author: HUGHES, Justice.

text:
    FIRST STATE BANK OF BRYSON, Appellant, v. G. W. (Bill) JOHNSON, Appellee.
    No. 18096.
    Court of Civil Appeals of Texas, Fort Worth.
    Aug. 2, 1979.
    Rehearing Denied Sept. 13, 1979.

      Vial, Hamilton, Koch, Tubb, Knox & Stradley and James A. Knox and James L. Deem, Dallas, for appellant.
    Simon & Simon and Sheldon Anisman, Fort Worth, for appellee.
   OPINION

HUGHES, Justice.

First State Bank of Bryson has appealed a judgment based on a jury verdict rendered by the trial court in favor of the defendant, G. W. Johnson, in Bank’s suit on a note.

We affirm.

The statement of facts reveals that on October 14, 1975 Johnson executed and delivered a note for $60,000.00 to Bank, payable to Bank “On demand, or if no demand is made then on or before 2-11-76 (120 days)”. The back of the note reflects a principal payment dated “10-28-75” in the amount of “$37,000.00” with a balance of “$23,000.00” and a notation “sold to Bank of Crowley, Crowley, Tex.”

Such note was executed by Johnson to renew a note dated March 3, 1975 which was in renewal of a note executed and delivered by Johnson on or about August 28, 1974. All such notes were shown on Bank’s records as assets. The 1974 and March 1975 notes were in the sum- of $70,-000.00. Defendant paid $10,000.00 at the time of the execution of the October 1975 note.

Between August 28 and November 4, 1974, Chuck Curtis owned 60% of Bank’s stock, was president, director, chairman of the board and chief executive officer of bank. He was also a depositor, customer and borrower. Also, Curtis owned one-third of the controlling interest in the First State Bank of Crowley. Curtis had been in the cattle and horse business since 1959. While president of Bank he transacted his personal business on the banking premises.

Curtis’s personal checking account was overdrawn in the amount of $8,408.00 on August 29, 1974. He transacted several cattle sales around August 30, 1974, putting money in such account. He transferred to Johnson his interest in 225 head of crossbred cows with calves located on J. D. Bloodworth and Don Coleman places in Archer County. Bank loaned purchase money ($70,000) to Johnson for such purchase and took the August 28, 1974 note in return, with such cattle as collateral.

Curtis got the proceeds of the loan as seller, with the cattle kept on leases owned by him — facts known to Johnson. Johnson said Curtis told him the cross-breeds would be sold in his forthcoming Maine-Anjou cattle sale to pay off the note. Also, Curtis called an insurance man (in Johnson’s presence) and told him to put Johnson as beneficiary on a $100,000.00 life insurance policy. Johnson, in addition to the note, executed a security agreement and a financing statement. He said he entered the transaction because he and Curtis were friends and he had confidence in him.

The bank examiners arrived around September 4, 1974. Curtis said he feared the loan would draw criticism from them and hurt Johnson’s borrowing ability in the future. To forestall such a criticism, Curtis transferred $70,000.00 of such loan proceeds to Terrell Taylor, his brother-in-law, who deposited them in his account in the First State Bank of Olney. Thence Taylor transferred the same to Johnson’s account in the Jacksboro National Bank. Curtis drew a draft on the Jacksboro account in the name of First State Bank of Bryson for $70,000.00 on the face of which was written “note payment in full”.

Johnson learned about the $70,000.00 in the Jacksboro account (and the draft) when the Jacksboro bank asked for his approval of the draft (which he approved). The $70,-000.00 was transferred to an existing Jacks-boro National account in the name of Bank, which Curtis said would be a means to cover the August 28 note in case the examiners criticized the loan. No “criticism” occurred, although the examiners did say the collateral should be inspected.

After the examiners left, Curtis deposited the $70,000.00 in his personal account in Bank. In other words, the money was taken (as cash) from Bank’s account at Jacks-boro and deposited in Curtis’s account in Bank. On November 4,1974 Curtis sold his stock in Bank to Bill Freeman, who became president. In February 1975 Johnson took Freeman to see the collateral cattle. Johnson renewed' the first note by the second note on March 3,1975 for the same amount, $70,000.00. The second note was due September 3, 1975. Curtis paid the interest on the first note.

Johnson and Freeman moved what they thought were the cross-bred cattle from the Bloodworth place to another Curtis lease. This was due to rumors that City National Bank in Wichita Falls was going to pick them up under a lien it held on the cross-breeds by reason of a personal loan to Curtis. At Freeman’s request, Johnson paid $10,000.00 on the second note and gave a $4,375.00 note for accrued interest thereon. Johnson sold some of the moved cattle to pay the $10,000.00. At this time the third and last note (here sued upon) was executed in the reduced sum of $60,000.00.

Later, in January, 1976, Johnson said he learned that the true collateral cattle had been picked up by the City National Bank. He notified Freeman. He did not pay anything further on the note and when it became due on February 11, 1976 and Bank filed this suit against him for payment of such note.

The jury found:

1. The August 28,1974 note was for the purpose of accommodating Curtis;
2. Bank misapplied the funds of the September 4, 1974 draft;
3. Such misapplication injured Johnson;
4. The renewal note executed by Johnson on October 14, 1975 was not a waiver of such misapplication.

In his cross point number 3, Johnson claims trial court erred in not submitting his requested issue number 1 inquiring whether Johnson’s execution of the August 28, 1974 note was not for the purpose of accommodating Bank.

In his cross point number 4, Johnson claims trial court erred in not submitting his requested special issue number 6 inquiring whether or not Curtis was the alter ego of Bank.

We overrule Bank’s point of error number 1 wherein it avers that no special issue or combination of issues in the charge established a Johnson defense against liability on the sued upon note. The draft, pled and proved by Johnson, was sufficient pri-ma facie proof of payment of such note, leaving the burden on Bank to refute the effect of such paid draft which had the express notation “note payment in full”. Bank did not even request an issue to establish an avoidance of the effect of such paid draft. That draft was in the handwriting of Curtis, then president of Bank, and was admittedly paid by Jacksboro National Bank to Bank in the amount of the only Johnson note held by Bank. We hold this to amount to a release of Johnson on the note. “A receipt signed by a creditor, or a document tending to show payment such as a release, constitutes prima facie proof of payment, however; the burden of proving otherwise devolves on him who denies its validity.” 44 Tex.Jur.2d Payment § 64 (1963).

Uncontradicted, a receipt establishes facts therein stated as a matter of law. Alexander v. Meredith, 262 S.W. 111 (Tex. Civ.App. — Austin 1924, writ ref’d). A note introduced by a plaintiff in á suit thereon makes a prima facie case. A release for such note then being introduced makes a prima facie rebuttal. Plaintiff had the burden to go forward with rebuttal of such release. Martin v. Farmers’ Nat. Bank, 294 S.W. 240 (Tex.Civ.App. — Waco 1927, no writ).

In this case, Bank did not plead any avoidance except that Johnson waived the effect of the draft recitation by executing a renewal note. The jury answered in special issue number 4 that such execution was not a waiver of misapplication of the draft funds.

Tex.Bus. & Comm.Code Ann. § 3.802 (1968) recites:

“(a) Unless otherwise agreed where an instrument is taken for an underlying obligation
“(1) the obligation is pro tanto discharged if a bank is drawer, maker or acceptor of the instrument and there is no recourse on the instrument against the underlying obligor; . . . ”
(Emphasis ours.)

We overrule point of error number 2 which was to the effect that the testimony of Johnson’s business transactions with Curtis was hearsay to Bank. We hold it to be elemental that testimony relating to the transactions which resulted in Bank’s sued upon note was not hearsay when it involved, as here, the president of Bank. Declarations of an agent shown to affect his principal in a business transaction of the principal usually may be shown. Hinson v. Walker & Co., 65 Tex. 103 (1885).

The uncontroverted proof here established that Bank accepted the draft inscribed “note payment in full”. The jury answered special issues numbers 2 and 3 that the funds therefrom were misapplied by Bank to the in jury of Johnson. We hold that sufficient evidence sustains such answers in that it is uncontroverted that Bank’s president, Curtis, put the funds in his own account after Bank had accepted the draft for its stated purpose. We overrule points of error numbers 3, 4 and 5.

In the event we err in any ruling heretofore made we take occasion to note that we have examined all of Johnson’s cross-points and conclude they should all be overruled. In the matter of cross-point number 1 involving the counter-claim for payment of the $4,375.00 note given for interest, we note that Johnson failed to introduce evidence he had paid same. Trial court also ruled such note not in issue in this case.

We affirm.


source: Caselaw Access Project

author: DODSON, Justice.

license: Public Domain

text:
    Faye ZOELLER, Appellant, v. HOWARD GARDINER, INC., Appellee.
    No. 9037.
    Court of Civil Appeals of Texas, Amarillo.
    Aug. 3, 1979.
    Rehearing Denied Sept. 12, 1979.

      Parnass & Bond, Thomas J. Beswick, Irving, for appellant.
    Taylor, Mizell, Price, Corrigan & Smith, Bradford D. Corrigan, Jr., Dallas, for appel-lee.
   DODSON, Justice.

The trial court entered a summary judgment against Faye Zoeller in the amount of $463.80 in favor of Howard Gardiner, Inc. Ms. Zoeller appeals from the judgment. We reverse and remand.

Ms. Zoeller was employed by Howard Gardiner, Inc. as a sales representative from 1 July 1976 until 2 November 1976. She brought this action for alleged unpaid commissions in the amount of $5,500. In her petition, Ms. Zoeller alleges that she was employed on the representation that she would receive “one-half of all commissions paid to Howard Gardiner, Inc. on her sales,” that such representation was false; and that she “believed and relied upon said representations and was thereby induced into employment with Howard Gardiner, Inc.

