author: PARK, Judge.

text:
    Bobby R. ROSS, Appellant, v. COMMONWEALTH of Kentucky, Appellee. Shelby SPENCER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Sept. 2, 1977.
    As Modified On Denial of Rehearing Jan. 13, 1978.

      Robert F. Stephens, Atty. Gen., James S. Goldberg, Asst. Atty. Gen., Frankfort, for appellee.
    Jack E. Farley, Public Defender, Thomas R. Lewis, Asst. Public Defender, Frankfort, for appellants.
    Before HAYES, PARK and WINTER-SHEIMER, JJ.
   PARK, Judge.

Bobby L. Ross and Shelby Spencer were indicted by the Grand Jury of Lee County for armed assault of Charles L. Shuler with intent to rob. KRS 433.150. On joint motion of the defendants and the Commonwealth, the trial court granted a change of venue and transferred the case to the Estill Circuit Court for trial. Following a joint trial, a jury found both defendants guilty. Ross and Spencer both prosecute appeals from judgments entered by the trial court upon the jury verdict sentencing each to a maximum term of imprisonment of ten years.

Three basic issues are raised by these consolidated appeals. (1) Did the trial court err in trying Spencer in the absence of the witness Evan Reeves? (2) Was prejudicial error committed by the procedures followed in impeaching the testimony of Ross, Spencer and a witness for Spencer by evidence of prior felony convictions? (3) Should the judgments be reversed because of improper conduct on the part of the Commonwealth’s Attorney during the trial and in closing argument?

TRIAL IN ABSENCE OF ALIBI WITNESS

Spencer sought to secure the attendance of Evan Reeves as a witness in order to establish an alibi for the time when the assault was made on Shuler. At the time of trial, Reeves was an inmate at the Eddy-ville Penitentiary, where Spencer was also incarcerated. Spencer’s trial counsel filed a motion for an order requiring the personal appearance of Reeves at the trial. This motion was supported by the affidavit of Reeves that his testimony would establish an alibi for Spencer. The trial court overruled the motion. In this appeal, Spencer claims that he was denied compulsory process for witnesses in his favor in violation of Sec. 11 of the Kentucky Constitution and the sixth amendment to the United States Constitution as made applicable to the states by the fourteenth amendment. See Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967).

See. 11 of the Kentucky Constitution and the sixth amendment to the United States Constitution contain substantially identical language. In all criminal prosecutions, an accused has the right “to have compulsory process for obtaining witnesses in his favor.” This court can see no basis for any difference in the construction of the two constitutional provisions. Spencer’s right to compulsory process for witnesses in his favor should be measured by the same standard under our Kentucky Constitution and the United States Constitution.

Spencer’s motion for an order to secure the personal appearance of Reeves at trial was, in effect, a motion for the issuance of a writ of habeas corpus ad testifi-candum. This common law writ was used to secure the production of witnesses who were beyond the reach of an ordinary subpoena because they were confined in jail. Neufield v. United States, 73 App.D.C. 174, 118 F.2d 375, 385 (1941), cert. denied, 315 U.S. 798, 62 S.Ct. 580, 86 L.Ed. 1199 (1942). The power of trial courts to issue such orders or writs has long been recognized in Kentucky. In Hancock v. Parker, 100 Ky. 143, 18 Ky.L.Rep. 622, 37 S.W. 594 (1896), this state’s highest court held that a circuit judge could require the warden of the penitentiary to produce a prisoner to testify on behalf of a defendant, Warfield, charged with the crime of rape. The court stated:

Under section 11 of the Bill of Rights Warfield, who is the subject of a criminal prosecution, has the right not only “to meet the witnesses face to face,” but also “to have compulsory process for obtaining witnesses in his favor.” This right, guaranteed to him by the Bill of Rights, can not be denied to him. Chief Justice Marshall in 1 Burr, Trial 158-9; Commonwealth v. Jones, 10 Bush. 746.
He is entitled to have his own witnesses in court, if they can be reached by the compulsory process of the law, and to coerce their attendance whenever they may reside in the State; and, in order to do this, it is not required that he shall tender to his witnesses any compensation for expenses before resorting to process to compel them to attend. 100 Ky. at 146-47.

As the Commonwealth had the custody and control of the witness, the defendant was entitled to an order requiring the warden to produce the prisoner to testify as a witness in the trial of the case. In Wedding v. Commonwealth, 212 Ky. 571, 279 S.W. 981 (1926), the court held that an accused was entitled to an order directing a jailer having custody of a federal prisoner to produce the prisoner to testify as a witness at the trial. Court further held that it was prejudicial error for the trial court to refuse to issue the process and to try the defendant in the absence of the witness.

The Commonwealth takes the position that the issuance of an order for the compulsory production of a prisoner to testify in a criminal trial is not mandatory. In support of this argument, the Commonwealth relies on certain provisions of the Rules of Civil Procedure. Under CR 32.-01(3), the deposition of a prisoner may be used at the trial of a case. Because a prisoner’s deposition can ordinarily be used at trial, prisoners are not subject to subpoena under CR 45.05(2). Under CR 45.05(3), a trial court may, in its discretion, order the personal attendance of a witness otherwise exempt from subpoena. The Commonwealth then argues that these provisions are incorporated into the Rules of Criminal Procedure by RCr 7.04. Under RCr 7.04, the provisions of the rules of civil procedure apply to the compulsory attendance of witnesses in criminal proceedings with the exception that the attendance of witnesses residing in “any part” of the Commonwealth “may” be coerced. Relying on the use of the word “may” in RCr 7.04, the Commonwealth asserts that the trial court did not abuse its discretion in holding that Spencer should have taken the deposition of the witness Reeves. Not only is this contention a strained construction of RCr 7.04, but it flies directly in the face of the provisions of section 11 of the Kentucky Constitution. In Hancock v. Parker, supra, the court specifically held that a criminal defendant was not bound to waive his right to the compulsory attendance of witnesses by taking the deposition of a witness who was a prisoner in a Kentucky penitentiary. Consequently, there is no merit to the argument that Spencer could be compelled to take the deposition of a witness who was incarcerated in the penitentiary.

In denying Spencer’s motion for an order to secure the attendance of Reeves at the trial, the trial court made a finding that Spencer’s motion had not been “timely filed.” The indictment was originally returned on February 7,1974. When the case was set for trial on February 1976, it was necessary for the trial court to enter an order directing the warden of the Eddyville State Penitentiary to produce Spencer and Ross for the trial, both of them being inmates. The trial was originally scheduled for February 23,1976. However, Spencer’s mother died the night before trial. On February 23, 1976, the trial court entered an order continuing the trial of the case until May 19, 1976, and transferring the trial to the Estill Circuit Court. On May 3, 1976, the trial court on its own motion reassigned the case from May 19, to May 18, 1976. The trial court also ordered that Spencer and Ross be brought from Eddy-ville to the Estill County Jail on or before May 15, 1976.

Spencer’s motion for an order requiring the personal appearance of Reeves was served upon the Commonwealth’s Attorney on May 13, 1976. As required by CR 6.04 the motion was accompanied by a notice of the time for the hearing of the motion. The notice provided that the motion would be brought on for hearing before the trial court on May 17, 1976. Thus no request was made to the trial court to secure the personal attendance of Reeves as a witness until the day before trial. This court takes judicial notice of the fact that it is approximately 270 miles from the county seat of Estill County to the penitentiary at Eddy-ville. As a practical matter, it was virtually impossible for the trial court to have the warden at Eddyville served with a copy of an order of personal attendance in time for the warden to produce Reeves for the trial the following day. To have granted Spencer’s motion at that late date would have required a continuance of the trial of the case.

When the trial court overruled the motion for an order for the personal appearance of Reeves, Spencer’s counsel did not file a motion for a continuance under RCr 9.04. Had there been a motion for a continuance, the trial court clearly would have been presented with the question whether Spencer had exercised “due diligence” to secure the testimony of Reeves. Even in the absence of a motion for a continuance under RCr 9.04, the trial court properly considered whether Spencer exercised due diligence to produce Reeves as a witness by filing a timely motion for his personal appearance.

In holding that a motion for a writ of habeas corpus ad testificandum was untimely, the United States Court of Appeals for the District of Columbia in Neufield v. United States, supra, stated:

“But we think that even under this circumstance the issuance of the writ was discretionary, that the guarantee of the Sixth Amendment is not so absolute as to require the production of a witness despite an unseasonable application for the writ. For the due administration of justice there must be a limit to delay; and if the right to the writ for the production of a jailed witness were absolute in the sense that the writ must be issued and executed whenever demand is made, it would be within the power of an accused to compel a continuance by making a late demand. * * * the trial judge properly regarded the application for process against Waldron as unseasonable. An accused cannot omit to inform his lawyer during an extended period — in this case approximately eight weeks — before trial of the existence of a possible material witness and then successfully charge the trial judge with an abuse of discretion for refusing a demand for the production of the witness not made until the moment the case is called. While in the usual course it would seem important to have present at the trial a confessed participant in the crime charged, we can not say that under the circumstances of the instant case the trial judge abused his discretion in denying the application for Waldron’s production.” 118 F.2d at 385.

