author: STERNBERG, Justice.

text:
    Thomas Lloyd SCRUGGS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    April 11, 1978.
    Rehearing Denied May 23, 1978.

      Robert E. Harrison, David Goin, III, Scottsville, James S. Patrick, Nashville, Tenn., for appellant.
    Robert F. Stephens, Atty. Gen., John W. Stewart, Asst. Atty. Gen., Frankfort, for appellee.
   STERNBERG, Justice.

On February 5, 1976, the Grand Jury of Allen County, Kentucky, returned an indictment against the appellant for “the offense of murder by shooting Martha Louise Scruggs with a high powered rifle.” KRS 507.020(l)(a). After an eight-day trial the appellant was found guilty of murder and his punishment fixed at 20 years’ imprisonment. On this appeal the appellant claims sixteen prejudicial errors.

James and Martha Scruggs had been married for twelve years and had four children, ages 12,11,10 and 6. They lived on a farm in the “Settle” community of Allen County, Kentucky. Their married life was not one of comfort and bliss, but rather was a bed of thorns and turmoil. They had separated on more than one occasion, once in the summer of 1975 for about three months. Each of them was finding more pleasure in the company of others, Martha with her paramour and the appellant with his girlfriend. On July 3, 1975, Martha filed a suit for divorce. However, the parties were reconciled in September, 1975, and the divorce suit was dismissed on September 22,1975. On December 2,1975, Martha went to her lawyer’s office to reinstate her divorce suit, and on December 3, 1975, she disappeared and was not seen thereafter until her dead body was found in a cave on December 14, 1975.

Appellant’s first complaint is that the trial judge, in limiting his interrogation of the chief Commonwealth witness Jerry Fann, violated his constitutional right of confrontation. Fann was called as a Commonwealth witness and his presence and participation are evident from the time of Martha’s disappearance to the conclusion of the trial. It was Fann who found the victim’s corpse. It was Fann who located a tree that had been split by a shot from a high-powered rifle. Fann owned and was in possession of the rifle that was proven to be the murder weapon. Fann was the victim’s lover. In an attempt to impeach Fann’s testimony, counsel for appellant inquired as to Fann’s relationship with the victim. Specifically, counsel asked Fann whether he and the victim had ever engaged in sexual intercourse. At this point the Commonwealth objected, but before the court could rule on the subject Fann responded to the query in the affirmative. The court then sustained the objection and admonished the jury to disregard the witness’ answer. From these basic facts the appellant asserts that his constitutional right to confrontation was abridged.

A cursory examination of the record shows this supposition to be without merit. Counsel for appellant conducted an exhaustive cross-examination, consuming over 35 pages in the record. Counsel effectively exposed Fann’s relationship to the appellant and to the victim. In a recent opinion this court refused to recognize a Sixth Amendment violation of the right to confrontation when an eyewitness for the prosecution declined to answer a question on cross-examination that was intended to impeach his powers of observation. Kendricks v. Commonwealth, Ky., 557 S.W.2d 417 (1977). The failure of a trial court to admit into evidence one question and answer that is designed to impeach a witness will not give rise to an error of constitutional magnitude, absent unusual circumstances. Assuming arguendo that the proposed question was within the scope of cross-examination, we do not think the denial to ask such a question was prejudicial since it constituted only a minute part of the impeachment effort.

The appellant’s second assignment of error also concerns the attempt by counsel to impeach the testimony of Jerry Fann. Fann had been convicted of auto theft some seventeen years prior to the trial of this case. The appellant sought to introduce evidence of this prior felony conviction, but was prohibited from doing so by the trial court. Normally this type of impeachment is proper; however, we observed in Cotton v. Commonwealth, Ky., 454 S.W.2d 698 (1970), that the trial court may exclude evidence of prior convictions if the court deems the conviction so remote as to have no bearing on credibility. The appellant asserts that remote felony convictions are subject to exclusion only when the defendant is testifying and that the rule is not applicable to other witnesses. We recognize that the danger of prejudice may be unusually acute when the accused has taken the stand in his own behalf; nevertheless, the rule applies evenhandedly to all witnesses. Bell v. Commonwealth, Ky., 520 S.W.2d 316 (1975). Since the rule was properly applied in this case, there is no error, absent an abuse of judicial discretion. Our examination of the record shows no such abuse.

Appellant’s third and fourth assignments of error are predicated upon the assertion that Marlene Shields, secretary to the victim’s attorney, was allowed to testify to matters that should have been excluded under the hearsay rule. The record shows that counsel for the appellant withdrew his objection and thus this matter is not preserved for review. RCr 9.22; Bell v. Commonwealth, Ky., 473 S.W.2d 820 (1971).

For his fifth assignment of error the appellant claims that the trial court improperly allowed into evidence threats against the victim attributed to the appellant and made approximately seven months prior to the disappearance of the victim. It is the appellant’s contention that this evidence was so remote as to have no probative value.

A party was given by Jerry Fann in either May or August, 1975, to which Thomas and Martha were invited and were in attendance. Martha became staggering drunk and appellant made two threats against her life. In the presence of several women, but not in the hearing of Martha, he said, “ * * * well I am getting rid of her; one way or the other I am going to get rid of her.” The other threat was, “ * * * I am going to kill that bitch. One way or the other I am going to kill her, I am going to kill her * *

We cite, with approval, 29 Am. Jur.2d, Evidence, Sec. 253, at page 305, wherein it says:

“ * * * However, that a fact is remote in point of time or probative value does not of itself preclude its admissibility, but its admissibility depends to a large extent on the nature and circumstances of the case, and rests largely in the discretion of the trial court. Where evidence relates to matters too remote in point of time or to matters too far removed from the scene of the transaction, it is not admissible. In effect, the objection that evidence is too remote goes to the credibility of the evidence rather than to its admissibility, unless the remoteness is so great that the proffered evidence has no probative value at all.”

We believe this evidence to be competent and, as such, we do not believe that it was so remote as to mandate exclusion. Shumate v. Commonwealth, Ky., 433 S.W.2d 340 (1968).

Next, the appellant asserts that the trial court erred by excluding statements allegedly made by the victim on the weekend prior to her disappearance. By way of avowal we are informed that the witness, if allowed to testify, would have stated that the victim had said she would leave her husband and would take no belongings other than the clothes on her back. Also, the appellant argues that the court erroneously prohibited the introduction of the contents of a note which the victim had allegedly written. The appellant testified that on the day of Martha’s disappearance he returned home from a trip to Scottsville, Kentucky, and found a note which she had written to him, which allegedly said that she had gone to Nashville, Tennessee, with friends. At the time of the trial the note was reported to have been lost; at least it was not produced at the trial.

The court ruled that evidence relating to the statements allegedly made by the victim on the weekend prior to her disappearance and evidence relating to the contents of the note were hearsay and refused to permit any testimony relating thereto to be introduced. The note, if actually there was such a note, at the most would indicate an intention to go to Nashville. Any other inference would be highly speculative. Assuming that the note did exist and that its contents did express an intention on the part of Martha to go to Nashville and further assuming that the appellant was telling the truth about the note, there is no proof that Martha did go to Nashville, only appellant’s testimony that he had a telephone conversation with her in which she said she was in Nashville, thereby lifting himself by his own bootstraps.

Declarations which declare an intent to do a particular thing have been deemed admissible as an exception to the hearsay rule where they possess a high degree of trustworthiness, where they are relevant to an issue in the case, and the declarant is dead or otherwise unavailable. Todd v. Commonwealth, Ky., 511 S.W.2d 239 (1974). In the instant ease the verbal statements and the contents of the written note were hearsay. To be admissible they must come within the exception to the hearsay rule. In 29 Am.Jur.2d, Evidence, Sec. 651, it is stated, and was quoted in Todd v. Commonwealth, supra:

“Where the intent with which a party performed an act is a disputed fact in a case or a material element of such a fact, declarations made by the party after, as well as before, such act, that indicate the intent with which he performed it, are admissible in evidence as an exception to the hearsay rule. However, such a declaration of intent is not admissible in the absence of proof of performance of the act to which it relates, * *

In the instant case the person making the statements and writing the note is dead and certainly not available. The evidence does not establish the oral or written statements of the decedent to possess a high degree of trustworthiness nor are the statements shown to be relevant to the guilt or innocence of the appellant of the murder of his wife. Neither the statements made by the victim on the weekend prior to her disappearance nor the contents of the note comes within the exception to the hearsay rule. Both were properly excluded.

Next, the appellant charges that the trial court erred by refusing to allow Jean-etta Scruggs, the appellant’s daughter, to testify concerning the contents of the missing note. The appellant argues that he was prohibited from placing an avowal into the record and that therefore we must reverse this case for a new trial. Once again the facts gleaned from the record do not bear out the appellant’s argument. The transcript of Jeanetta Scruggs’ testimony shows that counsel for appellant asked the following question, “At any time that day did your father say anything to you about a note?” The witness replied, “I don’t remember.” Thus the question was asked by counsel and answered by the witness. Since the appellant’s counsel received a definitive answer to the question he propounded, we fail to see merit in the argument that an avowal should have been allowed as a matter of right. We find no error here.