Howard Gardiner, Inc. answered by general (jenial and affirmatively plead that the parties executed a written agreement dated 28 July 1976; that the written agreement set forth the amount of compensation, which Ms. Zoeller would receive; and that she was paid $463.80 more than the agreement provided. The corporation alone made a cross claim for the alleged overpayment.

The written agreement provides, in part:

PAY PLAN
1. You will be paid a monthly draw of $1,000 against commissions, earned.
# * # * # *
If your period is:
Less than 6 months: 50% of commissions paid to Howard Gardiner, Inc. on all merchandise shipped into your territory up to the amount of your draw.

It is undisputed that plaintiff was employed by defendant for less than six months. Thus, the corporation claims that Ms. Zoel-ler was entitled to receive no more than $1,000 per month.

Howard Gardiner, Inc. files its motion for summary judgment as follows:

I.

Filed herein in support of this Motion is the affidavit of Howard M. Gardiner. Plaintiff was employed by defendant as a sales representative from July 1, 1976, until November 2, 1976. In connection with such employment, plaintiff and defendant entered into a written agreement dated July 28, 1976, specifying the compensation to be received by Plaintiff. Plaintiff was paid in full the compensation provided for in such written agreement plus such additional sum of $463.80. Plaintiff claims, however, that by verbal agreement she was entitled to additional compensation.

II.

Defendant says that parol evidence is not admissible to vary the terms of the written agreement, that there is no genuine issue as to any material fact and that defendant is entitled to judgment as prayed for in defendant’s Original Answer and Counterclaim, i. e., that plaintiff take nothing by her suit and that defendant recover the aforesaid over-payment in the amount of $463.80.

In opposition to the motion for summary judgment, Ms. Zoeller filed her affidavit providing, in part:

On or about July 28, 1976, Dallas, Dallas County, Texas, I entered into em-ployement [s/e] with Howard Gardiner, Inc. At that time representations were made to me that I would receive one-half of all commissions paid to Howard Gard-iner, Inc., on my sales. I relied upon said representations and, so induced, entered into employment with Howard Gardiner, Inc. The employment contract I entered into wás only upon the above named terms. Subsequently, however, I only received a commission of fifty percent (50%) upon all merchandise shipped into my territory up to an amount of $1,000 per month. This limitation was in no way part of the agreement as represented to me upon my entering into employment with Howard Gardiner, Inc.
I believed and relied upon such above stated representations and was thereby induced into employment with Howard Gardiner, Inc., for a period of approximately three months. As a result, I earned, but have never received commissions in the amount of $5,500. This represents the amount which I should have received under our agreement and that which was actually paid to me during my period of employment.

The trial court granted the motion and entered judgment for Howard Gardiner, Inc. in the amount of $463.80 against Ms. Zoeller.

On appeal Ms. Zoeller claims the trial court erred in granting the motion for summary judgment because Howard Gardiner, Inc. failed to establish, as a matter of law that there were no material issues of fact. The corporation invokes the parol evidence rule to negate presence of genuine issues of facts.

The parol evidence rule is stated in general terms in McCall v. Trucks of Texas, Inc., 535 S.W.2d 791, 794 (Tex.Civ.App. — Houston [1st Dist.] 1977, writ ref’d n. r. e.) as follows:

In the absence of fraud, accident, or mutual mistake, parol evidence is inadmissible to contradict the terms of a written instrument that on its face is complete and unambiguous, (citing authorities).

The corporation does not attempt to negate the material matters set forth in Ms. Zoel-ler’s affidavit. In essence the corporation maintains that Ms. Zoeller must show more than fraud in the inducement to defeat the motion.

The corporation relies on the decision in Town North National Bank v. Broaddus, 569 S.W.2d 489, 491 (Tex.1978) to support its position. In this case the maker of a promissory note attempted to defeat a motion for summary judgment on the note by claiming that he was fraudulently induced to sign the note. The court stated:

The question thus presented is whether, in a suit by one not a holder in due course against the maker of a promissory note, the parol evidence rule prohibits the admission of extrinsic evidence showing that the maker was induced to sign the note by the payee’s representations that the maker would not incur liability on the note. We hold that the allegations of fact in the instant case, even if true, do not constitute fraud in the inducement so as to support an exception to the parol evidence rule.

A review of the decision in Broaddus reveals that the party claiming fraud in the inducement failed to show “that some sort of trick, artifice or device was employed by the payee in addition to his representation to the maker that he would not be liable” on the promissory note. 569 S.W.2d 493. The rationale of the decision was to prevent “uncertainty and confusion in the law of promissory notes.” 569 S.W.2d 492.

We are persuaded that the public policy considerations and the rationale for the decision in Broaddus are not present in the case before us. Ms. Zoeller’s affidavit in opposition to the motion for summary judgment supports her allegations that she was induced to accept employment with the corporation in reliance on false representations that she would receive “one-half of all commissions paid to Howard Gardiner, Inc. on her sales.” In Isenhower v. Bell, 365 S.W.2d 354, 359 (Tex.1963) the court construed the parol evidence rule in a non-promissory note matter. The court stated:

When the issue of fraud is raised, competent evidence that has a reasonable bearing on the issue is admissible and may be considered by the jury. All the facts and circumstances leading up to and connected with the transaction are, ordinarily, admissible. .

See also Dallas Farm Machinery Company v. Reaves, 158 Tex. 1, 307 S.W.2d 233 (1957) for another case with similar effect.

In reviewing the summary judgment proof this court must apply the following rules:

1. The movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law.
2. In deciding whether or not there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true.
3. Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in their favor.

Wilcox v. St. Mary’s University of San Antonio, Inc., 531 S.W.2d 589, 592-593 (Tex. 1975).

Applying the above rules to the case before us, we must conclude that Ms. Zoeller’s affidavit contains admissible evidence showing fraud in the inducement of the employment, which is not precluded by the parol evidence rule and that Howard Gardiner, Inc. failed to meet its burden of negating genuine issues of fact in Ms. Zoel-ler’s cause of action.

We sustain Ms. Zoeller’s first point of error, which is dispositive of this appeal. Accordingly, we reverse the summary judgment and remand the cause to the trial court.

COUNTISS, J., not participating.


author: PER CURIAM.

text:
    KENTUCKY BAR ASSOCIATION, Complainant, v. Victor W. DUNGAN, Respondent.
    Supreme Court of Kentucky.
    July 3, 1979.
    Rehearing Denied Aug. 21, 1979.
    Leslie G. Whitmer, Director, Michael M. Hooper, Asst. Director, Kentucky Bar Association, Frankfort, for complainant.
    John Tim McCall, Louisville, for respondent.
   PER CURIAM.

The factual context for this disciplinary proceeding against Victor W. Dungan, a licensed attorney of the Kentucky Bar, is as follows.

On August 15, 1977, Dungan was visited in his law office by Mrs. Antonia Krueger, who informed Dungan that he had been appointed public defender for her son, Richard Krueger, who was facing two criminal charges in Bullitt County Court. Mrs. Krueger had in her possession a cashier’s check in the amount of $1,000.

According to Mrs. Krueger, Dungan took the check, keeping $500 as an attorney’s fee and the balance to defray anticipated court costs. Dungan, on the other hand, maintains that he retained $300 for potential court costs and returned $700 in cash (which he had on hand following a vacation) to Mrs. Krueger. In any event, Dungan deposited the check in his escrow account that day.

Dungan represented Richard Krueger at a preliminary hearing around noon the following day (August 16), during which he informed the court that Mrs. Krueger had deposited $300 with him to cover fines and costs. County Attorney Chester Porter represented the Commonwealth. Richard was fined and his sentence suspended. At the close of the hearing Dungan moved to be removed as public defender in order to be retained as counsel. Bullitt County Judge Arson Moore denied the motion on the grounds that the case had already been disposed of. Dungan paid the fine and court costs amounting to $159 with a check (No. 233) from his escrow account and wrote Mrs. Krueger a check (No. 234) for $141. Dungan wrote a third check (No. 235) from the escrow account to himself for $700, with the notation “refund of personal funds.” That check, dated August 15, was not deposited until August 22.

Based on information given by Mrs. Krueger to Judge Moore and County Attorney Porter prior to the preliminary hearing, Mrs. Krueger signed a warrant (prepared by Porter) against Dungan on the afternoon of August 16 for violation of KRS 31.250, which prohibits charging a fee while representing an indigent defendant. The Bullitt County Grand Jury, however, did not return an indictment against Dungan for the offense.

Dungan was subsequently charged by the Inquiry Tribunal on two counts of engaging in unethical and unprofessional conduct. Count I charged that Dungan had been appointed public defender for Richard Krueger, that he charged a $500 attorney’s fee, and that he failed to return $700 of the $1,000 given to him by Mrs. Krueger. (DR l-102(A)(3)-{6); DR 2-106(A)). Count II charged that during the preliminary hearing Dungan falsely stated to the court that he had retained only $300 from Mrs. Krueger to pay possible fines and costs (DR 7— 102(A)(5)).

The trial commissioner, after a hearing, made findings of fact that Dungan did not return the $700 and that he made a false statement to the Bullitt County Court and found Dungan guilty on both counts.

Having reviewed the record, this court is of the opinion that the findings and conclusions of the trial commissioner and the Board of Governors are supported by a preponderance of the evidence and that the unanimous recommendation of permanent disbarment should be adopted. It is significant that Dungan failed to produce a receipt from Mrs. Krueger for a cash transaction involving an amount as large as $700. In addition, Dungan deposited Mrs. Krueger’s check in his escrow account on August 15, the same date he allegedly wrote a $700 escrow check to himself to refund the cash he had given Mrs. Krueger earlier. The latter check was not deposited until August 22, however, and Dungan’s explanation that he carried it in his wallet for a week stretches credibility. And, unlike Dungan, Mrs. Krueger had no reason to fabricate her story.

The respondent, Victor M. Dungan, is disbarred from the practice of law in this Commonwealth, and ordered to pay the costs incurred in this proceeding as directed by SCR 3.450. The respondent shall comply with the provision of SCR 3.390.

