text:
    James Gilbert CRICK, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    April 1, 1977.
    Rehearing Denied June 10, 1977.
    Jack Emory Farley, Public Defender, David E. Norat, Asst. Public Defender, William M. Radigan, Legal Asst., Frankfort, for appellant.
    Ed Hancock, Atty. Gen., Patrick Kimber-lin, III, Asst. Atty. Gen., Frankfort, for appellee.
   PER CURIAM.

James Gilbert Crick appeals from an order of the Christian Circuit Court overruling his RCr 11.42 motion to vacate a judgment of conviction without an evidentiary hearing.

On January 4,1974, Crick, a juvenile, was waived by the Juvenile Session of the Christian County Court to the jurisdiction of the Christian Circuit Court. He was subsequently indicted on charges of murder, armed robbery, and the taking of a vehicle without the owner’s consent. He thereafter entered a plea of guilty and was sentenced to life imprisonment on the murder charge, ten years on the armed robbery charge, and a year’s imprisonment on the charge of taking a motor vehicle without the consent of the owner. Crick did not appeal from the judgment entered on this plea and has prosecuted a prior RCr 11.42 motion in an effort to have his judgment of conviction set aside. He subsequently filed this second RCr 11.42 motion wherein he asserts that his conviction was void in that the Christian Circuit Court never acquired jurisdiction to try him, because the waiver of jurisdiction from the Christian Juvenile Court was invalid.

The claimed invalidity of the order of waiver stems from the fact that the proceedings and order of the Juvenile Session of the Christian County Court did not comply with the requirements of Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966), and Kentucky decisions that were spawned as a result of this opinion: Whitaker v. Commonwealth, Ky., 479 S.W.2d 592 (1972); Fields v. Commonwealth, Ky., 498 S.W.2d 130 (1973); Hopson v. Commonwealth, Ky., 500 S.W.2d 792 (1973); Hubbs v. Commonwealth, Ky., 511 S.W.2d 664 (1974), and Risner v. Commonwealth, Ky., 508 S.W.2d 775 (1974).

Crick’s present predicament arises from the fact that he did not appeal from the judgment entered on his plea of guilty and his failure to present the issue of the validity of the juvenile court waiver in his first RCr 11.42 motion. It was not until he had filed a second RCr 11.42 motion that the questioned juvenile court waiver of jurisdiction was finally presented to the court.

The failure of Crick to litigate in his first RCr 11.42 proceeding effectively precludes his raising the issue in a second or any subsequent RCr 11.42 motion. RCr 11.42(3) limits the availability of this proceeding as follows:

“The motion shall state all grounds for holding the sentence invalid of which the movant has knowledge. Final disposition of the motion shall conclude all issues that could reasonably have been presented in the same proceeding.”

The record clearly demonstrates the fact that all issues concerning the validity of the juvenile court waiver could and should have been presented in Crick’s initial RCr 11.42 motion.

Digressing for a moment, Crick was born on December 15, 1955. It is charged that on November 29, 1973, he participated in a murder, an armed robbery, and the taking of a vehicle without the owner’s consent— events that occurred seventeen days prior to his eighteenth birthday. The juvenile court waiver was entered on January 4, 1974, he was indicted on February 27, 1974, and a plea of guilty to the charges was entered on March 11, 1974. On May 15, 1974, he filed his first RCr 11.42 motion. However, no issue was presented concerning the validity of the juvenile court waiver even though this order had been entered on January 4, 1974. This RCr 11.42 motion was denied on October 10,1974. No appeal was prosecuted from the order denying relief under this motion. It was not until May 8, 1975, that this second RCr 11.42 proceeding was instituted.

This court has held upon numerous occasions that issues which could have been presented in an initial motion to vacate cannot be raised by subsequent motions. Satterly v. Commonwealth, Ky., 441 S.W.2d 144 (1969); Hampton v. Commonwealth, Ky., 454 S.W.2d 672 (1970); Case v. Commonwealth, Ky., 467 S.W.2d 367 (1971); Butler v. Commonwealth, Ky., 473 S.W.2d 108 (1971); and Lycans v. Commonwealth, Ky., 511 S.W.2d 232 (1974).

See Bingham v. Commonwealth, Ky., 550 S.W.2d 535 and Richardson v. Commonwealth, Ky., 550 S.W.2d 538, this day decided.

The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    John Earl BINGHAM, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    April 1, 1977.

      Jack Emory Farley, Public Defender, Joe A. Jarrell, Asst. Public Defender, Frankfort, for appellant.
    Ed W. Hancock, Atty. Gen., Donald C. Morris, Asst. Atty. Gen., Frankfort, for ap-pellee.
   PER CURIAM.

John Earl Bingham appeals from a judgment entered on a guilty plea of aiding a robbery in the first degree and first degree assault for each of which offenses he was sentenced to fifteen years’ imprisonment to run concurrently.

At the time of the commission of the crimes to which Bingham pleaded guilty, he was a juvenile. A juvenile petition had been duly filed, and Bingham appeared before W. Paul Hale, a trial commissioner of Christian County, who entered an order committing him to the Department of Child Welfare. However, the county judge, pursuant to his authority, reviewed the findings and set aside the order and rescheduled a hearing for February 19, 1975. The record of the proceedings at this hearing contains findings of fact and conclusions of law that demonstrate that Bingham was properly before the court and was represented by counsel. The third finding recites that the court found beyond a reasonable doubt that Bingham had participated in an armed robbery and an assault in an attempt to rob. The sixth finding recites:

“The Court finds that it is in the best interest of said child and the public to require that the child be tried and disposed of under the regular law governing crimes and the Court further finds that all remedies available to the Juvenile Court have been utilized and exhausted concerning the care, treatment and rehabilitation of said child. It is the further finding of this Court that said child is not amenable to care, treatment, and rehabilitation as a juvenile and is so beyond the control of the Juvenile Court as to be totally unsuited for any type of program available to the Juvenile Court.”

The order waiving jurisdiction reads as follows:

“The Court verifying that the rights provided in KRS 208.060(3) and (4) have been extended to the child and the adult responsible for the child, due process of law having been observed, the allegations having been proven beyond a reasonable doubt, and the Court having been sufficiently advised, it is hereby ORDERED AND ADJUDGED by this Court that the child, John Earl Bingham, under the provisions of KRS 208.170 be, and hereby is, certified to the next term of the Christian County Grand Jury on the charge mentioned at (3) above and the bond of said child is set at the amount of $15,000.00 ($5,000.00 on each count).”

A reading of an excerpt from the juvenile proceeding is highly indicative of the fact that the juvenile court was “skating on thin ice” in regard to meeting those requirements set out by United States Supreme Court in Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966). Subsequent opinions of this court crystallize the issues to the point where it becomes evident that the juvenile court judge failed to meet the requirements that would afford any bases for a meaningful review of the juvenile court proceeding. In fact, the investigation report prepared by the juvenile court counsel directly conflicts with the latter part of Finding No. 6 in that it clearly demonstrates that there was no basis for such finding. There is nothing to show that the court conducted any further hearing than to rely upon this report. The statement that the court found it to the best interest of the child and of the public that jurisdiction be waived amounted to nothing more than a mere parroting of the wording of the statute and does not meet the requirements of reasons for waiving jurisdiction.

