text:
    Johnnie SIMMONS and Wilmer Lucas, Jr., Appellants, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Dec. 8, 1978.

      Jack Emory Farley, Public Defender, Mark A. Posnansky, Asst. Public Defender, Commonwealth of Kentucky, Frankfort, for appellants.
    Robert F. Stephens, Atty. Gen., Joseph R. Johnson, Asst. Atty. Gen., Frankfort, for appellee.
    Before HAYES, HOWERTON and LESTER, JJ.
   HOWERTON, Judge.

Simmons and Lucas appeal from a judgment of the Meade Circuit Court sentencing them to 30 days in the county jail and imposing a fine of $500.00 each for the crime of theft by unlawful taking. KRS 514.030. Appellants present two allegations of error. First, they contend that the trial court erred by failing to direct a verdict of acquittal when the Commonwealth offered insufficient evidence to corroborate the testimony of two accomplices who provided the only direct evidence of guilt. Appellants also contend that the court erred in overruling their motion requesting the court to furnish them with a transcript of testimony from an earlier mistrial. The motion was filed on January 9, 1978, and trial was held on February 6, 1978.

The appellants did not request a directed verdict at the close of all of the evidence. We are bound by Kimbrough v. Commonwealth, Ky., 550 S.W.2d 525 (1977), which held that the question of sufficiency of the evidence is not preserved for review unless the motion for a directed verdict is made or renewed at the close of all the evidence. Once the defense has come forward with its proof, a motion for a directed verdict can only be tested in terms of all of the evidence. Furthermore, if no motion is made at such time, it cannot be said that the trial judge has been given an opportunity to pass on the sufficiency of all of the evidence when it was finally submitted to the jury.

We have determined that a new trial should be granted, however, on the basis of the second allegation of error. The appellants’ first trial on the indictment ended in a mistrial. The indigent appellants were represented by new counsel on the retrial, and the motion for a transcript of evidence from the mistrial was summarily overruled by the trial judge. An affidavit in support of the motion alleged that the transcript was necessary to prepare a proper defense for the appellants. The motion was renewed at the conclusion of the Commonwealth’s evidence, when it appeared that some of the evidence might have been contradictory to that presented at the mistrial. This verbal motion at trial would have come too late for consideration, but under all of the circumstances in this case, the second motion adds some validity to the basis for the original pretrial request.

As to this issue, both sides rely on Britt v. North Carolina, 404 U.S. 226, 92 S.Ct. 431, 30 L.Ed.2d 400 (1971), in which the Court held that (1) an indigent is entitled to some form of the transcript of a mistrial in order to prepare for his new trial, but (2) any equivalent alternative to an actual transcript meets this requirement. It also appears that the burden of proof is on the Commonwealth to show the availability of some equivalent alternative. In this case, there was no showing by the Commonwealth or the trial court that any consideration was given to allowing the appellants to have any information regarding the mistrial. We, therefore, do not say that a transcript was necessary, but some alternative which would have given the appellants the desired information should have been provided. In Britt, the Court noted that because (1) the trial was only one month after the mistrial; (2) the attorneys knew the court reporter, and (3) the petitioner admitted that it would have been convenient to have simply asked the court reporter to read back any testimony he needed, a transcript was not required. In this case, we have no information in the record to indicate what was or could have been provided to satisfy the needs of the appellants.

For the foregoing reasons, the judgment of the trial court is reversed, and this case is remanded for further proceedings.

All concur.


source: Caselaw Access Project

author: WHITE, Judge.

license: Public Domain

text:
    Phyllis M. BECKER, Appellant, v. Marion W. BECKER, Appellee.
    Court of Appeals of Kentucky.
    Jan. 19, 1979.
    Melbourne Mills, Jr., Versailles, for appellant.

      Gardner L. Turner, Sturgill, Turner & Truitt, Lexington, for appellee.
    Before WHITE, HOGGE and VANCE, JJ.
   WHITE, Judge.

This is an appeal from the order of the Bourbon Circuit Court compelling appellant Phyllis Becker to convey to her former husband, appellee Marion Becker, a 60% interest in a house and lot in Odessa, Florida, pursuant to the final decree of dissolution of their marriage. The only question on appeal is whether a Kentucky court, by virtue of its in personam jurisdiction, has the power to compel a party to a divorce proceeding before it to convey real property located in another state.

In addition do dissolving the parties’ marriage, the decree entered February 7, 1977, also made a division of their property. Although the house and lot in Odessa, Florida, was solely in the name of Phyllis Becker, the court found it to be marital property and awarded a 60% interest to appellee and a 40% interest to appellant. After appellant refused to transfer to appellee the portion of the property awarded to him, he moved the court to compel her to convey his interest to him. On February 7, 1978, the Commissioner for Domestic Relations Matters in the Bourbon Circuit Court recommended that appellee’s motion be granted, and on April 17, 1978, the court confirmed and approved the Commissioner’s report and order, over appellant’s objection.

Appellant argues that a Kentucky court does not have the power to compel a party to a proceeding before it to convey real property located in another state. As supportive of this assertion, she merely cites the case of Fifer v. Fifer, 305 Ky. 701, 205 S.W.2d 479 (1947). However, a careful reading of Fifer, supra, discloses that the Court of Appeals never reached the question of a Kentucky court’s power to compel conveyance of out-of-state property, and therefore, we do not believe that Fifer sustains appellant’s position.

In Fifer, the divorce judgment awarded the wife contained no adjudication of property rights, other than the general provision for restoration of all property obtained directly or indirectly by one spouse from the other by reason of the marital relation. Although he did not contest the original judgment, the year after the divorce was granted, the husband asked the Kentucky court to require his wife to convey to him her interest in a farm located in Indiana. The circuit court granted the request on the basis that the wife’s property interest had been acquired by virtue of her marital relation with him. The Court of Appeals reversed, holding that as both parties had signed the purchase agreement, the question of whether the wife had assumed joint liability for the purchase price remained open, and thus until Indiana law regarding the wife’s liability had been considered, no attempt to compel the wife to convey her interest could be made.

Here, the circuit court undertook the task of adjudicating all property rights at the time the decree of dissolution was entered. If appellant had any doubts as to either the basis for or the propriety of the circuit court’s designation of the house and lot in Florida as marital property, she lost her opportunity to complain because she did not contest the decision within the time allowed. Thus, unlike Fifer, the threshold question of rights and liabilities in the Florida property has already been decided, thereby removing any impediment to a decision as to the power of a Kentucky court to compel a party to convey real property located in another state.

However, before reaching this question, we should note that appellant has made a belated attempt to question the trial court’s finding that the Florida holdings were marital property by noting that the title to the property was in her name only. Besides the untimeliness of this assertion, the validity of such a contention is brought into question by the provision in KRS 403.190(3) that when, as here, property is acquired after marriage but before a decree of legal separation, it is presumed to be marital property. In addition, the Court of Appeals, in Colley v. Colley, Ky., 460 S.W.2d 821 (1970), has stated that in determining the division of property, record title and possession are generally neither material nor important.

As regards the question of the power of a court to compel a party before it to convey real property located in another state, we believe that the United States Supreme Court firmly established such authority in Fall v. Eastin, 215 U.S. 1, 30 S.Ct. 3, 54 S.Ct. 65 (1909). There, the Court held that while it was clear that the disposition of real estate was to be governed by the law of the state where the land was situated, and that no decree or conveyance of property except by the party vested with title was effective beyond the jurisdiction of that court, a court of equity with in personam jurisdiction could, in the proper case, by virtue of its power over the person of a party, “ ‘compel him to act in relation to property not within its jurisdiction.’ ” 30 S.Ct. at 7. The Court further explained that such a “ ‘decree does not operate directly on the property nor affect the title, but is made effectual through the coercion of the defendant; as, for instance, by directing a deed to be executed or cancelled by or on behalf of the party.’ ” Id.. The Court pointed out that this authority stemmed from a limited but well-defined exception to the territorial limitation imposed on the courts of one state over the property of another state. This exception was defined thusly:

A court of equity, having authority to act upon the person, may indirectly act upon real estate in another state, through the instrumentality of this authority over the person. Whatever it may do through the party, it may do to give effect to its decree respecting property, whether it goes to the entire disposition of it or only to affect it with liens or burdens. 30 S.Ct. 6.