The appellant contends, for his ninth assignment of error, that Damon Kirby was improperly allowed to serve as a juror in this case. An extensive voir dire of Kirby was conducted by counsel. In fact the examination by the defense consumes approximately fourteen pages in the record. In support of this challenge the appellant, in his brief, says that Kirby “also stated that he had discussed the case with a chief prosecution witness, Jerry Fann.” The record does not reveal that this happened. The record does disclose that the juror, Damon Kirby, was merely present with other persons on an occasion when Fann was just talking about the incident. There was no direct dialogue between Jerry Fann and Damon Kirby. It appears from the transcript of testimony that the trial judge, after carefully examining the facts, concluded that it was clear and convincing that this juror could and would decide the issues without any preexisting convictions of appellant’s guilt.

Assuming arguendo that this matter had been properly preserved for appellate review, we note that a trial judge has a certain amount of discretion in such matters. Pennington v. Commonwealth, Ky., 455 S.W.2d 530 (1970). Unless clearly erroneous, the exercise of such discretion is a judicial prerogative and is not subject to review by an appellate court.

Next, the appellant contends that the trial court erroneously applied RCr 9.48 and thus prejudiced the appellant and abused its discretion. We disagree. That rule provides as follows:

“If either a defendant or the commonwealth requests it, the judge may exclude from the hearing or trial any witness of the adverse party not at the time under examination, so that he may not hear the testimony of the other witnesses. This provision shall not apply to the parties to the proceeding.”

Pursuant to RCr 9.48, the court refused to allow W. D. Weaver to testify for the defense since he had been present during some, if not all, of the proceeding. We hold that this was error but the testimony was not of such weight as to constitute prejudice.

Also, it is the contention of the appellant that the rule was improperly applied to Sheriff Minix who testified for the prosecution. However, in Jaggers v. Commonwealth, Ky., 439 S.W.2d 580 (1969), we held that, “It is well settled that the trial court in the exercise of proper discretion, may permit a witness to testify even though the separation rule has not been observed.” We find no abuse of discretion.

Jerry Fann and Donnie Finn were also subject to the rule and its ramifications. Fann testified first and was admonished not to discuss his testimony, but he ignored the admonition and spoke with Finn. The appellant requested that Finn’s testimony be excluded. The court allowed Finn to testify and also allowed the appellant’s counsel sufficient latitude to expose the improper dialogue between the two men to impeach Finn’s credibility. Under the circumstances we find no abuse of discretion by the court. The interrogation disclosed that Fann had talked to Finn, but it does not disclose what was said by either of the parties pertaining to the action.

The next assignment of error by appellant concerns the excluded testimony of Thomas Scruggs, Jr., the appellant’s 11-year-old son. The court held an in-camera interrogation of the witness in the presence of counsel, but for some inexplicable reason the hearing was not reported. Consequently, there is no transcript of the dialogue. The trial judge determined not to permit the witness to testify for two reasons, as follows:

“Number one: Last evening approximately fourteen hours prior to this very moment the Court interviewed this boy and his sister in the presence of all counsel as stated. It was obvious at the time that this child did not have any mental direction of his own. That his opinions were merely reflections of what had been said to him. The child demonstrated complete lack of emotional stability which was confirmed approximately twenty minutes after this child left the chambers when he had a seizure or black out and fell to the floor in the presence of the Welfare worker, Mrs. Suzanne Par-due, Scottsville, Kentucky.
Number two: It is beyond the Court’s view of value that the opinion of this child as to the mental reaction of his elders could be competent or accurate. It is blatantly obvious to the court that the statement taken from this child was taken under conditions of excitement and would, if anything, be misleading to the jury. The other reason the Court has for excluding this testimony is that it is believed that an appearance by this child in Court would be a permanent traumatic emotional experience for him and the Court has been strongly urged by those who have had this child in custody for the past several months not to permit this type testimony and the duress which would accompany it. Lastly, this testimony which would be offered by the child is cumulative and grossly repetitious. The court can conceive of no need for further or additional reasons for its ruling * ⅜ *”

Thus it appears to us that the trial judge carefully examined the minor and determined that the child should not be permitted to testify. Hendricks v. Commonwealth, Ky., 550 S.W.2d 551 (1977). The record does not reflect an abuse of discretion in this instance.

The next claim of error concerns a procedural ruling handed down by the trial judge in regards to the appellant’s counsel. The record reveals that the appellant had three attorneys present in the courtroom during the trial and the Commonwealth had two. In an attempt to facilitate an orderly trial, the court ruled that any one of the attorneys could question a witness, but that once questioning had begun the other attorneys were to ask no questions nor were they to raise any objections until that witness was excused. There was no inhibition to all three defense counsel conferring at any time. We find this innocuous procedure to be a valid precautionary measure designed to assure an orderly trial and a coherent transcript. In all cases the circuit courts may regulate their practice in any manner not inconsistent with the criminal or civil rules of procedure. CR 83. Also, we observe that no objection was offered to this procedural rule. Thus this matter is not preserved for appellate review. RCr 9.22.

Next, the appellant asserts that the comments of the trial judge directed toward counsel for the appellant were prejudicial. We take judicial notice that an eight-day murder trial in which the Commonwealth was represented by two attorneys and the defense by three attorneys will be taxing not only upon counsel but upon the trial judge as well. Although there are disparaging comments of the court directed at both counsel for the Commonwealth and counsel for the appellant, we do not consider the cumulative effect of the comments to be prejudicial to the appellant. Abernathy v. Commonwealth, Ky., 439 S.W.2d 949 (1969).

The appellant next charges that the sheriff and the trial judge improperly communicated with the jury after it had retired to the jury room. The record reflects that after about five hours of deliberating the jury advised the sheriff that it needed to confer with the judge. The trial judge, who was in close proximity but not in the jury room, told the jury that he could not help it. This is the only communication that occurred, but counsel for the appellant would have this court condemn the action of the trial court and reverse the action. Counsel for the appellant raised no objection in a subsequent dialogue with the court concerning this matter. On the contrary, counsel commented to the trial court as follows, “Well I think the court has been extremely careful all through the trial.” No error has been pointed out to this court.

For his fifteenth assignment of error the appellant submits that the evidence adduced by the prosecution in this case cannot justify a verdict of guilty beyond a reasonable doubt. We have carefully perused the record and are unable to locate the appellant’s motion for a directed verdict at the end of his case in chief or at the conclusion of all of the evidence. This issue must be presented to the trial judge and he be afforded an opportunity to review and correct his action if he deems it appropriate. For example, at the conclusion of the Commonwealth’s evidence in chief, the defendant may make a motion for the court to direct a verdict of acquittal. In the event the motion is granted, then the charges will be dismissed. On the other hand, if the motion is denied, then, and in that event, the defendant must either stand on his motion and refuse to put on any proof or he may present his evidence to support his defense. At the conclusion of the defendant’s case, he must renew his motion for a directed verdict of acquittal. In the event the motion is granted, the charges will be dismissed. On the other hand, if the motion is denied, then the Commonwealth must proceed to put on its rebuttal evidence, if any, and at its conclusion the defendant must again renew his motion for a directed verdict of acquittal. In each such instance the trial judge would have been afforded an opportunity to pass on the propriety of the motion. This is essential, not only essential but mandated by RCr 9.54.

During the closing argument of the Commonwealth’s Attorney he expressed his personal opinion of appellant’s guilt. This was improper conduct. However, in this instance we do not consider this impropriety to be of such magnitude as to require reversal. In any event, no objection was made; consequently, the issue was not preserved for appellate review.

The Commonwealth’s Attorney was properly permitted to remind the jury that the victim, on December 2, 1975, went to her lawyer’s office to reinstate her divorce action, which action was confirmed by the secretary to Mrs. Scruggs’ attorney. This evidence supports the argument of the Commonwealth’s Attorney.

Counsel for the appellant rightly objected to the Commonwealth’s Attorney’s charge that the appellant stole the murder weapon. However, this was corrected by the Commonwealth’s Attorney with apologies. No admonition was sought by counsel for appellant and none was given.

Appellant’s counsel charges the Commonwealth’s Attorney with misstating testimony relating to the method employed by the Commonwealth in ascertaining suspects, the purpose for which Donnie Finn and Jerry Fann were together when they discovered the body of Mrs. Scruggs, the comments of appellant relating to his guilt (that the Commonwealth would have to prove that he committed the offense), the reference to the number of witnesses used by the Commonwealth and the insignificance of their testimony, and the report of the autopsy. The conclusions enunciated by the Commonwealth’s Attorney in these respects are not in conflict with the testimony. The court rightly overruled appellant’s objection.

The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: STERNBERG, Justice. CLAYTON, Justice.

license: Public Domain

text:
    John Patrick DOOLAN a/k/a John P. Brittain, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    May 2, 1978.
    Jack E. Farley, Public Defender, J. Vincent Aprile, II, Asst. Public Defender, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., Guy C. Shearer, Asst. Atty. Gen., Frankfort, for appellee.
   STERNBERG, Justice.