In Hubbs v. Commonwealth, Ky., 511 S.W.2d 664 (1974), this court said:

“We held in Whitaker [Whitaker v. Commonwealth, Ky., 479 S.W.2d 592 (1972)] that the waiver order of the juvenile court must reveal that a hearing was held, that the juvenile was represented by counsel at the hearing, and that the order must set forth sufficient reasons for the waiver of jurisdiction. Hopson v. Commonwealth, Ky., 500 S.W.2d 792 (1973). Upon further study of Kent and the comments of text writers and opinions of other courts, we now conclude that if our statement in Whitaker is construed to mean that the waiver order must make the above-mentioned revelations, that statement is too restrictive. Applying the rationale of Kent to KRS 208.170(1), we now make it clear that either the waiver order, an accompanying statement, or the juvenile court record . must include (1) a showing that the juvenile had a hearing at which he was represented by counsel and (2) a statement of the reasons for the transfer which are specific enough to permit meaningful review for the purpose of determining whether there has been compliance with KRS 208.170(1). Baker v. Commonwealth, Ky., 500 S.W.2d 69 (1973).”

See also Risner v. Commonwealth, Ky., 508 S.W.2d 775 (1974), and Whitaker v. Commonwealth, Ky., 479 S.W.2d 592 (1972).

Although the juvenile court may have made an effort to qonduct a meaningful hearing and to base its order upon substantial reasoning, the record of the juvenile proceeding does not so indicate. The hearing, if any was held, was not made a part of the record, nor does the investigation reports filed with the record support the statements of the juvenile judge in entering the order waiving jurisdiction. The reasoning set out in the order is at the most repetitious of statutory provisions and could not afford a reviewing court sufficient grounds upon which it could conduct a meaningful review of the entire juvenile proceeding.

The consequence of the shortcomings in the juvenile proceeding and of the order transferring jurisdiction to the Christian Circuit Court rendered such attempt at transfer a nullity. Therefore, the exclusive jurisdiction over the juvenile remained in the Christian County Juvenile Court. The resultant failure of the Christian Circuit Court and the Christian County Grand Jury to acquire jurisdiction of the person or of the subject matter involved rendered the indictment by the Grand Jury void and the proceedings before the Christian Circuit Court likewise void.

See Richardson v. Commonwealth, Ky., 550 S.W.2d 538 and Crick v. Commonwealth, Ky., 550 S.W.2d 534, this day decided.

The judgment is reversed for further proceedings consistent with this opinion.

All concur.


text:
    Robert E. RICHARDSON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    April 1, 1977.
    Jack Emory Farley, Public Defender, Vincent D. Giovanni, Asst. Public Defender, Frankfort, for appellant.
    Ed W. Hancock, Atty. Gen., Guy C. Shearer, Asst. Atty. Gen., Frankfort, for appellee.
   PER CURIAM.

Robert E. Richardson appeals from a judgment entered on a jury verdict finding him guilty of armed assault with intent to rob and fixing his punishment at life imprisonment.

Robert E. Richardson, age seventeen, together with an adult, was charged with shooting Woodrow Lucas with a pistol, intending at that time to rob him. In view of the fact that Richardson was a juvenile, the required proceedings were filed in the Christian Juvenile Court.

On July 15, 1969, the Christian Juvenile Court entered an order entitled a judgment transferring its jurisdiction of Richardson to the Christian County Grand Jury. The judgment reads as follows:

“This cause coming on for trial, and the defendant being in open court charged with the offense of armed robbery and Josephine Richardson the mother and person having custody of said juvenile and Hon. John O. Hardin, Ct. appointed atty. being in open court and consenting to said trial at said time, and evidence being heard and concluded, it is ordered that the said Robert E. Richardson be transferred to the September term of the Christian County Grand Jury which convenes September 15, 1969, on a charge of armed robbery, to-wit: on or about July 3, 1969, attempted to rob Woodrow Lucas, Miller’s Spur Station, 7th and Court, Hopkinsville, Ky. with a .25 caliber pistol and shot him twice.”

Richardson was subsequently indicted by the Christian County Grand Jury and tried in the Christian Circuit Court on the charge of assault with intent to rob, convicted, and sentenced to life imprisonment.

On the appeal, Richardson asserts that the order of the Christian Juvenile Court is improper and void in that it does not comply with the requirements of KRS 208.170 and, as a consequence, the trial and judgment in the Christian Circuit Court were void in that the court did not have jurisdiction to entertain any proceedings against Richardson. KRS 208.140 requires that before a juvenile court makes any disposition of a child a thorough investigation shall be made concerning all of the aspects of the child’s case and that this report should be made a part of the record and considered by the juvenile court judge in making his final disposition of the proceeding. KRS 208.170 requires that if the court had reasonable cause to believe that the child had committed a felony and “the court is of the opinion that the best interests of the child and of the public requires that the child be tried and disposed of under the regular law governing crimes, the court in its discretion may make an order transferring the case to the circuit court of the county in which the offense was committed.”

Numerous questions concerning the requirements necessary in a juvenile proceeding in order to afford the child constitutional due process and to protect his constitutional rights generally were discussed and answered in Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966). The court, among other things, stated that a juvenile court must set out reasons for its waiver order because such reasons are essential to a meaningful review of the juvenile court’s action. The Supreme Court, in so holding, said:

“Meaningful review requires that the reviewing court should review. It should not be remitted to assumptions. It must have before it a statement of the reasons motivating the waiver including, of course, a statement of the relevant facts. It may not ‘assume’ that there are adequate reasons, nor may it merely assume that ‘full investigation’ has been made. Accordingly, we hold that it is incumbent upon the Juvenile Court to accompany its waiver order with a statement of the reasons or considerations therefor. We do not read the statute as requiring that this statement must be formal or that it should necessarily include conventional findings of fact. But the statement should be sufficient to demonstrate that the statutory requirement of ‘full investigation’ has been met; and that the question has received the careful consideration of the Juvenile Court; and it must set forth the basis for the order with sufficient specificity to permit meaningful review.”

The rationale of Kent was first discussed and approved by this court in Smith v. Commonwealth, Ky., 412 S.W.2d 256 (1967). In subsequent cases, this court has discussed in more detail its adoption of the rule in Kent and its relationship to KRS 208.170. This view is best expressed in Hubbs v. Commonwealth, Ky., 511 S.W.2d 664 (1974), wherein it is said:

“ * * * Applying the rationale of Kent to KRS 208.170(1), we now make it clear that either the waiver order, an accompanying statement, or the juvenile court record must include (1) a showing that the juvenile had a hearing at which he was represented by counsel and (2) a statement of the reasons for the transfer which are specific enough to permit meaningful review for the purpose of determining whether there has been compliance with KRS 208.170(1). * *

Although the Commonwealth contends that Hubbs and related opinions should have no bearing on the question before the court in Richardson’s case because they were decided subsequent to the entry of the order waiving jurisdiction, it must be remembered that the Kent decision had already been handed down and the Kentucky opinions commencing with Smith v. Commonwealth, Ky., 412 S.W.2d 256 (1967), did nothing more than emphasize and re-emphasize the requirements of Kent in relation to Kentucky proceedings. The rule was fixed at the time of Richardson’s hearing, and it was incumbent on the court to make the findings required by Kent. No such findings were made. Consequently, the order waiving jurisdiction was invalid. This being true, the Christian Circuit Court did not acquire jurisdiction of either the person or the subject matter involved in Richardson’s prosecution. Without jurisdiction, the indictment returned by the Christian County Grand Jury was void, and the judgment entered at a trial upon this indictment was likewise void.

See Bingham v. Commonwealth, Ky., 550 S.W.2d 535 and Crick v. Commonwealth, Ky., 550 S.W.2d 534, this day decided.

The judgment is reversed for further proceedings consistent with this opinion.

REED, C. J., and LUKOWSKY, PAL-MORE, STEPHENSON and STERNBERG, JJ., concur.