See also 97 C.J.S. Witnesses § 30 at 416-17.

In the present case, Spencer made no request for an order for the personal appearance of Reeves at the time the case was called and originally continued on February 23, 1976. There is nothing in the record to indicate that Spencer was unaware of Reeves, whereabouts at that time. Most important, the affidavit executed by Reeves which was attached to his motion was dated April 22,1976, almost four weeks before the trial was scheduled to commence. Under these circumstances, we cannot say that the trial court abused its discretion in refusing to order the production of Reeves when the motion was made to the court too late to secure Reeves’ attendance at the commencement of the trial.

IMPEACHMENT BY EVIDENCE OF PRIOR FELONY CONVICTION

Ross and Spencer both testified on their own behalf at the trial of the case. Both men assert that prejudicial error was committed when the Commonwealth was permitted to impeach their testimony by evidence of prior felony convictions. In addition, Spencer’s sister, Arthella Moore, testified as an alibi witness for Spencer, and the Commonwealth attempted to impeach her testimony by evidence of a prior felony conviction. Spencer asserts that the procedures followed by the Commonwealth in impeaching his sister were also prejudicially erroneous.

In each instance, the Commonwealth’s attorney ignored the procedures set forth in Cotton v. Commonwealth, Ky., 454 S.W.2d 698 (1970), for impeachment of a witness by evidence of a prior felony conviction. The Commonwealth’s Attorney did not seek a ruling on the admissibility of the prior felony convictions before undertaking to impeach the witnesses. Conceding that the procedures dictated by the Cotton case were not followed, the Commonwealth claims that the errors were not properly preserved. Thus, we must determine how error is to be preserved when there has been a violation of the Cotton procedures. This is the exact issue which was reserved by the court in Bell v. Commonwealth, Ky., 520 S.W.2d 316, 318, n.1 (1975).

In determining whether evidence of a prior felony conviction is admissible for purposes of impeachment, the Cotton case requires two determinations by the trial judge. First, the trial judge must determine whether there is a final judgment of conviction for a felony relevant to the issue of credibility. In the Cotton case, the court held that felony convictions are not relevant to the issue of credibility unless they rest on dishonest conduct. In discussing the Cotton rule, the court in Harris v. Commonwealth, Ky., 469 S.W.2d 68, 70 (1971), stated:

“However, if the previous convictions do not rest on dishonesty they may not be introduced in evidence at all and the defendant may not be asked about them. The prior felony is not introducible in evidence for the purpose of impeachment under any circumstance unless it is relevant to the issue of credibility.”

The second aspect of the Cotton rule involves the trial judge’s discretion to exclude evidence which is relevant to the issue of the witnesses’ credibility.

Even if the evidence of the prior felony conviction is relevant, the trial judge in the exercise of discretion may exclude or limit the evidence if he determines that its prejudicial effect outweighs its probative value. In the Cotton case, the court stated:

“The exercise of discretion by the trial judge in this area should primarily consist of weighing the interest of society in the prosecution of criminal defendants to provide the trial jury with relevant evidence of the witness’ untrustworthiness to be believed against the possible prejudice to the witness, particularly in the case of a criminal defendant, in being convicted not of the crime for which he is charged but of some crime for which he has been convicted and punished on some prior occasion.” 454 S.W.2d at 701.

The discretion of the trial judge to exclude evidence of prior convictions relevant to the issue of credibility has been described as being “limited” in scope. Cotton v. Commonwealth, supra; Iles v. Commonwealth, Ky., 476 S.W.2d 170, 172 (1972). The dual aspect of the Cotton rule was perhaps best summarized by the court in the Bell case:

“Cotton specifically outlaws questioning as to any felonies other than those involving dishonesty, stealing or false swearing, and as to the latter it calls for a careful consideration of the probability of prejudice, and for the exercise by the trial court of discretion as to the limiting or even prohibiting the impeaching questions.” (emphasis in original) 520 S.W.2d at 317.

In Burnett v. Commonwealth, Ky., 523 S.W.2d 229 at 231 (1975) the court re-emphasized that there should be a hearing or conference outside the presence of the jury prior to the introduction of any evidence of a prior conviction for purposes of impeachment.

When the procedures dictated by Cotton have not been followed, RCr 9.22 dictates that some contemporaneous objection be made in order to preserve the error. The defendant’s trial counsel must not sit back and fail to take action if the Commonwealth’s Attorney does not follow the Cotton procedures. Cane v. Commonwealth, Ky.App., 556 S.W.2d 902 (1977) 24 K.L.S. 8, pg. 8. If an objection is made, the sufficiency of the objection will depend upon which aspect of the Cotton rule is involved. Is the defendant’s trial counsel asserting that the prior conviction is not relevant on the issue of credibility? Or, is the defendant’s trial counsel requesting that the evidence be limited or prohibited in the exercise of the trial judge’s discretion to exclude relevant, but highly prejudicial, evidence?

A prior conviction is not relevant to the issue of credibility unless it involved a felony based upon dishonesty. Relevancy is not shown if the prosecutor merely asks, “Have you ever been convicted of a felony?” A simple objection is sufficient to raise the issue of the relevancy of the prior conviction. The defendant is not required to establish that the prior conviction involved a felony not based on dishonesty. The burden is on the Commonwealth to establish that the prior conviction is relevant to the issue of credibility. Cf. United States v. Mahone, 537 F.2d 922, 929 (7th Cir. 1976). On the other hand, if the prior conviction is relevant to the issue of credibility, the defendant should have the burden of persuading the trial judge that this relevant evidence should be excluded or limited. A simple objection will not be sufficient to establish that the trial court abused its discretion by admitting relevant evidence on the question of credibility. Gordon v. United States, 127 U.S.App.D.C. 343, 383 F.2d 936, 939 (1967); Hood v. United States, 125 U.S.App.D.C. 16, 365 F.2d 949 (1966). It is appropriate to note that the Gordon decision was cited and relied on by the Court in the Cotton decision.

Although applying a different standard, Rule 609 of the Federal Rules of Evidence presents a similar question respecting the procedure to be followed in introducing evidence of prior convictions for impeachment purposes. In commenting on Rule 609, Moore states:

“Whoever is offering the impeaching evidence should have the burden of establishing that the proffered evidence has probative value; and how much. * * * The opposing party should have the burden of showing prejudice to himself and whether much or little.” 10 Moore’s Federal Practice § 609.14[3] (2d ed. 1976).

A general objection is sufficient if the evidence is not competent for any purpose. RCr 9.22. However, if the evidence is relevant and prima facie admissible, a specific objection should be made giving the reasons why the trial judge should exclude relevant evidence on the grounds of prejudice. Whether Ross and Spencer properly preserved the Cotton errors will be determined in accordance with the foregoing principles.

In the case of Ross, there was an objection when Ross was asked whether he had ever been convicted of a felony. A bench conference was held, but no record was made of that conference. Following the bench conference, the Commonwealth’s Attorney was permitted to elicit from Ross, over objection from his counsel, that he had been convicted of a felony and was currently residing at Eddyville. There is nothing in the record to indicate the nature or date of the prior felony conviction. We conclude that Ross’s trial counsel has properly preserved the question whether the prior conviction was relevant to the issue of Ross’s credibility. However, there is nothing in the record to indicate that it would be an abuse of discretion to admit the evidence of prior conviction assuming that it was relevant to the issue of credibility.

When the Commonwealth’s Attorney attempted to impeach Spencer, his counsel objected on the grounds that there had been no hearing in chambers as required by the Cotton decision. At a bench conference which was recorded, the Commonwealth’s Attorney responded, “we all know what the answer is to start with. We know all about him.” The trial judge overruled the objection stating into record at the bench, “ * * * the court being sufficiently advised the defendant has been recently been convicted of armed assault with intent to rob in the Lee Circuit Court approximately two years ago.” As the trial judge was the presiding judge of both the Estill Circuit Court and the Lee Circuit Court, it was not improper for the trial judge to take judicial notice of the records of his own court. Howard v. Commonwealth, 240 Ky. 307, 42 S.W.2d 335 (1931). Cotton does not require an evidentiary hearing in every case. As stated in the Burnett case, the Cotton determination can be made “in a hearing or conference held outside the presence of the jury.” 523 S.W.2d at 231. A conviction of armed assault with intent to rob is relevant to the issue of Spencer’s credibility. Thomas v. Commonwealth, Ky., 487 S.W.2d 954 (1972). There is nothing in the record to indicate that it was an abuse of discretion for the trial court to admit the evidence of Spencer’s previous conviction. With respect to the impeachment of Spencer, we conclude that the Cotton error was cured.