The Court also stated that while a decree pursuant to such power was not legal title, nor did it transfer legal title, obedience to it could be compelled by contempt, attachment, or sequestration.

Here, the Bourbon Circuit Court had personal jurisdiction over appellant. By virtue of this in personam jurisdiction, we are of the opinion that it had the authority and the power to indirectly affect the property by acting directly upon the person of Phyllis Becker in compelling her to convey a 60% interest in the property to Marion Becker.

The judgment is affirmed.

All concur.


author: PARK, Judge.

text:
    Janis K. VAUGHN, Mary C. Milby, Administratrix of the Estate of Aaron Wayne Milby, Deceased and Mary Charles Pepper, Appellants, v. Lee PERKINS, Administrator of the Estate of Lissie Perkins Pepper, Deceased, Appellees.
    Court of Appeals of Kentucky.
    Jan. 26, 1979.

      Morris Butler, Greensburg, James E. Bon-durant, Bondurant, Whitlow, Scott & O’Dell, Hodgenville, for appellants.
    Carl Howell, Howell & Howell, Hodgen-ville, for appellees.

      Before HOWARD, HOWERTON and PARK, JJ.

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

   PARK, Judge.

By a joint will executed with his wife, A. G. “Gid” Pepper bequeathed his entire estate to his wife, Lissie Perkins Pepper, for her lifetime. He also appointed Lissie executrix of his estate. After Gid’s death, Lis-sie treated a joint checking account and certain certificates of deposit as her own property rather than property passing to her as life tenant under the will. Following Lissie’s death, the plaintiffs-appellants, re-maindermen of Gid’s estate under the will, asserted a claim against the administrator of Lissie’s estate for the checking account and certificates of deposit. The sole question on appeal is whether the statute of limitations began to run on the appellants’ claim from the date of Lissie’s settlement as executrix or not until the date of Lissie’s death.

The circuit court held that limitations commenced to run on the date Lissie filed her final settlement as executrix of Gid’s estate. We disagree. We conclude that the remaindermen were not required to assert any claim to the funds until after Lissie’s death.

I

Gid and Lissie Pepper were married in 1961. It was the second marriage for both. They opened a joint checking account and acquired three certificates of deposit between January 1, 1965, and June 9, 1966. The joint account and certificates were issued in the names of “Mr. or Mrs. A. G. Pepper” and “Mr. or Mrs. Gid Pepper.” According to the remaindermen of Gid’s estate, most of the money placed in the account and certificates belonged to Gid before his marriage to Lissie.

On July 5,1966, Gid and Lissie executed a joint will containing the following provisions:

We, A. G. PEPPER AND LISSIE PERKINS PEPPER, husband and wife, of Buffalo LaRue county Kentucky, both being of sound mind and memory, do each mutually make this our last will and testament, in consideration of the other making his and her will, and agree that same cannot be changed without the consent of the other, in writing, in manner and form:
1. After payment of just debts and funeral expenses, all the property of each shall go to the survivor, for his or her lifetime. The survivor of us is named executor or executrix, as the case may be, to serve without bond.
2. The property of A. G. Pepper, after the death of Lissie Pepper, shall pass to Leonard Pepper, his son, one-half, and to Aaron W. Milby and Janis K. Milby, his grandchildren, one-half between them.
3. The property of Lissie Pepper after the lifetime of A. G. Pepper, shall pass to the heirs-at-law of said Lissie Pepper.
4. The survivor shall have the right to use the property of the other so devised herein, for his or her use and benefit, and as needed for such survivor’s support and maintenance, even to the extent of use of the principal of such property, and as deemed necessary, in the sole discretion of such survivor.

Gid died August 1,1967. The joint will was probated as Gid's will, and Lissie qualified as executrix.

On February 3,1968, Lissie filed her final settlement as executrix of Gid’s estate. The settlement was approved on March 25, 1968. In the settlement, Lissie did not charge herself as executrix with the checking account or certificates of deposit. However, the settlement did state:

Certain certificates of deposit and checking account, joint ownership of decedent and undersigned, were not assets in the hands of executrix, and title thereto passed other than by will.

There is nothing in the record to suggest that any of the remaindermen under Gid’s will had actual notice of the statement in the settlement respecting the joint account or certificates of deposit.

Lissie Pepper died on June 3, 1976. No one has offered the joint will of July 5, 1966, for probate as Lissie’s will. Her brother has qualified as administrator of Lissie’s estate. When Lissie’s administrator refused a claim by the remaindermen of Gid’s estate to the funds represented by the joint account and certificates of deposit, this action was commenced on January 14, 1977.

II

The trial court held that the statute of limitations began to run from the date Lissie made her final settlement as executrix of Gid’s estate, February 3, 1968. The trial court also held that the action was barred by the seven year statute of limitations provided by KRS 413.200. Even if limitations began to run with the filing of the settlement in 1968, the seven year statute of limitations would be inapplicable. By its own terms, the seven year statute applies only to claims based on a judgment against the decedent or on a contract made by the decedent. The statute does not apply to claims based on acts of the personal representative. See Cummins v. Kennedy, 13 Ky. (3 Litt.) 118, 121, 14 Am.Dec. 45 (1823).

An action to surcharge a personal representative’s settlement is considered to be an action for fraud or mistake governed by the five year statute of limitations provided by KRS 413.120(12) unless extended to a maximum of ten years by the savings provisions of KRS 413.130(3). Hall’s Adm’r v. Hall’s Ex’r, 265 Ky. 528, 97 S.W.2d 23 (1936); Godbey v. Milliken, 255 Ky. 788, 75 S.W.2d 345 (1934); see also 2 Russell and Merritt, Kentucky Practice: Probate Practice and Procedure § 1397 (1978 Pocket Part). The trial court recognized the possible application of the ten year limitation period provided by KRS 413.130(3). Citing the decision of this court in Skaggs v. Vaughn, Ky.App., 550 S.W.2d 574, 577 (1977), the trial court in this case held that Vaughn and Milby were not entitled to the benefit of the provisions of KRS 413.130(3) because the complaint failed to allege that any fraud or mistake in Lissie’s settlement could not have been discovered earlier by the exercise of ordinary diligence. If limitations commenced to run with the filing of the settlement, the trial court was correct in holding that the action was barred. The settlement was a matter of public record. No reason was offered why, by the exercise of ordinary diligence, the appellants could not have discovered that Lissie was claiming in her settlement that the checking account and certificates of deposit were not a part of Gid’s estate. Thus, any attack on Lissie’s settlement would be barred by the five year statute of limitations. KRS 413.-120(12); Hall’s Adm’r v. Hall’s Ex’r, supra.

The appellants contend that limitations did not begin to run until the date of Lissie’s death. Under the terms of the joint will, Lissie was life tenant of Gid’s entire estate. The appellants did not have actual notice that Lissie was claiming the funds as her own rather than under the terms of the joint will. As a general rule, limitations will not run against the remaindermen until the termination of the life estate, and the possession of the life tenant is not adverse to the remaindermen. Slack’s Ex’r v. Barrett, 290 Ky. 251, 160 S.W.2d 595 (1942); Shutt's Adm’r v. Shutt’s Adm’r, 192 Ky. 98, 232 S.W. 405 (1921); Thompson’s Ex’r v. Thompson’s Ex’r, 155 Ky. 323, 159 S.W. 831 (1913). On the other hand, Lissie’s administrator asserts that this is an action to surcharge Lissie’s settlement as executrix of Gid’s estate and that it is immaterial that Lissie was also life tenant under Gid’s will. Hall’s Adm’r v. Hall’s Ex’r supra; Wren’s Ex’r v. Wren’s Ex’x, 126 Ky. 704, 104 S.W. 737 (1907).

The basis of the appellants’ claim must be examined in order to determine whether limitations began to run when Lissie filed her settlement in Gid’s estate or not until Lissie’s death.

Ill

Because the joint checking account and certificates of deposit were in the name of “Mr. or Mrs. A. G. Pepper” and “Mr. or Mrs. Gid Pepper,” there was a rebuttable presumption that Gid and Lissie intended to hold the funds as joint tenants with surviv-orship rather than as tenants in common. Saylor v. Saylor, Ky., 389 S.W.2d 904 (1965); Maess v. Greenfield, Ky.App., 547 S.W.2d 777 (1977). The appellants contend that the terms of the joint will of July 5,1966, rebut any presumption of survivorship in the funds. According to the appellants’ theory of the case, the joint will expressed Gid’s intention to give Lissie only a life estate in his property with a remainder to the appellants at her death.