The appellant, John Patrick Doolan, also known as John P. Brittain, was indicted by the McCracken County Grand Jury on three separate counts of second-degree robbery. He pled, guilty in open court to each count. The trial court accepted the plea of guilty and sentenced the appellant to ten years on each of the three charges. Two of the sentences were to run consecutively and the third sentence was to run concurrently, for a total of 20 years’ imprisonment. An appeal was perfected to this court. It was apparent that the trial court had not complied with the mandatory presentencing provisions of KRS 532.050. In a memorandum opinion rendered by this court on March 11, 1977, we reversed the judgment of the trial court and remanded the action for resentencing. In accordance with our mandate, the trial court resentenced the appellant on June 27, 1977.

The appellant now contends that the trial court again failed to follow the directives of this court and the relevant portions of the presentencing statute.

KRS 532.050 provides as follows:

“Presentence procedure ior felony conviction. — (1) No court shall impose sentence for conviction of a felony, other than a capital offense, without first ordering a presentence investigation after conviction and giving due consideration to a written report of such investigation.
(2) The report shall be prepared and presented by a probation officer and shall include an analysis of the defendant’s history of delinquency or criminality, physical and mental condition, family situation and background, economic status, education, occupation, personal habits, and any other matters that the court directs to be included.
(3) Before imposing sentence for a felony conviction, the court may order the defendant to submit to psychiatric observation and examination for a period not exceeding sixty (60) days. The defendant may be remanded for this purpose to any available clinic or mental hospital or the court may appoint a qualified psychiatrist to make the examination.
(4) Before imposing sentence, the court shall advise the defendant or his counsel of the factual contents and conclusions of any presentence investigation or psychiatric examinations and afford a fair opportunity and a reasonable period of time, if the defendant so requests, to controvert them. The sources of confidential information need not, however, be disclosed.”

During the resentencing the trial court allowed the appellant to examine a copy of the original presentencing report. The appellant raised two objections to the report, both of which are in issue on this appeal

First, it is apparent from the record, and the Commonwealth concedes, that the pre-sentencing report had not been revised or updated. That is, the trial court relied on the same presenteneing report that had been utilized at the former sentencing. Thus the report was prepared approximately 16 months prior to the sentencing in issue on this appeal. When the appellant discovered this he objected, arguing that the report was outdated. The trial court declined to order an updated report, stating:

“Well, I think certainly that that would be something to consider should he make application for shock. However, I might remind you that it would be my opinion that the presentence report that existed at the time of the original sentencing that he claims that he did not have access to, which was on my desk. I thought I mentioned it, perhaps I didn’t; but that’s beside the point; but I would say that would be applicable to this sentencing, because what theoretically, I guess, would be considered would have been his record based on the Probation and — the presentence report by the Probation and Parole Office as of the time he was sentenced for that conviction; and not such as has occurred since then or may have; * * * f>

The court offered to permit the appellant, if he so desired, to add something to the report. Without a current report it would be impossible for the court to appraise the defendant’s physical or mental condition, his family situation or background, or his economic status, education, occupation, personal habits, or any other factors that the court may deem necessary and proper to consider in determining whether sentence should be imposed at that time.

Secondly, the appellant informed the trial court that some of the information contained in the report was erroneous. Specifically, the report listed two prior felony convictions in the state of Illinois. The appellant contends that neither of those convictions was properly attributable to him since one of the convictions had been reversed by the Illinois appellate court and the other criminal charge had been dismissed. The trial court did not deem it necessary to postpone sentencing until the veracity of the appellant’s claims could be fairly and accurately authenticated.

A careful examination of the statute and the applicable case law leads to the inescapable conclusion that the trial court erred in not securing a current presentenc-ing report and by not affording the appellant a fair opportunity to contradict the information contained therein. Brewer v. Commonwealth, Ky., 550 S.W.2d 474 (1977). It may be that a revised presentencing report would have elicited no new information which would have altered the appellant’s sentence. On the other hand, a revised report may have presented an entirely different factual structure. It may also be that the appellant will be unable to substantiate his contention that the prior criminal offenses listed in the report are not properly attributable to him. Nevertheless, the statute provides for a presentencing report and affords the appellant the right to controvert any information contained therein. To affirm the judgment of the trial court under these facts would be to disparage the logical intent and purpose of the statute.

The appellant also complains that the judgment did not provide credit for the time he had served prior to his most recent sentencing. KRS 532.120 entitles him to that credit and the judgment will so provide.

The judgment is reversed and the ease remanded to the McCracken Circuit Court for resentencing, consistent with this opinion.

All concur except CLAYTON, J., who makes the following dissent.

CLAYTON, Justice.

I respectfully dissent on the grounds that I believe the trial judge substantially complied with the statute in question.


text:
    Charles David HELPENSTINE, Appellant, v. COMMONWEALTH of Kentucky, Appellee. William James KIMBREW, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    May 23, 1978.

      Jack E. Farley, Public Defender, Kevin Michael McNally, Asst. Public Defender, Frankfort, for appellant Helpenstine.
    Jack E. Farley, Public Defender, William M. Radigan, Asst. Public Defender, Frankfort, for appellant Kimbrew.
    Robert F. Stephens, Atty. Gen., Carl T. Miller, Jr., Asst. Atty. Gen., Frankfort, for appellee.
   STERNBERG, Justice.

After a two-day jury trial in the Campbell Circuit Court, the appellants, Charles David Helpenstine and William James Kim-brew, were each found guilty of two charges of first-degree robbery. KRS 515.-020(l)(b). Each was sentenced to serve ten years in the penitentiary on each offense. The circuit judge entered judgment finding the appellants guilty, committed them to the penitentiary, and ordered each sentence to run consecutively. Both Helpenstine and Kimbrew have appealed to this court. Their appeals have been considered together and, by reason of the identical issues, both appeals will be disposed of in one opinion.

On April 9, 1976, during business hours three men entered the Snodgrass Distributing Company in Bellevue, Kentucky, and, at the point of a pistol, forced the employees to give them the money that had been taken in on the prior day. This was approximately $18,000. In addition, one of the employees was forced to give the robbers her jewelry.

The appellant Helpenstine argues six assignments of error and Kimbrew joins in five of them. First, the appellants argue that their convictions cannot stand since the Commonwealth failed to prove beyond a reasonable doubt that they were armed with a deadly weapon. It is undisputed that the Commonwealth produced no evidence at trial that the pistol used in the criminal offense was operable. However, the Commonwealth introduced sufficient evidence to prove beyond a reasonable doubt that the appellants were armed with a pistol. This is all that was necessary.

In Kennedy v. Commonwealth, Ky., 544 S.W.2d 219 (1977), we reaffirmed our prior holdings that any object can be a deadly weapon if intended by its user to convince a victim that it is a deadly weapon and if the victim is in fact convinced. Merritt v. Commonwealth, Ky., 386 S.W.2d 727 (1965).

The facts in the case at bar, as gleaned from the record, were sufficient to justify a belief beyond a reasonable doubt that the standard enunciated in Merritt, and reiterated in Kennedy, was met. Whether the handgun was operable is not relevant.

Secondly, the appellants assert that by applying KRS 515.020(l)(b) and the rule enunciated in Kennedy v. Commonwealth, supra, to this case, the trial court in effect subjected the appellants to an ex post facto application of the law.

The offense occurred in April, 1976, but the final decision in Kennedy was not rendered until January 14, 1977. The appellants thus reach the conclusion that Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964), prohibits their conviction. In Bouie the United States Supreme Court held that “an unforeseeable judicial enlargement of a criminal statute, applied retroactively, operates precisely like an ex post facto law.” In Kennedy we determined that a pistol is a deadly weapon under the terms and provisions of the Penal Code, the same as it had been prior to the adoption of the Penal Code. Thus the holding in Kennedy was neither unforeseeable nor was it an enlargement of the statute. Quite the contrary, Kennedy was predictable in light of our decision in Merritt, and we do not consider either opinion to be a judicial enlargement of the statute. The conclusion is inescapable that the appellants’ convictions are in keeping with the principles of due process.

Next, the appellants contend that the trial court impliedly ruled as a matter of law that an essential element of the charged crime had been proven beyond a reasonable doubt. The sum and substance of this argument is that the trial court instructed the jury that the appellants could be found guilty of robbery in the first degree if, among other things, they “threatened the immediate use of physical force upon Jack Snodgrass by pointing a pistol at him.”

In Hicks v. Commonwealth, Ky., 550 S.W.2d 480 (1977), we said:

“ * * * There was no evidence that the instrument alleged to have been used was anything other than a pistol, which by statutory definition is a deadly weapon. It should never be necessary in the instructions to define the words, ‘deadly weapon.’ Whether the particular instrument is or is not a deadly weapon should be determined by the court as a matter of law. * * * ”

A pistol is a deadly weapon, hence, this instruction was correct. Kennedy v. Commonwealth, supra; Hicks v. Commonwealth, supra; and Merritt v. Commonwealth, supra. The jury could have disbelieved the testimony that the appellants were armed with a pistol. Likewise, it could have determined that the appellants played no role in the commission of the criminal offenses. If the jury had reached either of these conclusions, it would have returned a verdict acquitting the appellants of first-degree robbery. The contention of appellants that the trial court invaded the province of the jury is erroneous.