During cross-examination of Spencer’s sister, Arthella Moore, the Commonwealth’s Attorney was permitted over objection to establish that she had previously been convicted of a felony. Having elicited this fact, the Commonwealth’s Attorney then engaged in the following colloquy:

“X16 Have you ever gone back to serve out the rest of your sentence?
A No, I haven’t.
X17 That is where you are supposed to be right now, isn’t it?
A When the Court of Appeals decides, yes.”

If Mrs. Moore’s prior felony conviction was on appeal and the mandate had not issued, it would be improper to use that conviction for purposes of impeachment. Commonwealth v. Duvall, Ky., 548 S.W.2d 832 (1977); Foure v. Commonwealth, 214 Ky. 620, 283 S.W. 958 (1926). At no time did the Commonwealth establish that Mrs. Moore’s prior conviction was for a felony relevant to the issue of her credibility. We conclude that the objection by the trial counsel properly preserved the question of the relevancy of Mrs. Moore’s prior conviction. However, there is no suggestion in the record of any facts which would have required the trial judge in the exercise of his discretion to exclude or limit the evidence of her prior conviction, assuming that it was relevant.

Even though the procedures followed in the trial court were erroneous, whether there was prejudicial error depends upon the exact nature of the prior felony convictions and, in the ease of Mrs. Moore whether there was an appeal pending from her prior conviction. If Ross and Mrs. Spencer had previously been convicted of a felony involving dishonesty, stealing or false swearing within the Cotton rule, the evidence was relevant. If relevant, the admission of the evidence of the prior felony convictions would not be prejudicial. On the other hand, if the prior conviction involved a crime not affecting credibility, the failure to follow the procedures outlined in the Cotton case was prejudicial. Under the circumstances, justice will best be served by vacating the judgments and remanding the cases to the circuit court for the purpose of determining the relevancy of the prior felony convictions as required by the Cotton case. Cf. Francis v. Commonwealth, Ky., 468 S.W.2d 287 (1971).

If upon remand, the trial court determines that Ross’s prior felony conviction was for an offense which is not relevant on the issue of his credibility, then the trial court shall grant Ross a new trial; if the prior felony conviction would be admissible under the Cotton rule, the trial court shall reinstate the judgment of conviction. Likewise, if the trial court determines that Mrs. Moore’s prior felony conviction would not be relevant under the Cotton rule, or that Mrs. Moore’s conviction had been appealed and the mandate had not issued, then the trial court shall grant Spencer a new trial; otherwise the trial court shall reinstate Spencer’s judgment of conviction. The trial court’s decision following remand will be reviewable under the procedures outlined in Gaston v. Commonwealth, Ky., 545 S.W. 941 (1977).

Remand rather than reversal is a proper remedy when the only Cotton issue relates to the relevance of the prior conviction to the issue of credibility. In such cases, no discretion is vested in the trial court. A felony either is or is not based upon dishonesty. The determination of the relevancy question will not be influenced by the fact that it is made on remand rather than during the trial.

One further question must be answered. May the trial judge’s discretion to exclude evidence of relevant convictions be invoked for the first time on remand? We hold that it cannot. The only practical time for the trial judge to exercise his discretion is during the trial itself. It is unrealistic and artificial to assume that the trial judge can be objective when his discretion is invoked for the first time on remand, or on a new trial following a reversal on Cotton grounds. The defendant’s trial counsel will usually be aware of the nature of the prior conviction. Therefore, the trial counsel should request a hearing or conference outside the presence of the jury if he believes the trial judge should exclude the evidence by the exercise of discretion. Likewise, if the trial counsel has any question respecting the nature of the prior conviction, he can learn the facts by requesting a determination of all Cotton issues out of the presence of the jury. The refusal of the trial judge to conduct a Cotton hearing or conference can be grounds for reversal. lies v. Commonwealth, supra.

So that there can be no confusion on the part of attorneys, we emphasize again that prosecutors and other attorneys have a duty to comply with the Cotton decision. If the attorney injects evidence of a felony conviction before a jury without a prior Cotton determination outside of the presence of the jury, that attorney has made it difficult for the trial judge to be objective in exercising his discretion to admit or exclude the evidence. If the second aspect of the Cotton rule is preserved for appeal, such a violation of Cotton will be a factor in determining whether there has been an abuse of discretion in admitting the evidence of the prior conviction.

ALLEGED MISCONDUCT OF COMMONWEALTH’S ATTORNEY DURING TRIAL AND CLOSING ARGUMENT

The Commonwealth contends that the appellants have failed to preserve any alleged error with respect to the Commonwealth’s Attorney’s closing argument or conduct during the course of the trial. This argument is based upon the failure of trial counsel to state the specific grounds for their objection to the argument or conduct of the Commonwealth’s Attorney. In support of the argument that trial counsel must state the “specific grounds” for an objection the Commonwealth relies upon Bell v. Commonwealth, Ky., 473 S.W.2d 820 (1971). The Bell case does not so hold. The opinion in the Bell case does no more than reiterate the requirement of RCr 9.22 that trial counsel must make known to the trial court “the action which he desires the court to take or his objection to the action of the court.” The trial counsel must state his grounds for objection only on request of the trial court. RCr 9.22 is identical with its counterpart in the Rules of Civil Procedure, CR 46. The Kentucky rules differ from Rule 46 of the Federal Rules of Civil Procedure and Rule 51 of the Federal Rules of Criminal Procedure which require a statement of the grounds of an objection in all cases. In the absence of a request from the trial judge, the appellants did not waive their objections by failing to state the grounds for the objections. Price v. Bates, Ky., 320 S.W.2d 786 (1959).

However,_ there are more serious questions relating to the preservation of alleged error. There were a number of instances in which Spencer’s trial counsel made an objection but there was no objection on behalf of Ross. Having made no objection, Ross cannot raise those questions on appeal even though they were properly preserved for Spencer’s appeal. As stated in Price v. Commonwealth, Ky., 474 S.W.2d 348, 350 (1971):

“Consolidated prosecutions are controlled by RCr 9.12 which states ‘The procedure shall be the same as if the prosecution were under such single indictment or information.’ Thus, where two or more defendants are being tried together, it is incumbent upon each party to timely make the court aware of his objection to any of the proceedings. This may be done on behalf of one of the parties or jointly on behalf of others, but the court must be informed of the position taken by a party or he cannot later complain. Arnold v. Com., Ky., 433 S.W.2d 355 (1968); 88 C.J.S. Trial § 132, p. 266. Price failed to make his position known, therefore he did not take appropriate action to preserve this issue for appellate review. Spainhoward v. Com., Ky., 447 S.W.2d 602 (1969).”

Therefore, certain objections will be considered only as they relate to the appeal by Spencer.

Furthermore, there are certain statements by the Commonwealth’s Attorney to which there was no objection by either defendant at the trial. As to those matters, any objection was waived by failing to comply with RCr 9.22. We have reviewed the matters referred to in the appellants’ brief, and this court concludes that there is no palpable error affecting the substantial rights of the appellants which would result in manifest injustice. CR 61.02 (as incorporated into the Rules of Criminal Procedure by RCr 13.04).

During his closing argument, the Commonwealth’s Attorney commented that Spencer’s sister, Mrs. Moore, should be in prison and that he did not know why she was out. This comment was completely irrelevant to the issues and had no place in the closing argument. However, whether the comment was prejudicial will depend upon the outcome of the Cotton hearing to be conducted by the trial court on remand. Standing alone, the comment does not justify reversal of Spencer’s conviction or require a retrial. Later in his argument, the Commonwealth’s Attorney stated, “ * * * if you turn them loose they may finish the old boy off the next time.” This argument is also improper, and the trial court should have sustained Spencer’s counsel’s objection. However, the comment does not require granting a new trial to Spencer. See Clemons v. Commonwealth, Ky., 462 S.W.2d 919 (1971). The trial court admonished the jury to be guided by the evidence rather than the Commonwealth’s Attorney’s argument which had gone outside of the evidence. The trial court cured any impropriety in that portion of the closing argument.

This court has also reviewed each of the additional objections made to the Commonwealth’s Attorney’s conduct during the trial of the case which had been raised on this appeal. We find no grounds for reversal. In some instances, the trial court sustained the objection and gave a strong admonition to the jury. In other instances, the trial court in effect sustained the objection by having the question rephrased. In another instance, there was no answer to the alleged improper question. This court concludes that the allegedly improper questions propounded by the Commonwealth’s Attorney do not require reversal in light of the trial court’s rulings and admonitions given throughout the trial.

RULING

The judgment in each appeal is vacated, and the cases are remanded to the circuit court for further proceedings as set forth in this opinion.

