact none had been made, was guilty of forgery. This case, while it does not specifically speak of lack of authority, might be similarly interpreted. For further discussion see 36 Am. Jur.2d Forgery § 6-7.

In the case before this Court, there was authority to prepare a bid tabulation, as bids had actually been made. It appears that, if appellant’s allegations of fact are true, a criminal offense may have been committed by appellee, but that offense is not the crime of forgery. The trial court properly dismissed the indictment. The judgment is affirmed.

All concur.


author: LESTER, Judge.

text:
    Patricia SILVERS, widow of Raymond D. Silvers, for herself and for their infant children, Raymond D. Silvers, Jr., Edward Earl Silvers and Melissa Marie Silvers, Appellants, v. The MARLEY COMPANY, Employers Mutual Liability Insurance Company and Workmen’s Compensation Board, Appellees.
    Court of Appeals of Kentucky.
    Jan. 13, 1978.
    Rehearing Denied April 7, 1978.
    Discretionary Review Denied June 27, 1978.
    John Frith Stewart, Rex Dunn, Segal, Isenberg, Sales, Stewart & Nutt, Louisville, for appellants.
    William Mellor, Louisville, for appellees.
    Before GANT, LESTER and REYNOLDS, JJ.
   LESTER, Judge.

This litigation originated in the Workmen’s Compensation Board whose opinion and award was reversed by the trial court in an opinion entered July 6, 1977.

In November of 1974, Raymond D. Silvers, filed a. workmen’s compensation claim for injuries sustained while in the employment of appellee, The Marley Company. Prior to the adjudication, Mr. Silvers died (February 17, 1976) and his widow, Patricia Silvers, was substituted as the party-plaintiff on behalf of herself and the three minor children of the parties. In January of the following year, the compensation board determined that decedent had been 100% occupationally disabled as a result of the injury he had sustained but declined to award income benefits, for death was found not to be work-related. However, the board did order a continuation of benefits to be paid to the widow and children under the provisions of KRS 342.730(4) for a period, during widowhood, commencing February 18,1976, “[b]ut not to exceed the life expectancy of decedent.”

The Jefferson Circuit Court reversed the opinion and award upon the theory that there was no provision in the compensation act requiring an employer to continue payments during the life expectancy of the employee.

The question, as framed by the appellant and amended by appellees, presented for our consideration is whether KRS 342.730(4) provides for the continuation of permanent disability benefits to the dependents of a claimant who died from causes unrelated to his employment where the statutory “compensable period specified,” KRS 342.730(4) is “during such disability,” KRS 342.730(l)(a).

The pertinent section (KRS 342.730(4)) of the statute is:

When an employee, who has sustained disability compensable under this section, and who has filed a valid claim in his lifetime, dies from causes other than the injury before the expiration of the com-pensable period specified, the income benefits specified and unpaid at the individual’s death, whether or not accrued or due at his death, shall be paid, under an award made before or after such death, for the period specified in this section, to and for the benefit of the persons within the classes at the time of death and in the proportions and upon the conditions specified in this section and in the order named:
(a) To the widow or wholly actually dependent widower, if there is no child under the age of 18 or incapable of self-support; or
(b) If there are both such a widow or widower and such a child or children one-half to such widow or widower and the other half to such child or children; or
(c) If there is no such widow or widower but such child or children, then to such child or children; or
(d) If there is no survivor in the above classes, then the parent or parents wholly or partly actually dependent for support upon the decedent, or to other wholly or partly actually dependent relatives listed in paragraph (g) of subsection (1) of KRS 342.750 or both, in such proportions as the board may provide by regulation.

In essence, appellants argue that since compensation for total disability shall be paid “during such disability” then the phrase “for the period specified in this section” in KRS 342.730(4) should be translated into “for a period of the life expectancy of the deceased workman.”

There can be no argument with the proposition that the act under consideration had as its purpose the compensation of a workman for a disability sustained as a result of an employment connected injury. The same holds true for the dependents of one killed as a result of employment. In an effort to fathom the intent of the legislature in its enactment of the subject statute, we consider it helpful to review its definition of disability as found in KRS 342.620(9) which, in abbreviated form, means a decrease of wage earning capacity due to injury or loss of ability to compete for work. As of February 17, 1976, Mr. Silvers’s decrease of earning capacity and inability to compete on the labor market was not occasioned by an industrial accident but rather by his non work-connected death. The period of disability lasts only so long as the results of the injury, and they certainly terminate upon death. In other words, Mr. Silvers’s disability was extinguished by his death. If compensation is to be paid to dependents under KRS 342.730(4) “for the period specified in this section” and that time is “during such disability” and the disability ceases with death, then so also do the benefits.

The purpose of the last mentioned statute appears to us to provide a means whereby a designated person (dependent) may initiate or continue a claim for disability sustained by a workman in an industrial accident for a period from the date thereof to the time of his death when there has been no adjudication or payment in full has not been made. To hold otherwise would convert any workman’s compensation benefits subsequent to the non work-connected death to life insurance benefits. Our conclusion finds support in the phrase contained in the statute, namely, “the income benefits specified and unpaid at the individual’s death.” (emphasis added). The law does no more than provide a mechanism whereby the death of one disabled does not prevent the collection of the benefits for disability sustained until the time of such death. Moreover there is also provided an order of distribution.

Appellants urge that life expectancy is the proper limitation upon continuation of benefits and in support thereof state that it is an accepted standard used in the calculation of lump-sum benefits. This standard apparently comes from the wording of KRS 342.150 which permits commutation to a lump sum of “an amount which will equal the total sum of the probable future payments.” Obviously, the life expectancy tables are anticipated in commutation of “probable future payments.” Such language does not appear in KRS 342.730(4). We do not intend to provide appellants’ statutory amendment to the section under consideration, for the role of the courts in an initial interpretation such as is presented here is spelled out in Hatchett v. City of Glasgow, Ky., 340 S.W.2d 248, 251 (1960):

The courts may supply clerical or grammatical omissions in obscure phrases or language of a statute in order to give effect to the intention of the Legislature, presumed or ascertainable from the context, or to rescue the act from an absurdity. City of Owensboro v. Noffsinger, Ky., 280 S.W.2d 517. But where a statute on its face is intelligible, the courts are not at liberty to supply words or insert something or make additions which amount, as sometimes stated, to providing for a casus omissus, or cure an omission, however just or desirable it might be to supply an omitted provision. It makes no difference that it appears the omission was mere oversight

There has been a great deal of time devoted to discussions in the briefs by both parties of Yocom v. Chapman, Ky., 542 S.W.2d 510 (1976) but that opinion is of little aid in resolving the specific question of legislative intent, for in that appeal there was a definite period of disability involved while in this case, we are requested to provide a period of disability.