A joint will may constitute a contract between the parties to the instrument. The terms of a contractual joint will may be enforced by impressing a trust upon the estate of the survivor in favor of residuary legatees under the joint will. Tapp v. Reynolds, Ky., 383 S.W.2d 334, 336 (1964); Watkins v. Covington Trust & Banking Co., 303 Ky. 664, 198 S.W.2d 964, 966 (1947); see also Puckett v. Hatcher, Ky., 307 Ky. 160, 209 S.W.2d 742 (1948). The joint will executed by Gid and Lissie Pepper was clearly contractual. The joint will expressly provided that:

“We ... do each mutually make this our last will and testament, in consideration of the other making his and her will, and agree that same cannot be changed without the consent of the other, in writing . . .”

When Gid deposited funds in the joint name of Lissie and himself, Lissie became the third party beneficiary of the contract between Gid and the bank. Saylor v. Saylor, supra. We know of no reason why those contractual rights could not be modified by a contractual joint will if the parties so intended. See the Annotation, 85 A.L.R.3d 8, 63-68 (1978).

The appellants are asserting rights under the joint will which could not become pos-sessory until Lissie’s death. Furthermore, the appellants contend that the contractual joint will was intended to apply to all property owned by Gid and Lissie whether or not passing as a part of Gid’s probate estate. Consequently, Lissie’s settlement of Gid’s estate would not determine the extent of the appellants’ rights under the joint will. For these reasons, we conclude that this case should be governed by the principles set out in Shutt’s Adm’r v. Shutt’s Adm’r, supra, rather than those applied in Hall’s Adm’r v. Hall’s Ex’r, supra. We conclude that the appellants’ claim is not barred by the statute of limitations.

IV

We express no opinion on the merits of the case. Several issues remain to be decided by the trial court: the extent to which Gid’s separate funds were placed in the joint checking account and certificates of deposit; whether Gid intended a tenancy in common or a joint tenancy with survivor-ship by placing any of his funds in the joint name of Lissie and himself; and whether Gid and Lissie intended to alter their respective interests in the funds by the execution of the contractual joint will. Furthermore, we recognize that the joint will granted Lissie the right to consume so much of the principal of the property in which she had a life estate under the joint will as she in her “sole discretion” deemed necessary for her support and maintenance. The appellants would have no claim against Lissie’s estate for any portion of the funds which she may have expended for her support and maintenance.

The judgment of the circuit court is reversed for further proceedings consistent with this opinion.

All concur.

      . KRS 413.200 provides:
      No action against a personal representative who has settled his accounts and made distribution of the whole assets in his hands, on any judgment or decree against his testator or intestate, or on any contract made by him, shall be brought after the expiration of seven (7) years after the qualification of the representative.

      . KRS 413.120(12) provides:
      The following actions shall be commenced within five (5) years after the cause of action accrued:

      An action for relief or damages on the ground of fraud or mistake.

      .KRS 413.130(3) provides:
      In an action for relief or damages for fraud or mistake, referred to in subsection (12) of KRS 413.120, the cause of action shall not be deemed to have accrued until the discovery of the fraud or mistake. However, the action shall be commenced within ten (10) years after the time of making the contract or the perpetration of the fraud.


author: HOWERTON, Judge.

text:
    Norma Jean SULLIVAN, Appellant, v. Lawrence Alfred SULLIVAN, Appellee.
    Court of Appeals of Kentucky.
    Jan. 5, 1979.
    G. Phillip Deeb, Sr., Deeb & Deeb, Louisville, for appellant.
    W. Waverly Townes, Louisville, for appel-lee.
    Before HOWERTON, REYNOLDS, and VANCE, JJ.
   HOWERTON, Judge.

Norma Jean Sullivan contends that the trial court erred by failing to determine an amount of arrearages in child support and by concluding that the appellee, Lawrence Alfred Sullivan, was entitled to reduce his support payments by a percentage of the total amount as each of five infant children reached the age of majority.

The marriage of the parties was dissolved in 1969, and Lawrence agreed to pay to Norma “$60.00 per week as maintenance for the support of the five infant children to continue until further orders of this court.” In 1970, the first of the five children reached the age of majority, and Lawrence reduced the child support by one-fifth. Lawrence again reduced his support payments by one-fifth when the second child reached majority in May 1974. In September 1974, Norma sought an increase in child support for her three remaining minor children. The court authorized an increase from the current payments of $36.00 per week to the sum of $52.50 per week. In May 1976, Norma requested an increase in child support from $17.50 per week per child to $22.50 per week per child, but the court only raised the total amount from $52.50 per week to $55.00 per week. Norma did not seek any arrearages at either proceeding to modify the amount of child support. We also note that neither order modifying the amount of support increased the support payments to an amount equal to the original level of $60.00 per week, which was the agreed amount for support of five children. None of the orders, however, specified that the support payment was for individual children. The 1976 order read in part, “for support of the parties’ three infant children the sum of $55.00 per week . . . .” In September 1977, the appellant brought this action for arrearages dating back to the time when the appellee first reduced his payments.

Based on the foregoing history, the trial court concluded that the intent of the parties was to make the payments “per child per week.” The findings and conclusions are not clearly erroneous, nor is the order of the trial court an abuse of discretion, as has been argued by the appellant.

Appellant contends that Guthrie v. Guthrie, Ky., 429 S.W.2d 32 (1968), is controlling. The court refused to allow Guthrie to reduce his lump sum support on a per child basis in the absence of an agreement. However, in Guthrie the facts indicated that it was not until a suit was brought for child support arrearages that the ex-husband presented his theory for “per child” support payments. The ex-husband’s payments had been erratic and had not re-fleeted any intention of reducing payments as each child reached majority.

Appellant also cites Whitby v. Whitby, 306 Ky. 355, 208 S.W.2d 68 (1948), for the proposition that once support payments have accrued, the court cannot retroactively modify those payments. We find Whitby to be inapplicable. In the instant case, the court did not modify an agreement, but it interpreted what the parties apparently intended in their original agreement based on the actions of both parties.

The judgment of the circuit court is affirmed.

All concur.


text:
    Paul KEMPER, Appellant, v. Allen Barton COOKE, Jean Cooke, Leslie L. Jaggers, Jr., Sue C. Jaggers, Lonnie Warren, Christeen Warren, Doris Blaton, Clotilda Borders, Paul Wirth, Wanda Wirth, Robert Skaggs, Lydia Skaggs, H. R. Tharpe, Katherine Tharpe, and Hardin Fiscal Court, Appellees.
    Court of Appeals of Kentucky.
    Jan. 5, 1979.

      James T. Kelley, Elizabethtown, for appellant.
    Carl Howell, Jr., Howell & Howell, Hod-genville, for appellees, Tharpe and Tharpe.
    Paul M. Lewis, Lewis, Bland, & Preston, Elizabethtown, for appellees, Cooke, Cooke, Jaggers, Jr., Jaggers, Martin, Martin, Warren, Warren, Blanton, Borders, Wirth, Wirth, Skaggs, and Skaggs.
    Dwight Preston, Hardin County Atty., Elizabethtown, for appellee, Hardin Fiscal Court.
    Before HOWERTON, REYNOLDS, and VANCE, JJ.
   HOWERTON, Judge.

Kemper sought a mandatory injunction in order to remove an obstruction on Dee Street in Hardin County, Kentucky. The obstruction had been placed by the appel-lees at the end of the street where it would otherwise connect with old Highway 31-W. The appellees are all property owners in the subdivision wherein Dee Street is located, and Kemper is a member of a church located at the intersection of Dee Street and old 31-W.