All concur.

      . We are not presented with a situation in which the prisoner-witness is confined beyond the boundaries of Kentucky. As the prisoner-witness is not “residing in any part” of the Commonwealth, he is not subject to process under RCr 7.04. In such case, the trial court could, in its discretion, order the testimony taken by deposition under CR 32.01(3), Sykes v. Commonwealth, Ky., 553 S.W.2d 44 (1977) (24 K.L.S. 8, pg. 1), even though the presence of a state prisoner might be compelled under the Uniform Act to Secure the Attendance of Witnesses (KRS 421.230 et seq.) or the presence of a federal prisoner might be compelled by a writ of habeas corpus ad testificandum, Barber v. Page, 390 U.S. 719 at 723-24, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968).


source: Caselaw Access Project

author: WHITE, Judge.

license: Public Domain

text:
    Clifton WEBB, Appellant, v. KENTUCKY FARM BUREAU INSURANCE COMPANY, Appellee.
    Court of Appeals of Kentucky.
    Sept. 15, 1978.
    Rehearing Denied Nov. 10, 1978.
    Discretionary Review Denied March 13, 1979.
    H. Garland Wells, Hazard, for appellant.
    Hoover Haynes, Hazard, for appellee.
    Before WHITE, HOGGE and PARK, JJ.
   WHITE, Judge.

This is an appeal from an order of the Perry Circuit Court dismissing the appellant’s action to recover for fire loss under his homeowner’s policy because the action was not brought within 12 months of the inception of the loss. The issue presented by this appeal is whether the provision in the policy containing the one-year limitation on the commencement of actions is in conflict with the general statute of limitations on actions on written contracts found in KRS 413.090(2).

The appellant’s residence and all its contents were destroyed by fire on April 20, 1976. On April 27,1977, appellant filed suit to recover for this loss under his homeowner’s policy with the appellee. Thereafter, the appellee moved the circuit court to dismiss for failure to timely file the action, and the court, relying on the policy’s one-year limitation, granted the motion on November 22, 1977.

The provisions of the policy which are relevant to the appeal provide that:

(1) No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity unless all the requirements of this policy shall have been complied with, and unless commenced within twelve months next after the inception of loss.
(2) Modification of Terms: The terms of this policy which are in conflict with the statutes wherein this policy is issued are hereby amended to conform with such statutes.

KRS 413.090(2), the statutory section that appellant alleges is in conflict with the one-year policy limitation, allows a fifteen-year period in which to bring an action on a written contract.

It is the appellant’s contention that his suit was timely filed because the modification of terms provision requires that the policy be amended to adopt the longer statutory period of limitation.

We are of the opinion that the resolution of this appeal turns on what construction we give the phrase “in conflict” in the modification of terms provision. The appellant argues that a policy limitation must only call for a shorter period of time than the statute of limitations in order to be in conflict with it. The appellee contends that there must be a statute specifically proscribing the contractual shortening of the statutory limitation before there can be a conflict. As the following discussion will demonstrate, we believe the appellee is correct.

Our research discloses that during the last century a principle began to develop that where there is no statute prohibiting the contractual shortening of statutory periods of limitation, that contractual limitations are valid and not in conflict with statutes prescribing longer periods of limitation. The United States Supreme Court first stated this principle in Riddlesbarger v. Hartford Insurance Company, 7 Wall. 386, 74 U.S. 386, 19 L.Ed. 257 (1868). In upholding a one-year limitation imposed by a fire insurance policy, the Court held that as the purpose of statutes of limitation is to encourage the prompt assertion of legal claims, and since there is nothing in their language nor inherent in their purpose which prevents parties from agreeing to a shorter period of limitation, a contractual provision with such a limitation is valid. In Lee v. Union Central Life Insurance Co., 22 Ky.L.Rptr. 1712, 56 S.W. 724 (1900), the Court of Appeals followed this reasoning in upholding another one-year contractual limitation.

Although stated inversely, a more recent example of this principle is found in the decisions in Hiram Scott College v. Insurance Co. of North America, 187 Neb. 290, 188 N.W.2d 688 (1971) and Wulf v. Farm Bureau Ins. Co. of Nebraska, 190 Neb. 34, 205 N.W.2d 640 (1973). There, the Nebraska Supreme Court considered insurance policy provisions calling for a shorter limitation period than provided for by statute and a modification of terms provision similar to the one found in the case before us. The Court held that because there was a specific statute proscribing the shortening of statutory periods of limitation by contract, contractual clauses containing such limitations were in conflict with the proscription statute and thus against the public policy of Nebraska. The Court concluded that, because of the conflict, these limitation clauses were amended by the modification of terms provision so as to conform with the Nebraska statute of limitations for actions on insurance contracts.

In Kentucky, there is no statute proscribing contractual shortening of limitation periods. In fact, there is a provision in the Insurance Code, KRS 304.14-370, which allows foreign insurers to limit actions against them to one year. While we do not believe this provision is conclusive as to the question before us, we are of the opinion that a statutory provision which allows an insurer to limit an action against it certainly indicates that the public policy of Kentucky favors such limitations.

In addition to the code provision, there is a solid line of case law in Kentucky that upholds the validity of contractual terms that provide for shorter limitation periods than the general statute of limitations. In Burlew v. Fidelity and Casualty Co. of N. Y., 276 Ky. 132, 122 S.W.2d 990 (1938), after concluding that the federal court judgment was res judicata as to the question of whether the insurance company was es-topped from asserting the policy’s one-year limitation period, the court went on to overrule a previous decision holding that the public policy of Kentucky was against any change in the statutory period of limitation. The Court held that any reasonable shortening of the statutory period was in the public interest, and so long as it was reasonable, such limitation would be enforced. In Johnson v. Calvert Fire Insurance Co., 298 Ky. 669, 183 S.W.2d 941 (1944), the Court, in upholding a twelve-month limitation, cited with approval the Burlew opinion and allowed that their research had shown that, absent an inhibitive statute, a limitation for a period shorter than that provided by the statute could be legally written into the policy. The recent decisions in Stansbury v. Smith, Ky., 424 S.W.2d 571 (1968) and Robert F. Simmons Construction Company v. American States Insurance Co., Ky., 426 S.W.2d 441 (1968), have been to the same effect.

While we agree with the appellant’s assertion that the benefit of the doubt should be given to the insured whenever more than one reasonable construction can be given a policy provision, we believe that the modification of terms provision in this policy is susceptible only to the meaning we have given it. The appellant has also contended that the authorities cited by appellee only address themselves to policies where there is no modification of terms provision. However, it is our opinion that the early cases, which first established the principle that absent an inhibitive statute contractual limitations were permissible, and the Nebraska cases that construed a modification of terms provision similar to the one before us, as well as the Kentucky authorities we have discussed, provide a sound basis for our decision.

The judgment is affirmed.

All concur.


author: LESTER, Judge.

text:
    Lee PENNINGTON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Oct. 27, 1978.
    As Modified Nov. 17, 1978.
    Rehearing Denied Jan. 5, 1979.
    Discretionary Review Denied March 13, 1979.

      Howell W. Vincent, Covington, for appellant.
    Robert F. Stephens, Atty. Gen., James L. Dickinson, Asst. Atty. Gen., Frankfort, Paul E. Hieronymus, Commonwealth’s Atty., 41st Judicial District, McKee, for appellee.
    Before MARTIN, C. J., and HOWERTON and LESTER, JJ.
   LESTER, Judge.

Appellant was convicted of manslaughter in the first degree in violation of KRS 507.030 and sentenced to ten years in the custody of the Kentucky Department of Corrections.

Bad feelings had existed between Lee Pennington and the decedent, Cova Nantz, for some time prior to November 17, 1976. Appellant, a seventy-four year old man, had been advised by various people that Nantz, a much younger person of thirty-five years, had threatened physical violence to Pennington. On the last mentioned date while appellant and his son were traveling to the former’s house on Greasy Creek in Leslie County, Nantz followed their pickup truck, and according to Pennington’s son, the decedent bumped their vehicle on one or more occasions. The two men stopped the truck in front of appellant’s house while Nantz pulled ahead of them and to the side of the road a short distance away. Pennington got out of the pickup and the victim alighted from his car and started in the direction of appellant during which time Nantz made general threats and called Pennington names. Appellant testified that he was fearful of the younger man whom he thought to be drunk. As Nantz approached appellant, the latter claims he observed a pistol or what appeared to be a weapon on the decedent and professing to be in fear of his life, Pennington fired what he considered a warning shot, but unfortunately, the bullet killed Nantz instantly.