All concur.


author: CLAYTON, Justice.

text:
    Johnny Ray DOUGLAS, Appellant, v. COMMONWEALTH of Kentucky, Appellee. Jesse Irvin PAYNE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    July 3, 1979.

      Terrence R. Fitzgerald, Chief Appellate Defender, Daniel T. Goyette, Deputy Public Defender, Louisville, for appellants.
    Robert F. Stephens, Atty. Gen., Reid C. James, Asst. Atty. Gen., Frankfort, for ap-pellee.
   CLAYTON, Justice.

On December 31, 1977, two armed black males entered the Holiday Inn Southeast in Jefferson County, where they forced three employes to hand over their wallets and emptied the motel cash register. Appellants were jointly tried for these offenses in Jefferson Circuit Court. Johnny Ray Douglas was convicted on four counts of first-degree robbery and sentenced to imprisonment for 40 years. Jesse Irvin Payne was found guilty on four counts of first-degree robbery and one count of being a second-degree persistent felony offender and sentenced to 60 years’ imprisonment.

We will begin by discussing the common assignments of error raised by appellants. First, they submit that the refusal of the trial court to give the requested instruction on the presumption of innocence constituted a denial of due process of law. We have examined the evidence and the arguments of trial counsel, and we conclude that the failure to give this instruction, viewed in the totality of the circumstances, did not deprive appellants of due process of law. Kentucky v. Whorton, - U.S. -, 99 S.Ct. 2088, 60 L.Ed.2d 640 (1979).

Appellants next contend that the trial court’s instruction defining reasonable doubt deprived them of due process of law. The instruction complained of is substantially the same as that given in Taylor v. Kentucky, 436 U.S. 478, 98 S.Ct. 1930, 56 L.Ed.2d 468 (1978), and we decline to hold it unconstitutional until the Supreme Court of the United States sees fit to do so.

Thirdly, appellants allege that the trial court committed error by telling the sheriff, in the presence of the jury, that appellants (who were free on bail prior to trial) should consider themselves in custody and by later allowing appellants to be escorted into the courtroom by the sheriff. Appellants argue that they were portrayed as prisoners “in the toils of the law” and were therefore denied a fair trial. We, however, agree with the trial court that “it would be impossible as a practical matter to conduct a trial without the jury seeing some sign that the defendants are not entirely free to come and go as they please.” The custody here was minimal, and no error was committed.

The final assignment of error raised by both appellants is that it was improper to permit convictions on separate counts for robbery of the Holiday Inn and robbery of Joseph Gnau. We disagree. Appellants forced Gnau at gunpoint to surrender his wallet, then ordered him to accompany Douglas to another room to open the motel cash register. Under KRS 515.020, a person is guilty of first-degree robbery when he is armed with a deadly weapon and threatens the use of deadly force upon another person while in the course of committing theft. The taking of Gnau’s wallet and the taking of the motel’s money clearly constituted two separate thefts. The fact that the same person was threatened during the commission of each theft in no way merges the two offenses into a single robbery. The trial court properly submitted both counts of robbery to the jury. Van Dyke v. Commonwealth, Ky., 581 S.W.2d 563 (1979).

The remaining issues are raised by Douglas only and relate to certain statements allegedly made by him while in police custody following his arrest. Officer Chism advised appellants of their rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), upon their arrival at police headquarters. Appellants indicated that they did not want to make a statement at that time. Approximately ten minutes later Officer LaFollette, who was present when appellants invoked their right to remain silent, asked for the location of the victims’ missing wallets. Payne replied that he didn’t know and Douglas said nothing. Officer LaFollette turned away, at which point Douglas stated where the wallets could be (and later were) found. Douglas contends that the admission of this statement, elicited after he had invoked his right to remain silent, violated his privilege against self-incrimination. We are of the opinion that the trial court correctly ruled that Douglas’ statement was admissible. Miranda cannot “be read to create a per se proscription of indefinite duration upon any further questioning by any police officer on any subject once the person in custody has indicated a desire to remain silent.” Michigan v. Mosley, 423 U.S. 96, 102-03, 96 S.Ct. 321, 326, 46 L.Ed.2d 313 (1975). In the case at bar Douglas, who was fully aware of his right to remain silent, changed his mind and volunteered the information as Officer LaFollette turned to leave. This is simply not the type of situation that Miranda prohibits.

Douglas later told Officer LaFollette that he worked during the day but that at night he stole. He submits that this was evidence of irrelevant collateral crimes and that the trial court erred in admitting it. Douglas’ trial counsel conceded, however, that this statement was relevant, and only objected that its prejudicial effect outweighed the probative value. We agree with the trial court that this evidence was relevant, and-in view of the overwhelming evidence in this case we cannot say its admission prejudiced Douglas’ substantial rights.

The judgments are affirmed.

All concur.

      . We are of the opinion, however, that the statement was relevant to prove a common scheme or plan rather than to show intent or knowledge.


author: STERNBERG, Justice. PALMORE, Chief Justice, REED, Justice

text:
    STURM, RUGER & COMPANY, INC., Movant, v. Karol BLOYD and Gordon Price, Respondents.
    Supreme Court of Kentucky.
    July 3, 1979.
    Rehearing Denied Aug. 21, 1979.
    Uhel Barrickman, Richardson, Barrick-man & Dickinson, Glasgow, for movant.
    Bill Colvin, Greensburg, Donald F. Mint-mire, Hensley, Craddock, Talley & Dunn, Horse Cave, for respondent Bloyd.
    Robert M. Spragens, Jr., Lebanon, for respondent Price.
   STERNBERG, Justice.

This is a products liability action. Karol Bloyd was hit in the ankle by a bullet which fired from a revolver when it wets accidentally dropped on a concrete floor. It presents a claim for an alleged defective design in a safety catch. The respondent, Karol Bloyd, filed suit against Gordon Price, the owner of the gun, and Sturm, Ruger & Company, Inc., the manufacturer of the gun. A jury awarded Bloyd $50,000 against Sturm, Ruger & Company and $2,796 against Price for negligence in the use of the gun. The Court of Appeals affirmed the judgment. This Court granted discretionary review and reverses.

A detailed statement of the facts is deemed necessary. First of all, Price, while a member of the United Stated Armed Forces and stationed in Berlin, Germany, purchased in 1973 the single-action .357-magnum Blackhawk revolver. It is an improvement over other single-action handguns and is a 1972 design and issue. Its safety device has three positions: (1) When the hammer is placed all the way down in what is called a safety notch, the gun is not supposed to fire; (2) There is a half-cocked position which is used for loading; and (3) In a full-cocked position the gun is ready for firing. Ordinarily, to fire this weapon the hammer must be pulled all the way back. The safety-notch position is not considered safe because a sharp blow on it will cause a very thin piece of steel to rupture, thereby letting the hammer go forward and igniting the cartridge. A clandestine safety lock is to let the hammer down middle-ways between two firing chambers. This causes the hammer to lock; however, the cylinder containing the bullets can easily rotate and when it does the gun will fire. The only sure safety of the revolver is to let the hammer rest on an empty chamber, thereby having five bullets in the chambers instead of six.

The first successful single-action revolver came out about 1847 and continued into the mid 1940’s. During the 1950’s movant (Ruger) started making this type of gun. It had substantially the same safety features as the earlier 1873 model single-action Colt revolver. It was emblematic of the western guns and was highly successful on the market. With the hammer on safety, other than on an empty chamber, the gun would fire if dropped from a height of eight to fifteen inches. There were four types of safety mechanisms that could have been incorporated into the subject weapon at a nominal cost for each. The gun then would have offered greater safety. Each of the safety designs would require some minor modification of the weapon. However, if modified and if dropped from a height of twelve inches and landing on the hammer, the gun was not. likely to fire. When the gun was sold new, it was accompanied by a small pamphlet warning of the gun’s unsafe safety mechanism and advising that if the gun was to be carried, the hammer should be on a chamber in which there was no bullet. The warning and notice, in words and figures, are as follows:

“SAFETY NOTE
If these revolvers are to be carried loaded, certain precautions must be observed in the interest of safety. (These precautions also apply to the older types of single action revolvers.)
Load only five chambers, placing the empty chamber in alignment with the firing pin and the hammer either in the safety notch or resting on the firing pin.
Do not carry one of these revolvers with a cartridge in line with the firing pin. Neither the safety nor the loading notch can be depended upon in case of a heavy blow on the hammer or the trigger. NEVER permit the hammer to rest on the firing pin with a loaded cartridge in line with the barrel. Under such circumstances, the firing pin will be in direct contact with the primer of the loaded cartridge and a light accidental blow on the hammer can readily cause the gun to discharge.
WARNING: This revolver can be fired by excessive pull on the trigger from either the safety notch position, indicated by No. 2 in Figure 1, or the loading notch position indicated by No. 3 in Figure 1.
The loading notch and the safety notch provide only partial security. If these notches are damaged, as they may be by ‘fanning’, they offer no security. Never depend on this or any other mechanical safety device to justify pointing the firearm at any person.
Fanning is unsafe for you and abusive to your revolver.”

This was the only notice of the unsafe condition of the safety mechanism. The gun was advertised as a six-shooter. The unsafe feature of the weapon was retained at the expense of its pleasant appearance and nominal cost of modification. There were no similar guns manufactured in the United States that had different types of safety mechanisms. In 1973 the design of the safety mechanism was changed so that in the event the weapon did fall to a concrete floor it was not likely to discharge. Consequently, the new design was safer than the design of the subject gun.

Ruger cites four alleged errors:

1. Was the gun reasonably safe considering the directions and warnings furnished with it?
2. Was the gun so inherently dangerous as to make the manufacturer an insurer even if the product was perfectly safe if used according to directions?
3. Was the owner’s negligence in misusing the gun reasonably foreseeable despite clear warnings and was, therefore, the owner’s negligence the sole and proximate cause of the accident?
4. Should the court have defined “fore-seeably probable” for the jury and instructed that the owner of the gun had a duty to exercise the highest degree of care?