The appellants claim that the trial court’s instructions as to the pistol shifted the burden of proof to them on an essential element of the crime. If this contention is true, of course the conviction would be erroneous in light of the Fourteenth Amendment to the Constitution of the United States. However, the burden of proof did not shift to the appellants on that element of the crime. It is an elementary principle of criminal law that the Commonwealth must sustain the burden of proving beyond a reasonable doubt each element of the crime charged. The Commonwealth met this burden, and the instructions were correct.

The appellants complain of comments made by the Commonwealth’s Attorney in his closing argument. A commonwealth’s attorney is within the bounds of propriety when he draws reasonable inferences from the evidence and makes reasonable comments upon the evidence. The argument made by counsel for the Commonwealth was within the range of permissibility. In any event, no objection was made to any of the statements made by the Commonwealth’s Attorney in his closing argument. Consequently, even though argumentatively the Commonwealth’s Attorney may have wandered outside proper argument, the question has not been preserved for appellate review. Trimble v. Commonwealth, Ky., 447 S.W.2d 348 (1969). We will not consider this issue.

The remaining issue is the contention of appellant Helpenstine that he was entitled to a directed verdict of acquittal. Helpenstine did not make a motion for a directed verdict at the conclusion of all of the evidence. Thus, the trial court was not afforded an opportunity to pass on the sufficiency of the evidence as it stood submitted to the jury. It is not preserved for appellate review. Kimbrough v. Common wealth, Ky., 550 S.W.2d 525 (1977). Hel-penstine questions the propriety of our holding that a motion for a directed verdict of acquittal must be made at the closing of all of the evidence in order to preserve the question for appellate review. This question has been answered recently by this court in Scruggs v. Commonwealth, 566 S.W.2d 405 (1978).

The judgments are affirmed.

All concur.


author: PER CURIAM.

text:
    Pauline SALYERS, Appellant, v. Honorable John C. CORNETT, Judge Magoffin Circuit Court, Appellee.
    Supreme Court of Kentucky.
    May 23, 1978.
    Michael C. Davis, Appalachian Research & Defense Fund of Ky., Inc. Prestonsburg, for appellant.
    John C. Cornett, Judge, pro se.
   PER CURIAM.

This is an appeal from an order of the Court of Appeals of Kentucky denying Pauline Salyers a writ of mandamus.

On April 21,1977, and without any action having been filed in the circuit court, the appellant and her counsel appeared before the Honorable John C. Cornett, Judge of the Magoffin Circuit Court, and moved the court to permit her to prosecute an action for dissolution of marriage in forma pau-peris. KRS 453.190. The appellant filed with the court her affidavit and, in addition thereto, testified orally as to her financial condition. The testimony was not recorded, consequently, it cannot be reproduced for appellate consideration. Without making or filing any reasons for doing so, the trial judge entered a written order denying the motion. The record does not reflect whether this order was delivered to the circuit clerk for entry or whether it was given to counsel for appellant and retained by him, although the original of such order appears in the record as a part of the appellant’s petition.

On June 15, 1977, the appellant filed her petition for a writ of mandamus in the Court of Appeals, seeking to have that court order the Honorable John C. Cornett, Judge, to enter an order permitting her to prosecute an action for dissolution of marriage in forma pauperis. With her petition she filed what appears to be an original of the affidavit that was presented to the circuit court. The affidavit is the keystone to the disposition of this case; therefore, we quote it in full, as follows:

“Comes the Petitioner, Pauline Salyers, after being duly sworn, and states on oath that she is a citizen of the State of Kentucky and a resident of Magoffin County. She further states that she is unemployed and has an income of only $135.00 per month from APDC benefits which is used to provide the necessities of life for herself and her infant child; she owns no real or personal property, has no bank account and she is therefore unable to pay the filing fees and costs, or give surety for the same in the action of PAULINE SALYERS against BENJAMIN HARRISON SALYERS to be filed by her in the Magoffin Circuit Court and to the best of her knowledge and belief she is entitled to the redress which she seeks by said suit.”

On June 29,1977, Judge Cornett filed his response in the Court of Appeals, which is as follows:

“Comes the Respondent, John C. Cor-nett, Judge, and states that he always gives a hearing in the Forma Pauperis cases, and after hearing the evidence, the Court rules on the Motions. We usually have three or four of these at one time and during the past year there have been twelve or fifteen such cases.
No evidence in any of the cases, including the two cases before this Honorable Court, has ever been taken down and copied to my knowledge. It is hard for me to remember, and in fact, I cannot remember the exact evidence in these two cases before this Honorable Court. I always inquire of the Petitioner’s income, their health, and the income and ability to pay of their spouse. I did that in these two cases. What the precise evidence was, I cannot remember, but at the time I made the rule, it was my opinion that these ladies could at least pay the cost or it would be charged to their spouses.
This Honorable Court will just have to rule on whatever record the Petitioners have filed in the case.”

In due time the Court of Appeals entered an order denying the relief sought by the appellant, and by order dated February 3, 1978, denied her motion to reconsider the prior order.

The case of Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971), stands for the proposition that due process prohibits a state from denying, solely because of inability to pay, access to its courts to individuals who seek judicial dissolution of their marriages where the question of indigency is not in dispute.

The Court of Appeals rightly stated the principle that if the appellant had shown conclusively that she was a poor person within the meaning of KRS 453.190, then it was an abuse of discretion if the trial court did not permit her to proceed in forma pauperis.

The petition, together with the exhibits attached thereto, and appellee’s response must be reviewed to determine whether the appellant has shown herself to be a poor person. The affidavit which the appellant filed, first with the appellee and then as an exhibit to her petition, discloses, without equivocation, that she has no estate and only $135 per month AFDC benefits with which to maintain herself and her infant child. As far as the proceeding before the circuit judge is concerned, the affidavit was uncontradicted and the court made no findings to the contrary. As to the action in the Court of Appeals, the only challenge to the appellant’s insolvency, if it can be even termed a challenge, is the statement in ap-pellee’s response that after interrogating her he was of the opinion that she could at least pay the costs or it would be charged to her husband. No question has been raised as to whether the costs should be charged to the appellant’s husband. The Court of Appeals properly stated that it cannot conduct a hearing de novo. CR 76.36(4). It could have only considered the appellant’s affidavit, together with the exhibit attached thereto, and the appellee’s response as evidence in support of, and in opposition to, the demands of the petition.

The appellee draws on his usual practice in proceedings such as the one at hand, after which he states that he could not remember the evidence. Furthermore, the last two lines of his response suggest that the disposition of appellant’s petition should be made on the adequacy of her affidavit. $135 per month is less than $4.50 per day for a family of two. Need more be said. The opinion of the appellee, as reflected in his response, is not sufficient to dispute the appellant’s affidavit, and the appellee abused his judicial discretion in denying the appellant’s motion to proceed in forma pau-peris.

This matter came before the Court of Appeals as an original action. It was not necessary that findings of fact on the ex parte proceeding before the circuit judge be made or filed. CR 52.01.

The action of the Court of Appeals is reversed. The appellee judge of the Magof-fin Circuit Court is ordered to enter an order permitting the appellant to file and prosecute a suit for dissolution of her marriage without the payment of costs, as provided by KRS 453.190.

All concur.


author: VANCE, Judge:

text:
    HENKIN, INC., et al., Appellants, v. BEREA BANK & TRUST CO. et al., Appellees. HENKIN, INC., et al., Appellants, v. Ralph DEAN, Appellee.
    Court of Appeals of Kentucky.
    Feb. 10, 1978.
    As Modified On Denial of Rehearing June 2, 1978.

      R. J. Turley, Jr., Turley, Savage & Moore, Lexington, for appellants.
    Robert P. Hastings, Hardy, Logan & Hastings, Louisville, for appellee, Ralph Dean.

      John E. Smith, Lancaster, A. B. Rouse, Jr., Rouse & Collins, Lexington, for appel-lee, Berea Bank & Trust Co., et al.
    Before HAYES, REYNOLDS and VANCE, JJ.
   VANCE, Judge:

These appeals arise from judgments entered in two separate actions but they involve the same factual situation and we have elected to dispose of both appeals with this opinion.

Henkin, Inc. is the owner and operator of a radio broadcasting station which it purchased from Tinker, Inc. giving, as a part of the purchase price, its promissory note for $160,000 payable in installments. The note was secured by a mortgage upon five acres of land on which the station was built.

Tinker, Inc. offered to accept a 22.36% discount of the note if Henkin would pay it in full and Henkin applied to the Berea Bank and Trust Company for a $100,000.00 loan with which it proposed to pay off the Tinker obligation. The loan to the bank was to be secured by a mortgage on the station property. In connection with the loan application, Henkin revealed to the officers of the bank the opportunity it had to obtain a substantial discount from the face value of the note. Henkin was a customer of the bank.