Kemper takes issue with the two primary conclusions reached by the trial court, namely (1) that Dee Street is not a public street, and (2) that Kemper, as a private citizen, has no standing to contest the obstruction. We agree that the dismissal of the complaint was correct on the basis either conclusion. of

The findings of the trial court have not been challenged as being clearly erroneous or as being unsupported by the evidence. The following is a summary of the findings. In 1966, H. R. Tharpe recorded a plat for a subdivision to be known as Royal Oaks. The property was located approximately three miles south of Elizabethtown and between the new and old U.S. Highway 31-W. In 1968, a supplementary plat was recorded which dedicated Dee Street all the way from new 31-W to old 31-W. Seven lots were sold which fronted on Dee Street, and the owners of the lots are appellees herein together with the subdividers and the Hardin County Fiscal Court. The New Hope Baptist Church lies outside the subdivision, but is located at the intersection of Dee Street and U.S. Highway 31-W.

When the subdivision was originally opened, there was no exit from Dee Street to old 31-W. In 1970, a tile was placed in a ditch along the right-of-way of old 31-W, and traffic was permitted to move to and from Dee Street and the old highway. In July 1976, the appellee, Allen Cooke, with the cooperation and assistance of the other residents on Dee Street, removed the tile and barricaded the end of Dee Street.

This action was initiated by the trustees of the New Hope Baptist Church, but thereafter, the Church and its trustees withdrew as plaintiffs. Kemper, a member of the church, remained as the sole plaintiff, claiming injury due to the closing of the street because he would be required to drive approximately one mile farther each time he drove to his church.

Dee Street has never been taken into the county road system, nor has the Hardin County Fiscal Court exercised any control or performed any maintenance on the street. At this time, the fiscal court has no desire to accept the street for maintenance and control, but would consider accepting the street, if it was constructed and surfaced in a manner sufficient to meet the county’s specifications.

The subdivider dedicated the property for purposes of establishing a street in the subdivision, but there is no evidence that he has any present obligation to construct the street in a manner which would be acceptable by the county. The residents of Dee Street requested that Dee Street be categorized as a private street for the use of its residents and such members of the public as may be going to the property of the residents, or in the alternative to require the county to accept Dee Street as part of the county road system and to thereafter maintain it as a public way.

Kemper first argues that the court erred in holding that Dee Street was not a public way. A definition for “county roads” appears in KRS 178.010(l)(b), and it reads in part, “ ‘County roads’ are public roads which have been accepted by the fiscal court of the county as part of the county road system. . . .” KRS 178.080 provides for the establishment of public roads by petition. A street may be dedicated to public use by approval of the planning commission and recording of a plat pursuant to KRS 100.277 and 100.283, but it must still be accepted by the fiscal court through the procedures in chapter 178 before it becomes a street which is open for the use of the public generally. Acceptance by the county is not mandatory. Louisville and Nashville Railroad Company v. Engle, 278 Ky. 576, 129 S.W.2d 133 (1939), and Illinois Central Railroad Company v. Hopkins County, Ky., 369 S.W.2d 116 (1963).

It is clear that the subdivider dedicated the street for public purposes. The property in the dedicated area no longer belongs to any individual. The dedicated area cannot be closed in such a total manner as to have the property revert to the abutting landowners except by action brought in the circuit court. The dedicated way has not, however, reached the point where it has become part of the public system which is to be maintained by the public. The only way the abutting property owners would have any obligation to pay for the cost of constructing and opening a public way on Dee Street would be through a governmentally enforced improvement project as allowed by statute. Otherwise, the property owners are free to construct and maintain the quality of a common way in the manner they see fit for their own use and for the use of those who will travel the way to visit them.

We have reviewed the cases cited by Kemper regarding the dedication of public ways. They relate to plats, intent, long-term use and irrevocability. We do not disagree with the authorities cited; but we find all of them to be distinguishable or inapplicable to the facts in this case. See, Cassell v. Reeves, Ky., 265 S.W.2d 801 (1954); Schneider v. Jacob, 86 Ky. 101, 5 S.W. 350 (1887); Potter v. Citation Coal Corp., Ky., 445 S.W.2d 128 (1969); Brewer v. City of Mayfield, 231 Ky. 356, 21 S.W.2d 436 (1929); and Salyers v. Tackett, Ky., 322 S.W.2d 707 (1959). If the street had been left open, Kemper would have been able to use it, but in order to force a removal of the obstruction, he will need the cooperation of either an abutting property owner or the county fiscal court.

Kemper argues that he has standing to sue, because he incurred special damages caused by the obstruction of Dee Street and that he was forced to take a circuitous route to his place of worship. In order for Kemper to have standing, he must be able to show that the damages he suffered because of the obstruction were different from those suffered by the public as a whole. The difference must not only be in degree, but also in kind. Husband v. Cotton, 171 Ky. 177, 188 S.W. 380 (1916). Kemper contends that Husband should apply in his favor, because his injury is no different from an injury suffered by others who have to take a more circuitous route to their own property. The facts in Husband are distinguishable from those in this case, however. In Husband the plaintiff’s injury was the obstruction of ingress and egress from his own property. The injury was special and peculiar to that property owner. Kemper does not own any property abutting the obstructed street, and his ingress and egress from his own property is not affected. He has access to his church property, and the church and its trustees no longer seek removal of the barrier.

The judgment of the circuit court is affirmed.

All concur.


text:
    SOUTHEASTERN DISPLAYS, INC. and William R. Vaughn, Appellants, v. LOUISVILLE & JEFFERSON COUNTY BOARD OF ZONING ADJUSTMENTS, Jefferson County Department of Building Inspection, and Mike Ward, Appellees.
    Court of Appeals of Kentucky.
    Jan. 5, 1979.

      I. G. Spencer, Jr., Louisville, for appellants.
    Alex F. Talbott, Louisville, for appellees.
    Before HOWERTON, REYNOLDS, and VANCE, JJ.
   HOWERTON, Judge.

This appeal is from a judgment of the Jefferson Circuit Court affirming a decision of the Louisville and Jefferson County Board of Zoning Adjustment upholding a cease and desist order issued against the appellants for the nonconforming use of their property in a C-l zone by having a warehouse and storage yard. Appellants contend that the Board erred by concluding that (1) the storage of materials was not an accessory use to the primary use as a sales office, (2) that there was insufficient evidence to support the Board’s findings, and (3) the cease and desist order should have been limited to the exterior storage.

The structure in question was built in two stages. The original building was a small frame structure with a brick veneer, and according to the appellants, this is office space. Immediately to the rear of the office building is a somewhat larger storage building which is used to house the materials that Southeastern uses in its outdoor sign business. From the photographs introduced into evidence, it is also clear that the yard area was used to store some of the sign material.

The first issue the Board was faced with was whether Southeastern’s primary use of the property was as a sales office or as storage space for its material. Testimony was given by a zoning enforcement officer that on six occasions when he visited the property he never saw anyone working in the office. Mr. Spencer, counsel for appellants, testified that, “Insofar as utilization of the office premises, it’s utilized for storage, records, and business equipment. It is also used by the salesman for Southeastern who does his business from this location . .” The Board concluded that the premises were used primarily as storage and warehouse facilities and only incidentally as office space. Because the area is zoned C-l, which does not permit storage or warehouse operations as primary uses, the Board concluded that appellants were in violation of the zoning regulations.

Appellants contend that storage of the sign material and equipment is necessarily incidental to the sales office. However, as appellees have argued, the simple fact that an office is maintained does not qualify a structure for C-l zoning. If it did, there would be no distinction between commercial enterprises with offices and industrial enterprises with offices. For the purpose of zoning regulations, distinctions must be drawn between primary and incidental uses, and in this case we agree that the Board drew the correct distinction.

Appellants’ next contention is that there was insufficient evidence to support the Board’s finding that the primary use of the property was a warehouse. Our review is limited to determining whether the evidence was of relevant consequence, having the fitness to induce conviction in the minds of reasonable men. Kentucky State Racing Commission v. Fuller, Ky., 481 S.W.2d 298 (1972). The testimonies of the zoning enforcement officer and Mr. Spencer, and the photographs submitted at the public hearing, provided substantial evidence for the Board to find that the primary use of the property was for storage.

Appellants’ final argument is that, assuming that there was substantial evidence to support the cease and desist order as to the exterior storage, there was insufficient evidence to support the order as to the interior storage. No photographs were taken of the interior of the structures, but the testimony of the zoning enforcement officer and Mr. Spencer provided substantial evidence as to the use of the interiors in order for the Board to find that the primary use was for storage. The cease and desist order need not have been limited to the exterior storage areas.