In products-liability actions we are confronted with liability (1) by reason of the product being defective in its manufacture and (2) where the product is not defective but may be dangerous for the ordinary user unless he is notified. In the present case we are confronted with the latter. By their very nature firearms are dangerous, but do not kill people. It is the action of people in their use of firearms that kill or injure people. The criteria of liability by which the duty of a manufacturer is measured are whether it knew, or by the exercise of ordinary care ought to have known, that the equipment was limited in its safety design and that it should foresee a substantial likelihood that a user, exercising ordinary care for his own safety, might be injured by it. If so, the manufacturer is under a duty either to use reasonable care to remedy the design before selling it so that it is reasonably safe for its intended use and other uses which are reasonably foreseeable or to provide such warning as would be reasonably sufficient to bring the danger to an expect-able user’s attention and be understood by him.

It can hardly be contended that the warning and notice which accompanied the sale of the revolver did not clearly and succinctly advise of the shortcomings of the safety mechanism. The subject revolver displayed no physical attributes of being unsafe if and when used in the manner and method suggested by the manufacturer. Ruger, the manufacturer, is not a guarantor of the safety of the revolver. The evidence discloses that the subject revolver was not unsafe when used in the normal and usual manner. The use to which we find the gun being put is contrary to the instructions. Gordon Price, the owner of the gun, read the warning and knew that the gun was not to be used in such a manner. No one would contend that the gun was misused had the hammer been put down on the empty chamber, as directed by the instructions.

Although a gun is inherently dangerous, it does not necessarily follow that a manufacturer is liable in damages to each person injured or killed by the use of the weapon. There is nothing in the record to disclose that the subject revolver was any more dangerous than any other single-action revolver. In Jones v. Hutchinson Manufacturing, Inc., Ky., 502 S.W.2d 66 (1973), we were confronted with an alleged defective design, and the question turned on what is reasonable care and what is reasonable safety? The maker is not required to design the best possible product or one as good as others make or a better product than the one he has, so long as it is reasonably safe. A gun, although inherently dangerous, does not come within the category of those substances or chattels which, by their very nature, are not only inherently dangerous but unsafe for general use. Was Ruger required to anticipate that the revolver would be carried under the floor mat of an automobile with all six chambers loaded and the hammer resting on live ammunition? We think not. It is required of Rug-er to anticipate reasonable use; that use being in keeping with the written warning. The dangerous propensity of the revolver was a condition rather than a cause.

Unquestionably, Gordon Price owned a revolver which he knew had a safety mechanism which was anything but safe. The written instructions which he received when he purchased the revolver explicitly, clearly and succinctly warned of its dangerous propensity. Nevertheless, and being fully advised of the revolver’s lack of proficient safety mechanism, Price carried the revolver with him stored under the floor mat of his automobile with the trigger resting on live ammunition. The revolving chamber was built to hold six bullets; however, the safety warning advised that the revolver should not be carried with the hammer on a live cartridge, but the hammer should be on an empty chamber. Neither the manufacturing nor the design was a substantial factor in causing Bloyd’s injury. Regardless of the design or manufacturing of the revolver, the use to which it was put was the agency that brought about the injury complained of. The manufacturer had no control over the gun. It was under the sole and exclusive control of Price, and his conduct in the handling of the revolver, as illustrated by the proof, was the substantial factor which caused the injury. In Miller v. Watts, Ky., 436 S.W.2d 515 (1969), we said, “The proximate cause is a cause which would probably, according to the experience of mankind, lead to the event which happened.” Price knew the safety was defective; he knew he was carrying the gun contrary to the written warning; and he left the car in which the revolver was being carried for cleaning and washing without notice to the person who was to clean it that the revolver was there and that it should be handled carefully by reason of its unsafe condition. Culpable negligence on the part of Price! Pure and culpable . negligence!

Our research has turned up a case in Missouri similar to the case at bar, which we need to discuss and differentiate. In Bender v. Colt Industries, Mo.App., 517 S.W.2d 705 (1974), Bender was injured when a revolver which he had purchased from a retailer fell from his hunting coat pocket onto a concrete platform. The gun discharged and struck Bender in the face. The gun was a Colt single-action revolver and was the predecessor of the .357-mag-num Blackhawk. The safety mechanism was identical and “Defendant’s expert witness acknowledged that Colt had always had trouble with the sear; it had known for years that it was fragile and likely to break. Plaintiff [Bender] had no knowledge of this defect. Plaintiff’s expert . . . testified that the fracture and displacement of the sear caused the gun to discharge.” The manufacturer therein interjected the “Exact Replica” theory, which would eliminate it from liability. In the instant case, we are not confronted with the Exact Replica principle; consequently, we will turn our attention to the charge of defect in design, since that is the issue presented in the instant ease.

In each case, to fix liability on the manufacturer, it was charged that the gun was being used in a manner which could reasonably be anticipated by the manufacturer. The distinction between the Bender case and the case at bar can best be demonstrated by a comparison of the facts.

The Bender case is interesting, but the salient facts are dissimilar to the facts in the present case. The Colt revolver was sold directly to Bender, the person who was injured. On the occasion of Bender’s injury, he had been using the revolver for target practice; had shot a complete round and reloaded; and was carrying the gun in a pocket of his hunting coat when it fell from his pocket as he knelt to pick up some ammunition. There was no true safety lock, and the seller’s literature did not warn or notify of the dangerous safety condition. In the instant case, however, the buyer of the Ruger revolver was not the person who was injured. The revolver was not being used but was being carried under the floor mat of a car and fell from the car when the person who was cleaning it removed the mat for cleaning. The manufacturer’s and seller’s literature warned and notified of the dangerous safety condition. Without equivocation, it is manifest that the revolver in the Bender case was being used as reasonably expected to be used. It was manufactured for the purpose of shooting and was being used in shooting. In the present case, there is no basis to conclude that the manufacturer could reasonably be expected to anticipate that the revolver would be carried loaded, stashed away under the floor mat of a car, and, above all, when the car was to be washed and cleaned that the person who owned the revolver would not tell the person doing the cleaning of the revolver’s presence and dangerous propensity.

We find it unnecessary to decide whether there was any negligence on the part of Ruger by reason of the design.

The trial judge should have sustained Ruger’s motion for a directed verdict and dismissed Bloyd’s claim against the manufacturer, Sturm, Ruger & Company, Inc. Upon a return of this case, the court should enter a judgment notwithstanding the verdict in favor of the manufacturer.

In view of our decision that Bloyd’s claim against the manufacturer should have been dismissed, we do not reach the other issues presented.

The decision of the Court of Appeals is reversed. This action is remanded to the Green Circuit Court for judgment in accordance with this opinion.

PALMORE, C. J., and LUKOWSKY and STEPHENSON, JJ., concur.

REED, AKER and CLAYTON, JJ., dissent.

PALMORE, C. J., files a separate concurring opinion.

REED, J., files a dissenting opinion in which AKER and CLAYTON, JJ., join.

PALMORE, Chief Justice,

concurring.

My concurrence in the result reached by the majority opinion rests upon two basic principles mentioned in Ulrich v. Kasco Abrasives Co., Ky., 532 S.W.2d 197, 200, 201 (1976). One is that whether a product is “unreasonably dangerous” when put on the market is to be assessed in terms of those persons “who should be expected to use or be exposed to it.” I simply do not think that an innocent bystander in a garage or service station where an automobile owned by the possessor of a gun is being washed comes within the category of persons whom the manufacturer or seller of the gun should expect to be exposed to it. Had the gun been dropped accidentally by Price himself, perhaps a case could be made for the proposition that the manufacturer should have anticipated that other persons in his presence would be exposed, but in this instance Price was not handling the gun and his presence or absence was immaterial. It was purely a freak accident.

The other principle is that even if the gun was unreasonably dangerous it would hardly be fair to hold the manufacturer responsible for such an unforeseeable act of negligence on the part of a possessor who had been fully warned of the danger. In recent years the doctrine that one is not required to anticipate the negligence of another may have lost some of its quondam vitality, but it is not dead yet. It is my firm opinion that this accident resulted from an act of negligence on the part of Price that the manufacturer was not bound to foresee, and which therefore was a superseding cause.

REED, Justice

dissenting.

I respectfully dissent. It appears to me that the Court of Appeals correctly affirmed the judgment of the trial court.

It is unnecessary to consider strict liability, in my judgment, because it appears the defendant was subject to liability under ordinary negligence principles. My only disagreement with the Chief Justice is concerning the element of foreseeability so far as the defendant’s possible liability is involved. There are many situations in which a reasonable manufacturer would be expected to anticipate and guard against the conduct of others. When the risk becomes a serious one, either because the threatened harm is great or because there is an especial likelihood that it will occur, reasonable care, in . my judgment, demands precautions against occasional negligence, which is one of the ordinary incidents of human life and therefore to be anticipated. It is not due care to depend upon the exercise of care by another when such reliance is accompanied by obvious danger. See Prosser, Law of Torts, Sec. 33 at 170-71 (4th ed. 1971).

The majority opinion fairly states the obvious danger in marketing this pistol with the only warning contained in a separate operating manual. The harm that occurred was within the general area of the risk created by the manufacturer’s negligence. The defendant is not confined to foresee the precise method of causing the harm. It is enough if it is reasonable for him to foresee the general area of the risk of harm.

I would affirm the judgment of the Court of Appeals.

AKER and CLAYTON, JJ., join in this dissent.


author: STERNBERG, Justice. STEPHENSON, Justice,

text:
    Albert C. EDMONDS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    July 3, 1979.