We agree with the opinion of the Jefferson Circuit Court and accordingly, its judgment is affirmed.

All concur.


author: PARK, Judge.

text:
    Robert F. GRIMES, Administrator of Laura McCoy Grimes, a Deceased minor, and Robert F. Grimes and Helen Grimes, surviving parents of Laura McCoy Grimes a Deceased minor, Appellants, v. Gordon HETTINGER, Appellee.
    Court of Appeals of Kentucky.
    Jan. 27, 1978.
    Rehearing Denied March 31, 1978.
    Discretionary Review Denied June 27, 1978.

      Bill V. Seiller, Ewen, MacKenzie & Pe-den, P. S. C., Louisville, for appellants.
    Thomas M. Crawford, Louisville, for ap-pellee.
    Before HOGGE, PARK and REYNOLDS, JJ.
   PARK, Judge.

This appeal raises the question of the liability of the owner of a private residential swimming pool for the death of a minor social guest. The appellants are the parents and personal representative of Laura McCoy Grimes, who died in a swimming pool adjacent to the residence of defendant-appellee, Gordon Hettinger. The appellants appeal from a summary judgment granted by the trial court dismissing the complaint.

FACTS

The underlying facts are not in dispute. Laura Grimes was invited to a combined slumber party and swimming party at the Hettinger home by Mr. and Mrs. Hettinger’s daughter, Linda. Including both Laura and Linda, eleven girls attended the party. The girls arrived at the Hettinger home on Friday evening, May 23, 1975. On Friday evening, the girls spent several hours swimming in the pool without incident. The record establishes that Laura was an intelligent twelve year old girl who was a proficient swimmer and diver with substantial training and experience. Laura had the opportunity to become thoroughly familiar with the layout of the Hettinger swimming pool on Friday evening.

The girls resumed swimming in the pool around eight o’clock Saturday morning. Mrs. Hettinger was not present, having taken one of the younger Hettinger boys to a tee-ball game. As Mr. Hettinger had a business appointment shortly after 9:00 A.M., he awakened his son, Terry, who was fourteen years of age, and gave him instructions to watch the girls. Before leaving, Mrs. Hettinger awakened her daughter Kathy, who was almost sixteen years old. Both parents told Kathy to watch the girls. Before leaving for his business appointment, Mr. Hettinger either told the girls to leave the pool or told them to leave the pool when requested to do so by Kathy.

Approximately five minutes after Mr. Hettinger left the residence, Kathy told the girls to leave the pool. When the girls had left the pool, they reported that Laura was missing. Kathy, Terry, and most of the other girls looked for Laura inside the Het-tinger residence. The search of the house had continued for five minutes when two of the girls dove into the pool and found Laura’s body on the bottom in the deepest portion of the pool near the drain. The two girls brought Laura to the surface and were assisted by Kathy and Terry Hettinger in bringing Laura out of the pool. There were no signs of breathing or heartbeat. The local rescue squad was notified immediately. A neighbor was summoned who administered mouth-to-mouth resuscitation. However, all efforts to revive Laura were futile. No autopsy was performed. However, Mrs. Grimes noted a bump on Laura’s forehead at the hairline. There was also some indication that Laura had superficial scratches in the area of her nose.

ISSUES

Respecting Mr. Hettinger’s liability for Laura’s death, three questions are raised: (1) whether a dangerous condition of the swimming pool was a substantial factor in causing Laura’s death; (2) whether activities conducted in and around the swimming pool were a substantial factor in causing her death; and (3) whether there was a duty to rescue Laura.

CONDITION OF THE POOL

Whether Mr. Hettinger was under a duty to Laura because of the condition of the swimming pool depends upon two factors. First, did a condition exist which Mr. Hettinger realized, or should have realized, would involve an unreasonable risk of death or serious bodily harm to Laura? Second, would a child of Laura’s age and experience reasonably be expected to understand and appreciate the risk of any dangerous conditions in the swimming pool? It is immaterial whether Laura was an invitee or merely a licensee. Gróss v. Bloom, Ky., 411 S.W.2d 326, 20 A.L.R.3d 1123 (1967); Louisville Trust Company v. Nutting, Ky., 437 S.W.2d 484 (1968); Johnson v. Simpson County Seed & Implement Co., Ky., 438 S.W.2d 340 (1969). In these three cases, the court adopted the rule set forth in the Restatement (Second) of Torts § 339, with respect to artificial conditions dangerous to trespassing children. The protection afforded trespassing children under section 339 is also extended to children who are licensees and invitees. Restatement (Second) of Torts § 343B.

Taking into consideration Laura’s age and her swimming experience and skill, the existence of a swimming pool would not itself impose any duty on Mr. Hettinger to warn or protect Laura. Swimming pools do not present a special danger involving an unreasonable risk of death or serious bodily harm, and the hazards of water are generally appreciated even by children of tender years. See Hanners v. City of Ashland, Ky., 331 S.W.2d 729, 730 (1959). We are not dealing with a child who is too young to appreciate the dangers inherent in a swimming pool or other body of water. Laura was an experienced swimmer fully capable of understanding the risks involved in swimming. See Restatement (Second) of Torts § 339, Comment j, illustrations 6 & 7. The appellants suggest that the Hettinger swimming pool presented an unreasonable risk of danger because of the presence of a sliding board and because of the cloudy condition of the water on the date of Laura’s death.

The appellants claim that there is a genuine issue whether the water was too shallow for safety at the end of the slide. The only evidence in the record with respect to the slide is contained in the deposition of Mr. Hettinger who actually installed the swimming pool and accessories. He testified that the end of the sliding board was located “just past the shallow end into five foot of water.” There is nothing in the record to suggest that the placement of the slide involved any unreasonable risk or danger. According to Mr. Hettinger, the manufacturer stated the slide was safe so long as there was three feet of water or more. The appellants cite the dissenting opinion of a member of the Consumer Product Safety Commission rendered December 9, 1975, long after the accident. However, this dissenting opinion does no more than argue that sliding boards should not be located in shallow water. There is nothing in the record indicating that five feet of water was too shallow for the Hettinger sliding board or that there was any danger which Laura could not be expected to appreciate. Mr. Hettinger was under no duty to warn Laura concerning the sliding board.

With respect to the clarity of the water in the pool, Mr. Hettinger testified that he vacuumed the pool and added chlorine to the water Thursday evening before the party. According to Hettinger’s deposition, the addition of chlorine tends to have a cloudy effect on the water for approximately twenty-four hours. For a time Friday evening, there was a wind and rain storm. Some leaves were blown into the pool, and the rain also tended to have a cloudy effect on the water in the pool. Because Laura’s body was not seen until the girls dived into the pool to look for her, the appellants argue that an issue was raised that the water was dangerously unclear. There was substantial evidence in the record that did indicate that there was nothing unusual about the clarity of the water in the pool and that a person swimming along the bottom of the pool could be seen by a person standing at the side of the pool.