During oral argument our attention was called to the recent decision in Board of Adjustments of the City of Richmond, Kentucky, et al. v. Flood, et al, Ky., 25 Ky. L.Summ. 15 (November 21, 1978), which went so far as to hold that joinder of the local planning commission in all appeals from decisions of a board of adjustment is essential for a circuit court to acquire jurisdiction of the appeal. The question of lack of jurisdiction was never mentioned by either party until this final stage of the litigation, but the question of jurisdiction may be raised at any time. Perhaps our proper course should be to dismiss the appeal rather than affirm the judgment, but the result to the appellant is the same.

The judgment of the circuit court is affirmed.

All concur.


author: VANCE, Judge.

text:
    RIVERSIDE INSURANCE COMPANY, Appellant, v. Ezra McDOWELL, Jr., Individually and Ezra McDowell, Jr., as Administrator of the Estate of Kent Allen McDowell, Deceased, Appellees.
    Court of Appeals of Kentucky.
    Jan. 5, 1979.

      Charles E. Moore, Owensboro, for appellant.
    Tommy W. Chandler, Providence, for ap-pellees.
    Before HOGGE, VANCE and WHITE, JJ.
   VANCE, Judge.

The question is whether an insurer may recover from its insured benefits paid to the insured under a mistaken impression that such payments were required by law.

Kent Allen McDowell, infant child of appellant Ezra McDowell, Jr., was injured when struck by an automobile operated by Glenda Head. Mrs. Head’s insurer, Meridian Mutual Insurance Company, paid basic reparation benefits for losses sustained by appellee in the amount of $10,000.00. The medical expenses quickly mounted to more than $20,000.00 and appellant, under the mistaken impression that Kentucky law imposed upon it an obligation to pay $10,-000.00 in basic reparation benefits in addition to the $10,000.00 already paid by Meridian Mutual, made an additional payment of $10,000.00 to appellee and sought subro-gation from Meridian Mutual.

Appellant then became aware that KRS 304.39-050(3) prohibits the recovery of basic reparation benefits from more than one ob-ligor. It instituted this action to recover the money mistakenly paid to appellee. The case was submitted for judgment upon the stipulated facts, and the trial court dismissed the complaint. We reverse.

Although some jurisdictions hold that payments voluntarily made by an insurer under a mistake of law or fact cannot be recovered because the insurer is deemed to have assumed the risk of payment, the law is to the contrary in Kentucky. Phoenix Indemnity Co. v. Steiden Stores, Ky., 267 S.W.2d 733 (1954); Supreme Council, Catholic Knights of America v. Fenwick, 169 Ky. 269, 183 S.W. 906 (1916).

Appellee contends that the enactment of the “no-fault” insurance law renders the decisions in Steiden and Fenwick inapplicable. In the statement of policy and purpose, KRS 304.39-010, we find that the act was designed to promote prompt payment of claims and to reduce the need to resort to litigation. We see nothing in the act which mandates or even suggests a reversal of the policy established in this state by the decisions in Steiden and Fen-wick.

We find no basis upon which appellant can be estopped to maintain its claim. The elements of equitable estoppel are outlined in Smith v. Howard, Ky., 407 S.W.2d 139 (1966) and Electric and W. P. Board of Frankfort v. Suburban A. D., Inc., Ky., 513 S.W.2d 489 (1974).

In this case there was no misrepresentation by appellant or lack of awareness by appellee of the real facts and no action by appellee in reliance upon representations of appellant which changed appellee’s position to his prejudice.

The appellee has received from appellant $10,000.00 which he had no legal right to collect and which was paid as a result of a mistake as to the law. There is no contention that the payment was in compromise of a disputed claim. The appellant is entitled to recover from appellee the payments it mistakenly made to appellee for basic reparation benefits.

The judgment is reversed with direction that a new judgment be entered in conformity with this opinion.

All concur.


author: HAYES, Judge.

text:
    Edwin COOK, Appellant, v. BOARD OF EDUCATION OF CARTER COUNTY, Kentucky, and Harold L. Holbrook, Superintendent of the Carter County Schools, Appellees.
    Court of Appeals of Kentucky.
    Jan. 5, 1979.
    Arthur L. Brooks, Lexington, for appellant.
    Henry R. Wilhoit, Jr., Wilhoit & Wilhoit, Grayson, for appellees.
    Before HAYES, HOWARD and PARK, JJ.
   HAYES, Judge.

This is an appeal from a judgment of the Carter Circuit Court holding that appellant had not suffered a “reduction in salary” under KRS 161.760(2) and was thus not entitled to the notice scheme provided by that section. Appellant’s claim was dismissed with prejudice and he appeals, asserting that KRS 161.760(2) is applicable to the case.

The trial court found that appellant was employed as “head teacher” of Lawton Elementary School during the 1974-1975 school year. The position of head teacher required that appellant assume responsibilities in addition to those of a classroom teacher. Appellant received extra compensation for his duties as head teacher. The court also found that during this period appellant’s only certification was as a teacher; he did not possess the necessary qualifications to be a principal.

A letter, dated May 9, 1975, and signed by appellee Holbrook in his capacity as school superintendent, was sent to appellant notifying him that he would not be reemployed as Lawton’s head teacher for the 1975-1976 school year. In July of 1975, appellant was reassigned to Star Elementary School as a classroom teacher. The extra compensation appellant had received as a head teacher was eliminated. ,

On January 1, 1976, appellant filed a complaint in the Carter Circuit Court alleging that his transfer to Star was invalid because his notification thereof did not conform to KRS 161.760(2). Appellant sought reappointment as a head teacher, recovery of extra compensation lost by the reassignment, and traveling expenses to Star. KRS 161.760(2) states:

Upon recommendation of the superintendent and approval of the board of education reduction of responsibility for a teacher may be accompanied by a corresponding reduction in salary; Provided That written notification setting forth the specific reason or reasons for such reduction shall be furnished the teacher not later than May 15.

The threshold question in this case is whether a loss of additional compensation due to reassignment constitutes a “reduction in salary”. If it does, the requirements óf the above statute must be satisfied.

Appellant’s basic contention on this issue is that the term “salary” means total pay and not base salary. Appellees, on the other hand, argue that the term means base salary. Therefore, say appellees, since appellant is certified only as a classroom teacher, and since he is still receiving the salary of a classroom teacher, there is no “reduction in salary”.

There appears to be no Kentucky case specifically addressing this issue. However, Bd. of Educ. v. Lawrence, Ky., 375 S.W.2d 830 (1963), cited by appellant, lends credence to the proposition that “salary” means total pay. Although Lawrence was decided prior to the enactment of the current KRS 161.760(2), the court rejected an argument that the phrase “single salary” under the Minimum Foundation Law meant base salary. Id. at 831. On point with the instant case, the Court noted: “[T]he law recognizes that teachers given extra responsibilities or duties, such as those of principal, may be allowed extra compensation therefor.” Id.

Appellees rely heavily on Snapp v. Deskins, Ky., 450 S.W.2d 246 (1970), for the proposition that appellant’s transfer was not a salary reduction. An examination of the Snapp decision, however, discloses that the case does not support so broad an application. In Snapp, several plaintiffs were transferred after a new school superintendent took office. One such transfer involved almost the same situation as the case at bar in that the head teacher of an elementary school was transferred to the position of classroom teacher at a different elementary school. In Snapp, supra, at 248, the Court stated: “None of the transferred appellants was given any reduction of salary by reason of the transfer.” Appellees urge that this phrase means that there is never a salary reduction by virtue of such a transfer. However, a close examination of the case reveals that no actual loss of compensation was alleged. Thus the quoted phrase may mean that the plaintiffs were transferred at the exact same pay rate they received prior to the transfer. If so, it seems that Snapp, supra, supports appellant’s contention that loss in total pay due to a transfer would fall under KRS 161.760(2). In any event, it seems clear that Snapp merely stands for the idea that a transfer is not in and of itself a reduction in salary.

Appellees appear to argue that the “reduction of responsibilities” of KRS 161.-760(2) means “reduction of those responsibilities for which the teacher is certified.” In support of this contention, appellees cite to the language of Bd. of Educ. v. Lawrence, supra, at 831:

KRS 161.760 [amended in 1964] says in effect that if a teacher having continued service status has been entrusted with a position of extra responsibility which carries extra compensation above the base salary, she shall be deemed to possess such experience, training and other qualifications as to command the higher pay, and is entitled to continue to receive the higher compensation by reason of such qualifications without regard to whether she continues to be assigned extra duties.