The bank turned down Henkin’s application for the loan on February 7, 1970. Thereafter Henkin sought financing from other sources but was informed by Ralph Dean, the owner of more than 50% of the bank’s stock, but not an officer or director, that the bank would “work something out” on the proposed loan. It is disputed as to whether Henkin actually made another application for a loan. It is not disputed, however, that Ralph Dean engaged in conversation with Tinker with a view toward purchasing the Henkin note from Tinker for the bank at a discount without revealing that Henkin was attempting to negotiate a loan with the bank to accomplish the same purpose.

In July, 1970 the bank’s directors authorized the bank to purchase the Henkin note from Tinker. On the same day the bank disapproved a loan request of $100,000.00 by Fred Hensley, who was the president of Henkin, Inc. The bank purchased the Hen-kin note, the balance of which was $118,-000.00 for $95,000.00 and took an assignment of the mortgage securing the note. When Henkin was a few days late with its first installment payment to the bank, the bank accelerated all future payments and instituted foreclosure proceedings against Henkin.

While the foreclosure proceedings were pending, the bank was closed by the Commissioner of Banking. Some of its assets were transferred to another bank and the remainder, including the Henkin note, was transferred to the Federal Deposit Insurance Corporation. F.D.I.C. filed an intervening complaint in which it sought judgment for the full amount of the note and a sale of Henkin’s property to satisfy the note.

Henkin filed a counterclaim against the bank in which he alleged that the bank, by and through Ralph Dean acting as agent for the bank, induced Tinker to breach its 'contract with Henkin; that the bank, acting by and through Ralph Dean, wrongfully interfered with a prospective advantage of Henkin; that the bank and Ralph Dean perpetrated a fraud upon Henkin and breached a confidential or fiduciary relationship with Henkin. It sought actual damages of $35,000.00 from the bank and punitive damages of $500,000.00.

Henkin additionally asserted the same counterclaim as a set-off on any amount due F.D.I.C. Henkin obtained an agreed order by which it was permitted to pay F.D.I.C. the balance of the note without waiver or prejudice to the counterclaim. Henkin offered an amended counterclaim which pleaded unjust enrichment.

In a separate action Henkin instituted proceedings against Ralph Dean, individually, upon the same claims which it asserted against the bank by counterclaim.

The trial court sustained motions to dismiss both the claim against Ralph Dean and the counterclaim against F.D.I.C. These appeals question the propriety of the orders of dismissal. A motion to dismiss tests the pleadings and the allegations of the pleader must be taken as true for this purpose.

The trial court was of the opinion that, unfair and improper as it may seem, there is no requirement that a bank is legally bound by morals, ethics or strictures of conscience except as may be imposed by legislation and that there is no “confidential relationship” between a banker and its customers.

The question appears to be one of first impression in Kentucky. The fact that no case has been found in which relief has been granted under similar circumstances is not a controlling reason for refusing it; otherwise, the court would often find itself powerless to grant adequate relief, solely because the precise question had never arisen. 27 Am.Jur.2d, Equity, Section 121.

The question of whether a bank stands in a fiduciary capacity with respect to confidential relations with its customers has arisen in other states. In Warsofsky v. Sherman, 326 Mass. 290, 93 N.E.2d 612 (1950) a member of the bank’s loan committee learned of an offer to sell real property from an applicant for a loan who intended to use the loan proceeds to purchase the property. The member of the loan committee took advantage of the information and purchased the property for himself. In a well reasoned opinion the Massachusetts court stated:

Doubtless, there are many familiar and well recognized forms of fiduciary relationships such as attorney and client, trustee and beneficiary, physician and patient, business partners, promoters or directors and a corporation, and employer and employee. See Hawkes v. Lackey, 207 Mass. 424, 433, 93 N.E. 828; Yamins v. Zeitz, 322 Mass. 268, 272, 76 N.E.2d 769. The relationship is not confined, however, to these and similar situations, for the circumstances which may create a fiduciary relationship are so varied that it would be unwise to attempt the formulation of any comprehensive definition that could be uniformly applied in every case. See Scott on Trusts, § 462; Pomeroy, Eq.Jur., 5th Ed., § 956a. There is jurisdiction in equity to prevent, by means of the remedial device of a constructive trust, unjust enrichment arising out of a breach of a fiduciary relationship]. The existence of the relationship in any particular case is to be determined by the facts established. It was said by Lord Chelmsford in Tate v. Williamson L.R. 2 Ch. 55, 61, “Wherever two persons stand in such a relation that, while it continues, confidence is necessarily reposed by one, and the influence which naturally grows out of that confidence is possessed by the other, and this confidence is abused, or the influence is exerted to obtain an advantage at the expense of the confiding party, the person so availing himself of his position will not be permitted to retain the advantage, although the transaction could not have been impeached if no such confidential relation had existed.” That statement has been frequently cited with approval by this court.
The information given by the plaintiff to the defendant was furnished in confidence by the plaintiff in order to enable the defendant and other members of the committee to whom he might convey the information to determine whether the loan should be granted. It was to be used for no other purpose, and the defendant, impliedly at least, understood the terms upon which the information was given and voluntarily undertook to comply with those terms. He stood in a fiduciary relation toward the plaintiff with reference to the matters disclosed.
If the information furnished by the applicant for a loan is to be seized upon immediately by the bank official to whom it is given and if by virtue of the information he can purchase the property behind the back of the applicant, then public confidence in such institutions will be seriously impaired if not utterly destroyed. In any event, an applicant for a loan ought not to be subjected to such risks. A bank official to whom an application for a loan is made must act fairly and impartially toward the bank and toward the applicant. He is prohibited from deriving any personal gain at the expense[s] of the applicant. Id., 93 N.E.2d at 615-616.

In Security Trust Co. v. Wilson, 307 Ky. 152, 210 S.W.2d 336 (1948) the court quoted with approval the following definition of a fiduciary relationship:

The relationship] may exist under a variety of circumstances; it exists in all cases where there has been a special confidence reposed in one who in equity and good conscience is bound to act in good faith and with due regard to the interests of the one reposing confidence. 307 Ky. at 157, 210 S.W.2d at 338.

A confidential relationship was held to create a fiduciary relationship in Lappas v. Barker, Ky., 375 S.W.2d 248 (1963).

We conclude that the pleadings sufficiently alleged the existence of a fiduciary relationship and the breach thereof which, if proven, would warrant relief against the Berea Bank.

P.D.I.C. contends that it is a holder in due course, it having purchased the Henkin note from the Commissioner of Banking for value. As a holder in due course, it contends that the claim of Henkin, however valid it may be against the bank, cannot be set off as a defense to the collection of the note by F.D.I.C.

We do not agree that P.D.I.C. is a holder in due course. It became obligated as a guarantor of the deposits in the Berea Bank. The Commissioner of Banking sold some of the assets of the Berea Bank to another bank and transferred the remainder of the assets in bulk to F.D.I.C. Such a transaction does not possess the characteristics of a sale for value, in good faith and without notice of defense. In our view, P.D.I.C. became subrogated to the rights of the bank by reason of the fact that it was required to discharge the obligation of the bank. It stood in the shoes of the bank and Henkin should be able to assert any defense against the collection of the note by F.D. I.C. that it could have asserted against the bank.

Section 3-302(3)(c) of the Uniform Commercial Code provides that a holder does not become a holder in due course of an instrument by purchasing it as a part of a bulk transaction not in the regular course of business of the transferor. Official comment 3 states that Section (3)(c) has particular application to the purchase by one bank of a substantial part of the paper held by another bank which is threatened with insolvency and seeking to liquidate its assets.

A receiver of an insolvent bank is a trustee for the creditors, and proceedings instituted by him are subject to the same defenses that might have been interposed against the bank. Federal Deposit Insurance Corp. v. Pendleton, D.C., 29 F.Supp. 779 (1939). F.D.I.C. was not a receiver in this instance but no good reason exists why it should occupy a position superior to the bank.

F.D.I.C. contends that the claim of Henkin should have been asserted separately pursuant to KRS 287.600 and not by way of set-off. In our view the claim of Henkin arose out of the transaction in which the bank obtained the note. The pleading asserts that the bank held the note in a constructive trust for Henkin.

We conclude that the counterclaim against F.D.I.C. should not have been dismissed except as to Count five of the counterclaim which sought punitive damages for the tort.

It was alleged in both the counterclaim and in the separate action against Ralph Dean that Dean acted for and in behalf of the bank in the breach of a confidential relationship and for the purpose of inducing Tinker to breach its contract with Henkin or at least to interfere with a prospective advantage of Henkin.

Although it is doubtful that an actual contract existed between Henkin and Tinker for the sale of the note at a discount, such a contract was pleaded. In any case the purchase of the note by the bank interfered with a prospective advantage of Hen-kin.

Dean contends that Kentucky law does not impose tort liability upon a stranger for inducing another to breach a contract. The law upon this point is not altogether clear.