Assuming that the clarity of the water did constitute a dangerous condition, this condition was as evident to Laura as it was to Mr. Hettinger. He was under no duty to warn Laura of a condition which was readily apparent. If ordinary care would have required Mr. Hettinger to bar the girls from swimming in the pool, then it would have been contributory negligence on the part of Laura to swim in the pool. The record establishes that she was fully aware of the danger inherent in swimming and diving in unclear water. On the other hand, if it was not contributory negligence for Laura to swim in the pool, there was no negligence on the part of Mr. Hettinger in permitting the girls to swim in the pool on Saturday morning. See Jones v. Winn-Dixie of Louisville, Ky., 458 S.W.2d 767, 770 (1970); Shelanie v. National Fireworks Assn., Ky., 487 S.W.2d 921 (1972); Meyer v. Smith, Ky., 428 S.W.2d 612 (1968).

For the foregoing reasons, we conclude that no triable issue was raised by the record relating to the condition of the swimming pool.

ACTIVITIES IN POOL

The second basis for liability of Hettinger relates to the activities in and around the swimming pool. Even though the condition of the pool itself did not present a danger which Laura would not have understood or appreciated, the activities of ten other twelve year old girls swimming and diving in the pool may have presented additional risks which would not have been present had Laura been swimming alone. In Hardin v. Harris, Ky., 507 S.W.2d 172, 174-75 (1974), the court held that the possesser of land had a duty to exercise ordinary care in conducting his activities to avoid injury to children on the premises. In this case, we are not concerned with Mr. Hettinger’s activities in and around the swimming pool. The question to be determined is the nature and extent of any duty on the part of Mr. Hettinger to supervise the activities of Laura and the other ten girls.

The appellants argue that Mr. Hettinger, “as the adult in charge,” was under a duty to observe those rules of water safety reasonably observed by prudent persons in control of a swimming pool including reasonable opportunities to rescue a swimmer in distress. The appellants point out that Mr. Hettinger did not maintain a continuous watch over the girls before he left for his business appointment. He spent most of the time in his business office located on the ground floor of his home from which he could not see the pool. Periodically, Mr. Hettinger would come out of the office to check on the girls. The appellants point out that Mr. Hettinger did not institute a buddy system among the girls and that a head count was never taken while the girls were swimming.

In support of the argument that Mr. Hettinger was negligent in failing to provide lifeguard services, the appellants rely upon the decision in Bartley v. Childers, Ky., 433 S.W.2d 130 (1968). In that case, the court discussed the duties of the operator of a commercial swimming pool open to the public. The court stated:

It is among the duties of the proprietor of a public swimming pool to make reasonable provisions to protect bathers in case of accident; to rescue those apparently in danger; and to act promptly to institute a search for a missing bather. 86 C.J.S. Theaters & Shows § 42 f., p. 736. The function of lifeguards is as much (and perhaps more) to rescue bathers in trouble and to revive those in a drowning condition as it is to keep bathers from getting in a drowning situation. Prevention of horseplay likewise has a dual purpose—to make it easier to discover bathers in danger as well as to keep them out of danger. Regulations for periodic clearances and bottom patrols of the pool are primarily for rescue and resuscitation purposes. And a divider rope may serve as a lifeline as well as a warning device.

433 S.W.2d at 132. A similar duty is imposed upon a municipality operating a public swimming pool. Stillwell v. City of Louisville, Ky., 455 S.W.2d 56 (1970). The same duty is not imposed upon the owner of a private residential swimming pool.

Mr. Hettinger was under a duty to control the conduct of the girls to prevent an unreasonable risk of harm to any of them. In the Restatement (Second) of Torts § 318, the duty of an owner of land to control the conduct of a licensee is stated as follows:

If the actor permits a third person to use land or chattels in his possession otherwise than as a servant, he is if present, under a duty to exercise reasonable care so to control the conduct of the third person as to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them if the actor
(a) knows or has reason to know that he has the ability to control the third person and
(b) knows or should know of the necessity and opportunity for exercising such control.

Under section 318, the owner of a residential swimming pool was held to owe a duty to control the boisterous conduct of two guests which involved unreasonable risk of bodily harm to other guests. Mangione v. Dimino, 39 A.D.2d 128, 332 N.Y.S.2d 683 (1972). See also Coleman v. Baker, Ky., 382 S.W.2d 843, 848-49 (1964), in which the owner of a machine shop was held liable to a child licensee injured by the dangerous conduct of another child licensee.

The record in this case is completely devoid of any evidence or suggestion that the girls were engaged in horseplay, boisterous conduct, or any dangerous activity in and around the swimming pool. There is no suggestion that Laura’s death is in any way attributable to the conduct of the other girls. If Mr. Hettinger had been at poolside at all times rather than in his office, the record does not indicate any necessity for Mr. Hettinger to have exercised control over the activities of the girls. Consequently, liability could not be imposed upon Het-tinger for negligence in controlling the conduct of the girls in and around the swimming pool.

DUTY TO RESCUE

Because this appeal is from the granting of a motion for summary judgment, we conclude that Laura’s unexplained presence at the bottom of the swimming pool raises an inference that her death was the result of drowning. Consequently, we must determine whether Mr. Hettinger had an affirmative duty to exercise ordinary care to rescue Laura. Under the traditional common law rule, a person is under no duty to attempt to rescue another person who he knows to be in danger of drowning. See Restatement (Second) of Torts § 314, Comment e, Illustration 4. Decisions holding that there is no liability for permitting a person to drown have been described as “revolting to any moral sense.” W. Prosser, Law of Torts, at 341 (4th Ed., 1971). Without regard to the merits of the general rule, a duty to aid one in peril has been imposed when a special relationship exists between the parties. Such a duty has been imposed upon a host to aid, a social guest. For example, in Hutchinson v. Dickie, 162 F.2d 103 (6th Cir., 1947), the court held that the operator of a cabin cruiser had a duty to rescue his social guest who fell overboard through no fault of the owner. The court stated:

We take no stock in appellant’s contention that he was under no legal duty to rescue decedent. Dickie was an invited guest upon appellant’s cruiser. When appellant heard the cry “Man Overboard” (an undisputed and relevant fact not referred to either in the findings or in the court’s opinion) we think it was his duty to use reasonable care to rescue him. This was certainly a moral duty, universally recognized and acted upon. Dickie was drowning and appellant’s cruiser was the only instrumentality by which he might be rescued.