      Jack E. Farley, Public Advocate, Kevin M. McNally, C. Thomas Hectus, Asst. Public Advocates, Com. Ky., Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., C. David Clauss, Asst. Atty. Gen., Com. Ky., Frankfort, for appellee.
   STERNBERG, Justice.

The appellant, Albert C. Edmonds, was indicted on June 12, 1975, by the Grand Jury of Pike County, Kentucky, for the June 1, 1975, murder of Betty Renfro. KRS 507.020(l)(a). On August 29,1975, the appellant filed notice of his intention to rely on the defense of insanity. KRS 504.050(1). On November 7,1975, at the request and by agreement of counsel for appellant and the Commonwealth, the trial court ordered the appellant to undergo a medical and psychiatric examination by Dr. John Corcella to determine both his competency to stand trial and his condition at the time Betty Ren-fro was shot to death. On July 9,1976, the appellant was ordered to the Pikeville Methodist Hospital for a neurological examination by Dr. R. H. Mortara. On September 17,1976, the trial court, pursuant to the request of the Commonwealth, ordered appellant to submit to a follow-up psychiatric examination by Dr. Corcella, which was done. A six-day trial commencing December 15, 1976, resulted in a jury verdict finding the appellant guilty of murder and fixing his punishment at life imprisonment. Thus, this appeal.

The appellant charges that the trial court erred in the following instances:

I. The appellant was denied due process of law by the trial court’s murder instruction which omitted an essential element of the offense and by the refusal to instruct on first degree manslaughter.
II. The trial court committed reversible error and denied the appellant’s constitutional right to a fair trial by permitting the Commonwealth’s Attorney to testify as a witness and to participate in the trial as the prosecutor.
III. The trial court committed reversible error and denied the appellant’s constitutional right to a fair trial by permitting the Commonwealth to engage in improper conduct during trial and closing argument.
IV. The trial court erred and denied appellant due process of law in refusing to give a curative instruction on the consequences of a verdict of not guilty by reason of insanity after an erroneous view of the law was given by the prosecutor.
V. The failure of the trial court to make a determination of competency and to issue findings of fact and conclusions of law and appellant’s trial while incompetent denied him due process of law.
VI. The trial court committed reversible error and appellant was denied due process of law and a fair trial when he was tried, convicted and sentenced while incompetent.
VII. The trial court erred to appellant’s substantial prejudice in refusing to admit certain of his V.A. medical records, and unduly depreciated his constitutional right to present a defense.
VIII. The trial court committed reversible error and denied appellant due process of law and his rights to present a defense and to confront the witnesses against him by improperly limiting defense questions.
IX. The trial court erred in refusing to suppress appellant’s statement both because he was insane at the time of the statement, and because the Commonwealth’s Attorney destroyed the tape recording of the statement.
X. The trial court committed reversible'error and denied appellant due process of law by refusing to direct a verdict of acquittal.
XI. The trial court’s instruction on reasonable doubt denied appellant due process of law.
XII. Appellant’s judgment must be vacated because of the failure of the court below to follow the mandatory sentencing procedures of KRS 532.050 and because the trial court abused its discretion and denied appellant due process of law in refusing to order a presentence psychiatric examination as authorized by KRS 532.050(3).

The appellant was 55 years of age and a successful insurance salesman. He had been married for fourteen years and lived with his wife on Jay Street in Pikeville, Kentucky. Betty Renfro was a 23-year-old widow who, with her two children, lived in a house trailer in Ray’s Trailer Court, Pike-ville. Her brother, Danny Hardin, and his wife Debbie lived in the same trailer court. The appellant was infatuated with Betty and spent much of his time with her and her children. The children referred to him as “Dad,” and he often took all of them out for entertainment. The appellant was jealous of Betty and on this fateful afternoon was laboring under the impression that she was going out with another man. On the morning of June 1, Betty, her two children, and her brother and his wife attended a family reunion picnic. The appellant followed them and drove by the picnic grounds several times without stopping. Later in the day, after Betty and her children had returned home, the appellant was seen chasing Betty in the trailer park and she was screaming. Witnesses saw the appellant take a pistol out of his pocket and shoot Betty. She fell to the ground and appellant ran for help. He and other persons put Betty in an automobile and took her to the hospital. The appellant sat in the back seat, holding Betty in his arms. He encouraged the driver to hurry to the hospital and continually assured Betty that she wouldn’t die. Alas, she did.

The appellant served in the United States Army and, both while in the service and after his discharge, had on several occasions been hospitalized for a psychoneurotic condition. Prior to the time he shot Betty, the appellant had been taking a self-prescribed and self-compounded medication mixture of alcohol and sodium bromide or alcohol and potassium bromide for headaches and nervousness. The medication would sometimes cause him to “blank out.” While taking this medication, the appellant would act in a bizarre manner. For example, he once asked his wife to accompany him into space. He opened the front door and talked as if there were someone at the door when, as a matter of fact, no one was there.

We will first concern ourselves with whether the trial court, in instructing the jury on murder, erroneously failed to include absence of extreme emotional disturbance and erroneously failed to instruct on first-degree manslaughter.

Murder is defined as follows:
“A person is guilty of murder when:
(a) With intent to cause the death of another person, he causes the death of such person or of a third person; except that in any prosecution a person shall not be guilty under this subsection if he acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be. However, nothing contained in this section shall constitute a defense to a prosecution for or preclude a conviction of manslaughter in the first degree or any other crime; * * *”

The trial court instructed the jury as follows:

“Murder — You will find the defendant guilty under this instruction if, and only if, you believe from the evidence beyond a reasonable doubt all of the following:
(a) That in this county on or about June 1, 1975, and before the finding of the indictment herein, he killed Betty Renfro by shooting her with a pistol; and
(b) That in so doing he intended to cause Betty Renfro’s death.
If you find the defendant guilty under this instruction, you will fix his punishment at confinement in the penitentiary for not less than 20 years or at life, in your discretion.”

It is noticeable that the instruction given by the court contained no reference to the absence or presence of extreme emotional disturbance. In other words, the instruction given to the jury by the trial court did not require the jury to find absence of extreme emotional disturbance in order to convict the appellant of the offense of murder. It should have. A failure to act under the influence of extreme emotional disturbance is an element of the offense of murder, and if the evidence affords any basis upon which the jury could entertain a reasonable doubt as to whether appellant acted under the influence of extreme emotional disturbance, the absence of that element must be enumerated as a part of the instruction on murder, and an instruction on first-degree manslaughter, differing from the murder instruction only by the omission of that element, must be given. See Ratliff v. Commonwealth, Ky., 567 S.W.2d 307 (1978). In addition, the jury should be instructed to the effect that if it finds the appellant guilty but has a reasonable doubt as to whether he was acting under the influence of extreme emotional disturbance, it will not find him guilty of murder but shall find him guilty of first-degree manslaughter. See Palmore’s Kentucky Instructions to Juries, Section 2.02, Instruction 5(a), and Section 1.06,1979 Supplement. In the absence of an instruction on extreme emotional disturbance, the jury was not afforded a choice of murder or voluntary manslaughter in the first degree.

The Attorney General attempts to define extreme emotional disturbance to show that it is a derivative of what was formerly known as “heat of passion.” We find it unnecessary to define extreme emotional disturbance. It is suffice to say that we know it when we see it. In the present case, we see sufficient evidence to justify a submission of the issue to the jury.

The appellant argues that the Commonwealth’s Attorney should not have been permitted to testify and further argues that he engaged in improper closing argument. We find it unnecessary to decide whether the conduct of the Commonwealth’s Attorney was prejudicially erroneous since upon retrial, hopefully, it will not reoccur.

Counsel for appellant alleges that the trial court erred in not giving an instruction on the consequences of a verdict of “not guilty” by reason of appellant’s plea of insanity. In Edwards v. Commonwealth, Ky., 554 S.W.2d 380 (1977), we dealt with an analogous situation. In disposing of the issue, we held that such an instruction was not necessary. Edwards is dispositive of the issue raised in the instant case.

The appellant charges that the trial court did not hold a competency hearing and failed to issue findings of fact and conclusions of law. In this he is mistaken. The record discloses that an in-camera hearing to determine appellant’s competency to stand trial was held on December 14, 1976, and medical evidence was presented to the trial judge. The judge found that the appellant was competent to stand trial. Although not terming it findings of fact and conclusions of law, the court did make a finding from his conclusion and interpretation of the law. A transcript of the medical testimony given at the in-camera hearing to determine the appellant’s competency to stand trial came from two psychiatrists, Dr. Cornelia Wilbur, who was called by the appellant, and Dr. John Corcella, who was called by the Commonwealth. Each of them had credentials qualifying her and him to speak on this issue. Dr. Wilbur may have spent more time in the treatment and care of the appellant than did Dr. Corcella; nevertheless, it cannot be said that the trial judge abused his discretion when he accepted the finding of Dr. Corcella and ruled that the appellant was competent to stand trial. See Wiseman v. Commonwealth, Ky., 587 S.W.2d 235 (1979).

During the course of the trial appellant’s counsel attempted to introduce through Dr. Wilbur the appellant’s medical records from the Veterans Administration Hospital in Louisville, Kentucky. The Commonwealth’s Attorney objected and the trial court refused to permit the records to be introduced. The court was of the opinion that the records were not certified as required by CR 44.01. In view of the disposition that is being made of this appeal, it is not likely that this question will arise on a retrial since appellant will have ample opportunity to secure a certified copy of the records before his next trial. We respectfully refrain from passing on the propriety of the court’s ruling on the admissibility of the appellant’s medical records from the Veterans Administration Hospital.

Counsel for appellant attempted to challenge the competency of the Commonwealth’s medical expert by criticizing a diagnosis that he made of one of his patients. Appellant also attempted to interject into the evidence a case history of a person suffering from bromide psychosis. There was testimony that the appellant was suffering from bromide psychosis. The trial court refused to permit this characterization. A trial court has wide discretion in permitting the introduction of testimony of this nature. We do not find that the action of the trial court was prejudicially erroneous.