CLAYTON and JONES, JJ., dissent, stating that it is their opinion that the order of the Juvenile Court complies with KRS 208.-170.


author: PALMORE, Justice.

text:
    UNITED ENGINEERS AND CONSTRUCTORS, INC., Appellant, v. Curtis A. BRANHAM and Hartford Accident & Indemnity Co., Appellees.
    Supreme Court of Kentucky.
    April 1, 1977.
    Rehearing Denied June 10, 1977.

      Robert P. Woods, Kenneth Williams, Jr., Gray, Woods & Cooper, Ashland, for appellant.
    Creech, Hogg & Williams, Ashland, for Curtis A. Branham.
    Howard VanAntwerp, III, Ashland, for Hartford Acc. & Indem. Co.
   PALMORE, Justice.

United Engineers & Constructors, Inc. (hereinafter “United”), appeals from a judgment awarding Curtis A. Branham and Hartford Accident & Indemnity Company (hereinafter “Hartford”) the total sum of $78,445.78 for personal injuries suffered by Branham in an industrial accident. $6117.35 of that amount represents Hartford’s indemnity claim for workmen’s compensation payments made by it to Branham.

The accident happened on May 12, 1965, at a construction project being carried out by United under a contract with Armco Steel Corporation (hereinafter “Armco”), the owner of the premises on which it occurred. Branham was working on a crane, or dragline, leased “F.O. & M.” (fully operated and maintained) from E. B. Lowman. Branham’s theory of recovery is that his injuries were caused by the negligence of United’s employes, for which he has a common-law right of action against United. United’s theory, aside from the basic issues of negligence and contributory negligence, is that Branham’s right of recovery is limited to his compensation claim against Low-man (paid by Hartford) and that the “exclusive remedy” statute, KRS 342.700 (formerly KRS 342.060), precludes a common-law right of action by Branham against United. Hartford’s claim is that its exposure to liability for Branham’s compensation benefits resulted from United’s negligence and that Hartford therefore has a common-law right of indemnity against United, which right, Hartford contends, is unaffected by any contributory negligence on the part of Branham. Cf. Whittenberg Eng. & Const. Co. v. Liberty Mut. Ins. Co., Ky., 390 S.W.2d 877 (1965).

The case was heard by a jury in September of 1973. It found that the accident resulted from the negligence of United’s employes and rejected the defense of contributory negligence. The instruction under which it found against United conditioned liability on a finding that United, through Elmer Decker, its superintendent in charge of the project, had “assumed responsibility” for the particular activity in which Branham was engaged at the time of the accident, thus placing Decker and his workmen under the duty of exercising ordinary care for Branham’s safety, and that the accident resulted from their failure to comply with that duty.

Our view of the case, discussed more fully below, is (1) that the employes of United whose negligence is said to have caused the accident were assisting the crane crew in work for which the crane crew was responsible and, in the performance of that particular work, were under the supervision of the crane crew alone, and not of Decker or United; and (2) that even if this were not so, KRS 342.700 denies a common-law recovery to Branham under the “up-the-ladder coverage” principle expressed in Bright v. Reynolds Metals Company, Ky., 490 S.W.2d 474, 477 (1973). Our holding that United was not responsible for negligence of its employes in assisting the crane crew disposes of Hartford’s indemnity claim.

The heart of the controversy lies in the legal relationships among the various parties. Branham and Hartford contend, for example, that United was not a prime contractor, but was merely an agent and servant of Armco. United claims that Branham was its “loaned servant” or, in the alternative, that Branham’s employer, Lowman, was a subcontractor. Branham’s response to these theories is that Lowman was not a subcontractor, but only the lessor of machinery, and that Branham was not a loaned servant of United. Still another contention by Branham and Hartford is that Lowman’s agreement was with Armco, and not United, hence Lowman could not have been United’s subcontractor.

It all began with a contract in the form of a letter from United to Armco dated and accepted on October 7, 1960, in which United, a construction contractor headquartered in Philadelphia, Pennsylvania, proposed to design facilities and act as constructors in connection with a contemplated expansion of Armco’s “Ashland Works” at Ashland, Kentucky. As “Constructors” it agreed, when so ordered and directed by Armco, to execute “with our own forces the construction, and install the machinery and equipment, subletting [our emphasis] parts of the work when it is your advantage to do so, and turn the completed section or sections of the work over to you when ready for regular use.” As “Purchasing Agents” it agreed to purchase the necessary construction equipment and materials and, as specified in writing by Armco, to “negotiate, prepare and let contracts for certain sections of the work and act as your own Purchasing Department to the extent you may wish.”

Important to the argument that United was an agent rather than a contractor for Armco is this provision of the proposal: “You [Armco] will have full control of all purchases and of the letting of all contracts. All contracts and orders placed by us [United] will be in your name, signed by us as Agents for you.” Other terms of the proposal pertinent to this discussion were as follows:

1. United was to furnish at its own expense the services of its executive officers “who will direct and oversee the work performed under this agreement,” together with the services of its home office Construction, Purchasing and Accounting Departments.

2. All other costs would be borne by Armco, but paid by United with funds advanced for that purpose by Armco.

3. United would maintain insurance coverage for public liability and property damage, automotive liability, and other specified perils, and save Armco harmless from any liability for injury or damage caused or allegedly caused by Armco employes, United’s employes, or any subcontractors or their employes.

4. The cost of insurance for United’s sole benefit “other than Workmen’s Compensation and Employers’ Liability” would be borne by United.

5. The contract would be terminable by Armco on 10 days’ notice.

6. United’s compensation would be a fixed fee equal to 4% of the total cost of the project.

E. B. Lowman was a contractor in Ash-land who owned heavy equipment and leased it out whenever it was available for use by others. Sometimes it was rented “bare” and sometimes with an operating crew paid by Lowman. The rental of the crane involved in this accident was negotiated by A. E. Roscoe, general superintendent for United, with Lowman. It was covered by a purchase order issued by United on February 4, 1965, to which was attached a rental agreement on a printed form headed by United’s name. The agreement was signed by United, through Roscoe, as agent for Armco. Nominally, therefore, it was a contract between Lowman and Armco, and this is a basic premise of the argument that Lowman could not have been a subcontractor for United. United, on the other hand, maintains that Armco in effect contracted for the use and benefit of United, which was under contract with Armco to do the work for which the crane was being rented. Right here, we think, is a good place to stop and clear the decks with respect to the relationship between United and Armco.

During the course of pretrial proceedings the trial court entered a summary judgment in favor of United on the theory that United was a contractor and Lowman a subcontractor. Being reminded, however, that this would not dispose of Hartford’s indemnity claim based on United’s negligence, which would require a trial anyway, the trial court reconsidered and then finally vacated the summary judgment. It is interesting to note that in their brief responding to the motion for summary judgment, counsel for Branham conceded that United’s status was that of a general contractor for Armco, a concession that was reflected by this recitation in the body of the summary judgment: “The parties to this action agree that United was the ‘contractor’ on the job.” It is our opinion that on this point they were right the first time.

It would not be disputed that in determining whether one is an agent or servant or an independent contractor, substance prevails over form, and that the main dispositive criterion is whether it is understood that the alleged principal or master has the right to control the details of the work. Here we have a major construction project, undertaken by a company whose principal occupation is construction and for a company whose principal business is to produce steel. There was nothing in the contract between them, or in the evidence, such as it was, bearing upon the manner in which that contract was carried out, to suggest that Armco either had the qualifications and capacity to superintend the construction work, or intended, expected or actually did undertake to do so. The paper relationship between Armco and United obviously was designed for the purpose of placing upon Armco the burden of financing the project from beginning to end. In substance, United was its prime contractor.