162 F.2d at 106. See also Tubbs v. Argus, 140 Ind.App. 695, 225 N.E.2d 841 (1967).

When a duty to aid is imposed because of a special relationship between the parties, the defendant is not liable for failure to render aid unless he knows or has reason to know of the plaintiff’s peril. Prosser, op. cit. 343; Restatement (Second) of Torts § 314A. There is nothing in the record to suggest that Mr. Hettinger ever was aware that Laura was in danger. Nor is there anything in the record to indicate that he was aware that Laura was missing, thereby giving him reason to believe that Laura was in danger.

When Mr. Hettinger left for his business appointment, he delegated the responsibility of looking after the girls to his daughter, Kathy, and son, Terry. Subsequently, both Kathy and Terry were informed that Laura was missing and that the girls were making a search for her. Kathy and Terry went back into the house to look for Laura. Neither made any attempt to inspect the pool. Laura was discovered at the bottom of the pool by two classmates while Kathy and Terry Hettinger were still inside of the residence. According to Terry, the search for Laura had been going on for approximately five minutes before she was found. According to Mr. Hettinger and his three children, the water in the pool was clear. With all of the other girls out of the pool, Laura’s body should have been visible from the side of the pool. She was attired in a bright red, white and blue one piece swimsuit.

Unlike the operator of the commercial pool in Bartley v. Childers, supra, the owner of a private residential swimming pool has no continuing duty to discover the peril of persons in danger of drowning. The duty of the private pool owner to rescue arises from actual knowledge of the peril or actual knowledge of facts which would cause a reasonable prudent person to assume that the guest was in peril. See Restatement (Second) of Torts § 12(2); cf. Beasley v. Standard Paving & Engineering Co., Inc., Ky., 511 S.W.2d 667 (1974); General Telephone Co. of Kentucky v. Yount, Ky., 482 S.W.2d 567 (1972). In granting summary judgment, the trial judge concluded that it was logical for Kathy and Terry to look for Laura in the Hettinger home rather than the swimming pool because of the fact that Laura had played hide-and-go-seek with her friends in the past. We conclude that a jury could reasonably reach a different conclusion. A jury might believe that Kathy and Terry had reason to know that Laura was still in the pool and in danger of death. The difficult question is whether a prompt search of the pool would have resulted in the discovery of Laura in time to save her life. If at trial there were no evidence that there was sufficient time to rescue Laura after her peril should have been discovered, then a directed verdict against the appellants would be proper. See Cox v. Barnes, Ky., 469 S.W.2d 61 at 64 (1971).

On the motion for summary judgment, Hettinger as the movant had the burden of establishing the nonexistence of a genuine issue with respect to causation. Conley v. Hall, Ky., 395 S.W.2d 575, 580 (1965). There is evidence in the present record that Laura’s absence was noted by some of the girls prior to the time that the girls got out of the pool. One of the girls went into the residence to look for Laura, and Kathy and Terry became aware that Laura was missing only when the girl returned to poolside. This was a prima facie showing that there was not sufficient time to rescue Laura after Kathy and Terry Het-tinger became aware that Laura was missing. The burden was then upon the appellants to show in some way that there would be evidence at trial that there was a reasonable opportunity to rescue Laura after Kathy and Terry discovered she was missing. Because the appellants failed to establish that there was any such evidence, the trial court properly sustained the motion for summary judgment. Neal v. Welker, Ky., 426 S.W.2d 476 (1968).

RULING

The judgment of the circuit court is affirmed.

All concur.

      . Illustrations:
      6. A has on his land a small artificial pond in which, to A’s knowledge, children of the neighborhood frequently trespass and swim A takes no precautions of any kind. B, a boy ten years old who cannot swim, trespasses on A’s land, enters the pond, and is drowned. A is not liable to B.
      7. A has on his land a small artificial pond full of goldfish. A’s land adjoins a nursery in which children from two to five years of age are left by their parents for the day, and such children are, as A knows, in the habit of trespassing on A’s land and going near the pond. A could easily prevent this by closing and locking his gate. A does not do so. B, a child three years of age, trespasses, enters the pond to catch goldfish, and is drowned. A is subject to liability for the death of B.

      . We need not reach the question whether Het-tinger was under a duty to remain in the vicinity of the pool at all times. When he left for his business appointment he instructed Kathy and Terry to “watch” the girls. They were his agents for that purpose, and he would be liable for any negligence on their part. Lashbrook v. Patten, 62 Ky. (1 Duv.) 316 (1864).


author: HOGGE, Judge.

text:
    James R. YOCOM, Commissioner of Labor and Custodian of the Special Fund, Frances Jones Mills, Treasurer of the Commonwealth of Kentucky and Custodian of the Uninsured Employers’ Fund, and Blue Ribbon Coal Company, Appellants, v. Asie HAYDEN and Kentucky Workmen’s Compensation Board, Appellees.
    Court of Appeals of Kentucky.
    Feb. 10, 1978.
    Discretionary Review Denied June 27, 1978.

      Cyril E. Shadowen, Asst. Counsel, Dept, of Labor, Louisville, Kenneth E. Hollis, Gen. Counsel, Dept, of Labor, and Richard M. Joiner, Asst. Atty. Gen., Frankfort, John V. Porter, Paintsville, for appellants.
    John David Preston, George Chad Perry, III, Paintsville, for appellees.
    Before HOGGE, PARK and REYNOLDS, JJ.
   HOGGE, Judge.

This is an appeal from a judgment of the Johnson Circuit Court affirming an award of the Workmen’s Compensation Board.

Asie Hayden was a thirty-five year old male, who had engaged in the occupation of underground coal mining for approximately seventeen and one-half years. He worked for the Blue Ribbon Coal Company until January of 1972, at which time he filed a claim for workmen’s compensation benefits allegedly due for disability resulting from the occupational disease of coal miner’s pneumoconiosis. He consulted physicians in regard to his claim, and was advised that he had contracted the occupational disease, and that good medical hygiene would dictate that he not return to employment in the coal mining industry.

While the claim was in litigation, it was discovered that the employer had elected not to be covered by the act. Thereafter, Mr. Hayden’s claim was dismissed without prejudice. From January 1972 until October 1974, the claimant worked at “odd jobs.” In October 1974, the employer Blue Ribbon Coal Company, prevailed upon Mr. Hayden to return to work. He worked for Blue Ribbon from October 1974 until January 1975. After leaving his employment in January 1975, he again filed for benefits and the claim was assigned the same number as had been assigned to the 1972 claim. After January 1,1973, the Workmen’s Compensation Act was mandatory. However, Blue Ribbon had remained uninsured and the Uninsured Employers’ Fund was named as a party-defendant in the second proceeding.

The Workmen’s Compensation Board, in the second proceeding, awarded Mr. Hayden benefits for total and permanent occupational disability. The liability for said award was apportioned with seventy-five percent being assessed against the Special Fund and twenty-five percent being assessed against the employer. The award was affirmed by the Johnson Circuit Court. This appeal is prosecuted by the Special Fund, the Uninsured Employers’ Fund, and the employer, Blur Ribbon Coal Company.