Shortly after his arrest the appellant made a question-and-answer statement relative to his participation in the shooting of Betty Renfro. The interrogation was recorded by the Commonwealth’s Attorney. This statement was transcribed from the tape so that the tape could be available for further use. In Hendley v. Commonwealth, Ky., 573 S.W.2d 662 (1978), we criticized the practice of erasing a statement from a tape recorder. There is no charge that the transcript is not an exact reproduction of the statement. As a matter of fact, appellant’s trial counsel not only did not object to the use of this statement but before it was read to the jury stated as follows, “Your Honor, if he wants it read, I want him to put his copy into evidence. I have no objection, but Mr. Runyon has the original copy.” We are not constrained to fault the trial judge for permitting the transcript to be introduced.

Counsel for appellant further argues that the evidence clearly demonstrates that there is no probative evidence that the appellant was sane at the time of the commission of the offense. Because the case is being reversed on other grounds, we do not find it necessary to reach this issue.

We do not reach the argument by appellant that the trial judge erroneously instructed the jury on the term “reasonable doubt” for the reason that RCr 9.56 was amended as of July 1, 1978, and no longer permits such an instruction.

In view of the disposition that is being made of this action, we do not reach the argument of appellant that the trial court erred in not following the presentencing procedure provided for by KRS 532.050(1), (2), (3) and (4), nor do we reach his argument that the cumulative effect of all of the alleged errors prevented him from having a fair trial since this case is being reversed for a new trial irrespective of the cumulative effect of the alleged errors and the failure of the trial judge to follow KRS 532.050.

The judgment is reversed and this action is remanded to the Pike Circuit Court for a new trial in keeping with this opinion.

All concur, except STEPHENSON, J., who dissents and files a dissenting opinion.

STEPHENSON, Justice,

dissenting.

I do not agree that there is sufficient evidence in this case to require an instruction on extreme emotional disturbance. To me this situation is comparable to that in Ratliff v. Commonwealth, Ky., 567 S.W.2d 307 (1978). I dissented there for the same reason. I do not find any other errors unfairly prejudicial to the appellant. I would affirm.


author: STEPHENSON, Justice. STEPHENSON, Justice,

text:
    Terrence K. BRADY, Movant, v. H. Foster PETTIT, Mayor, Lexington-Fayette Urban County Government, Dean D. Hunter, Jr., Chief Administrative Officer of the Lexington-Fayette Urban County Government, Sidney C. Kinkead, Jr., Chairman, Julian A. Jackson, Sr., Wilfred T. Seals, Walter Leet, Jr. and Wanda V. Cranfill, Members Lexington-Fayette Urban County Government Civil Service Commission, Respondents.
    Supreme Court of Kentucky.
    July 3, 1979.

      Michael R. Moloney, Geralds, Cassidy & Moloney, Lexington, for movant.
    R. Burl McCoy, Susan W. Wanat, Mary Ann DeLaney, C. Timothy Cone, Jane E. Graham, Lexington-Fayette Urban County Government, Lexington, for respondent.
   STEPHENSON, Justice.

Following a hearing before the civil service commission of the Urban County Government, Terrence K. Brady was found guilty of misconduct and was discharged from his position as personnel director of the Urban County Government. The trial court held that Brady was not entitled to a trial de novo in circuit court and that the discharge was justified and entered summary judgment approving the action of the civil service commission. The Court of Appeals affirmed the judgment of the trial court. We granted discretionary review and reverse.

The facts as detailed in the opinion of the Court of Appeals are as follows. In 1974 Terrence K. Brady was serving as director of personnel of the Lexington-Fayette Urban County Government. On September 19, 20 and 24 the Lexington newspaper printed statements by Brady which accused the mayor of attempting to bend civil service rules in order to place political allies in jobs for which they were not qualified. Brady leveled numerous other charges against county officials to the effect that the merit system and civil service rules were being disregarded in the wake of political favoritism. Brady further threatened to resign, stating that he no longer felt allegiance to his job. On October 17, the mayor filed charges in accordance with KRS 67A.280 against Brady. After holding a lengthy hearing, the civil service commission concluded that Brady had a duty to discuss his accusations with his superiors in county government before airing them publicly. It was the opinion of the commission that Brady’s conduct had undermined public faith in the personnel system and had caused a disruption of communication between himself and other persons in the executive branch of government. The commission found Brady guilty of misconduct and discharged him from the position of director of personnel.

Brady appealed this action of the civil service commission to the Fayette Circuit Court and demanded a trial de novo in accordance with KRS 67A.290, which provides:

(1) Any employe of the urban-county government found guilty by the civil service commission of any charge as provided by KRS 67A.280 or any action upheld under subsection (7) of the said section, or any amendment thereto, may appeal to the circuit court of the county in which the urban-county government is located within thirty (30) days after such action becomes final, but the enforcement of the judgment of the civil service commission shall not be suspended pending appeal.
(2) Upon request in writing by the accused and the payment of costs therefor, the secretary of the civil service commission shall file a certified copy of the charges and the judgment of that body in the circuit court. Upon the transcript being filed the case shall be docketed in the circuit court and tried de novo.

The trial court declined to hear the case de novo on authority of American Beauty Homes Corp. v. Louisville and Jefferson County Planning and Zoning Commission, Ky., 379 S.W.2d 450 (1964), and decided the case on the record brought before the court, granting respondents’ motion for summary judgment. The record did not include the transcript of evidence heard before the civil service commission.

We do not consider the decision of the trial court on the merits of Brady’s claim of violation of his first amendment rights. We consider the threshold question, one of procedure and reverse on this ground.

We are of the opinion the trial court erred in relying on American Beauty Homes without reference to the subsequent opinions by this court that have eroded the holding in American Beauty Homes. Standing alone, American Beauty Homes is authority that statutes providing for trial de novo in circuit court of administrative matters decided by appropriate bodies violates the constitutional doctrine of separation of powers and trial de novo provisions cannot be foisted upon the judiciary by the legislature. From the review of our opinions since, we conclude that American Beauty Homes now applies only to zoning matters and matters of like nature. A separate rule of law in de novo situations has developed in situations involving the discharge of teachers, policemen, firemen and the like. We conclude that the movant here falls within this category.

American Beauty Homes was decided in 1964 and overruled Louisville and Jefferson County Planning and Zoning Commission v. Grady, Ky., 273 S.W.2d 563 (1954). As stated American Beauty Homes rejected the de novo statute on the ground that the statute undertakes to impose on the court a nonjudicial function. Grady in considering a de novo statute in a zoning case held that “A hearing de novo means ‘trying the dispute anew as if no decision had been previously rendered’ ” and recognized the authority of the legislature to determine by statute whether or not there should be a classic de novo hearing.

Harrell v. City of Middlesboro, Ky., 287 S.W.2d 614, 615 (1956), without referring to Grady, eroded the classic de novo stance of Grady in the discharge of a police officer saying:

In order that the terms might be interpreted in the light of the customs of the community, their application and definition were left to the legislative body of that particular political entity instead of to the courts, except upon appeal. So, under this statute, the legislative body is charged with the duty to performing the judicial act of trying the accused officer and we believe we must accord to the judgment of that body the weight and sufficiency attributed to the legislative branch of the government in matters requiring definition of public policy.
It is true KRS 95.460 requires that upon appeal to the circuit court the case should be tried de novo by the judge of that court. We do not believe this to mean that the finding of the common council should not be assigned some weight, and interpret it to mean that the common council’s finding as to the mores of the community should be given consideration.

It is not clear from the opinion what type proceeding was held in the circuit court, only that a trial was held. Harrell foreshadowed American Beauty Homes and Board of Education of Ashland School District v. Chattin, Ky., 376 S.W.2d 693 (1964). Chattin involved the discharge of a school teacher and cited American Beauty Homes. Chattin held that a de novo trial could not constitutionally be thrust upon the courts, and on the factual issues the circuit court is confined to the record of proceedings had before the administrative body and is bound by the administrative decision if it is supported by substantial evidence.

The first indication that this court was not wholly committed to American Beauty Homes and Chattin came in Kilburn v. Colwell, Ky., 396 S.W.2d 803 (1965), there a police officer had been discharged and on appeal to the circuit court the case was tried de novo and the dismissal affirmed. Without reference to American Beauty Homes or Chattin, the opinion narrowed the holding in those cases relying on Harrell and citing a case relied upon in Harrell:

In City of Owensboro v. Noffsinger, Ky., 280 S.W.2d 517, 519 (1955), it was held that in a de novo hearing under KRS 95.460 the question to be determined by the circuit court is not whether there is substantial evidence to support the action of the city legislative body, but whether the evidence preponderates against it. The practical effect of that test is to shift the burden of proof to the appealing party, which means that the review is something less than purely de novo.

Here the significant holding of a shift in the burden of proof is expressed for the first time. City of Owensboro was relied upon in Harrell, being cited with approval for the denial of trial by jury, but evidently relied upon at least to some extent in the holding. Thus a different rule in de novo had developed in cases involving the dismissal of public employees. This rule is further amplified in Osborne v. Bullitt County Board of Education, Ky., 415 S.W.2d 607 (1967). There American Beauty Homes is limited to zoning and other administrative acts and held not to be applicable to school teachers in particular and, although not stated, the implication is that other public employees are included. Also Chattin was overruled to the extent that it held that the trial court was limited to a review of the proceeding before the board and not a trial de novo. Osborne holds that the legislature may properly require a trial de novo upon certain actions of administrative bodies without doing violence to the constitutional requirement of separation of powers. While the statute under consideration was not a true de novo statute as here, Osborne made no distinction, implying the right to a de novo trial from the language of the statute. Osborne did not refer to Kilburn or mention the proposition of a shift in the burden of proof in circuit court. At this point it appears that the proposition of de novo is proceeding down several roads converging here so that we may attempt to unravel what are seeming inconsistencies.