The trial was held in mid-July of 1977 in an atmosphere, as the record discloses, of what was less than ideal conditions. Besides the noise of the air conditioners, the trial judge had to threaten the spectators with jail commitment if they did not maintain silence. It was this situation that caused the court reporter to qualify her certificate that she was unable to record the testimony in its entirety which resulted in two assignments of error to the effect that appellant was deprived of a complete trial record and his right to be heard in his own defense. We have closely examined the transcript and we find that at but nine points was the transcriber unable to record all the testimony, with three of these being but a single word and the remainder only short phrases or a word or two. At no time was the meaning of what the witnesses had to say lost or distorted, and if any error there might have been, we conclude it was harmless. Suffice it to say that if omissions in a transcript are to be relied upon on appeal then it is necessary in both civil and criminal proceedings to furnish a narrative statement in order for the reviewing court to determine whether the aggrieved party has been prejudiced. CR 75.13; National Dairy Products Corp. v. Rittle, Ky., 487 S.W.2d 894 (1972); Roach v. Commonwealth, Ky., 510 S.W.2d 13 (1974).

Of greater significance are appellant’s two issues revolving around the report of a chemical analysis of the alcoholic content of decedent’s blood.

Appellee was fully aware of the theory of appellant’s defense because prior to the opening statements, the Commonwealth Attorney stated:

I understand the defense will be self-defense.

During the first morning of trial, the prosecution called as a witness Kentucky State Police Officer Clyde Caudill who was the first law enforcement agent upon the scene of the shooting. During his testimony, the trooper described how he observed the scene of the incident and the removal of a sheet from around the body of the victim at the funeral home. It was through this witness that many exhibits were introduced such as a diagram of the scene, the appellant’s gun, the statement made by Pennington and pictures of the decedent and appellant’s truck. At no time during his testimony did Officer Caudill ever mention that he had caused the funeral director to withdraw a blood sample from the body of Nantz for the purpose of having it analyzed. At no time did the policeman testify that a laboratory had made an analysis of the blood and that a report had been sent to him indicating that the alcoholic content had been .18, which far exceeds the statutory presumption of drunkenness. Furthermore, the county coroner made no mention of the sample taken.

At the conclusion of Caudill’s testimony, the court recessed for lunch, and it was during the noon hour that appellant’s counsel learned of the existence of the laboratory report. He immediately requested a hearing in camera which we set forth as it transpired:

IN CHAMBERS: The attorneys and the Court have a discussion in chambers on questioning of the Trooper about the blood alcohol test.
MR. HIERONYMUS: I object to attempting to prove that.
MR. VINCENT: I want to find out who made it.
TROOPER CAUDILL: Taken by Dwayne Walker and handed to me which I picked up and sent to Frankfort and it was mailed back to me.
BY THE COURT: Can’t you admit he was drinking.
MR. HIERONYMOUS: I will not admit anything.
MR. VINCENT: The defendant moves the Court for leave to introduce the record made from the Central Laboratory at Frankfort, Kentucky, signed by Judy A. Sweeney on the 1st day of December, 1976, as being the results of an alcohol breathilizer test showing that the alcoholic content of Cova Nantz’s blood at the time of his death was .18, said test being made from the remains and handed to State Trooper Clyde Caudill by the undertaker, Dwayne Walker and sent to Frankfort by Trooper Caudill and mailed back to him which he then in turn gave back to Dwayne Walker, is that what you said?
TROOPER CAUDILL: I put that in my file; they don’t sent the sample back; they just give a report.
MR. VINCENT: I move the Court to allow me to introduce this.
MR. HIERONYMUS: In response to the defendant’s motion to (a) introduce a photocopy of blood analysis report and/or wants to make the Commonwealth state that the blood analysis report is written heresay (sic), that it is was apparently prepared by one Judy A. Sweeney, who had the defendant pursuant to the Kentucky Rules of Criminal Procedure requested the results of the tests, the defendant would have been aware of this long ago and could have had Mrs. Sweeney here as a witness had they so desired, but they wait until the Commonwealth closes to make such a motion to delay and continue the case at this time.
BY THE COURT: The Court does not know whether or not the instrument in question is an authentic one or not. It is not confirmed by any official to be a true copy of anything.
MR. VINCENT: I hand you Exhibit 3 and ask you to tell the Court and jury what that is?
TROOPER CAUDILL: This is a result of a blodo (sic) alcohol control test sent to me from Frankfort, by Judy A. Sweeney.
MR. VINCENT: Did you receive that in the course, usual course of business?
A. Yes, I did.
Q. Where was that mailed to you from?
A. State Police lab in Frankfort.
Q. You mailed it to them yourself?
A. Yes.
MR. VINCENT: This is what you got back in response?
A. Yes.
Q. Where did you get the specimen sent to Frankfort?
A. From coroner, Dwayne Walker.
Q. He is the undertaker here?
A. Yes.
Q. He is the one who handled the body of Cova Nantz?
A. Yes.
Q. He handed you these for the sole purpose .
A. Upon my request.
Q. You requested it?
A. Yes.
Q. This is part of your official record in yoru (sic) investigation of this case?
A. Yes sir, that is part of my record from my investigation.
Q. That is part of the original record in this case?
A. Yes.
Q. I believe your name appears here, Trooper Clyde Caudill, Post 13?
A. Yes sir.
Q. What is that laboratory number?
A. No.
Q. The case is numbered?
A. Yes.
MR. HIERONYMUS: I, would it be the same if that showed 0000 and I attempted to introduce it, I shudder to think what Mr. Vincent would say.
BY THE COURT: It is not an authentic record and nothing to show it is.
MR. HIERONYMUS: It is written here-say (sic).
BY THE COURT: It is just a photo copy.
MR. VINCENT: I move that you continue this case and allow me a reasonable opportunity to subpeano (sic) the analy-sist (sic) that made this analysis so I can prove the alcoholic content of the blood of Cova Nantz at the time of the shooting. It is quite material to our defense and I think justice would be denyed (sic) if you overrule the motion.
MR. HIERONYMUS: Mr. Vincent had a right of doing that under the Kentucky Criminal Procedure.
BY THE COURT: I overrule it.
MR. VINCENT: I just found out about it ten minutes ago.
BY THE COURT: Overruled.

The appellee admits that Brady v. Maryland, 373 U.S. 83, 104, 83 S.Ct. 1194, 1196-1197, 10 L.Ed.2d 215 (1963), which states,

[w]e now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution,

supports appellant’s position that since he failed to avail himself of the provisions of RCr 7.24(1), in that he made no motion to inspect the copy of the report under discovery procedures, he should not prevail in this issue on appeal. We disagree.

The record demonstrates that within ten minutes of learning about the report Pennington’s lawyer asked leave to introduce it, or in the alternative, for a continuance in order to have the chemist appear and testify as to its contents. Defense counsel cannot be charged with failure to comply with RCr 7.24(1), for he made his motion as soon as he gained knowledge of the existence of the report. From the record before us, it is abundantly clear that appellee had no intention of making a voluntary disclosure of the document.

We not only agree with appellee when it says that Brady, supra; United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); Timmons v. Commonwealth, Ky., 555 S.W.2d 234 (1977); and Poteet v. Commonwealth, Ky., 556 S.W.2d 893 (1977), “appear to support the appellant’s position,” but we go further and find that those cases do support appellant’s position. The laboratory report contained potentially exculpatory evidence, which should have been before the jury. The appellant was entitled to a continuance in order to subpoena the chemist and to insure the proper introduction of the report.

We note that the jury was at first unable to reach a verdict and this denotes that some doubts existed in its collective mind, and in such cases the test of materiality of the omitted evidence is found in United States v. Agurs, supra. Applying those standards, we hold that a constitutional error has been committed and reversal is required.

Much is said by way of brief that the report in question was not an authenticated or certified copy of the original and thus was improper as an exhibit. We are fully cognizant with the principle that the designated custodian of records is the proper vehicle to employ to introduce documentary evidence, Buckler v. Commonwealth, Ky., 541 S.W.2d 935 (1976), but when defense counsel discovers exculpatory matter necessary to his case that has not been disclosed to him or otherwise secreted he must exhaust all reasonably available means to have the error rectified, and in two recent opinions, the Supreme Court has provided the example of requesting that the trial be recessed until the facts can be ascertained. Timmons, supra and Romans v. Commonwealth, Ky., 547 S.W.2d 128 (1977). Romans dealt with a state police laboratory report which the prosecution denied in writing that it had.

Recalling that appellant requested an opportunity to subpoena the chemist as soon as he learned of the report and noting that Hyden, the place of trial, and Frankfort are connected by interstate highways and a new toll roll, we are unable to perceive why a recess was not granted and Pennington given a reasonably short time to get his witness.

At the beginning of the trial, the Commonwealth requested invocation of the rule calling for the separation of witnesses. The court complied. Upon rebuttal, the appellee called one Pearl Nantz to testify and upon doing so, announced that the individual had been in the courtroom. Appellant objected to the testimony, which objection was overruled. It would be better practice not to call such a witness, but the matter of whether or not to exclude the witness’s testimony, when called, was within the sound discretion of the trial court. Ragland v. Commonwealth, Ky., 421 S.W.2d 79 (1967).