KRS 342.316(1), as it was written in January 1972, provided that an employee must file his claim within one year after he became disabled.

KRS 342.316(2)(a) provided that as long as an employee continued in the full-time employment by the same employer, he could not be considered to be disabled and there was a conclusive presumption that he was not disabled. This provision had the effect of tolling the statute of limitations until the claimant ceased his employment. However, once the employee ceased his employment, the presumption of nondisability also ceased.

All three appellants argue that the holdings in Yocom v. Karst, Ky., 528 S.W.2d 697 (1975) and its companion case Brock v. Workmen’s Compensation Board, Ky., 528 S.W.2d 701 (1975) are dispositive of this appeal. The holdings of these two cases establish the principle that where a coal miner has been diagnosed as silicotic, the presumption, arising from continued employment in the mining industry, that he is not disabled is negated by a substantial period of unemployment between the cessation of that employment and a renewal of that employment; and, therefore, the presumption of nondisability arising from continued employment cannot be invoked. Lacking a presumption of nondisability, it is incumbent upon the claimant to prove that his disability did not exist until his latest period of employment or that any preexisting disability was enhanced by his subsequent exposure to mining.

According to the unanimous medical opinion, as well as the claimant’s own testimony, he was under substantial disability prior to engaging in his final period of employment. However, all the doctors were of the opinion that the latest exposure could have contributed to his silicotic condition. Dr. Van Hoose, in response to the question, “Would this last exposure of four months have enhanced any disability this man might have had?”, answered, “I would say it would, yes.”

At page 699 of the Karst, supra, opinion, the court stated: “While two doctors testified that the five hours of exposure in June 1973 were capable of contributing to silicosis, neither testified that the exposure did in fact enhance Karst’s previous state of disability.” [Emphasis ours.] This is a significant difference from the evidence in this case, as cited above.

The Karst, supra, case held that a subsequent exposure cannot be the basis for liability as to any preexisting disability for which a claim could have been filed within the statutory period. Therefore, it was the duty of the board to determine from the evidence what portion of the claimant’s disability existed prior to his last period of exposure and what portion of his disability was the result of his last exposure. The board’s failure to make this determination was reversible error, because, while compensation for the earlier exposure is barred by the statute of limitations, the disability incurred as a result of the claimant’s last period of exposure is compensable. We realize that this is a difficult undertaking; however, it is an issue that must be determined by the trier of fact, in this case, the board.

Appellants, Uninsured Employers’ Fund and Blue Ribbon Coal Company, also argue that the appellee’s claim is barred by KRS 342.035. KRS 342.035(2) provides in part: “No compensation shall be payable for the . . . disability of an employe[e] ... if and insofar as his disability is aggravated, caused or continued, by an unreasonable failure to submit to or follow any competent surgical treatment or medical aid or advice.”

It is undisputed that the appellee returned to underground mining against the advice of his physicians. However, the statute precludes recovery only in the event that his action is deemed “unreasonable.” In this case, the claimant had been unemployed for a substantial period, had been unable to qualify for any supplemental income assistance, and had a family to support. Additionally, the employer, who now asserts that it was unreasonable for the claimant to return to work, with full knowledge that the appellee had filed an earlier claim for benefits based on silicosis, actually encouraged the appellee to return to employment in underground mining. Under the circumstances, we are not prepared to conclude that it was unreasonable for the claimant to do so.

The last basis for this appeal is founded on the principle of res judicata. There are several reasons that this principle does not apply to the present case. First, the earlier claim was dismissed without prejudice. It is a general rule that a dismissal without prejudice does not preclude the maintenance of a subsequent action on the same facts. Second, this claim is not based on the same facts in that this claim involves a different exposure. Third, there is not complete identity of parties, in that the Uninsured Employers’ Fund is a party to this action, and was not a party in the first action.

This case is reversed and remanded for a determination of what portion of the claimant’s disability is attributable to his latest exposure, and is therefore compensable, and what portion is attributable to his previous exposure and is now barred.

Judgment reversed.

All concur.


text:
    Nellie RICHARDSON, Fritz Krueger, Tommy Richardson, Bernice Jones, Montie Ray, G. M. Wurzelbacher, Richard T. Wurzelbacher, Robert M. Wurzelbacher, R. B. Bertram, Frank Bell, Doris Bertram, Ralph Brown, Judy Bertram, Gloria Jean Richardson, Rita Jones, Anita J. Frey, Tony Jones, and the Winchester Bank as their Agent, Appellants, v. SOUTH KENTUCKY RURAL ELECTRIC COOPERATIVE CORPORATION, Appellee.
    Court of Appeals of Kentucky.
    Feb. 24, 1978.
    Discretionary Review Denied June 27, 1978.

      Beverly White, White, McCann & Stewart, Winchester, for appellants.
    Meriel D. Harris, Harris & Lyon, Somerset, for appellee.
    Before LESTER, PARK and WHITE, JJ.
   PARK, Judge.

The defendant-appellee, South Kentucky Rural Electric Cooperative Corporation (South Kentucky RECC), is a nonprofit, nonstock rural electric cooperative incorporated under the provisions of KRS 279.010 to KRS 279.220. The plaintiff-appellants are the former shareholders and liquidating agent of The J. M. Richardson Flooring and Lumber Company (Richardson Flooring), a Kentucky corporation, that was dissolved commencing in 1972. Richardson Flooring had been a customer of South Kentucky RECC for the years 1960 through 1971. In an action commenced in the Pulaski Circuit Court, the appellants sought to recover “capital credit” in the amount of $25,992.08 which had been allocated to Richardson Flooring on the books of South Kentucky RECC. The former shareholders and liquidating agent of Richardson Flooring appeal from a summary judgment granted by the circuit court dismissing the complaint.

During each of the years in question, South Kentucky RECC allocated to “patronage capital” all amounts received from the sale of electricity in excess of actual operating costs and expenses. The patronage capital was then allocated to the capital credit account of each customer of South Kentucky RECC based upon the amount billed to that customer for electric service during the year.

In 1964, South Kentucky RECC paid the sum of $72,957.02 to retire all of the capital credits allocated to its customers for the years 1946-1949. In 1967, South Kentucky RECC paid the sum of $140,148.19 to retire the capital credits allocated to its customers for the years 1950-1954. Since that time, South Kentucky RECC has made no general retirement of capital credits. However, during the years 1962-1974, South Kentucky RECC has paid the sum of $585,-548.41 to retire the capital credits of deceased customers.