In Story v. Simpson County Board of Education, Ky., 420 S.W.2d 578 (1967), we pointed out that Chattin had been overruled to the extent it denied the right to trial de novo in the circuit court and reversed for a trial de novo for the principal who had been discharged. No reference is made to Kil-burn or Harrell.

City of Glasgow v. Duncan, Ky., 437 S.W.2d 199 (1969), involved the dismissal of a police officer. The opinion observed that the city council occupies the same role as the school board in Osborne and that a trial de novo was properly conducted. The circuit court heard the witness and set aside the order of the council dismissing Duncan. Kilburn and City of Owensboro are not referred to in the opinion, although there was argument cited in the opinion that the evidence produced before the trial court did not preponderate against findings and action of the city. This would lead us to believe that implicit in City of Glasgow was the recognition by the parties of the shifting of burden of proof inferred in City of Owensboro and articulated in Kilburn.

Finally in City of Richmond v. Howell, Ky., 448 S.W.2d 662 (1969), a policeman appealed his dismissal to the circuit court and received a de novo hearing. The circuit court, after the de novo hearing, reduced the penalty to a limited suspension. In reversing the trial court, the opinion goes on to say that the circuit court did not have authority to change the punishment fixed by the city legislative body. There is a statement that sound public policy requires that the matter of punishment and discipline of a police officer be left to his employer, the city legislative body. Here Kil-burn is cited and relied upon, as was Harrell, reaffirming the proposition that the burden of proof is shifted to the appealing party; this together with the statement that the review provided by the statute is something less than purely de novo. The opinion points out dictum in City of Glasgow that would appear to shift the burden of proof to the public authority, which is inconsistent with Harrell and Kilburn, observing, however, that City of Glasgow reaches the correct result for the reason that the evidence was overwhelmingly in favor of the dismissed officer.

In summary, it appears that in public employee discharge cases where there is a trial de novo statute, the discharged employee is entitled to something less than a classic trial de novo in circuit court. In this proceeding in circuit court the burden of proof shifts to the discharged employee. After review of the transcript of evidence or hearing the witnesses, the trial court is limited in its decision. The trial court may not substitute its judgment for that of the administrative body, that is, there may not be a substitute punishment. The trial court may find the discharged employee has failed to meet the burden of proof and affirm the action of the administrative board; or if it is found that the employee has sustained the burden of proof, the trial court may set aside the punishment.

With the exception of Harrell and Osborne, where the opinions do not reveal the type proceeding in circuit court, all the opinions subsequent to American Beauty Homes have revealed that the trial court has heard the witnesses. This procedure has not been a subject of controversy, and in addressing the principles of de novo this court has not mentioned the procedure other than a recitation of what transpired in the circuit court.

We are of the opinion that trial de novo be further refined to the extent that the discharged employee has the obligation of producing the transcript of evidence of the proceeding before the administrative board. We are of the further opinion that review of the transcript of evidence in circuit court is a corollary to the burden of proof which has shifted to the discharged employee. In circuit court the transcript of evidence is reviewed but the proceeding is not limited to this review; the discharged employee is accorded the right to call such additional witnesses as he may desire. The trial court’s review is limited to a determination of whether the administrative body acted arbitrarily.

The opinion of the Court of Appeals and the judgment of the trial court are reversed with directions that Brady be granted a reasonable time to file the transcript of evidence and thereafter be granted a trial de novo consistent with this opinion.

AKER, CLAYTON, LUKOWSKY, REED and STERNBERG, JJ., concur.

STEPHENSON, J., and PALMORE, C. J., concur in part and dissent in part.

STEPHENSON, Justice,

concurring in part; dissenting in part.

I agree this case should be reversed; however, I am unwilling to agree to any further refinements on the subject of de novo. The majority opinion has, by the changes in the present state of case law, turned around and started again down the road toward American Beauty Homes. My opinion is that there are practical considerations that militate against a requirement that the employee furnish the transcript of evidence. In many instances this may involve more expense than the employee is willing to risk.

I would construe de novo as giving the employee the option of furnishing the transcript of evidence or producing witnesses. Further, if the transcript of evidence is produced, the employee should have the right to produce additional witnesses as desired.

The decision of the trial court would then evolve on whether the discharged employee sustained the burden of proof.

PALMORE, C. J., joins in this separate opinion.


author: LUKOWSKY, Justice. STEPHENSON, Justice,

text:
    Word Wood SIMPSON, Movant, v. Cynthia SIMPSON, Respondent.
    Supreme Court of Kentucky.
    July 3, 1979.

      Weldon, Shouse and William C. Shouse, Shouse, Houlihan & Burrus, Lexington, for movant.

      Natalie Wilson and David A. Bratt, Eblen, Milner, Rosenbaum & Wilson, Lexington, for respondent.
   LUKOWSKY, Justice.

The genesis of this appeal is an action for dissolution of marriage filed by Cynthia against her second husband, Word, in April of 1977. This was the second marriage for each of them and each had a child by a previous .marriage. In her amended petition Cynthia requested that the court grant her custody of her stepson, Hart Simpson or, in the alternative, visitation privileges. Hart was born during Word’s prior marriage. The trial court held that its jurisdiction had not been properly invoked on the custody issue and that a nonparent may not be awarded visitation. The Court of Appeals reversed the case on the visitation issue. We affirm the Court of Appeals.

The threshold issue is whether the trial court erred in holding its jurisdiction had not been properly invoked on the issue of custody. KRS 403.260(4)(b) provides: “A child custody proceeding is commenced in the circuit court: By a person other than a parent, by filing a petition for custody of the child in the county in which he is permanently resident or found, but only if he is not in the physical custody of one of his parents.” (emphasis added).

At the time Cynthia filed her amended petition requesting custody or visitation privileges Hart was residing with her and not with his father. After the amended petition was filed Word took the boy from his stepmother in an effort to defeat the court’s jurisdiction. Such an act of self help by a party can not be used to deprive the court of jurisdiction.

At the time of the filing, the amended petition and the residence of Hart with Cynthia were sufficient to vest the trial court with jurisdiction of the issue of custody. The trial court erred in holding that its jurisdiction had not been properly invoked.

Cynthia candidly admits that she can not prove that Word is an unfit parent. In order for her to obtain custody of Hart she would have had to prove two things: 1) it is in the best interest of the child to be in the custody of a nonparent, and 2) the custodial parent is unfit. Chandler v. Chandler, Ky., 535 S.W.2d 71, 72 (1975). Because Cynthia has admitted she can not prove Word is an unfit parent, we hold as a matter of law that Word is entitled to custody of Hart.

The pendent issue is whether the trial court erred in not holding a hearing to determine if it would be in the best interest of Hart to place a limit on the custody award to Word by granting Cynthia visitation privileges. Visitation is a limitation on exclusive custody to be granted where it is in the best interest of the child. Phillips v. Horlander, Ky., 535 S.W.2d 72 (1975). It should be granted to a parent or a person standing in loco parentis to a child in a jurisdictionally sound custody proceeding when it is in the best interest of a child to do so. See KRS 403.270(c); Phillips v. Horiander, supra; Taraboletti v. Taraboletti, 56 Ill.App.3d 854, 14 Ill.Dec. 350, 372 N.E.2d 155 (1978). KRS 403.320 does not prohibit the grant of visitation to nonparents who stand in loco parentis and are jurisdictionally capable of litigating custody. It merely guarantees that a non-custodial natural parent will not be denied visitation privileges unless it would seriously endanger the child. Uniform Marriage and Divorce Act Sec. 407, Commissioner’s Note (1971). A trial court as an incident to custody determination may grant visitation to such non-parents if it is in the best interest of the child.

“Visitation is not solely for the benefit of the adult visitor but is aimed at fulfilling what many conceive to be a vital, or at least a wholesome contribution to the child’s emotional well-being by permitting partial continuation of an earlier established close relationship.” Looper v. McManus, Okla. App., 581 P.2d 487, 488 (1978). A surrogate parent can be as devoted to and concerned about a child as a natural parent. The relationship which develops between a surrogate parent and a child can be as close as that of the child to a natural parent. Gribble v. Gribble, Utah, 583 P.2d 64 (1978); Looper v. McManus, supra; Spells v. Spells, 250 Pa.Super. 168, 378 A.2d 879 (1977); Hails, In Loco Parentis and The Relevant Child, 2 Orange Cty. B.J. 712, 715 (1975).

This is axiomatic where the nonpar-ent stands in loco parentis and has willingly assumed parental rights, duties and responsibilities toward the child. Gribble v. Gribble, supra; Spells v. Spells, supra. Where a nonparent alleges such a relationship has been established in a jurisdictionally viable custody action the court should hold a hearing to determine whether the granting of visitation privileges to the nonparent would be in the best interest of the child.

In this case there are some equities which point to Cynthia’s being granted visitation privileges. She acted as Hart’s mother from the time he was seventeen months old until he was removed from her care by his father almost six years later. While on the meager and incomplete record before us, we are unable to say she should be granted visitation privileges, the evidence certainly is sufficient to require a full hearing to determine whether granting of visitation privileges would be in the best interest of Hart.

The decision of the Court of Appeals is affirmed, the judgment of the Circuit Court is reversed and the cause is remanded to the trial court for further proceedings consistent with this opinion.

All concur except AKER and STEPHENSON, JJ., who dissent.

STEPHENSON, Justice,

dissenting.