Likewise, though it may not be vital to our resolution of the case, we think that the Lowman agreement’s being put in the name of Armco as principal was strictly a matter of formality, and again merely a facet of the financial arrangement between Armco and United. It was United that decided where, when and what equipment was needed, and it was United’s officer who negotiated and actually executed the rental agreement with Lowman. United’s third-party beneficiary theory, though in our opinion certainly apropos, is not really indispensable to this result. The cold fact is that United, the party obligated to do the work for which the crane was needed, was the real party in interest, and we do not think the question of whether Lowman was a subcontractor under United can be made to stand or fall on the basis of the paper work. As it is, we need not find a stereotyped label for Lowman’s common-law status, but there is much to be said for the proposition that one who furnishes equipment and operating personnel to be used by another in fulfilling his obligations under a construction contract is indeed a subcontractor, because, although the lessor does not contract to do things that are spelled out in advance in the form of written specifications, he does undertake that his men will do with the machinery the things they are directed orally to do while on the job. The only difference is in the time and form of the directions, “specifications” and “directions” being no more than variations of the same thing. Both tell somebody what to do.

The personnel furnished by Lowman with the crane consisted of an operator and an oiler. The rental rate payable to Lowman was $32 per hour for the machine and crew. The crew was provided by a local union hall at Lowman’s request. At the time of the accident in question South Tate was the operator and Branham, the plaintiff in this proceeding, was the oiler. As between United and Lowman, the mechanical operation and maintenance of the crane was at all times the responsibility of and under the control of its crew, the operator being in charge

The purpose for which United procured the services of the crane was to make a large excavation in the ground preparatory to the installation of a cold roll mill. The crane was operated around the clock with three crews working eight-hour shifts. The job was completed around 4:00 A.M. on May 12, 1965. Tate and Branham had worked the previous shift but stayed on overtime because of the imminence of the job’s being finished. When it was done, United’s foreman, Decker, instructed the crew to take the crane away to a parking area. In order for the crane to be moved out, however, it was necessary that its gantry be lowered so that the crane could pass through the doors of an adjacent building.

The gantry is a four-legged structure standing atop the cab of the crane. Through it pass cables that control the boom to which the bucket is attached. The front legs of the gantry are moveable, and are kept stable by pins inserted through holes at each foot. When these pins are removed the front legs of the gantry slide forward, thus lowering the gantry, through force of gravity, to the top of the cab. While the pins are being extracted the gantry must be held up by some other means in order to take the weight of the gantry off the pins and also in order to prevent a sudden drop of the gantry, which latter occurrence might cause one or more of the cables to be dislodged from its spool or drum and have to be rewound.

The safest method of holding the gantry aloft while the pins are being removed from its front feet is to do it with another crane if one is available. Otherwise it is done by placing the boom nearly upright and drawing the cables taut. In the course of that particular procedure, which is less desirable but not unusual, when the second pin is taken out the gantry instantly falls for a distance of a foot or so by reason of a certain amount of slack which cannot be taken out of the cable solely through the crane operator’s pulling it tight from the controls inside the cab. During this procedure the operator is inside the cab and cannot see what is going on overhead. It is the responsibility of the oiler to lower the gantry. All of the witnesses agree, however, that the oiler cannot do it without help, and it is customary for the crane crew to look to the job superintendent to provide it. In this instance Decker assigned two of his laborers to give the crane crew whatever assistance it needed.

The purpose for which help is needed by the oiler in removing the pins from the legs or feet of the gantry is to ease the short drop of the gantry when the second pin is removed. Even a one-foot drop, if un-braked, entails the risk of dislodging a cable by causing a bounce, which is exactly what happened in this case and resulted in the gantry’s falling on Branham. The easing or braking of the gantry through this short descent is accomplished by use of a steel bar or crowbar as a wedge under one of the feet of the gantry, holding it in place or letting it down gradually while the oiler, after removing the pin, gets out from under the gantry. On this particular crane it was necessary for Branham, the oiler, to be under the gantry while extracting the pins because they had to be put in and taken out from the inboard sides of the legs.

According to Decker, United had only two laborers, Damron and DeLong, on duty at the location of the crane when it became necessary to lower the gantry. Both testified for Branham. Damron said that Decker told him and DeLong to clean up the area “and if any of these guys on the crane needed anything to hand it to them,” after which Decker returned to his office some distance away. At the request of Branham, who was on top of the crane, Damron handed up an iron bar he had been using for turning piling and removing scrap lumber. According to Damron, at that time there were about three of United’s men on the crane with Branham, and he saw them prying on something with the bar. He said that these men were craftsmen of some kind, but not laborers. He did not see the accident. Decker had been gone for “quite a while.”

DeLong, the other laborer, testified that Decker did not say anything about lowering the gantry, but “told me if the boys needed anything to get it for them.” Accordingly, he procured a hammer, a bar, a four-by-four and a two-by-four and placed them on top of the crane. He was unable to say who or how many people besides Branham were on the crane, nor did he witness the accident.

Branham himself, the plaintiff, gave the only eyewitness testimony. He was a trained and experienced heavy-equipment operator. As he describes it, his duties as oiler were to “service the crane, help move it, watch the operator and keep everybody out of the way.” More importantly, he conceded that he and the operator “had complete charge of the crane” and that Decker, United’s foreman, “had charge of where to take their dirt and where to place it” but had no control over the crane. He says that Decker and some of his men were present shortly prior to the accident and that Decker “hollered and told them to ‘get the thing down so we can get it off the job.’ ” At this time, according to Branham, two of Decker’s men were on the cab of the crane and Decker said, “Branham, would you go help the men take the gantry down?” Branham then climbed onto the cab and proceeded to remove the gantry pins. One of the other men, whom he did not know, had an iron bar in his hand. While Branham hammered the first pin out “they were just standing and watching,” but when he moved over to the other side to take out the other pin they (the two unidentified men) placed the bar under the gantry leg and lifted the weight off the pin sufficiently to allow its being tapped out. At this point Branham says he told the two men to “take it easy and after I remove the pin, hold it till I get out from underneath, then to ease it back down.” Continuing with Branham’s account, “They eased it up and I got the pin removed and, as I removed it, they jerked the bar and it bounced back up and throwed the cables loose and it [the gantry] come all the way back down on top of me.”

Branham did not know or ask the two men helping him whether they knew anything about lowering a gantry. We gather from his testimony that he assumed they were qualified and probably relied on Decker in that respect. Decker himself, according to South, the operator of the crane, had asked South earlier that morning what the procedure was for lowering the boom to get the crane out. South told him the safe method was to use another crane, and Decker replied that he would try to get one. As a matter of fact, another crane was brought in after the accident.

Appearing for Branham, Tate was asked if he knew “whose job it was to lower the gantry on this particular crane on the date Mr. Branham was injured,” and he replied as follows: “That comes under your operator’s job. Your operator is supposed to take those down with the help of mechanics but the general practice is whatever craft you are working with, they go ahead and help.” Recalled later, however, he qualified this statement by saying that the operator has that responsibility “unless it’s taken away from him ... I said it was previously if the mechanic or equipment foreman were there, if not, then the operator done what he was told.” Tate said also that while he was pulling the boom into place prior to lowering the gantry Decker “was giving directions,” that he considered Decker his boss, and that he would have done whatever Decker told him to do.