This language, argue appellees, means that unless one is certified for the additional responsibilities there can be no “reduction in salary” when the duties and compensation therefor are eliminated. However, appellant has also cited the Lawrence decision, supra, and it appears that the case is more supportive of his position. In the first place, appellant was not paid to be a principal, but to discharge the additional duties of head teacher. Apparently, no certification other than that of classroom teacher is necessary for such a position. The Lawrence case, supra, means that the appellant is deemed to be qualified as head teacher inasmuch as he was employed in that position. Further, although appellees are correct in asserting that most of the cases on the issue involve teachers who were certified as principals, it should be noted that in those cases the plaintiffs were hired as principals and not as head teachers.

A question may arise as to whether continuing service status as a teacher entitles one to statutory protection of a position involving duties beyond that of a classroom teacher. It appears, however, that such protection is clearly contemplated by the language of KRS 161.760(2). For example, KRS 161.760(1) speaks in terms of a reduction of “extra service, administrative and/or supervisory duties and responsibilities.” Further, Bd. of Educ. v. Garner, Ky.App., 556 S.W.2d 453 (1977), involved a teacher who had incurred a reduction in salary when his position as math and science coordinator was abolished. Although Garner had held the coordinator position for only two (2) years, this Court affirmed the trial court’s decision that the board failed to comply with KRS 161.760(2). See also, Bd. of Educ. v. Stephens, Ky., 449 S.W.2d 421 (1970).

Finding that appellant did suffer a “reduction in salary” is dispositive of this appeal. First, the board minutes herein do not reflect that the appellant’s reduction in salary was upon recommendation of the superintendent as required by KRS 161.760(2). Since the board may speak only through its minutes, e. g. Commonwealth v. Ford, Ky., 444 S.W.2d 908 (1969), the reduction is void. Bd. of Educ. v. Garner, supra.

It should be noted that the board action on appellant’s transfer is dated June 27, 1975. There is nothing in the record showing board action on removal of appellant from the head teacher position prior to that date although appellant received notification of removal by letter dated May 9,1975. Appellant received a second letter, dated July 1, 1975, informing him of the June 27th action.

The notification letters sent to appellant present an alternative ground for holding his reduction in salary invalid. KRS 161.760(2) requires that the teacher be given specific reasons for his or her salary reduction “not later than May 15.” Because of the time limitation in the statute, only the May 9th letter need be discussed.

This letter fails to conform to the statute in two respects. First, the letter failed to set out a reason for appellant’s removal as head teacher. Secondly, appellant was not notified that his removal would also result in a loss of the additional compensation. Bd. of Educ. v. Stephens, supra. Thus the notice was ineffective.

Appellees assert, and the trial court found, that the reason for appellant’s transfer and salary reduction was that a certified principal had been located for Lawton. The trial court also found that the administrative regulations of the State Board of Education required the appellee board to place a certified principal at Lawton in 1974-1975. While this may have been a compelling reason for appellant’s transfer, it does not excuse noncompliance with the statute. All that is required by KRS 161.-760(2) is that the superintendent recommend a reduction in pay and that appellant be notified of that fact, and the reasons therefor, prior to May 15th. Appellees could have complied with both the statute and the regulation by giving proper notice in 1975. See, Snapp v. Deskins, supra.

The judgment of the trial court is reversed with directions that judgment be entered for appellant for that sum of money lost as a result of the reduction in his pay.

All concur.

      . The record indicates Cook actually received more money after he was transferred to Star Elementary. However attorney for appellee school board stated at oral argument that he was not relying on this fact, for Cook would have received even more at Star Elementary had there been the same responsibilities he had at Lawton.


author: GANT, Judge.

text:
    BROOKS ERECTION CO., Movant, v. WILLIAM R. MONTGOMERY & ASSOCIATES, INC., Respondent.
    Court of Appeals of Kentucky.
    Jan. 12, 1979.

      Ronald G. Sheffer, King, Deep & Brana-man, Henderson, Peper, Martin, Jensen, Maichel & Hetlage, St. Louis, Mo., for mov-ant.
    Warren B. Miller, Dixon, Frank L. Pelle-grini, William T. Weidle, Jr., St. Louis, Mo., for respondent.
   OPINION AND ORDER

Before GANT, HOWERTON and REYNOLDS, JJ.

GANT, Judge.

This action was a motion pursuant to CR 65.07 to dissolve a temporary injunction in which the sole question is whether the courts of Kentucky are required to abate an action filed in this state for the reason that a similar action has been filed in another state prior to the commencement of the action in Kentucky which involves the same parties and the same subject matter.

The facts disclose that the respondent, William R. Montgomery & Associates, Inc., and movant, Brooks Erection Co., occupied the relationship of contractor and subcontractor (they were actually a subcontractor and his subcontractor but the former is more simple and definitive). They are both Missouri corporations and the contract was entered into in Missouri. The contract was to be performed in Webster County, Kentucky, and it is admitted in this appeal that Missouri and Kentucky had concurrent jurisdiction.

On November 9,1978, the contractor notified the subcontractor that pursuant to the contract it had elected to declare default and take over the job on the grounds of nonperformance. On November 11, the subcontractor obtained a restraining order in the St. Louis County (Missouri) Circuit Court prohibiting this action by the contractor, the latter subsequently filing an application for a writ of prohibition and a motion for a stop order in the Missouri Court of Appeals. The writ of prohibition was denied and the same application and motion were filed in the Missouri Supreme Court on November 15,1978. That court issued a stop order directing the circuit court to take no action during consideration of the application for the writ of prohibition. While this stop order was in effect, the contractor filed action for and received a temporary restraining order prohibiting the subcontractor from work on the project, this action being in the Webster County (Kentucky) Circuit Court. On November 20, after a full hearing on a motion to dissolve the temporary restraining order filed by the subcontractor and a motion by the contractor for a temporary injunction, which hearing was on the merits with both sides presenting proof, the motion to dissolve was denied and the temporary injunction was granted prohibiting the subcontractor from working under the contract. In this action in the Webster Circuit Court, the subcontractor asked the court to abate the Kentucky proceedings on the grounds of the former action in Missouri, which motion was denied by the Kentucky court. The temporary injunction was entered November 21, 1978, and on the same date the Supreme Court of Missouri withdrew its stop order and denied the writ of prohibition. On December 1, 1978, the St. Louis County Circuit Court again issued a temporary restraining order against the contractor and the subcontractor filed this motion to dissolve the temporary injunction of the Webster Circuit Court pursuant to CR 65.-07. The contractor applied for a second writ of prohibition against the Missouri Circuit Court order and was granted a stop order by the Missouri Supreme Court the day after oral arguments on the motion of the subcontractor were heard before this Court.

We think that the law is well settled that a second action based on the same cause will generally be abated where there is a prior action pending in a court of competent jurisdiction within the same state, between the same parties, involving the same or substantially the same subject matter and cause of action, and in which prior action the rights of the parties may be determined and adjudged. This principle has been clearly enunciated in Delaney v. Alcorn, 301 Ky. 802, 193 S.W.2d 404 (1946), and in Akers v. Stevenson, Ky., 469 S.W.2d 704 (1970).

However, a different problem arises when the prior action is pending in another state. The law in this instance is best set out in an annotation contained in 19 A.L. R.2d 305, in which we find the following statement:

This principle, however, does not hold true in the case of a pending action in another jurisdiction, it being uniformly held that the pendency of another action in another jurisdiction, though between the same parties and upon the same cause of action as the one subsequently instituted at the forum, is not a bar or ground for abatement of the later action at the forum. This is true even though a foreign court in which the prior action was commenced had complete jurisdiction of the parties and of the action.

Also in 21 C.J.S. Courts § 548, cited with approval in Wilson v. Wilson, Ky., 511 S.W.2d 201 (1974), we find the following:

The pendency of an action in the courts of one state or country is not a bar to the institution of another action between the same parties and for the same cause of action in a court of another state or country, nor is it the duty of the court in which the latter action is brought to stay the same pending a determination of the earlier action, even though the court in which the earlier action is brought has jurisdiction sufficient to dispose of the entire controversy. Nevertheless, sometimes stated as a matter of comity, not of right, it is usual for the court in which the later action is brought to stay proceedings under such circumstances until the earlier action is determined .