The remarkable aspect of the majority opinion is that there is only a fleeting reference to the statutes applicable to custody and visitation. I believe even the majority would agree that for all practical purposes the General Assembly has enacted the Uniform Marriage and Divorce Act which includes the essential portions of the Uniform Child Custody Act. Thus, in matters of jurisdiction and options for child custody the court is bound by the provisions of the statutes. The sense of the majority opinion is couched almost in common law terms as if the court were free to choose in a policy matter. The remark in the majority opinion that the “visitation” statute does not prohibit the grant of nonparents who stand in loco parentis and are jurisdictionally capable of delegating custody is pure sophistry. The “visitation” statute does not prohibit the grant of visitation to baby sitters, nannies, housekeepers, Sunday school teachers and various others who may have formed close emotional ties with a child. The majority opinion disregards the statute and opens the door to the butcher, the baker and the candlestick maker to a right to a hearing on “visitation” rights. The phrase “and are jurisdictionally capable of litigating custody” is a red herring. By the terms of KRS 403.260(4)(b), the statute conferring jurisdiction, any person may file for custody of a child under the conditions set out in the statute. However, a nonparent must be prepared to show that the parent having custody is unfit.

I have no argument with the thesis that in view of the circumstances in this case it would be desirable that the stepmother continue a relationship with the child. However, there is not a word in the statutes or in the commissioner’s notes to the Uniform Acts that would even hint that the drafters or the General Assembly even considered the granting of visitation rights to a non-parent such as we have here.

It makes me very uncomfortable to see the majority of this court enacting statutes, which is the effect of the majority opinion.

We should leave the enacting of statutes to the General Assembly, where the function belongs, and faithfully enforce valid statutes so enacted without regard to personal opinions of what is most desirable.

The pertinent statutes dealing with this problem are as follows:

403.260. Custody — Jurisdiction, ' commencement of proceedings. — (1) A court of this state competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:
(a) This state is the home state of the child at the time of commencement of the proceeding; or
(b) It is in the best interest of the child that a court of this state assume jurisdiction because:
1. The child and his parents, or the child and at least one (1) contestant, have a significant connection with this state; and
2. There is available in this state substantial evidence concerning the child’s present future care, protection, training, and personal relationships; or
(c) The child is physically present in this state; and
1. Has been abandoned; or
2. It is necessary in an emergency to protect him because he has been subjected to or threatened with mistreatment or abuse or is neglected or dependent; or
(d) 1. No other state has jurisdiction under prerequisites substantially in accordance with paragraphs (a), (b) or (c) of subsection (1), or another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine custody of the child; and
2. It is in his best interest that the court assume jurisdiction.
(2)Except under paragraphs (c) and (d) of subsection (1), physical presence in this state of the child, or of the child and one (1) of the contestants, is not alone sufficient to confer jurisdiction on the court of this state to make a child custody determination.
(3) Physical presence of the child, while desirable, is not a prerequisite for jurisdiction to determine his custody.
(4) A child custody proceeding is commenced in the circuit court:
(a) By a parent, by filing a petition:
1. For dissolution or legal separation; or
2. For custody of the child in the county in which he is permanently resident or found; or
(b) By a person other than a parent, by filing a petition for custody of the child in the county in which he is permanently resident or found, but only if he is not in the physical custody of one of his parents. (Emphasis added.)
(5) Notice of a child custody proceeding shall be given to the child’s parent, guardian, and custodian, who may appear, be heard, and file a responsive pleading. The court, upon a showing of good cause, may permit intervention of other interested parties.
403.270. Custody — Best interest of child shall determine. (1) The court shall determine custody in accordance with the best interests of the child and equal consideration shall be given to each parent. The court shall consider all relevant factors including:
(a) The wishes of the child’s parent or parents as to his custody;
(b) TJhe wishes of the child as to his custodian;
(c) The interaction and interrelationship of the child with his parent or parents, his siblings, and any other person who may significantly affect the child’s best interests;
(d) The child’s adjustment to his home, school and community; and
(e) The mental and physical health of all individuals involved.
(2) The court shall not consider conduct of a proposed custodian that does not affect his relationship to the child. The abandonment of the family residence by a custodial party shall not be considered where said party was physically harmed or was seriously threatened with physical harm by his or her spouse, when such harm or threat of harm was causally related to the abandonment.
403.320. Visitation of minor child. — (1) A parent not granted custody of the child is entitled to reásonable visitation rights unless the court finds, after a hearing, that visitation would endanger seriously the child’s physical, mental, moral, or emotional health.
(2) The court may modify an order granting or denying visitation rights whenever modification would serve the best interests of the child; but the court shall not restrict a parent’s visitation rights unless it finds that the visitation would endanger seriously the child’s physical, mental, moral or emotional health.

The clear expressions of legislative intent contained in these statutes should control this case. The majority opinion however decides that a majority of the members of this court knows best and cheerfully amends statutes and enacts new legislation. There is nothing in the statutes or the commissioner’s notes to support the reasoning of the majority opinion. The term “the best interest of the child” is never used in the abstract, but always with reference to a parent.

Here the stepmother and the father separated; the father leaves the home; the child is not disturbed and is with the stepmother. At this point there is nothing to suggest that the stepmother could not continue her relationship with the child in an amicable fashion. The stepmother, however, was not satisfied to rely on some residue of goodwill or the probability that an amicable divorce would not interfere with her seeing the child. She was thinking of herself, not the child. She then filed an amended complaint based on KRS 403.-260(4)(b), asking for custody of the child. Of course we are told that she really does not desire custody for the reason there is no pretense that the father is unfit. We are told that she must ask for custody in order to secure what she really wants, that is “visitation rights.” It is amusing that the majority opinion attributes the father’s immediate reaction of removing the child from the stepmother as an effort to defeat the court’s jurisdiction and sets the seal of disapproval by the pious recitation that such an act of self-help cannot be used to deprive the court of jurisdiction. The majority attributes a great deal more subtlety to the father than I would. I suggest the father knew nothing of the statute, and the simple and more probable explanation is that he was outraged by the stepmother’s allegations in the amended complaint and acted accordingly.

There is no statutory provision providing for a separate action for visitation on the part of a nonparent where a parent has custody. The stepmother candidly admits that the request for custody was a subterfuge to place the visitation issue before the court, and the majority opinion places a seal of approval on a subterfuge to invoke jurisdiction. Perhaps I am unfair in this statement and the majority opinion merely enacts an amendment to the jurisdiction statute providing for such actions to determine visitation rights for nonparents.

The natural mother of this child already has visitation rights as contemplated by the statutes. According to the majority opinion, even if the stepmother here would not prevail at a hearing, the door is wide open. The father conceivably could spend all his time attending hearings to determine if some other person emotionally attached to the child should have “visitation rights.”

A clear principle of law that custody and visitation rights are the same is ignored by the majority opinion.

See 59 Am.Jur.2d, Parents and Child, § 45, p. 130:

The right of visitation derives from the right of custody and is controlled by the same legal principles. Thus, as in custody cases, the best interest and welfare of the child is the controlling consideration. And this dominant consideration cannot be subordinated to mere matters of convenience. There is no fundamental difference, except perhaps in degree, between the showing a parent must make to have custody and that he must make to be awarded the right of visitation; and the circumstances which work a forfeiture of the right also differ only in degree. A parent denied custody does not thereby lose his natural right to visit and be visited by his children, though the right may be denied if the best interests of the child so demand. And visitation privileges are ordinarily allowed such a parent, if it can be done without jeopardizing the welfare of the child. A court of general jurisdiction may determine such a parent’s right of visitation in the exercise of its equity powers. But where an award of custody to a nonresident or a person about to leave the jurisdiction has been determined upon, this conclusion has not been affected by the fact that the visitorial rights of the other parent would thereby be impaired or destroyed, since visitorial rights must give way when in conflict with the child’s welfare.
Parents who have custody have the right to determine with whom the child will associate.' Accordingly, where a parent or parents have custody, the court will not undertake to give visitation rights to a nonparent — a grandparent, for example — over the parents’ objection. But visitation rights are sometimes awarded to nonparents with the parents’ consent, or without serious objection by them, in which case they are then generally upheld against later or collateral attack.

98 ALR2d, Anno: Visitation Rights, § 2, p. 326, states:

When a parent has physical custody of a child, either by court decree or by operation of law (as upon the death of a spouse), and firmly resists any move by another person seeking authority to visit the child, the courts are unanimous in denying visitation rights.

See also Jackson v. Fitzgerald, 185 A.2d 724, 726 (D.C.App.1962): “The right to visitation derives from the right to custody.”

The authorities cited in the majority opinion generally are inapposite. Phillips involved a natural father of an illegitimate child; Taraboletti involved visitation rights of a mother. Neither case mentions by inference, or otherwise, any such rule of law holding that a nonparent could be considered to have a right to even litigate visitation rights. The other cases generally involve foreign jurisdictions at least in one case having a statute authorizing visitation rights by a nonparent.

The fact that the General Assembly has acknowledged stepparent-stepchild relationships in other areas, as pointed out in the footnote of the majority opinion, has an entirely different meaning to me. It would suggest to me that the General Assembly is aware of this fact of life, and had there been any intention to include nonparents in the jurisdictional aspects of the custody statute or the visitation statute the General Assembly would have so provided. After all, as pointed out in the footnote, it has been a subject of concern in other areas.

All in all the majority opinion is an example of complete disregard of applicable statutes.

The Court of Appeals mentions that one of the fastest developing fields of jurisprudence is that of domestic relations and that the law must be cognizant of the ever-changing needs of the citizens. This is a laudable expression of common law ideals on the subject; but, as the statutes control, it is an expression that should be addressed to the General Assembly. I would reverse the Court of Appeals and affirm the trial court.

AKER, J., joins in this dissent.

      . The converse is also true. A nonparent can not legitimately invoke the court’s jurisdiction on the issue of custody by seizing a child from a parent prior to filing a petition for custody.

      . The Legislature has acknowledged the significance of the stepparent-stepchild relationship in other areas. KRS 205.310 (stepparent has duty to support a stepchild); KRS 205.010(5) (stepparent included in the definition of parent); KRS 342.085(4) (stepparent included in the definition of parent under the workmen’s compensation law); KRS 40.010 (stepfather included in the definition of father under the veteran’s bonus statute).