It is obvious from the transcript that after his first appearance on the witness stand Tate had to be warmed over in at least one other respect. On his first try he said that the proper way to remove the second pin would have been for the men to hold the pry bar under the opposite leg of the gantry rather than under the same leg from which Branham was removing the pin, that this was a “freak accident,” and that there was nothing that either Branham or the other workmen could have done to prevent it. Upon being recalled three days later, however, he said he had been thinking it over and had changed his mind. It was also during this appearance that he first mentioned the conversation with Decker about another crane.

In summary, Tate’s evidence when taken most favorably to the plaintiff was that he considered Decker to be in charge and actually was being directed by Decker. No one, however, testified that Decker was present when the gantry was lowered, nor did anyone say that he gave any instructions as to how it was to be done. As a matter of fact, accepting Tate’s own account of his earlier conversation with Decker on that very subject, in which Decker is said to have asked what the procedure was, Tate is bound to have realized that Decker did not know enough about it to be able to give any instructions with respect to lowering the gantry.

There was, of course, a good deal of other evidence, but we have confined our summarization to that which shows best for Branham. Any way it is viewed, clearly United had no responsibility for and no authority over the mechanical operation of the crane. Its prerogative was only to tell the operator when and where to dig and take the dirt. The custom of making the contractor’s random personnel available to assist in lowering a gantry certainly cannot have the effect of transferring responsibility for that operation to the contractor. To the very contrary, in the light of all the might and main that has been exerted in this case over the question of whether the two members of the crane crew were “loaned servants” of the contractor, it seems to us that the reverse is true — that is, that in helping to lower the gantry the contractor’s workmen become loaned servants of the crane crew. That is precisely what the court held in Aetna Casualty & S. Co. v. Manufacturers Cas. Ins. Co., 140 F.Supp. 579 (D.C.W.D.La., 1956), and we think it makes a good deal of sense.

To escape the horns of a dilemma Bran-ham must, of course, avoid being held a loaned servant of United, and he cannot do so if he admits that United was in charge of lowering the gantry. Yet if he admits that the crane crew was in charge, then United’s workmen were serving the crane crew rather than their own regular employer. He cannot avoid a checkmate through the stratagem of proving that United, by undertaking or assuming a responsibility that it was not obliged to assume, brought upon itself the duty of ordinary care toward the persons engaged in carrying it out, because if United did assume that responsibility the people taking its directions in doing the job became its own servants. We see no significant difference between United’s having had the responsibility initially under its contract with Lowman and its having “assumed” that responsibility just before the accident. We are of the opinion that the evidence was not sufficient to justify a finding that Decker actually did assume it, but even if it had been, United was nevertheless entitled to a directed verdict on the ground that in assisting United’s workmen Branham would also have become United’s servant.

Under KRS 342.700(2) and its predecessor statute, KRS 342.060, “the general contractor is in effect made the employer of the employee of the subcontractor for the purposes of the compensation statute and . . . the general contractor thereby enjoys the immunity of an employer from suits by the subcontractor’s employee when the facts are such that he could be made liable for compensation.” Whittenberg Eng. & Constr. Co. v. Liberty Mut. Ins. Co., Ky., 390 S.W.2d 877, 882 (1965). Obviously a “loaned servant” is in the same category, as he too becomes an employee of the principal contractor. Much drivel has been written on the loaned-servant theory, usually in an effort to fit a square peg into a round hole in order to fix liability on one or the other of two employers. The personnel of automotive equipment furnished operated do not fit neatly into any of the familiar categories recognized at common law, so really it is better to abjure concep-tualistic logic and apply simple reason instead. In some things the crew-members may be servants only of their regular employer, in others one or more of them may be servants of the contractor, and in still others both the contractor and the supplier of the operated equipment may be responsible to an innocent third party injured through negligence of the operating crew. It all depends on the facts. If, for example, the equipment is negligently run over a state inspector on the premises both masters might very well be held liable. For a more extensive discussion of the responsibility of two separate masters (hospital and surgeon) for the negligence of one servant or group of servants (nurses), see City of Somerset v. Hart, Ky., 549 S.W.2d 814 (decided today).

In this case the job was done and the machine was being rigged and battened down for departure. The procedure of lowering the gantry was peculiarly within the province and expertise of the crew. In that particular operation we agree that Bran-ham and Tate were not loaned servants of United. On the other hand, they were performing a service for United pursuant to a contract in which they were assigned to that service by Lowman, their employer. Whether that arrangement justifies the inflexible label of “subcontract” as it might be considered apart from the compensation statutes we need not decide. Under those statutes, however, we think that it does. Beyond cavil, part of the package delivered by Lowman to United consisted of the services of two men. United in turn had contracted to perform those services for Arin-co. In the “up-the-ladder” context we construe the relationship between United and Lowman to have been that of contractor and subcontractor. United therefore was not “some other person than the employer” under KRS 342.700(1) or its precursor, KRS 342.055.

The judgment is reversed with directions that both claims be dismissed.

All concur.


author: REED, Chief Justice.

text:
    James WILLIAMS, Petitioner, v. Hon. E. N. VENTERS, Judge, Pike Circuit Court, Respondent.
    Supreme Court of Kentucky.
    April 1, 1977.

      James Williams, pro se.
    E. N. Venters, Judge, Pike Circuit Court, pro se.
   REED, Chief Justice.

The petitioner, James Williams, who alleges that in September of 1953 he was sentenced to life imprisonment for armed robbery, has filed in this court for the third time a petition for an order of mandamus directing the respondent judge to have the clerk of his court prepare a transcript of the petitioner’s trial record. The previous applications were denied.

Section 110(2)(b) of the Kentucky Constitution as amended effective January 1, 1976, provides that an appeal from a judgment of the circuit court “imposing a sentence of death or life imprisonment or imprisonment for twenty years or more shall be taken directly to the Supreme Court.” A judgment or order denying a postconviction motion, however, is not a judgment “imposing a sentence.” Hence an appeal from it is addressable to the Court of Appeals. By parity of reasoning, so is a petition for mandamus or prohibition seeking to enforce or prevent an action by a circuit judge in a posteonviction proceeding. Cf. Coffey v. Anderson, Ky., 371 S.W.2d 624, 625 (1963); Northcutt v. Shelton, Ky., 436 S.W.2d 264 (1969).

The petition is dismissed.

All concur.


text:
    James Willard SUMMITT, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    April 22, 1977.

      Terrence R. Fitzgerald, Deputy Public Defender, David M. Lewis, Asst. Dist. Defender, Louisville, for appellant.
    Robert F. Stephens, Atty. Gen., Victor Fox, Asst. Atty. Gen., Frankfort, for appel-lee.
   PALMORE, Justice.

James Willard Summitt appeals from a judgment sentencing him to life imprisonment pursuant to a jury verdict finding him guilty of rape. KRS 435.090 (now superseded by the Kentucky Penal Code, eff. January 1, 1975).

Shortly after midnight of July 20-21, 1974, Donna Jean Furgason was abducted by two men and raped by one of them. Some 20 hours later, after having reviewed over 1200 “mug shots” at the headquarters of the Jefferson County and Louisville police, she identified a photograph of the appellant as the man who raped her. In due course he was arrested and brought to trial. His defense was a denial that he was the guilty party.

The first contention on which Summitt relies for a reversal is that the trial court erred in permitting a police detective to relate substantive details of the report Donna had given him before she looked through the photographs. He stated, for example, that she was fearful because her assailant had warned her that if she reported the incident to the police he would do harm to her and her family, and that she described him as follows:

“The subject that had done the rape was supposed to have been a white male, in his 30’s approximately five foot nine, 180 to 190 pounds, had a rough complexion and had tattoos on both arms. She said that she heard him — she knew that he went by the name of Jimbo, that was his nickname, and that she had learned this during the offense."