Thus, we find that the general law, as hereinabove stated, is that there is no duty upon the court to grant a plea of abatement where a prior action has been filed in another state but that it is discretionary only. This principle has been set out in the cases of Salmon v. Wootton, 39 Ky. Reports (9 Dana) 422 (1840), and Davis v. Morton, Galt & Co., 67 Ky. Reports (4 Bush) 442 (1868).

It is clear that the Missouri action had not reached the stage at which res judicata would apply and therefore require full faith and credit. Even had this been a temporary injunction, it would not be a final adjudication on the merits of the case. See Oscar Ewing, Inc. v. Melton, Ky., 309 S.W.2d 760 (1958).

The Webster Circuit Court having exercised its discretion in denying the plea of abatement in behalf of the movant, having jurisdiction over the parties and the subject matter, and having held a hearing on the merits of this case at which all parties were permitted to introduce evidence, the Kentucky court having been a convenient forum in which the factual determination might properly be made and records were available and the court being sufficiently advised, it is ORDERED that the motion to dissolve the temporary injunction under CR 65.07 be and the same is hereby DENIED.

All concur.


text:
    William Lee SNAWDER, Appellant, v. Harlan STICE and Larry D. Stice d/b/a Stice Brothers and Workmen’s Compensation Board, Appellees.
    Court of Appeals of Kentucky.
    Jan. 12, 1979.

      J. Wood Vance and Thomas W. Davis, Vance & Davis, James E. Gillenwater, Glasgow, for appellant.
    Robert W. Dickey, Bowling Green, for appellees.
    Before HAYES, PARK and REYNOLDS, JJ.

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

   PARK, Judge.

This is an appeal from a judgment of the Barren Circuit Court affirming a decision of the Workmen’s Compensation Board which found that the employee-appellant, Snawder, had suffered no permanent occupational disability as a result of the work-related injury which was the subject of his claim. Two issues are raised by the appeal. First, did Snawder’s failure to file a petition for reconsideration under KRS 342.281 limit the scope of judicial review? Second, was the board’s decision to deny Snawder’s claim for permanent disability benefits clearly erroneous? We affirm.

I

William L. Snawder was employed by Stice Brothers as a garbage collector when he was injured in a work-related accident on November 15, 1974. He had worked for Stice Brothers for four years at the time of the accident. His job consisted of picking up garbage, throwing it into a bin on the back of the truck, and operating the mechanism which pushed the garbage up into the truck bed. His wages were approximately $100 per week.

Snawder was loading the truck on November 15 when a portion of the mechanical apparatus attached to the rear of the truck struck his back temporarily paralyzing his arms and legs. He was taken to Caverna Hospital at Cave City, Kentucky, where he was examined but not admitted. After a period of convalescence, he returned to work on December 6, 1974, and continued to work until approximately May 28, 1976.

On May 7, 1976, Snawder was driving near Glasgow, Kentucky, when he lost control of his vehicle and was involved in a traffic accident. Although the evidence indicates that the automobile turned over several times, Snawder insists that he suffered no appreciable injury as a result of this accident. His testimony is buttressed by the testimony of State Trooper Anthony Clemons who was present at the scene of the accident and who testified that Snaw-der’s only visible injury was a “skinned place on his forehead.” Snawder was not admitted to any hospital for treatment as a result of any injury sustained in the accident, and he missed no work as a result of the accident.

On May 28, 1976, Snawder was sitting at home watching television when he became nauseated and began to feel a numbness over his body. He continues to experience numbness accompanied by periods of pain in his back and lower extremities. He states that he has been unable to lift or bend since that time and has not been able to return to work. He filed a claim with the Workman’s Compensation Board on August 4, 1976, alleging that he has suffered disability as a result of his work-related accident on November 15, 1974.

The board heard the testimony of three physicians who had examined Snawder after his claim was filed. Dr. G. P. Peterson, Snawder’s family physician and the treating physician for the 1974 injury, diagnosed his condition as a low back sprain of indefinite duration with a resulting functional disability rating of 15 to 20% to the back. Snawder was also referred to Dr. Armand Fischer of Louisville who diagnosed his condition as a back sprain and low grade disc lesion with a functional disability rating of 10% to the body as a whole. Dr. Fischer also testified that Snawder would no longer be able to do manual labor. Apparently, both Drs. Peterson and Fischer attributed Snawder’s present condition to his 1974 work-related injury. However, the evidence indicates that Snawder did not inform either doctor of his recent automobile accident, and there is no evidence that either physician ever considered the accident as a factor in reaching his diagnosis. Snawder was then examined by Dr. William G. Davis of Nashville, Tennessee. Dr. Davis confirmed that Snawder was suffering from a back condition which he diagnosed as spondylolisthesis, a congenital abnormality which occurs in approximately 5% of the American population. He assigned a disability rating of between 8-10% to the body as a whole for this condition. He testified that it was possible that the 1974 injury could have caused such a condition to flare up; however, he also testified that he felt it hard to relate Snawder’s 1974 injury to something giving him trouble two years later.

The board found that Snawder suffered a work-related injury on November 15, 1974, which rendered him temporarily totally disabled until he returned to work on December 6, 1974. Snawder was awarded temporary total disability benefits for that period. The board found that Snawder suffered no occupational disability of appreciable proportion after December 6, 1974, as a result of the 1974 accident. The board also found that Snawder had committed perjury at the hearing by denying that he had ever been in an automobile accident. Snawder appealed the decision to the circuit court which affirmed the order of the board, and the matter is now properly before this court for our consideration.

II

The first issue presented on appeal is whether the claimant’s failure to file a petition for reconsideration under KRS 342.281 prior to the appeal to the circuit court served to cure all defects or deficiencies in the quality and quantity of proof supporting the board’s findings of fact. Stice Brothers contends that KRS 342.285(1) sets forth a limited scope of judicial review of board findings of fact when the losing party fails to file a petition for reconsideration. KRS 342.285(1) provides:

An award or order of the board as provided in KRS 342.275, if petition for reconsideration is not filed as provided for in KRS 342.281, shall be conclusive and binding as to all questions of fact

Despite the fact that the language of KRS 342.285(1) has been preserved substantially intact since the original enactment of Kentucky’s Workmen’s Compensation Law in 1916, the effect of a failure to file a petition for reconsideration upon the scope of judicial review has never been directly considered by any court in the Commonwealth. A literal reading of the statute might indicate that, in the absence of such a petition for reconsideration, the board’s findings must be accepted without question by the court as “conclusive and binding.” However, a close reading of the cases construing this subsection reveals that the proper scope of judicial review of the board’s findings of fact is found in KRS 342.285(3)(d), and any interpretation of the language of subsection (1) of that statute must be read in light of subsection (3).

Although no court has specifically ruled on the issue of the effect of a failure to file a petition for reconsideration upon the permissible scope of judicial review, a number of decisions of the courts have interpreted the terms “conclusive and binding” found in subsection (1) of KRS 342.285. In a long line of cases dating from the earliest interpretations of the original act, the courts have interpreted “conclusive and binding” as providing for the same scope of judicial review as presently found in subsection (3) of the KRS 342.285. In Wells Elkhorn Coal Co. v. Vanhoose, 220 Ky. 381, 295 S.W. 464, 465 (1927), the court held that “where there is substantial evidence before the board tending to establish the fact which it finds to be a fact, and there is no misapplication of the law to the facts, then the finding of fact by the board is conclusive upon the courts.” In Coleman Mining Co. v. Wicks, 213 Ky. 134, 280 S.W. 936 (1926), the court stated the principle “that if there is any evidence to support the findings of the Compensation Board, such findings, in the absence of a claim of fraud or mistake, are conclusive and binding . . . See also Kingston-Pocahontas Coal Co. v. Maynard, 209 Ky. 431, 273 S.W. 34 (1925); Furnace Coal Mining Co. v. Carroll, 212 Ky. 1, 278 S.W. 171 (1926); Mills v. Casner, 296 Ky. 678, 178 S.W.2d 196 (1944); Maynard v. Pond Creek Collieries Co., 299 Ky. 157, 184 S.W.2d 991 (1945); Columbus Mining Co. v. Childers, Ky., 265 S.W.2d 443 (1954); Wells v. Kentucky Appalachian Indus., Inc., Ky., 467 S.W.2d 365 (1971).