In Davis H. Elliot Co. v. Carribean Utilities Co., Ltd., 513 F.2d 1176 (6th Cir. 1975), it was stated that intentional interferences with a known contractual relationship give rise to a tort action in Kentucky, citing Derby Road Building Co. v. Commonwealth of Kentucky, Ky., 317 S.W.2d 891 (1958). In Derby an action against utility companies for failure to clear a right of way was dismissed because the court found they had no obligation to clear the right of way. In passing, the court stated that liability of the utility could only be predicated upon a showing that the utility company had maliciously interferred with known contractual rights. Brooks v. Patterson, 234 Ky. 737, 29 S.W.2d 26 (1930), was cited as authority.

Brooks contains a full discussion of tort liability for interference by an inter-meddler with a contractual relationship but holds that no action lies in Kentucky for such a breach unless the inter-meddler employs unlawful means, such as fraud, deceit or coercion, and special damage is sustained as a result.

Brooks involved interference which allegedly caused the withdrawal of an offer rather than the inducement of a breach of contract. In that respect it was similar to this case and it stated that interference which prevents the making of future contracts is the equivalent of interference which induces the breach of an existing contract. This view is also espoused by Prosser. Prosser, Law of Torts, 4th Ed. Section 130, page 951.

We conclude that tort liability exists in Kentucky for the malicious interference with known contractual rights of another when special damage results therefrom, at least when accomplished by some unlawful means such as fraud, deceit or coercion. We would place the breach of a fiduciary or confidential relationship on a par with fraud and deceit. The pleadings sufficiently charge the tort of malicious interference with known contractual rights of another through the use of unlawful means.

It is admitted that Ralph Dean did not personally profit from the transaction in which the bank took advantage of Henkin’s bargain. He was the principal stockholder of the bank, however, and it is alleged that he acted as an agent of the bank in making the transaction. It is well established that an agent for a corporation is personally liable for a tort committed by him although he was acting for the corporation. Peters v. Frey, Ky., 429 S.W.2d 847 (1968); Small v. Bailey, Ky., 356 S.W.2d 756 (1962). It therefore appears that the pleadings sufficiently stated a claim against Ralph Dean individually.

We reverse the judgments in each of the captioned appeals for further proceedings consistent with this opinion.

In CA-1311-MR the tendered amended answer and counterclaim should be filed and in both cases the issues made by the pleadings should proceed to trial on the merits.

All concur.

      . Cf. Carmichael-Lynch-Nolan Advertising Agency, Inc. v. Bennett & Associates, Inc., Ky. App., 561 S.W.2d 99, (1977).


author: MARTIN, Chief Judge.

text:
    John WARD and Art Weber, Individuals, d/b/a Powerguard-Louisville, Appellants, v. COMMONWEALTH of Kentucky ex rel. Robert F. STEPHENS, Attorney General, Appellee.
    Court of Appeals of Kentucky.
    April 7, 1978.
    Rehearing Denied June 2, 1978.

      Ronald L. Gaffney, Barnett & Alagia, Louisville, for appellants.
    H. Regina Cullen, Asst. Atty. Gen., Consumer Protection Div., Robert F. Stephens, Atty. Gen., Frankfort, for appellee.
    Before MARTIN, C. J., and COOPER and VANCE, JJ.
   MARTIN, Chief Judge.

This is an appeal from a partial summary judgment granted in Franklin Circuit Court directing the appellants to comply with an investigative demand issued by the Attorney General under authority of the Consumer Protection Act. Appellants challenge the issuance of the demand on the ground that there is no allegation of a violation. They further argue that the Attorney General has not met the statutory requirements for issuance as upheld in Commonwealth v. Pineur, Ky., 533 S.W.2d 527 (1976).

Initially, this case presents a procedural problem because a panel of this court dismissed an earlier appeal of this case, number CA-689-MR, on the same issue. That dismissal was of an interlocutory order which did not state it was a final order as required by Civil Rule 54.02. See Huff v. Wood Mosaic Co., Ky., 454 S.W.2d 705 (1970). After the dismissal, no further hearings were held, nor were further pleadings filed. The only action taken by the trial court was the entry of an order reaffirming the partial summary judgment. This order does state that it is a final order as required by the Rules. This procedure is not good practice, because the secor 1 order does no more than reinstate a dismissed appeal. The proper procedure would be to redraft the order in its entirety, state that interlocutory relief is sought, and include the statement of finality required by Civil Rule 54.02. This error alone is not sufficient to warrant another dismissal; so we now turn to the merits of the case.

The facts of the case are not in dispute and were detailed in affidavits filed with the trial court. Appellants, John Ward and Art Weber, operated a proprietorship known as Powerguard-Louisville, which began business on April 1,1976. Powerguard-Louisville sells and installs electrical devices designed to aid in the economical use of electrical energy. The potential purchasers are both commercial and residential.

These proceedings began on August 19, 1976, with the issuance of an investigative demand by the Consumer Protection Division of the Office of the Attorney General under KRS 367.240(1) (1972). The demand directed Mr. Ward to produce for the Attorney General’s use and inspection all documents and information relating to the corporate structure of his companies which produced or sold a product designed to reduce or regulate the usage of electric power.

The appellants did not comply with the investigative demand but sought relief by filing a complaint in the Franklin Circuit Court under the provisions of KRS 367.-240(2) (1972) and 367.260 (1972). Their first challenge to the investigative demand was its failure to allege any violation of the Consumer Protection Act. The Attorney General answered the complaint and moved for a partial summary judgment on a counterclaim seeking to enforce the investigative demand. Affidavits and other documents were filed by both parties. The trial court, while conceding some merit to appellants’ claim and reserving his ruling on all other issues, concluded enforcement of the investigative demand must be granted by partial summary judgment because of the holding in Commonwealth v. Pineur, supra.

The pertinent statute, KRS 367.240(1) (1972), provides that the Attorney General may issue an investigative demand under the Consumer Protection Act in the following situations:

When the attorney general has reason to believe that a person has engaged in, is engaging in, or is about to engage in any act or practice declared to be unlawful by KRS 367.110 to 367.300, or when he believes it to be in the public interest that an investigation should be made to ascertain whether a person in fact has engaged in, is engaging in or is about to engage in, any act or practice declared to be unlawful by KRS 367.110 to 367.300 . (emphasis added)

Nowhere in the statute is there a standard for determining what facts satisfy the conditions precedent to the issuance of an investigative demand.

Appellants argued that the investigative demand must be founded upon a substantial finding or allegation of wrongdoing to be valid. However, this argument has been partially resolved in Commonwealth v. Pineur, supra, the court stating 533 S.W.2d at 528:

Our determination is limited to whether there is either a statutory or constitutional requirement that a demand authorized by KRS 367.240 recite on its face the reason or grounds for its issuance, and the answer is no.

The Attorney General adopts this statement to support the position that it is his sole responsibility to determine whether or not to issue an investigative demand. We disagree. In Pineur, the court held that while the investigative demand did not have to set forth the reason for its issuance, the courts would look behind the demand. Judicial review of administrative rulings is a basic part of our legal system and is designed to protect against mistaken or arbitrarily issued investigative orders. The constitutionality of the whole Consumer Protection Act was before the court in Pin-eur. By holding the act constitutional, the court did not vest the Attorney General with the unbridled authority he seeks in the present case. The holding of Pineur was well stated in the next to the last paragraph of the opinion, at 530:

In this case the record as a matter of law supports the Attorney General’s authority under KRS 367.240 to enforce production of some of the information specified in its demand. Whether it would be unreasonable to require production of all of it is an issue of fact not finally determined by the judgment, and we do not pass on that question.

In Pineur, the record to which the court referred contained thirty-eight customer complaint letters, affidavits of numerous dissatisfied customers, and the affidavit of one former salesman. On these facts the Attorney General determined that an investigative demand should be issued, and the court agreed. In the present case, to support his motion for partial summary judgment, the Attorney General merely filed one attorney’s affidavit explaining the basis for the issuance of the demand. The affidavit was based on a letter from a representative of the Kentucky Association of Electrical Cooperatives. It contained the transcript of a Florida television program and other documents which allegedly tested appellants’ product and found it deficient. Without further investigation into the truth or falsity of these statements, the Attorney General has accepted them at face value. The record contains no complaints from customers, nor does it contain the affidavits of anyone who tested appellants’ product and found it defective. The investigative demand does not state why the Attorney General wants the documents he seeks, nor does it allege any violation of the Consumer Protection Act.

The Attorney General has failed to meet the statutory standard required for the issuance of a demand. As held in Pin-eur, at 528, “the statute predicates the issuance of a demand on one of these two conditions precedent . . . ” in KRS 367.240(1). As stated, these conditions precedent are that the Attorney General must have reason to believe that a violation of the Consumer Protection Act is being committed, or that the public interest requires his investigation into potential violations of the Act. There can be no question that the facts must be established before the demand is issued. To use the demand as a means of establishing either of the conditions precedent flies in the face of the legislative purpose of the Consumer Protection Act. As held in Pineur, the courts will review the conclusions of the Attorney General so as to protect against arbitrary or mistaken issuance of investigative demands. The one letter relied upon by the Attorney General was insufficient to satisfy either of the legislative prerequisites.