The detective was the first witness called by the Commonwealth, and when he began to testify from his report Summitt’s counsel objected on grounds of the hearsay rule. In overruling the objection the trial court commented, “She is going to testify.”

We agree that from the standpoint of this witness the statement received from the victim was purely hearsay and at this stage of the trial was inadmissible. As it developed, however, and in our opinion would inevitably have developed, the trial focused on the reliability of the identification. Even had Donna testified before the detective, the only avenue of defense was to discredit her initial identification of Sum-mitt from the police photograph. Once that attack was made through cross-examination, evidence that she had accurately described him before she saw the photograph was competent for corroborative purposes. Cf. 4 Wigmore, Evidence §§ 1130, 1132 (Chadbourne rev. 1972); Preston v. Commonwealth, Ky., 406 S.W.2d 398, 403 (1966). So, while the detective should not have been allowed to give the details of what Donna said to him during their first interview until after she had appeared as a witness and had been cross-examined, the error was erased by subsequent legitimation of the incompetent testimony.

Before the first witness was introduced, counsel for the appellant unsuccessfully sought an evidentiary hearing on his motion to suppress or exclude Donna’s in-court identification of Summitt. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), is cited for the proposition that the denial of such a hearing is constitutionally fatal. As the Commonwealth points out, however, the pertinent decision with reference to photographic identification is Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), which says:

“Despite the hazards of initial identification by photograph, this procedure has been used widely and effectively in criminal law enforcement, from the standpoint both of apprehending offenders and of sparing innocent suspects the ignominy of arrest by allowing eyewitnesses to exonerate them through scrutiny of photographs. The danger that use of the technique may result in convictions based on misidentification may be substantially lessened by a course of cross-examination at trial which exposes to the jury the method’s potential for error. We are unwilling to prohibit its employment, either in the exercise of our supervisory power or, still less, as a matter of constitutional requirement. Instead, we hold that each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” 390 U.S. at p. 384, 88 S.Ct. at p. 971.

Before viewing the mug-shot files Donna had described the appellant as having a “rough” complexion and tattoos on his biceps. Under cross-examination she strongly resisted the insinuation that her in-court identification was influenced by her having seen Summitt several times during pretrial court appearances. She said that she got a good look at him “right in the light at first when we went through that bar. We were in the light and I know that was him,” and “I knew his face right away ... I picked him right out of there.” Although the particular photograph from which she identified him was not available at the trial, the detective was positive that it did not show his arms. Counsel’s cross-examination of both Donna and the detective was searching, tenacious and thoroughly competent to test the reliability of the identification. We find no error in the trial court’s refusal to conduct a suppression hearing and no semblance of impermissible suggestiveness in the identification procedure.

The last claim of error relates to the following testimony elicited from the detective:

Q — “Were you present at any time with the defendant after he had been placed under arrest?”
A — “Yes, sir, I went with him to talk to him to try to determine if there was a second party involved.”
Q — “And did you advise him of his Miranda rights before you talked to him, or was he advised of his rights?”
A — “Yes, sir, I advised him of his rights.”
Q — “Did he give a statement to you of any kind?”
A — “No, sir, he did not.”

As the appellant had not made any statement, there was of course no occasion to inquire whether he had been advised of his right to remain silent. Hence it might not be altogether unreasonable for one with a nasty mind to suspect that the prosecutor’s design was to get it across to the jury that he did not deny his guilt. As it is, however, appellant’s trial counsel must not have thought it hurt, because he did not voice any objection. In the absence of an objection or some other prompt request for relief there was no possible error on the part of the trial court.

Nevertheless, appellant contends that this alleged invasion of his Fifth Amendment protection was so egregious in view of the closeness of the case and the severity of the penalty that a reversal is mandatory anyway. We do not regard the evidence as all that close. The identification, for all that counsel may denigrate it, was positive and convincing. The witnesses referred to in the appellant’s brief as having corroborated his testimony were not able to render much help. His story that his leg was in a cast broke down when the hospital bill indicated that the accident in which it was hurt happened on the night of July 23-24, 1974, three days after the rape. Moreover, although we wish to discourage the type of questioning here under discussion, and to warn against its possible consequences, we are not ready to hold that in this particular instance it was all that bad. Certainly it was innocuous in comparison with the example in Niemeyer v. Commonwealth, Ky., 533 S.W.2d 218 (1976). The prosecuting attorney did not allude to it in his cross-examination of the appellant, nor did he mention it in his summation to the jury. There having been no objection, there was no error on the part of the trial court. If the interrogation invaded the appellant s Fifth-Amendment right of silence (which we do not decide), we find beyond a reasonable doubt that it was not prejudicial.

The judgment is affirmed.

All concur.


author: STERNBERG, Justice.

text:
    Jewell Wayne HENDRICKS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    April 22, 1977.

      Thomas D. Shumate, Peter J. Flaherty, III, Shumate, Shumate & Flaherty, Richmond, for appellant.
    Robert F. Stephens, Atty. Gen., William H. Mohr, Asst. Atty. Gen., Frankfort, for appellee.
   STERNBERG, Justice.

On December 18, 1975, at about 7:30 p. m., the appellant shot and killed his wife Barbara. On March 11, 1976, he was convicted of first degree manslaughter (KRS 507.030) and sentenced to 20 years’ imprisonment. His sole defense was that the killing was the result of an accident which occurred while he was cleaning his pistol. The issues raised on this appeal, as taken from appellant’s brief, are as follows:

“1. Whether the trial court erred in refusing to instruct the jury on the appellant’s sole defense, to wit: accidental killing, thereby prejudicing the substantial rights of the appellant?
2. Whether the trial court erred in refusing to declare a mistrial upon the introduction of incompetent and prejudicial evidence, timely objected to by the appellant, thereby prejudicing the substantial rights of the appellant?
3. Whether the trial court erred in permitting the infant daughters of the appellant to testify, thereby prejudicing the substantial rights of the appellant?”

On the evening of December 18,1975, the appellant returned home at about 7:00 p. m. and an argument ensued between him and his wife over his failure to return home the previous night, his drinking, and his absence from work on that day. Their three children were at home when appellant arrived. Lisa, 13 years of age, testified that when her father got home he told her mother that he wanted the pistol, whereupon, an argument took place. Lisa left the house and went to a neighbor’s house. Tammy, 8 years old, testified that she heard her father say that he was going to kill her mother, and she testified also that she saw her father slap her mother. She too left the house and went to a neighbor’s. Jill, 7 years of age, like her sisters, viewed the altercation. She called her grandmother Hendricks on the telephone and both her father and mother talked on the phone. Jill heard her father say, “You’d better come up here because I am fixing to kill her, going to kill her.” Jill testified that her father was breaking up dishes and talking filthy. She got scared and left too. The testimony revealed that on several prior occasions appellant had threatened to kill his wife.

The case was submitted to the jury under instructions on murder, first and second degree manslaughter, reckless homicide and self-defense. In addition, the court, in its instructions, defined the words “intentionally”, “wantonness” and “recklessness”. Appellant complains that the trial court erred in not giving a specific instruction on accidental shooting.