Although some of the errors appearing in this record standing alone would be insufficient upon which to base a reversal, nevertheless, when we review the cumulative effect of the mechanical noise in the courtroom, the inability of the court reporter and the jury to hear all of the testimony, the refusal to grant leave to introduce the laboratory report, the denial of a recess to subpoena the chemist, the voice level of the spectators and the failure to uphold the rule regarding separation of witnesses after the invocation, all clearly demonstrate that appellant was denied a fair trial.

The judgment is reversed for a new trial.

All concur.


text:
    INDIAN LEASING COMPANY and Chubb & Sons, Inc., Appellants, v. Marshall H. TURBYFILL, Deceased, Carolyn J. Turbyfill, widow, James R. Yocom, Commissioner of Labor and Custodian of the Special Fund, and the Workmen’s Compensation Board, Appellees.
    Court of Appeals of Kentucky.
    Nov. 10, 1978.
    Discretionary Review Denied March 13, 1979.
    William P. Swain, Larry L. Johnson, Boehl, Stopher, Graves & Deindoerfer, Louisville, for appellants.
    Carl W. Brown, Handmaker, Weber & Meyer, Louisville, Niles S. Nimmo, Nashville, Tenn., for appellee Marshall H. Turby-fill, Deceased and Carolyn J. Turbyfill, Widow.
    Kenneth E. Hollis, Gen. Counsel, Dept, of Labor, Frankfort, John Riehl, Jr., Asst. Counsel, Dept, of Labor, Louisville, for ap-pellee James R. Yocom, etc.
    Before HAYES, PARK and REYNOLDS, JJ.
   PARK, Judge.

This workmen’s compensation appeal presents the issue of apportionment of liability between the employer and the Special Fund for the consequences of a heart attack suffered by Marshall Turbyfill while employed by Indian Leasing Co. as a truck driver. On April 9,1975, Turbyfill suffered a heart attack as he was working atop an Indian Leasing Company trailer attempting to cover a load of plywood with a heavy tarpaulin. Turbyfill died when he fell 12 feet crushing his skull on the concrete below. The Workmen’s Compensation Board awarded death benefits to Turbyfill’s widow, apportioning liability 95% to Indian Leasing and 5% to the Special Fund. Indian Leasing appeals from a judgment of the Hopkins Circuit Court upholding the award of the board. The Special Fund has not appealed.

I

The essential facts are not in dispute. Turbyfill was suffering from advanced atherosclerosis prior to his death on April 9, 1975. However, his atherosclerosis had not interfered with his ability to perform his job as a truck driver for Indian Leasing. On the day in question, Turbyfill suffered a coronary occlusion resulting in a myocardial infarction. He lost consciousness falling 12 feet to the concrete where he received crushing injuries to his skull and lacerations of the brain.

The medical evidence established that the coronary occlusion and resulting myocardial infarction were the result of Turbyfill’s work exertion acting upon his pre-existing atherosclerosis. The evidence also indicated that the immediate cause of death was the fall which crushed his skull. According to Dr. Charles Cook, the local coroner who performed the autopsy, Turbyfill died instantaneously when his skull struck the concrete. Dr. Cook further testified that the large pool of blood found around Turbyfill’s head indicated that his heart was still pumping when his head struck the concrete. The board also considered the testimony of Dr. F. Albert Olash who was appointed by the board pursuant to KRS 842.121. Based upon his examination of the record before the board, Dr. Olash concluded that death was caused by the fractured skull and brain laceration. He testified that the skull fracture would have caused the death of a person with a normal heart who had not suffered a myocardial infarction. Both Dr. Cook and Dr. Olash attributed Turbyfill’s fall to the myocardial infarction which caused him to lose consciousness while working atop the load of plywood on the trailer.

The board made the following findings of fact concerning Turbyfill’s death:

[a] The work-related incidents were not the sole causative factors in the decedent’s death.
[b] The decedent suffered no active occupational disability immediately prior to April 9, 1975 so as to make an exclusion from the Award.
[c] The work-related fortutious [sic] unexpected harmful change in decedent’s organism and the fall solely and independently attributed [sic] to the death of Marshall H. Turbyfill to the extent of 95%. The Defendant-employer is liable for this portion.
[d] The remaining 5% of the causative factor of the death arose from the arousal of a dormant nondisabling disease or condition (atherosclerotic heart disease) into disabling reality. The Special Fund is liable for this portion.

Dr. Cook did not give an opinion on the percentage of causation of the various factors leading to TurbyfilTs death. Consequently, the appeal of Indian Leasing is based largely on the testimony of Dr. Olash who did attempt to apportion the cause of death by giving percentages of causation.

Dr. Olash testified that 90% of the cause of death was attributable to the fractured skull and brain laceration. The remaining 10% of causation was attributed to the preexisting atherosclerosis which, when acted upon by the work exertion, resulted in the myocardial infarction with loss of consciousness which caused him to fall off of the truck. Dr. Olash was also asked whether Turbyfill would have died from the myocardial infarction had he not fallen twelve feet onto the concrete. Dr. Olash testified:

A. I cannot really state that in the individual case. I can say this, that he certainly had significant cardiac disease and in all probability, would have been disabled to a moderate or marked degree on the basis of his cardiovascular disease, should he have lived through the episode of his cardiovascular disease and not have died for any other reason. There is a possibility, still, that he very well may have died on the basis of his cardiovascular disease itself. This is unpredictable, but all I can say is that basically, you have to look at these with the idea of the basic statistics that cover all coronaries and say that he fits into these particular statistics, somewhere, that 50% of the people with myocardial infarctions die with their acute myocardial infarctions, before they get to see a doctor. He had already lived through this particular episode, of those 50% who get to see a doctor, another somewhere in the neighborhood of eight or ten percent die in the coronary care unit in a hospital, whether he would have lived through that or not, I don’t know, so I would say that he probably had 80% to 85% chance of living through his myocardial infarction, since he had already lived through the initial episode of it. (emphasis added)

On the assumption that Turbyfill had not fallen but had survived the myocardial infarction, Dr. Olash testified that he would have apportioned Turbyfill’s disability resulting from the myocardial infarction 75% to the pre-existing atherosclerotic heart disease and 25% to the work connected incident of stress and exertion. It is this latter opinion which forms the basis for Indian Leasing’s appeal.

II

The appeal of Indian Leasing is based upon the premise that liability for his death must be apportioned solely on the basis of the causes of the myocardial infarction. The fall was the result of Turbyfill’s loss of consciousness; his loss of consciousness was the result of the myocardial infarction; and the myocardial infarction was largely the result of the pre-existing atherosclerotic disease. Therefore, Indian Leasing reasons, the board erred in failing to apportion the major share of the liability against the Special Fund. Indian Leasing’s argument overlooks one important fact. Turbyfill’s employment by Indian Leasing placed him on top of the loaded trailer where there was the risk of falling to the concrete below. The dangerous effects of the myocardial infarction were increased by the fact that he was working 12 feet off the ground.

In his discussion of idiopathic fall cases, Larson sets forth the increased danger rule:

When an employee, solely because of a nonoccupational heart attack, epileptic fit, or fainting spell, falls and sustains a skull fracture or other injury, the question arises whether the skull fracture (as distinguished from the internal effects of the heart attack or disease, which of course are not compensable) is an injury arising out of the employment.
The basic rule, for which there is now general agreement, is that the effects of such a fall are compensable if the employment placed the employee in a position increasing the dangerous effects of such a fall, such as on a height, near machinery or sharp corners, or in a moving vehicle.
The issue in this section must be carefully distinguished from the medical question whether the final injury or death was in fact the result of the fall itself, rather than of the heart attack or other idiopathic condition. When a man suffers a severe blow on the head and a heart attack in one accident, it becomes necessary to disintangle the chain of causation and determine whether it was the head injury or the heart condition that caused the death.

Id. § 12.11, footnote 1. Two Kentucky decisions are good examples of the application and limits of the “increased danger” rule as applied to idiopathic falls.