In the face of such a longstanding construction of the statutory language in question, we are not prepared to impose a new interpretation which would be at odds with the case law and with the customary interpretation adopted by the board itself. If the language is to be given any special meaning, the phrase “conclusive and binding” should be construed as meaning “final.” Thus, a proper reading of KRS 342.-285(1) would be that a decision of the board is “final” unless a petition for reconsideration is filed destroying its finality or unless one of the parties appeals the decision to the circuit court. See Paul v. Allender Brown Co., Ky., 249 S.W.2d 163 (1952). The decision of the board in this case is subject to judicial review under subsection (3) of KRS 342.285 even though Snawder filed no petition for reconsideration under subsection (1).

Ill

The second issue presented by this case is whether the decision of the Workmen’s Compensation Board that Snawder suffered no permanent occupational disability of appreciable proportions as a result of the November 15, 1974 accident is “clearly erroneous” on the basis of the probative evidence in the record.

The claimant in a workman’s compensation case has the burden of proof and the risk of persuading the board in his favor. Tackett v. Sizemore Mining Co., Ky., 560 S.W.2d 17 (1977); Caudill v. Maloney’s Discount Stores, Ky., 560 S.W.2d 15 (1977); Hudson v. Owens, Ky., 439 S.W.2d 565 (1969); Lee v. International Harvester Co., Ky., 373 S.W.2d 418 (1963); Columbus Mining Co. v. Childers, Ky., 265 S.W.2d 443 (1954). There is a vast difference between what the board is free to do and what it can be forced to do under a given state of evidence. Cavin v. Lake Const. Co., Ky., 451 S.W.2d 159 (1970). There are some cases in which no evidence whatever is required in “support” of a negative finding, and among them are those in which the claimant’s evidence would justify a favorable finding but would not require one as a matter of law. Lee v. International Harvester Co., supra, 373 S.W.2d at 420. If the board finds against a claimant who had the burden of proof and the risk of persuasion, the court upon review is confined to determining whether or not the total evidence was so strong as to compel a finding in claimant’s favor. Hudson v. Owens, supra 439 S.W.2d at 570; see also Inland Steel Co. v. Johnson, Ky., 439 S.W.2d 562 (1969); Kentland Elkhorn Coal Co. v. Johnson, Ky. App., 549 S.W.2d 308 (1977).

The evidence in this case is not unanimous nor so “clear and convincing” as to render the decision of the board erroneous as a matter of law. See Young v. Phelps Collieries, Ky., 439 S.W.2d 77 (1969). The doctors’ testimony on the issue of causation was far from unanimous and hardly conclusive. Although Dr. Peterson and Dr. Fischer apparently attributed Snawder’s present condition to the 1974 injury, Dr. William Davis specifically stated that he found it difficult to believe that the 1974 injury could have triggered the episode at Snawder’s home more than two years later.

Where there is conflicting medical testimony, the board has the right to believe part of the evidence and disbelieve other parts of the evidence whether it came from the same witness or the same adversary party’s total proof. See Caudill v. Maloney’s Discount Stores, supra 560 S.W.2d at 16; see also McCloud v. Beth-Elkhorn Corp., Ky., 514 S.W.2d 46 (1974); Wells v. Kentucky Appalachian Industries, Inc., supra; Tackett v. Eastern Coal Corp., 295 Ky. 422, 174 S.W.2d 707 (1943).

Snawder asserts that the evidence of occupational disability was overwhelming. However, the question of his occupational disability is not the issue on appeal. The board held Snawder suffered no occupational disability as a result of the injury of November 15, 1974. The board did not reach the question of occupational disability from any other cause. In determining whether the injury of November 1974 was the cause of his disability, Snawder’s credibility was of great importance. The testimony of the physicians was based in large part on the history given by Snawder. We disagree with the board’s conclusion that Snawder intentionally committed “perjury.” Nevertheless, the record does raise substantial questions respecting his credibility. In view of the evidence that Snawder worked for approximately 18 months without complaint until a date shortly after the automobile accident, the board was not compelled to find that the injury of November 1974 was the cause of his subsequent disability.

Because we find that the decision of the board was not clearly erroneous based upon the evidence of probative value, we may not set aside that decision upon appeal. Holman Enterprise Tobacco Whse. v. Carter, Ky., 536 S.W.2d 461 (1976); Volk v. Restaurant Concessionairies, Inc., Ky., 476 S.W.2d 195 (1972).

The judgment is affirmed.

All concur.

      . The incident relied upon by the board for its finding arose out of an exchange at the hearing between the counsel for Stice Bros, and the claimant Snawder:
      Q. 158 Ever been involved in an automobile accident where you were hurt?
      A. No.

      . The forerunner of KRS 342.285(1) was originally enacted in Kentucky Acts 1916, c. 33, p. 354, the relevant portions of which are set out as follows:
      § 51 If an application for review is made to the board within seven days from the date of the award, the full board, if the first hearing was not held before the full board, shall review the evidence, or if deemed advisable, as soon as practicable, hear the parties at issue, their representatives and witnesses and shall make and award and file the same in like manner as specified in the foregoing section.
      § 52 An award, or order of the board, as provided in Section 50, if application for review be not filed as therein provided, or an award or order of the board upon review as provided in Section 51, shall be conclusive, and binding as to allquestions of fact, but either party may, within twenty days after the rendition of such final order or award of the board may by petition appeal to the circuit court . . (emphasis added).

      . Subsection (3) of KRS 342.285 states:
      The court shall not substitute its judgment for that of the board as to the weight of evidence on questions of fact, its review being limited to determining whether or not: . . . (d) The order, decision, or award is clearly erroneous on the basis of the reliable, probative, and material evidence contained in the whole record ....

      . Before the board, Snawder made only one claim, namely that the injury of November 15, 1974, was the cause of his disability. He did not claim before the board that his disability was otherwise work-related.


author: MARTIN, Chief Judge.

text:
    FRED CLEMENTS HEATING AND AIR CONDITIONING COMPANY, Fred Clements, Individually, and Commercial Sheet Metal, Inc., Appellants, v. Harry S. JANES, Individually, and Harry S. Janes on Behalf of Commercial Sheet Metal, Inc., a Kentucky Corporation, Appellees.
    Court of Appeals of Kentucky.
    Jan. 12, 1979.

      J.Patrick Sullivan, Lexington, for appellants.
    Glen S. Bagby, Lexington, for appellees.
   OPINION AND ORDER

Before MARTIN, C. J., and HOWERTON and LESTER, JJ.

MARTIN, Chief Judge.

Appellees move this Court to award them damages for delay pursuant to CR 76.-20(9)(a) and K.R.S. 26A.300. Appellees were successful litigants in a lawsuit against appellants. Appellants filed a su-persedeas bond in the Fayette Circuit Court and appealed the lower court’s judgment to this Court. This Court affirmed on March 10,1978, and denied appellants’ petition for rehearing on May 5, 1978. Appellants filed a motion for discretionary review in the Supreme Court of Kentucky on May 23, 1978. This motion was denied by the Supreme Court on October 3, 1978.

Appellees contend they are entitled to damages for the delay engendered by the filing of the petition for rehearing in this Court and the denial of the motion for discretionary review. Damages on affirmance are not payable where this Court denies a petition for rehearing under circumstances constituting a first appeal. Ash v. Security National Insurance, Ky.App., 574 S.W.2d 346 (1978). However, damages under K.R.S. 26A.300 are properly awarded when a motion for discretionary review is denied. CR 76.20(9)(a). Moreover, it appears to this Court, by virtue of a directive from the Chief Justice of the Supreme Court to the clerk of that court, that the correct procedure is that the imposition of such damages will be stated in the mandate of the appropriate court. Where the Supreme Court denies a motion for discretionary review, the mandate will issue from this Court. CR 76.30. Under the previous damage statute, K.R.S. 21.130, the award of damages on affirmance appeared in the mandate of the former Court of Appeals. Rice v. Conley, Ky., 419 S.W.2d 769 (1967).

The motion for damages under K.R.S. 26A.300 is GRANTED. It is further ORDERED that the mandate issued in this action state that appellee be awarded the damages allowed under K.R.S. 26A.300.

All concur.