In Owens v. Commonwealth, Ky., 487 S.W.2d 897 (1972), this court said:

<<* * * beiieve that Monson v. Commonwealth [Ky., 294 S.W.2d 78], Marye v. Commonwealth [Ky., 240 S.W.2d 852] and Hill v. Commonwealth [Ky., 339 S.W.2d 170] to the extent that they require an accident instruction in prosecutions for voluntary manslaughter, involuntary manslaughter and negligent homicide from the use of a vehicle are in error and are hereby overruled. * * ”

That a killing was purely accidental is not a “defense” which, under the Penal Code, must be negated if there is evidence to raise it. Cf. Jewell v. Commonwealth, Ky., 549 S.W.2d 807 (decided March 11, 1977). It is simply a denial that the act was done with the culpable state of mind required by the instructions as a condition precedent to a consideration. Hence, it was not necessary to give a defensive instruction on the theory of accident, because in order to find the appellant guilty the jury necessarily had to negate the explanation (rather than “defense”) of accidental killing. See Owens v. Commonwealth, Ky., 487 S.W.2d 897, p. 900 (1972).

Complaint is made that the deceased, throughout the course of the trial, was referred to as the “victim” and the place where the shooting occurred was referred to as the “crime scene” or “scene of the crime.” Appellant contends that these are expressions of opinion which only the jury is entitled to make. Surely Mrs. Hendricks was a victim of something — if nothing more than a victim of an accidental shooting. The phrase “crime scene” or “scene of the crime” implies that it is a place where a criminal offense took place. It was not for the Commonwealth’s Attorney or any other witness to opine that a crime had taken place. The death may have been the result of an accidental shooting. Objections to the use of such words were sustained and the jury properly and adequately admonished, which, under the circumstances, is deemed adequate.

The appellant was shown to have made threats against the life of his wife and her family. It appears that he drank heartily and, when sufficiently saturated with alcohol, took on proportions of a self-designated killer, not that he ever carried out his threats except in the present instance. His conduct, when drunk, demonstrates his hostility to his wife and his wife’s parents. Threats against his wife and her family formed a pattern for his belligerence. The trial judge evaluated the admissibility of the threats at an in-chambers hearing. He refused to permit evidence of some threats, but admitted evidence of others. We cannot say that these threats, under the present circumstances, were not admissible or that the trial judge abused his discretion in permitting this evidence to go to the jury.

Further, appellant argues that his children should not have been permitted to testify. The children were 13, 8 and 7 years of age when the killing took place. The trial was held three months thereafter. The substance of appellant’s argument is threefold. First, he charges that the children had lived with their maternal grandparents since their mother’s death and they were exposed to the natural hostility of the grandparents. Secondly, he complains that the children appeared to be afraid of him. Thirdly, appellant complains that at least the younger two children had such a lack of maturity and memory that they were unqualified to testify. That the children would be emotionally upset and appeared to be afraid of the appellant is only natural. Just three months prior thereto they had been put through a trying ordeal. They witnessed their father’s hostility toward their mother and each ran to a neighbor’s house to get away. This court can logically assume that appellant’s mother-in-law and father-in-law would be hostile to him by reason of his conduct. We cannot, however, assume that this hostility permeated the children. Nowhere in the record is there any evidence to support appellant’s charge. On the other hand, there are statements by the children that their grandparents had told them to tell the truth. Each of the children was questioned by the trial judge outside of the hearing of the jury, and each was found to be a competent witness.

In Moore v. Commonwealth, Ky., 384 S.W.2d 498 (1964), this court said:

“When the competency of an infant to testify is properly raised it is then the duty of the trial court to carefully examine the witness to ascertain whether she (or he) is sufficiently intelligent to observe, recollect and narrate the facts and has a moral sense of obligation to speak the truth. * * *”

Not only did the trial judge determine that the children were competent to testify, but the transcript of the testimony of these children clearly demonstrates their intellectual ability to observe, recollect and narrate the facts and to recognize their moral obligation to speak the truth. The determination of the competency of a child witness rests within the sound discretion of the trial judge. Swanigan v. Commonwealth, 240 Ky. 504, 42 S.W.2d 726 (1931). We cannot say the trial judge abused his discretion.

The judgment is affirmed.

All concur.


text:
    STATE FARM MUTUAL INSURANCE COMPANY, Appellant, v. FIREMAN’S FUND AMERICAN INSURANCE COMPANY and Roy Edward Fite, Appellees.
    Supreme Court of Kentucky.
    April 22, 1977.

      Woodson T. Wood, Fox, Wood & Wood, Maysville, for appellant.
    Bernard J. Blau, Kaufmann, Johnson & Blau, Newport, for appellee Fireman’s Fund American Ins. Co.
    John H. Clarke, Jr., Clarke & Clarke, Maysville, for appellee Roy Edward Fite.
   PALMORE, Justice.

State Farm Mutual Insurance Company (hereinafter State Farm) appeals from a judgment declaring invalid two provisions of its automobile liability insurance policy relating to the uninsured motorist coverage required by KRS 304.20-020. The questions are of first impression in this state.

The appellee Fite was injured while riding as a passenger in a truck owned and operated by his employer, Styleline Furniture Company (hereinafter Styleline). He was paid $4856.29 in workmen’s compensation benefits by the appellee Fireman’s Fund American Insurance Company (hereinafter Fireman’s Fund), Styleline’s compensation carrier. He also brought suit for common-law damages against an uninsured third-party tortfeasor whose negligence had caused the accident and against Styleline’s automobile liability carrier, State Farm, under its uninsured motorist coverage. On State Farm’s motion Fireman’s Fund was made a third-party defendant and was required to assert its claim as Fite’s subrogee.

The pertinent statutes in force at the time the facts giving rise to this controversy occurred were as follows:

KRS 304.20-020, a section of the Insurance Code applicable to casualty insurance contracts, prohibited the issuance or delivery of an automobile liability insurance policy in this state unless it provided coverage “for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury,” etc. By reference to KRS 187.330(3) it required that the limits of such coverage be not less than $10,000 for injury to or death of one person and $20,000 for two or more persons.

KRS 342.055 [now KRS 342.700(1)], a section of the Workmen’s Compensation Law, provided that whenever a compensable injury resulted from circumstances creating liability in some person other than the employer the injured employe could either claim workmen’s compensation or sue the other person at common law, but could not have double recovery. The concluding sentence of this section provided for subrogation by operation of law, as follows: “If compensation is awarded under this chapter, either the employer or his insurance carrier, having paid the compensation or having become liable therefor, may recover in his or its own name or that of the injured employe from the other person in whom legal liability for damages exists, not to exceed the indemnity paid and payable to the injured employe.”

In conformity with the Insurance Code, “Coverage U” of State Farm’s policy obligated the insurer to pay, within the minimum statutory limits, all sums the insured should become legally entitled to recover for personal injuries from the owner or operator of an uninsured automobile.

Under an “Exclusions” clause the policy provided that Coverage U would not apply “so as to inure directly or indirectly to the benefit of any workmen’s compensation or disability benefits carrier,” etc. We shall refer to this as the exclusion.

Under the “Limits of Liability” section of a “Conditions” clause the policy provided that any amount payable under Coverage U “shall be reduced by . . . the amount paid . . . and payable on account of such bodily injury under any workmen’s compensation law, disabilities benefits law or any similar law.” We shall refer to this as the offset condition.

The cases cited in Fireman’s Fund’s brief all deal with provisions similar to State Farm’s offset condition. Decisions from other jurisdictions on that subject are collected and discussed in an annotation at 24 A.L.R.3d 1369. They go in all directions. Suffice it to say, however, that in our opinion the minimum coverage limits prescribed by KRS 304.20-020 arid KRS 187.330(3) cannot be reduced by a condition requiring the amount of workmen’s compensation to be offset against such amount as the injured party otherwise would be entitled to recover under the uninsured motorist coverage of an automobile liability policy. Cf. Meridian Mutual Insurance Company v. Siddons, Ky., 451 S.W.2d 881 (1970).