In Stasel v. American Radiator & Standard Sanitary Corp., Ky., 278 S.W.2d 721 (1955), the court upheld the board’s award of compensation benefits to an employee who suffered serious abrasions and burns when he fell against a hot stove or upon hot sand. The fall was caused by an epileptic seizure. After discussing the increased danger rule as applied to idiopathic falls, the court held:

While we do not undertake to say here whether or not a recovery should be allowed in every case in which an employee, due to illness or for some other similar reason, suffers injuries in a fall, we do think that the evidence is sufficient in the present case to support an award of compensation. The appellant does not claim compensation for injuries caused by his idiopathic condition, but seeks compensation for severe burns he received from falling into the hot stove, or the hot sand. McCarthy v. General Electric Co., 293 Pa. 448, 143 A. 116, 60 A.L.R. 1288. The fall was brought about by either a personal cause, or an employment cause, or a combination of both. The law does not weigh the relative importance of the two causes, nor look for primary and secondary causes, it merely inquires whether the employment was a contributing factor. See, Larson’s Compensation Law, Vol. 1, Sec. 7.40, p. 50.
The appellant was hired to work in appellee’s plant after passing a pre-em-ployment physical examination; he was required to wear a special face mask to protect his respiratory system; there were unusual hazards and risks in the physical conditions of his place of work; and he became unconscious while performing his duties and fell into a hot stove or hot sand and suffered severe burns. Therefore, under these facts the only fair and reasonable finding that could be made was that the peculiar hazards of his employment were a contributing factor to his accident and injury. We think there affirmatively appears a clear causal connection between the conditions under which the appellant was working and the occurrence of the injury.

Id., 278 S.W.2d at 724. Two judges dissented asserting that the injuries were not com-pensable in the absence of some causal connection between his employment and the epileptic seizure. The dissenting opinion distinguished the case from one in which there was some connection between the employment and the cause of the fall, stating:

His case is not like that of a workman with a weak heart who falls and injures himself on account of a heart attack brought on by over exertion, excessive heat, lack of air, undue excitement or any other condition which might cause him to collapse and injure himself in a fall. In such a case, the workman would be entitled to compensation as his injury would have a causal connection with his work or employment.

Sims, Judge, dissenting, Id., 278 S.W.2d at 725.

In Workman v. Wesley Manor Methodist Home, Ky., 462 S.W.2d 898 (1971), the court upheld a determination by the board that the employee’s injuries did not arise out of her employment. The employee sought to recover compensation benefits for injuries suffered when she fell at work while standing on a level floor. The court declined to extend the positional risk theory to idiopathic falls on level surfaces when the employment in no way increased the risk of injury. Liability under the positional risk theory for idiopathic falls is limited to those cases in which the employment placed the employee in a position increasing the dangerous effects of the idiopathic fall. The Stasel case was treated as having been decided under the positional risk theory. Id., 462 S.W.2d at 904, footnote 4. In level fall cases involving no increased danger attributable to the employment, liability may be imposed on the employer only if the work was a substantial factor in causing the injury. In the Workman case, the court held that there was a rebuttable presumption that an unexplained fall during the course of employment was work-related. However, the court found that the rebut-table presumption had been reduced to a permissible inference by evidence that the employee’s fall was not unexplained but resulted solely from a prior back condition which was not work-related. Consequently, the board was not compelled to find that the employment was a causative factor in precipitating the employee’s injuries.

Turbyfill’s work was a substantial factor in causing his fall. Although the immediate cause of his fall was loss of consciousness from the myocardial infarction, the myocardial infarction was in turn caused by the stress and exertion of handling the heavy tarpaulins acting upon the pre-existing atherosclerotic condition. If he had died immediately from the myocardial infarction before falling, there would be much merit to the argument that the board erred in failing to apportion liability between the Special Fund and Indian Leasing solely on the basis of causation of the myocardial infarction. However, the argument of Indian Leasing ignores the consequences of the fall itself.

Turbyfill’s employment placed him atop the loaded trailer where the risk of injury from any fall was greatly magnified. There was substantial evidence that he did not die from the myocardial infarction which caused the fall. Rather, the evidence supports a finding that he died from the results of the fall, namely the crushing skull injuries and brain laceration received when his head struck the concrete. The board could find that Turbyfill would have survived had he not suffered the myocardial infarction at work.

In imposing liability upon Indian Leasing for 95% of the compensation, the board found that “the fall solely and independently” contributed to Turbyfill’s death. In addition, the board found that he had suffered a “work-related fortuitous unexpected harmful change in his organism.” This was, in effect, a finding of a causal connection between Turbyfill’s work and the myocardial infarction. See Moore v. Square D Co., 518 S.W.2d 781, 784 (1974). The remaining causation was attributable to the arousal of the dormant non-disabling ather-osclerotic heart disease. Thus, the board apportioned liability on the basis of the results of this fall itself as well as the factors causing the fall. Cf. A. C. Lawrence Co. v. Barnhill, 249 Ky. 437, 445, 61 S.W.2d 1, 4 (1933). Under the circumstances of this case, we conclude that the board did not err when it imposed upon Indian Leasing 95% of the liability to pay compensation. Turbyfill died immediately from the effects of the fall itself. Had Turbyfill not been working atop the loaded trailer, it is likely that he would have survived the myocardial infarction. When the employment places the employee in a position of danger increasing the effects of a fall, the Special Fund should not be required to relieve the employer of liability for the results of the fall alone. It was the function of the board to apportion the percentages of disability, and the circuit court did not err in refusing to disturb the board’s award. Holman Enterprises Tobacco Warehouse v. Carter, Ky., 536 S.W.2d 461 (1976).

The judgment of the circuit court is affirmed.

All concur.


author: HAYES, Judge.

text:
    BORG-WARNER ACCEPTANCE CORPORATION, Appellant, v. FIRST NATIONAL BANK OF PRESTONSBURG, Kentucky, Appellee. UNITED STATES of America, Appellant, v. FIRST NATIONAL BANK OF PRESTONSBURG, Kentucky, Ada Griffith (Now Schwanka), Priscilla G. Ring, Robert H. Griffith, Jr., Donald P. Ring, Jacquette Griffith, and Shoppers Faire, Inc., Appellees.
    Court of Appeals of Kentucky.
    Jan. 12, 1979.

      James A. Combs, Prestonsburg, for Borg-Warner Corp.
    M. Carr Ferguson, Asst. Atty. Gen., Gilbert E. Andrews, Crombie J. D. Garrett, Phillip I. Brennan, Attys., Tax Div., Dept, of Justice, Washington, D. C., for United States.
    Richard E. Fitzpatrick, Tarrant, Combs & Bullitt, Lexington, for First National Bank of Prestonsburg.
    Before HAYES, HOWARD and PARK, JJ.

       The decision of the panel was made prior to Jan. 1,1979, but the opinion was not rendered until this date.

   HAYES, Judge.

This appeal arises from a finding in the Floyd Circuit Court favorable to the plaintiff bank and unfavorable to the United States and the Borg-Warner Corporation.

It presents rather complex questions of interpretation of the Federal Tax Lien Statute, of the Kentucky law on the effect of unrecorded mortgages against third parties, and of the time at which an equitable mortgage will be deemed to have been created.

On October 25, 1973, Shoppers Faire, Inc. executed and delivered to the First National Bank a promissory note in the amount of $53,500.00. On the same day, a purported mortgage for certain real property was executed by Robert and Ada Griffith, delivered to the bank, and duly filed for record. The mortgage was to serve as security for the note. The instrument was defective in that the land purported to be mortgaged was held in fee simple by Shoppers Faire, a corporation in which Robert and Ada Griffith were major shareholders, rather than by Robert and Ada Griffith. Thus the legal interest they attempted to create was void. However, because value had been given and received, the trial court would eventually find that an equitable mortgage existed between the parties to the void instrument.

When the parties to the mortgage agreement defaulted on the payments due, the bank attempted to execute on the property which the circuit court eventually found to be subject to an equitable mortgage. The other two parties at the appellate stage, the United States and the Borg-Warner Corporation, became lienholders as a result of filing, respectively, two federal tax liens and lis pendens notice of execution between the time of attempted creation of a legal mortgage and the eventual court proceeding which determined the existence of an equitable mortgage.

The lis pendens notice was filed by Borg-Warner on May 7, 1974, i. e., between the two federal tax liens, filed respectively, April 18 and July 17, 1974.

I. INTERVENING PLAINTIFF-APPELLANT UNITED STATES OF AMERICA

The threshold issue is whether the equitable mortgage is, for the purposes of 26 U.S.C. § 6323, a section of the Federal Tax Lien Act, a “security interest” protected by state law, which might compete with federal tax liens filed April 18 and July 17, 1974.

The Floyd Circuit Court created the equitable mortgage, binding as between the parties to it, through its equitable powers. The first issue appears to be whether the court’s creation of the equitable mortgage relates back to the execution of the void legal mortgage, for purposes of determining its possible existence as a security interest protected by state law, or whether it came into existence only on the date judgment was rendered.

If the creation of the equitable mortgage relates back to October 26, 1973, the interest involved might arguably be considered a security interest protected under state law as per the Tax Lien Act. However, in the absence of known authorities on the point, it seems to this Court totally irrational to relate the equitable interest back to the date of its attempted legal inception with regard to third parties.