The former shareholders and liquidating agent of Richardson Flooring assert that there are two reasons why they are entitled to payment of the Richardson Flooring capital credit account of $25,992.08. First, they assert that South Kentucky RECC was under a duty to distribute all surplus revenue rather than allocating such sums to capital credits. Second, they assert that South Kentucky RECC could not retire the capital credits of deceased customers without making a pro rata redemption of the capital credits of all other customers for the years in question.

I

The appellants rely upon subsection (3) of KRS 279.160, which provided:

Revenue not needed for the purposes mentioned in subsection (2) of this section shall be returned to the members as a patronage dividend or refund on a pro rata basis according to the amount of electric energy consumed, services rendered or personal property received, rented or purchased. The patronage dividend or refund shall be payable either in cash, common stock, certificates of indebtedness or other property, or in abatement of current charges for electric energy, services or personal property, or both, or in general rate reductions, as the board of directors may determine.

The appellants claim that capital credits do not constitute a legal method of paying patronage dividends or refunds pursuant to KRS 279.160(3). They further assert that the rights of Richardson Flooring to the capital accounts accrued prior to the repeal of KRS 279.160 in 1972. (1972 Ky. Acts, ch. 11, § 6).

The appellants assume that all amounts received by South Kentucky RECC for furnishing electric energy in excess of actual operating costs and expenses constituted surplus revenue not needed for the purposes mentioned in subsection (2) of KRS 279.160. If this assumption were correct, there would be serious question whether South Kentucky RECC could retain such sums as capital credits rather than paying them on a pro rata basis to its customers as a patronage dividend or refund. However, subsection (2) of KRS 279.160 provided that the charges made by the cooperative should produce revenue for purposes other than the actual operating costs and expenses of the cooperative. Subsection (2) of KRS 279.160 provided that the charges made by South Kentucky RECC should be fixed so as to produce sufficient revenue for the following purposes:

(a) To pay all legal and other necessary expenses incident to the operation of its system and business, including maintenance cost, operating charges, upkeep, repairs and taxes.
(b) To provide a sinking fund for the liquidation of the principal and interest of obligations and to provide a reasonable surplus in the discretion of the board of directors.
(c) To provide adequate funds to be used as working capital and to acquire property necessary or incidental to the proper conduct of the business of the corporation, and funds for making improvements, extensions and replacements, including the replacement of merchandise and personal property sold in the usual course of business, and to provide for depreciation and contingencies.
(d) To provide other funds needed for the proper conduct of the business.
(e) To maintain the property of the corporation in a sound physical and financial condition to render adequate and efficient service.

In its official notice of the amount of capital credit allocated to each customer, South Kentucky RECC stated:

Patronage capital is the amount billed for services above the actual operating costs and expenses of that service. These amounts are allocated to each consumer based upon the amount billed for electric service.
This patronage capital is used by your cooperative reducing its indebtedness, on its R.E.A. and C.F.C. loans and other proper purposes. It is, in effect, invested in poles, wires, transformers, sub-stations and other property owned by the cooperative. Without this security of invested ownership, no financing organization would be willing to risk loans of capital to it. That is why the capital credits are put into the electric plant in your behalf, and why they are not being refunded at this time. When it is economically feasible within sound business policy to refund capital credits, they will be retired in the order of the year in which they have accumulated.

It is apparent that the amounts being retained by the cooperative as capital credits were for the purposes authorized by subsection (2) of KRS 279.160.

Under subsection (2) of KRS 279.-160, the directors of South Kentucky RECC could utilize revenues for many purposes other than current operating costs and expenses. If the directors determined that such funds were necessary to retire debt, to provide for new plant and equipment, or to provide the necessary working capital for the conduct of the business of the cooperative, there was no surplus revenue which was required to be paid as a patronage dividend or refund pursuant to subsection (3). See Burley Tobacco Growers’s Co-op. Ass’n v. Tipton, 227 Ky. 297, 11 S.W.2d 119 (1928), and Burley Tobacco Growers’s Coop. Ass’n v. Brown, 229 Ky. 696, 17 S.W.2d 1002 (1929). The bylaws of South Kentucky RECC provided that all revenues received by the cooperative in excess of actual operating costs and expenses were received with the understanding that they were furnished by the cooperative’s customers as capital. The cooperative was obligated to allocate such patronage capital to the individual capital accounts of its customers on an annual basis. The bylaws further provided that the board of directors could retire capital accounts if the board determined that the financial condition of the cooperative would not be impaired. Any such retirement of capital accounts should be on a first in, first out basis, the patronage capital for the earliest year being first retired. These bylaw provisions are valid and binding. They do not conflict with the provisions of KRS 279.160(3).

II

Because the board of directors of the cooperative retired the capital credits of deceased customers, the appellants argued that South Kentucky RECC cannot discriminate against them by refusing to retire the capital credits of Richardson Flooring, a dissolved corporation. The bylaws of the cooperative provided that the board of directors, at its discretion, had the power to retire the capital credits belonging to a deceased customer prior to the time that such capital credits would otherwise have been retired. The appellants assert that this bylaw violates the requirement of KRS 279.160(3) that all patronage dividends and refunds be on a pro rata basis.

This argument ignores the fact that rural electric cooperatives are expressly authorized to adopt bylaw provisions dealing with the retirement of the interest of deceased members. KRS 279.070(2) provides:

The bylaws may provide for any or all of the following matters:
(h) . . the manner of determining the value of a member’s interest and provision for its purchase by the corporation upon the death or withdrawal of a member or upon his expulsion or forfeiture of membership or, at the option of the corporation, the purchase of the member’s interest at a price fixed by appraisal by the board.

The bylaw provision in question is not invalid. The board of directors of South Kentucky RECC could elect to retire the capital credits of deceased customers without obligating the cooperative to retire capital credits of all customers on a pro rata basis. Claassen v. Farmer’s Grain Cooperative, 208 Kan. 129, 490 P.2d 376 (1971).

In the case of In re Great Plains Royalty Corp., 471 F.2d 1261 (8th Cir. 1973), two cooperatives refused to refund patronage capital credits to the estate of a bankrupt and defunct corporation. The bylaws of the two cooperatives involved in the Great Plains case are substantially identical with the bylaws of South Kentucky RECC. The court held that bylaw provisions providing for the early retirement of capital credits upon the “death of any patron” must be construed to apply to the claims of the trustee of a bankrupt corporation against the cooperatives. The court held that a defunct corporation was “de facto dead.” With all due respect to the opinion in the Great Plains case, we cannot agree that the death of a natural person can be equated with the dissolution or bankruptcy of a corporation.