Consumer protection legislation has received widespread approval in the courts. Some statutes recognize the need for balancing the legislative purpose of protecting the consumer against the need to allow reputable business practices to continue so long as they are not injurious to the public as a whole. An example is the Iowa statute, upheld in State v. Limbrecht, 246 N.W.2d 330 (Iowa 1976). In a case involving the alleged illegal sale of cemetery merchandise and services, the court held that the Attorney General was required to prove reliance by the consumer upon the representation of the seller and to prove damages in order to enjoin further sales. We have a less stringent standard in Kentucky. In Ohio, as in Iowa, the Attorney General does not have the administrative subpoena power which our legislature has given. In those and many other states, he must first seek injunctive relief in the courts and then allow his investigation to follow normal discovery channels. See, e. g., Liggins v. May Co., 44 Ohio Misc. 81, 337 N.E.2d 816 (1975); Commonwealth v. Ziomek, 352 A.2d 235 (Pa.Cmwlth.1976).

In Commonwealth v. Pineur, supra, the court relied heavily on the decision of United States v. Morton Salt Co., 338 U.S. 632, 70 S.Ct. 357, 94 L.Ed. 401 (1950). In that case, Mr. Justice Jackson was faced with interpreting a decision of the Court of Appeals of the Seventh Circuit which had affirmed the modification of a cease and desist order issued by the Federal Trade Commission. That case was in the post-judgment stage. Morton Salt Company and others had been investigated by the Federal Trade Commission and found guilty of violations of the unfair competition sections of the federal antitrust acts. 15 U.S.C.A. § 45. An order of the Federal Trade Commission directing the Morton Salt Company and others to cease and desist from earlier anti-competitive activities had been issued and upheld. That order became final and the Federal Trade Commission let matters rest for a period of time. Two years later it demanded detailed reports of the defendants in the earlier case in order to establish their compliance with the cease and desist order. The companies refused. The decision of the Supreme Court upholds the right of the Federal Trade Commission to require these post-judgment reports to support compliance.

We certainly agree with the statements quoted from Justice Jackson in Pin-eur. They are equally applicable in the present case. We may not inquire under Pineur whether or not the investigative demand stated a reason for its issuance on its face. However, under KRS 367.240(2) and 367.260, after the filing of a complaint in Franklin Circuit Court, it is the duty of the court to examine the documentation and facts upon which the Attorney General based his decision to issue the demand. We find the grounds for issuance of an investigative demand against appellants insufficient. As held in Morton Salt, supra, and adopted in Pineur, the responsibility of the court is to protect against the issuance of arbitrary orders. In the present case, the Attorney General has issued an arbitrary order that does not meet the requirements of KRS 367.240(1). The granting of summary judgment to the Attorney General was improper.

The partial summary judgment is reversed, and the case is remanded.

All concur.


author: WINTERSHEIMER, Judge. LESTER, Judge,

text:
    Saidee Kempshall SMITH, Appellant, v. James R. MAGRUDER c/b/a Magruder Millworks, Edwin C. Jackson Plumbing, Inc., and Ward Construction Company, Appellees.
    Court of Appeals of Kentucky.
    May 12, 1978.
    Will H. Fulton, Louisville, for appellant.
    Charles E. Foppiano, Louisville, for ap-pellee, Edwin C. Jackson Plumbing, Inc.
    Gordon K. Costley, Louisville, for appel-lee, Ward Const. Co.
    Allen P. Dodd, III, Louisville, for appel-lee, Magruder Millworks.
    Before HOWERTON, LESTER and WINTERSHEIMER, JJ.
   WINTERSHEIMER, Judge.

This appeal is from a judgment entered July 21, 1977, in which two mechanic’s lien claims were adjudicated against the appellant for labor and materials provided in the reconstruction of her home in 1975. On April 3,1974, a tornado damaged the Louisville home of the appellant, and from April 3,1974, until September 1975, her home was uninhabitable and she rented an apartment during the reconstruction. The general contractor was the Ward Construction Company, who had been previously paid by the appellant, and who had bankrupted the claims of two of the appellees in this case.

Under a contract with Ward, appellee Magruder performed labor and furnished materials between August 1, 1975 and August 12, 1975, and mailed a letter/notice of lien claim for $2,031.06 on November 25, 1975, within 120 days of the date of the last item of material and labor furnished. Ap-pellee Jackson furnished labor and material from February 18,1975, to August 26, 1975, and on October 1, 1975, mailed a letter/notice of lien claim for $2,775.00 to the appellant. Both of these subcontractors sought to enforce their mechanic’s liens under KRS 376.010(3), having complied with the provisions thereof, but neither lienor complied with the provisions of KRS 376.010(4) and the specific requirements of furnishing a ten day written notice to the “owner-occupant of the home” as required by Subsection 4.

The only question presented here is whether the provisions of KRS 376.010(3) or KRS 376.010(4) apply in this situation, and whether the appellant was an owner-occupant of an owner-occupied dwelling within the meaning of KRS 376.010(4).

A clear and simple meaning of the word occupant is one who occupies or has the actual use or possession of a thing, as distinguished from constructive possession thereof. Here, the appellant seeks to have the courts interpret KRS 376.010(4) to apply to this situation. Appellant argues that the statute was intended for the protection of small home owners. However, this Court cannot reasonably interpret the language of the 1976 statute as meaning anything other than it clearly states, that is “owner-occupant.” The subsection uses the term “owner-occupied single or double family dwelling”. This language is abundantly clear. It applies only to such a classification of persons. If there was a legislative intent to cause the subsection to be applied to situations such as this case, the Legislature could have simply omitted the word “occupant” and the words “owner-occupied” from Subsection 4. If that had been done, compliance with Subsection 4 would have been required wherever work or material was furnished on a single or double family dwelling. The fact that the words “owner-occupant” are used, indicates that actual physical occupancy at the time of the work is necessary to invoke the protection of this statute. Generally, statutes must be narrowly construed when the clear meaning of the language is apparent. The Supreme Court of Kentucky, in Apache Coal Co. v. Fuller, Ky., 541 S.W.2d 933 (1976), indicates that the function of the court is limited to a reasonable interpretation of the legislative language, and does not extend to a psychoanalysis of the legislative intent.

It should be noted that the appellees’ citation of language contained in a fire insurance policy case does not necessarily apply to this situation. The factual differences between the degree of evidence needed to support occupancy in a fire insurance contract and a mechanic’s lien situation are too great to present a truly analogous situation.

It has been the policy of Kentucky law to construe mechanic’s lien laws liberally in favor of the lienors. Hodges v. Quire, Ky., 174 S.W.2d 9 (1943). Fortunately, the Legislature has recognized the possibility of an abuse which would be to the detriment of some small home owners, and it has identified an exception to the mechanic’s lien laws for those premises that are owner-occupied. In a general sense, it is a matter of concern to this Court as to what balance should be maintained between the small house owners and small vendors, both of whom are defrauded by a defaulting general contractor. It is tragic that a small home owner may be required to pay twice for the same service or materials, but on the other hand, the small vendor has no real ability to sustain a loss once his material and labor are expended. The real villain escapes by the route of default or bankruptcy. In this situation, a notice was given to the home owner that a lien claim would be asserted. It was not the notice given to an owner-occupant, because it appears that in good faith the vendors did not believe the owner was an occupant. Therefore, it appears that no essential injustice resulted from the form of notice given.

It is the opinion of this Court that an owner of an uninhabitable parcel of real property is not considered to be an owner-occupant of a single or double family dwelling, pursuant to KRS 376.010(4), and accordingly, it is not mandatory on a subcontractor who has not contracted directly with the owner, but who has furnished labor and materials during the period of unin-habitableness, to notify the owner of the said real property, within ten days of furnishing the first material or labor, of his intention to claim a lien against said real estate.

The judgment of the trial court is affirmed.

HOWERTON, J., concurs.

LESTER, J., concurs by separate opinion.

LESTER, Judge,

concurring.

My colleagues have reached the correct conclusion in this appeal, but I believe the central issue requires some comments.

In this litigation, as well as Kinser Sheet Metal, Inc. v. Morse, et ux., Ky.App., 566 S.W.2d 179 (1978), the appellate courts were requested to interpret the 1974 enactment of KRS 376.010 and more particularly whether the owners of a single or double family dwelling should be required to pay subcontractors when they have already paid the contractor for those services and the latter has defaulted in his obligations.

For some undisclosed reason, the General Assembly, unwittingly, created classifications between property owners when it legislated in KRS 376.010(4):

No person who has contracted directly with the owner-occupant or his authorized agent shall acquire a lien under this section on an owner-occupied single or double family dwelling or the appurtenances or additions thereto unless he notifies in writing the owner-occupant of the property to be held liable or his authorized agent not more than ten (10) days after the first item of material or labor is furnished, of the delivery of the material or performance of labor and of his intention to hold the property liable and the amount for which he will claim a lien.