Even if relation back were found to exist by this Court, the result as to the United States would not change. If relation back does occur, it is necessary to look to Kentucky law to see whether the security interest as against a federal tax lien was protected under the circumstances at bar. At the risk of indulging in dictum, we will clarify what this Court’s posture toward the position of the federal government would have been if it had found the bank to have an existing security interest at the times the federal tax liens were filed.

According to the judgment of the lower court, the equitable mortgage between the bank and Shoppers Faire has, as against third parties the same effect as an unrecorded mortgage.

The United States argues that no security interest is created without proper recor-dation. Even the Uniform Commercial Code, which the United States cites to support this proposition, recognizes that a security interest may be created without rec-ordation; § 9-204 on attachment of security interests makes agreement that the interest attach, plus the giving of value when the debtor has rights in the collateral, sufficient. It is perfection, not creation, which in most cases requires recordation. The same general policy is expressed by KRS 382.270 and the case law flowing from it, discussed infra.

The effect of an unrecorded mortgage, otherwise valid, is described in KRS 382.270, which says that no unrecorded mortgage “shall be valid against a purchaser for a valuable consideration, without notice thereof, or against creditors . . . (Emphasis added). The language of the statute appears to impose the lack of knowledge requirement on purchasers, but not on creditors. However, Kentucky courts have consistently held that the no-knowledge requirement does indeed apply to creditors, since “the creditor stands on the same footing as the purchaser.” Sears v. Cain, 242 Ky. 702, 47 S.W.2d 513 (1932). Since the statutory language has been repeatedly re-enacted by the General Assembly with that judicial interpretation, it must be considered to have been incorporated into the statute. Thus, under Kentucky law alone, actual knowledge on the part of the federal government would be fatal to its priority. If, however, federal law is contra, it must prevail.

There are two trends of judicial thought as to whether notice or knowledge on the part of the government can impair any priority which the government would otherwise have under 26 U.S.C. § 6323.

The cases referred to below involve interests in personalty; thus in those cases Article IX of the Uniform Commercial Code is the applicable state law. The policies embodied in KRS 382.270 are sufficiently similar that for purposes of this discussion they may be treated interchangeably with the applicable Article IX provision, § 9-301(l)(b), which gives priority over an un-perfected security interest to “a person who becomes a lien creditor without knowledge of the security interest and before it is perfected.”

One sequence of cases puts the federal government in the shoes of an ordinary lien creditor and then applies the Code to determine priorities. In those cases, when the government obtains actual knowledge of an unperfected security interest before filing the tax lien (as it apparently had in the instant case) its lien is subordinated to the prior interest. United States v. Hunt, 513 F.2d 129 (10th Cir. 1975); United States v. Ed Lusk Const. Co., 504 F.2d 328 (10th Cir. 1974); United States v. Trigg, 465 F.2d 1264 (8th Cir. 1972), cert. denied 410 U.S. 911, 93 S.Ct. 973, 35 L.Ed.2d 274 (1973).

The other approach, rather than viewing the government as a lien creditor, examines the position of a hypothetical creditor holding an interest equivalent to that held by the government. United States v. Sterling Nat’l Bank & Trust Co., 360 F.Supp. 917 (S.D.N.Y.1973), modified on other grounds, 494 F.2d 919 (2nd Cir. 1974); Fred Kraus & Sons v. United States, 369 F.2d 1089 (N.D. Ind.1974), affirmed, 506 F.2d 1404 (7th Cir. 1974); and Dragstrem v. Obermeyer, 549 F.2d 20 (7th Cir. 1977). Under this approach, any knowledge actually in the possession of the government is not imputed to the hypothetical lien creditor, so the question of knowledge becomes immaterial.

We believe that while both approaches have some merit, the latter is the more logical extension of the Tax Lien Act, which itself is silent as to notice.

In reaching this conclusion, we adopt the reasoning of Judge Eschbach in Dragstrem v. Obermeyer, Civ. No. 72 F 20, at 8 (N.D. Ind.1975) (Memorandum of Decision and Judgment Order), previously adopted by the Seventh Circuit of the United States Court of Appeals in Dragstrem v. Obermeyer, 549 F.2d 20 (1977) at 26:

This conclusion is supported by an analysis of the Legislative policy underlying the enactment of the Federal Tax Lien Act of 1966, the present version of 26 U.S.C.A. § 6323. The legislative history, S.Rep.1708, U.S.Code Cong. & Admin. News, 89th Cong., 2d Sess. p. 3722 (1966), makes it clear that the purpose was to bring federal tax lien law into conformity with the concepts of the Uniform Commercial Code, and thereby to permit more certainty and stability in business affairs for secured creditors. The specific legislative intent was to enable creditors to protect certain types of security interests against subsequent federal tax liens, and to do so by taking the same steps already necessary under state law to protect their interests against various other types of competing claims. This legislative policy would in no way be enhanced by a holding that a properly filed federal tax lien does not have priority over an unperfect-ed security interest simply because the Government has knowledge of the security interest before the tax lien is filed. Conversely, whatever the policy of the Uniform Commercial Code in making an exception as to priority when a lien creditor has knowledge of an unperfected security interest, this cannot apply to a tax lien situation as the government does not rely on any notice, actual or record, in making a determination to become a creditor, or to create and file a tax lien. The rationale of the new, Section 6328(a), federal priority rule centers on not disrupting the stability of business relationships where that stability exists under state law, and not on the irrelevant fact of the existence or not of any kind of notice to the government of outstanding security interests. Indeed, one of the effects of the 1966 Act was to finally rebut the frequent secured party argument, the opposite of that made by the secured parties in the present case, that a failure to file and hence perfect a security interest under the Uniform Commercial Code ought not to subordinate the security interest to the federal lien since the government does not in any event rely on the records in becoming a creditor. (Emphasis added).

For this reason we reverse the ruling of the trial court as to the intervening plaintiff-appellant, the United States, and find that its liens are prior to the equitable mortgage held by the First National Bank of Prestonsburg.

II. INTERVENING PLAINTIFF-APPELLANT BORG-WARNER CORPORATION

The First National Bank of Pre-stonsburg argues that Borg-Warner loses any priority it would otherwise have because it was a creditor with knowledge under KRS 382.270 and cases decided under that statute (or prior statutes using identical language) holding that the no-knowledge requirement is imposed on creditors. The factual basis of this argument is the alleged actual knowledge conveyed to Borg-Warner when the president of the bank told an officer of Borg-Warner that he intended to take a mortgage on the real estate.

The question of actual knowledge is, however, immaterial in light of our determination that the creation of the equitable mortgage, correctly created by the trial court, does not relate back to the date of the attempted legal mortgage.

The creation of an equitable mortgage between the parties to the attempted legal mortgage because of value given and received was an appropriate device for the prevention of manifest injustice as between those parties. There is, however, no sound reason for allowing such an equitable conveyance to prejudice the rights of strangers to the attempted mortgage.

The conclusion that the bank had no security interest in the land until such interest was decreed by the Floyd Circuit Court calls for some modification of that court’s assertion that the equitable mortgage has the same effect as an unrecorded mortgage. It may indeed have such an effect, but only from such time as it has come into existence.

We find that Federal Tax Lien No. 1196, filed April 18, 1974, is prior to the Lis Pendens Notice of Execution filed by Borg-Warner on May 7, 1974, and that Borg-Warner’s interest is in turn prior to Federal Tax Lien No. 1201, filed July 17, 1974. All of those interests are prior to the equitable mortgage held by the First National Bank of Prestonsburg.

We reverse the judgment of the Floyd Circuit Court and remand for disposition in accordance with our findings.

All concur.

      . The Federal Tax Lien Act, Internal Revenue Code of 1954, Subchapter C, (1970), provides, in pertinent part:
      26 U.S.C. § 6321. Lien for taxes If any person liable to pay any tax neglects or refuses to pay the same after demand, the amount (including any interest, additional amount, addition to tax, or assessable penalty, together with any costs that may accrue in addition thereto) shall be a lien in favor of the United States upon all property and rights to property, whether real or personal, belonging to such person.
      26 U.S.C. § 6323. Validity and priority against certain persons (a) Purchasers, holders of security interests, mechanic’s lienors, and judgment lien creditor. — The lien imposed by section 6321 shall not be valid as against any purchaser, holder of a security interest, mechanic’s lien- or, or judgment lien creditor until notice thereof which meets the requirements of subsection (f) has been filed by the Secretary or his delegate.
      (h) Definitions. — For purposes of this section and section 6324—
      (1) Security interest. — The term “security interest” means any interest in property acquired by contract for the purpose of securing payment or performance of an obligation or indemnifying against loss or liability. A security interest exists at any time (A) if, at such time, the property is in existence and the interest has become protected under local law against a subsequent judgment lien arising out of an unsecured obligation, and (B) to the extent that, at such time, the holder has parted with money or money’s worth.