The bylaws of South Kentucky RECC and the bylaws of the cooperatives involved in the Great Plains case all show a recognition of the difference between a natural person and a corporate entity. The bylaws provided for the early retirement of the capital credits upon the death of a customer “if the legal representatives of his estate shall request in writing that the capital credited ... be retired.” By use of the personal pronoun “his,” it is apparent that the bylaws are referring to the death of a natural person. The bylaws of South Kentucky RECC also provided that membership in the cooperative would terminate upon the “death” or “cessation of existence” of a member. The bylaws also provided that upon the “death” or “cessation of existence” of a member of the cooperative, the certificate of membership must be surrendered forthwith to the cooperative. These bylaws clearly recognize the distinction between the death of a natural person and the cessation of existence of a corporate entity. Neither bylaw was discussed in the Great Plains case. We conclude that the bylaws of South Kentucky RECC make a distinction between the death of a natural person and the cessation of existence of a corporate entity. Furthermore, there are several valid and rational reasons for making such a distinction.

First, the needs of the surviving members of the family of a farmer or other head of household are usually different from the needs of former shareholders of a dissolved corporation. Second, the liquidation of the corporation is not delayed. The capital credit claim of Richardson Flooring can be assigned to its shareholders on a pro rata basis as a part of the liquidation. Third, and most important, there is no reason to prefer the shareholders of Richardson Flooring over other customers of South Kentucky RECC having capital credits for the years through 1971. If an individual customer had moved out of the cooperative’s service area or had gone out of business, he would have as much right to demand retirement of his capital credits as would the former shareholders of Richardson Flooring. To require South Kentucky RECC to retire all of the capital credits through 1971 could have disastrous financial effects on the cooperative.

In the Great Plains case, the court was applying a North Dakota statute which prohibited any discrimination between customers in the payment of patronage refunds. Kentucky has no such statute. In this case, KRS 279.070(2)(h) clearly authorizes a cooperative to exercise a degree of discretion in the early retirement of the interest of a deceased member of the cooperative. The bylaws of South Kentucky RECC do not violate any of the provisions of KRS 279.010 to KRS 279.220. The decision of the board of directors of the cooperative declining to retire the capital credits of a dissolved corporation was not arbitrary and capricious. The capital credits of a deceased individual customer could be retired by the cooperative without making a pro rata distribution of capital credits to all customers.

Ill

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

All concur.

      . Article VIII, § 2 of the bylaws provided in part:
      In the furnishing of electric energy, the Cooperative’s operations shall be so conducted that all patrons, members and non-members alike will, through their patronage, furnish capital for the Cooperative. In order to induce patronage and to assure that the Cooperative will operate to account on a patronage basis to all its patrons, members and non-members alike for all amounts received and receivable from the furnishing of electric energy. All such amounts in excess of operating costs and expenses at the moment by the Cooperative are received with the understanding that they are furnished by the patrons, members and non-members alike as capital. The cooperative is obligated to pay by credits to a capital account for each patron all such amounts in excess of operating costs and expenses. The books and records of the Cooperative shall be set up and kept in such a manner that at the end of each fiscal year the amount of capital, if any, so furnished by each patron is clearly reflected and credited in an appropriate record to the capital account of each patron, and the Cooperative shall within a reasonable time after the close of the fiscal year notify each patron of the amount of capital so credited to his account. All such amounts credited to the capital account of any patron shall have the same status as though they had been paid to the patron in cash in pursuance of legal obligation to do so and the patron had then furnished the Cooperative corresponding amounts for capital.
      In the event of dissolution or liquidation of the Cooperative, after all outstanding indebtedness of the cooperative shall have been paid, outstanding capital credits shall be retired without priority on a pro-rata basis before any payments are made on account of property rights of members. If, at any time prior to dissolution or liquidation, the Board of Directors shall determine that the financial condition of the Cooperative will not be impaired thereby, the capital then credited to patrons’ accounts may be retired in full or in part. Any such retirements of capital shall be made in order of priority according to the year in which the capital was furnished and credited, the capital first received by the Cooperative being first retired. In no event, however, may any such capital be retired unless, after the proposed retirement, the capital of the Cooperative shall equal at least forty per centum (40%) of the total assets of the Cooperative.

      . Article VIII, § 2 of the bylaws also'provided:
      Notwithstanding any other provision of these By-Laws, the Board of Directors, at its discretion, shall have the power at any time upon the death of any patron, if the legal representative of his estate shall request in writing that the capital credited to any such patron be retired prior to the time such capital would otherwise be retired under the provisions of these By-Laws, to retire capital credited to any such patron immediately upon such terms and conditions as the Board of Directors, acting under policies of general application, and the legal representatives of such patron’s estate shall agree upon; provided, however, that the financial condition of the Cooperative will not be impaired thereby.

      . Article I. § 7 of the bylaws provided in part:
      Membership in the Cooperative and certificate representing the same shall not be transferable, and, upon the death, cessation of existence, expulsion, or withdrawal of a member, the membership of such member shall thereupon terminate, and the certificate of membership of such member shall thereupon terminate, and the certificate of membership of such member shall be surrendered forthwith to the Cooperative.

      . Article VII, § 3(a) of the bylaws provided in part:
      Membership in the Cooperative and a certificate representing the same shall not be transferable, except as hereinafter otherwise provided, and upon the death, cessation of existence, expulsion or withdrawal of a member, the membership of each member shall thereupon terminate, and the certificate of membership of such member shall be surrendered forthwith to the Cooperative.


author: HOWERTON, Judge.

text:
    Jesse Frank BELL, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Feb. 24, 1978.
    Discretionary Review Denied June 27, 1978.

      Jack Emory Farley, Public Defender, Margaret M. Allison, Asst. Public Defender, J. Vincent Aprile, II, Asst. Deputy Public Defender, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., Martin Glazer, Asst. Atty. Gen., Frankfort, for ap-pellee.
    Before HOWERTON, WILHOIT and WINTERSHEIMER, JJ.
   HOWERTON, Judge.

Appellant was convicted of possessing alcoholic beverages for the purpose of sale in a dry territory. His punishment was enhanced under KRS 242.990, after proof of a prior offense. The actions were tried together without objection, and the jury fixed his punishment at 120 days in jail and a $200 fine.

On this appeal appellant first alleges that the enhancement of penalty was incorrectly given in that his first conviction was unconstitutional. Appellant argues that his prior conviction was void because the record is silent as to whether the appellant was represented by counsel during the previous proceedings in which he entered a plea of guilty and that the record is also silent as to whether appellant waived his right to counsel. In support of this contention, appellant cites Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967). The essence of the holding in Burgett, id., is that no presumptions can be made against the accused from a silent record.

There are many distinguishing factors between this appeal and the situation in Burgett, id. We must keep in mind that the burden of raising and proving the issue was on the appellant. The record in this case reveals that the only question raised regarding the prior conviction and representation of appellant by counsel occurred when appellant’s counsel in this action asked a witness if the prior judgment indicated whether or not Bell was represented by counsel. Bell never testified to the fact that he was not represented by counsel, or if not, that he had no knowledge of his right to be represented by counsel.