Our decisions have been to the effect that unless the owner actually occupies the dwelling where the goods or services are furnished, then the benefits of the statute are unavailable to him and he can be required to make double payment when his contractor defaults after payment by the owner. This places the party building a new home that is uninhabitable in a position of having to follow up his contractor and determine from each laborer or supplier (if he is aware of their identity) if his contractor has satisfied the obligations. On the other hand, the owner who lives in the structure is absolved from the potential double costs unless he receives a notification of default within ten days. I do not perceive this distinction to have been the real intent of the legislature, for it appears to me that the object was to provide the individuals building a residence the protection of notification of default in a relatively short time so he can take the appropriate action to avoid the lien.

I believe it unfortunate that the legislative body did not delete the word “occupant” or insert “or” between “owner” and “occupant”, for that appears to have been the intention or else why restrict it to residential type structures.

I admit that the supply houses for the building industry would have a slight burden placed upon them, in that they would have to determine the name and address of the owners and the type of construction to which they were furnishing materials. This obligation is insignificant compared to the safeguard that would be afforded the owner, in that the materialmen would be much more likely to learn the business practices and financial reliability of the contractors with whom they dealt. For that matter, the supply houses are in a much better position to have that knowledge or are in a better position to so determine than the owner who may build a new home but once in a lifetime.

As I have indicated above, the result reached in this and the Kinser Sheet Metal case is the only one possible under the statute as written, but it certainly thwarts the beneficial purposes which I believe the General Assembly intended.


author: HOWERTON, Judge.

text:
    GENERAL REFRACTORIES COMPANY, Appellant, v. Homer HERRON, James R. Yocom, Commissioner of Labor and Custodian of the Special Fund, and, Workmen’s Compensation Board of Kentucky, Appellees.
    Court of Appeals of Kentucky.
    Aug. 5, 1977.
    Rehearing Denied Feb. 24, 1978.
    Discretionary Review Denied June 27, 1978.

      Howard VanAntwerp, III, VanAntwerp, Hughes, Monge & Jones, Ashland, for appellant.
    Alvin B. Trigg, Wallace, Turner & Trigg, Lexington, Cyril E. Shadowen, Dept, of Labor, Sp. Fund, Louisville, for appellees.
    Before, HOWERTON, GANT and WIL-HOIT, JJ.
   HOWERTON, Judge.

This is a workmen’s compensation case. The claimant, Homer Herron, with a history of approximately nine years as a coal miner and forty years as a brick yard worker, claimed benefits after the diagnosis that he had pneumoconiosis on or about September 30, 1974. Notice of a claim was given the employer on October 8, 1974 and on or about January 6, 1975 a claim was filed with the Workmen’s Compensation Board. The Workmen’s Compensation Board awarded the claimant $16.25 per week against the appellant, that being 25% of $65.00. The claimant then filed a petition for reconsideration arguing that the award should be based upon $84.00 per week for the duration of the disability under the 1972 Amendments to the Kentucky Workmen’s Compensation Act, rather than the older $65.00 for a period of 425 weeks. The claimant further asserted that the Board had erred in its original award in allowing credit for disability benefits paid for a work-related arm injury suffered by him on a prior occasion which was settled by a lump-sum payment based on a time period through June 7, 1975, overlapping the disability period claimed in the present action. The petition for reconsideration was overruled. On appeal to the Carter Circuit Court, the ease was remanded to the Kentucky Workmen’s Compensation Board with directions to amend its opinion and award so as to grant claimant compensation based on $84.00 per week for life without credit to the appellant for the previous disability benefits paid.

The primary problem presented by this case is one which is common to numerous cases in Kentucky — the employment of a former coal miner in another industry or occupation in which he is also exposed to one of the over forty types of pneumoconio-sis. The appellee, Herron, worked approximately nine years as a “coal miner” and the last forty years as a “brick worker”. In other cases, former coal miners have had subsequent employment for protracted periods as sandblasters, workers in asbestos plants or chemical plants, or in a number of similar industries.

The applicable section of the 1972 Kentucky Acts is Section 37, Chapter 78, which reads as follows:

This Act shall be effective on January 1, 1973; and effective for all claims filed on and after January 1, 1973; provided, however, that in the event federal law specifies that claims covered by the provisions of this Act shall be filed with a federal agency such claims shall continue to be filed as required by the federal law until repeal or expiration of the federal law requiring same; then, in that event, the increase in benefits provided herein shall not apply to those claims where benefits are awarded under the federal law. The benefits under the present law KRS Chapter 342, shall apply to those claims.

The ruling cases are Maggard v. International Harvester Company, Ky., 508 S.W.2d 777 (1974), and Fugate v. United States Corporation, Ky., 528 S.W.2d 691 (1975). These cases and the statute, taken collectively, prescribe that the law pertinent to a “coal miner” is that if he is eligible to apply for relief under the Federal black lung program, he is limited to disability in the amount of $65.00 per week for a period of 425 weeks. If not eligible, he may receive $84.00 per week for the duration of the disability.

In the instant case, the employer argues that the appellee, Herron, is a victim of “black lung;” the appellee urges that he has “red lung;” the Workmen’s Compensation Board found that he had “red lung” but that he had worked for a period of less than ten years as a coal miner and limited his recovery to the lesser sum. The circuit court reversed the Board and granted the higher amount for the duration of the disability. We would affirm the circuit court on this award.

The Federal black lung program was born with the passage of the Federal Coal Mine Health and Safety Act, 30 U.S.C.A. § 901, et seq. This program was predicated on assistance to coal miners suffering from pneumoeoniosis/silicosis resulting from employment in coal mines. Three basic periods were provided by the Act. If the coal miner had worked in the mines for less than ten years, he was faced with the provisions of 20 C.F.R. § 410.410(b), as follows: '

To establish entitlement to benefits on the basis of a coal miner’s total disability due to pneumoconiosis, a claimant must submit the evidence necessary to establish: (1) that he is a coal miner, that he is totally disabled due to pneumoconiosis, and that his pneumoconiosis arose out of employment in the Nation’s coal mines;

Between ten and fifteen years, there is a rebuttable presumption that if the coal miner in fact has pneumoeoniosis/silicosis, it arose out of his employment in the coal mines. After fifteen years, there is also a rebuttable presumption with two grounds of attack listed.

In the instant case, the Workmen’s Compensation Board found that the total coal mine employment of the appellee was nine years. This would place him in the first group outlined herein and confront him with a burden of proof which he could not possibly meet. To hold that this man, under these circumstances, is a coal miner and “eligible” for Federal black lung benefits is sheer nonsense. He has had a forty-year career since being in a mine. The medical evidence herein, as it usually is, was that Herron’s condition was the result of his “total experience”, but it is obvious from the record that the forty years as a brick worker was predominant. In its finding, the Board found that “The plaintiff became totally and permanently disabled as a result of the occupational disease of silicosis/pneumoconiosis arising out of and in the course of his employment as a brick worker.”

It is our opinion that the remedy provided by the applicable section of Chapter 342 of the Kentucky Revised Statutes, pursuant to the amendment in the Act of 1972, supra, is not exclusive where the evidence clearly indicates a combination of causes of the pneumoconiosis. The purpose of Chapter 342 was obviously to grant the employee his full disability but to pass on a part of this to the Federal funds available. This purpose would not be satisfied where the evidence clearly shows that the condition of the employee was a combination of causes such as we find here and, again, we do not feel that this statute provides an exclusive remedy.

Appellant’s second contention is that the circuit court erred in reversing the allowance to it for previous payments of compensation benefits which overlapped with the period of time for which the claimant presently sought total disability. We are in agreement with appellant. Appellee argues that the court laid down the simple rule that where an employee was injured and received a subsequent independent injury which incapacitates him, the prior injury should not be deducted, citing International Harvester Company v. Poff, Ky., 331 S.W.2d 712 (1959); Inland Steel Co. v. Mosby, Ky., 375 S.W.2d 268 (1964); Cabe v. Skeens, Ky., 422 S.W.2d 884 (1967); and Young v. Young, Ky., 460 S.W.2d 832 (1970). The rule urged by appellee is correct when the payment period under the first award of disability benefits has expired prior to the employee’s second term of benefits. However, as has been well reasoned in this line of cases and others, see, Osborne Mining Corporation v. Blackburn, Ky., 397 S.W.2d 144 (1965) a claimant cannot be more than 100% disabled at any one time. Herron’s lump-sum payment for his earlier disability was a settlement, as permitted by KRS 342.150, for a weekly amount to be paid over a period of time as found by the Board. In the present case, the period of time for the payments of the previous award so found overlaps with the time used in calculating the claimant’s permanent total disability. As to that overlapping period, the claimant can only be 100% disabled and thus, the employer and the Special Fund must be credited in proportion to the amount of their respective liabilities for the amount and duration of the overlapping period as found by the Board and not the lump-sum award actually received by the claimant distributed over the time of the compensation.

For the reasons herein stated, the judgment of the circuit court is reversed as to the matter of overlapping disability only, and the case is remanded to the circuit court with instructions to enter a judgment in accordance with this opinion.

ALL CONCUR.