Our Supreme Court has recently held in Phillips v. Commonwealth, Ky., 559 S.W.2d 724 (1977), that a felon has the burden to produce evidence that his constitutional rights were violated during previous proceedings. An accused has a constitutional right to counsel unless he voluntarily and intelligently waives that right, but he must claim the violation. It is after this point that the rule in Burgett, supra, would preclude a presumption that everything was proper in a prior conviction and judgment which was silent as to the issues raised. Our Supreme Court, in Phillips, supra, provided:

If Phillips’ argument is carried to its logical conclusion, the 30-year-old judgments must recite affirmatively, and in specific terms, that every constitutional right of a criminal defendant, either then known or later discovered, and made retroactive, was afforded him. The defendant would not be required to assert that he had suffered the deprivation of a constitutional right. He need not risk perjury, all that is required is that he silently point to a silent record. The administration of criminal justice becomes a chess game totally unrelated to a search for truth.

We therefore have no grounds upon which to hold that the prior conviction was void. See also, Ingram v. Commonwealth, Ky., 427 S.W.2d 815 (1968), and McHenry v. Commonwealth, Ky., 490 S.W.2d 766 (1973).

Appellant’s next argument is that the trial court failed to comply with the sentencing procedures outlined in KRS 533.-010. Appellant requests that the case be remanded for resentencing to comply with the requirements of Brewer v. Commonwealth, Ky., 550 S.W.2d 474 (1977).

Brewer, id., was a felony case, and was primarily concerned with the sentencing procedures and the mandatory requirements of KRS 532.050(1), to wit:

No court shall impose sentence for conviction of a felony, other than a capital offense, without first ordering a pre-sen-tence investigation and giving due consideration to a written report of such investigation.

Brewer, supra, did refer to KRS 533.010, which relates to sentencing in all crimes except where the death penalty has been imposed, and the opinion on this point reads:

The record of the proceedings leading up to the entry of the judgment should clearly reflect the fact that the consideration required by KRS 533.010 has been afforded the convicted person before judgment was fully entered.

KRS 533.010 does require the trial judge to consider probation or conditional discharge in all convictions except where the death penalty has been imposed, and subsection (2) reads:

Before imposition of a sentence of imprisonment, the court shall consider the possibility of probation or conditional discharge. After due consideration of the nature and circumstances of the crime, and the history, character and the condition of the defendant, probation or conditional discharge should be granted unless the court is of the opinion that imprisonment is necessary for protection of the public .

We do not conclude that the trial court has an obligation to provide pre-sentencing reports in misdemeanor cases as it is required to provide in felony eases, but we do conclude that the trial judge must comply with KRS 533.010 and give due consideration to the possibility of probation after first considering the crime and the defendant. To insure such compliance, the trial court must place in the record a statement sufficient to show that the necessary consideration has been given.

We are satisfied in this action that the trial judge did in fact consider the possibility of probation or conditional discharge. The judgment indicates that appellant and his counsel had an opportunity to make any statement they might choose to make in mitigation of punishment, and the judgment went on to provide:

The court is of the opinion that confinement is necessary for the protection of the public because there is a substantial risk that during a period of probation or conditional discharge the defendant would commit another crime.

We would caution all district and circuit judges, however, to clearly reflect compliance with KRS 533.010 in every judgment sentencing a defendant to jail.

During oral arguments, a substitute counsel represented appellant. Counsel attempted to raise two new assignments of error and was requested to file a written motion in support of the request. The motion was duly filed and a response was given by the Attorney General. The motion was denied, but since both sides adequately briefed the points in contention, we have decided to consider them in this opinion in order to avoid a review of the issue in possible future proceedings.

The first error is claimed to be of constitutional magnitude. Appellant claims he was denied his constitutional right to fundamental fairness when the trial court failed either to instruct or admonish the jury that the evidence of appellant’s previous misdemeanor conviction could not be considered in determining appellant’s guilt or innocence on the primary charge of unlawful possession of intoxicating liquors for purpose of sale. Instructions were given by the court on the issue of guilt in the present charge and on the issue of the previous conviction for purposes of enhancing the penalty, but no objection was made to the instructions, nor was any request made for an admonition.

Appellant cites Lynch v. Commonwealth, Ky., 472 S.W.2d 263 (1971) and Satterly v. Commonwealth, Ky., 437 S.W.2d 929 (1968). Both of these decisions were rendered prior to the enactment of RCr 9.54, which now provides in subsection (2) that no party may assign as error the giving or the failure to give an instruction unless he has fairly and adequately presented his position by an offered instruction or by motion, or unless he makes objection before the court instructs the jury, stating specifically the matter to which he objects and the grounds or ground of his objection. Before this rule was amended on March 1, 1974, the court was required to give all of the instructions necessary in a case, and an appellant could object to an instruction in a motion for a new trial.

Appellant also cites two federal cases, Evans v. Cowan, 506 F.2d 1248 (6th Cir. 1974) and Dawson v. Cowan, 531 F.2d 1374 (6th Cir. 1976). The Kentucky appellate courts need not follow the Federal Circuit Court of Appeals on rulings involving Kentucky law. For example, in Reams v. Commonwealth, Ky., 522 S.W.2d 853 (1975), and in Steenbergen v. Commonwealth, Ky., 532 S.W.2d 766 (1976), the Kentucky Supreme Court refused to accept the Sixth Circuit Court of Appeals’ ruling in Oliver v. Cowan, 487 F.2d 895 (1973), which had determined that a person was required to have counsel at sentencing. Furthermore, Evans, supra, was decided on Kentucky law which was in effect prior to the amendment to RCr 9.54. Also, in Evans, supra, although appellant did fail to request a limited instruction, he did move for a bifurcated trial to prevent the jury from being prejudiced by evidence of his prior convictions, and he made a continuing objection to the admission of any such evidence during his trial. Evans, supra, at 1249. In Dawson, supra, the court provided, at p. 1377, “The relevant facts in this case are the same as those in Evans . . .

Appellant, in effect, required the trial judge to give all the law as was provided for under the former rules. The present law in Kentucky requires the parties to make an objection, or otherwise that objection is waived. We do not find the alleged error to be so clear, prejudicial or reversible that it could not be waived under all of the circumstances in this misdemeanor conviction.

The substitute appellate counsel was also concerned about appellant’s constitutional right to the effective assistance of counsel. We are convinced from the record, the briefs, and counsel’s efforts to present all legitimate issues appearing in the record that appellant would have no basis for seeking a reversal or post-conviction relief on the basis of ineffective assistance of counsel, and most especially for the representation the appellant has received on this appeal.

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

All concur.