The exclusion is a different matter. It does not affect the minimum coverage required by the insurance statutes, nor does it in any way diminish the compensation carrier’s right of subrogation under KRS 342.055. The compensation carrier’s right to pursue the third-party tortfeasor remains intact.

The trial court adjudged that both the exclusion and the offset condition were invalid and that to the extent of its compensation payments Fireman’s Fund was entitled to reimbursement out of Fite’s recovery against State Farm.

Under comparable statutes the Virginia Supreme Court of Appeals held a similar contractual exclusion valid on the theory that the compensation carrier’s statutory right of subrogation is against the tort-feasor, not against the injured employe’s automobile liability insurance carrier:

“It is not the purpose of the uninsured motorist law to provide coverage for the uninsured vehicle, but its object is to afford the insured additional protection in event of an accident. Here, Aetna does not stand in the shoes of Washington, the uninsured motorist. Its policy does not insure Washington, the uninsured motorist. Its policy does not insure Washington against liability. It insures Mrs. Horne and others protected under the policy against inadequate compensation. Aetna’s liability to its insured is contractual, even though it is based upon the contingency of a third party’s tort liability, and Horne’s employer, Superior, does not become a third party beneficiary under the insurance contract. In fact, the policy specifically provided that it was not to inure directly or indirectly to the benefit of any workmen’s compensation carrier or self-insurer under the Act. Mrs. Horne chose to provide, at her own expense, additional protection under the uninsured motorist provision for herself and others protected thereby and not for Superior or its compensation carrier. Neither Superior nor its compensation carrier acquired any more rights under Mrs. Horne’s automobile liability policy than they would have acquired under a policy issued the insured providing for health and accident benefits. Certainly the Workmen’s Compensation Act does not contemplate that the employer can be sub-rogated to the rights of the insured in such a policy. . . , In the absence of a statutory provision giving the employer or its compensation carrier a right of subrogation against an insurer of the employee under the uninsured motorist provision of a liability policy, such a right does not exist.” Horne v. Superior Life Ins. Co., 203 Va. 282, 123 S.E.2d 401, 404 (1962).

We find the logic of the Horne opinion irresistible, and Fireman’s Fund cites no case to the contrary. It is to be borne in mind that an insurance policy is a contract, and insofar as it does not contravene the law any recovery against the insurance company is governed solely by its terms. In fact, we have held in a recent case, Commercial Union Ins. Co. v. Delaney, Ky., 550 S.W.2d 499 (decided February 18, 1977), that reasonable exclusions from uninsured motorist coverage do not violate the statute.

As we construe KRS 342.055, the subrogation statute, “the other person in whom legal liability for damages exists” quite clearly refers to the third-party tort-feasor who is liable at common law. A payment made in performance of a contractual obligation is not a payment of “damages.” Hence the liability of an insurance company under its uninsured motorist coverage cannot be the “legal liability for damages” mentioned in KRS 342.055. Moreover, the satisfaction of an injured party’s claim by his own insurance company under its uninsured motorist coverage does not inure to the benefit of the uninsured motorist. His liability is not extinguished, and it may be enforced by both the carrier which has paid workmen’s compensation benefits and the carrier which has paid under the uninsured motorist coverage. As between these two subrogees, however, the compensation carrier has priority, because otherwise the automobile policy would indeed interfere with the rights given to the compensation carrier under KRS 342.055. Cf. Horne v. Superior Life Ins. Co., 203 Va. 282, 123 S.E.2d 401, 405 (1962).

To hold that the contractual rights of an insured party under the uninsured motorist clause of an automobile liability insurance policy must inure to the benefit of a workmen’s compensation carrier to the extent of compensation paid or payable to him would confer upon the compensation carrier an additional right which it does not have under the subrogation statute. The injured party, or the person under whose insurance policy he is defined as an “insured,” has no obligation to his employer’s compensation carrier to carry any automobile liability insurance whatever. In the absence, therefore, of a statute or agreement to the contrary, what can be the source of the compensation carrier’s right to have the benefits of such insurance? The answer, we think, is that there is none.

Before this case was tried, and as an incident of his workmen’s compensation settlement with Fireman’s Fund, Fite executed an agreement subrogating Fireman’s Fund to all of his claims “against any person or corporation liable for the loss” paid by Fireman’s Fund. This agreement, which was pleaded by Fireman’s Fund, specifically provided for payment to Fireman’s Fund from the proceeds of any judgment obtained against the third-party tortfeasor “and State Farm Insurance Company,” and it bound Fite not to make a settlement or give a release without the written consent of Fireman’s Fund. Later, however, Fite settled his claim against State Farm and the third-party tortfeasor for $3,000, subject to an express provision saving the subrogation claim of Fireman’s Fund.

The jury returned a verdict against the third-party tortfeasor in the sum of $6568.20 for Fite’s personal injuries, $4856.24 of which was adjudged in favor of Fireman’s Fund and the balance in favor of State Farm. State Farm also was adjudged liable to Fireman’s Fund for the $4856.24, and for that reason the trial court did not determine whether Fireman’s Fund could look to the $3,000 settlement paid by State Farm to Fite (which sum had been paid into court).

As we are reversing the $4856.24 judgment against State Farm, it will be necessary for the trial court to determine the effect of the subrogation agreement signed by Fite and the respective rights of the parties with respect to the $3,000 settlement.

The judgment is reversed for further proceedings consistent with this opinion.

All concur.


text:
    ALEXANDER HAMILTON LIFE INSURANCE COMPANY OF AMERICA, Appellant, v. Edwin H. LEWIS and Ida B. Lewis, his wife, Appellees. Edwin H. LEWIS and Ida B. Lewis, his wife, Cross-Appellants, v. ALEXANDER HAMILTON LIFE INSURANCE COMPANY OF AMERICA, Cross-Appellees.
    Supreme Court of Kentucky.
    April 22, 1977.
    William T. Warner, Wood, Pedley, Stans-bury, Rice & Warner, Louisville, for appellant and cross-appellees.
    H. Douglas Rouse, Shepherd & Rouse, Carrollton, for appellees and cross-appellants.
   PALMORE, Justice.

This is a second appeal in the same proceeding. In Alexander Hamilton Life Insurance Company v. Lewis, Ky., 500 S.W.2d 420 (1973), a final order of the trial court denying the insurance company’s CR 60.02 motion to vacate a 1970 judgment awarding the Lewises $14,436.79 was reversed and the cause was remanded for further proceedings.

The background is that after their daughter had disappeared and her whereabouts had been unknown for over seven years the Lewises brought suit against the insurance company for the face amount of two insurance policies on her life, relying on KRS 422.130 (Presumption of Death). A judgment was entered in their favor and was paid by the insurance company. Then the daughter was discovered alive and the company filed its CR 60.02 motion to set the judgment aside. Following a denial of that relief this court held that the company was entitled to it under both CR 60.02(2) [newly discovered evidence] and CR 60.02(6) [“reason of an extraordinary nature justifying relief”].

After setting aside the order denying relief the trial court received evidence bearing on the disposition of the money by the Lewises and upon their present financial condition and entered a “judgment of restitution” directing them to repay $7218.40, being half of the money collected under the original judgment, without interest. The company appeals and the Lewises cross-appeal.

It is an accepted principle that money paid in obedience to a judgment that is later set aside must be repaid. Fitch v. Kentucky-Tennessee Light & Power Co., 308 Ky. 652, 215 S.W.2d 91, 92 (1948); Turner v. Ewald, 295 Ky. 764, 174 S.W.2d 431, 438 (1943); Drury v. Franke, 247 Ky. 758, 57 S.W.2d 969, 972, 88 A.L.R. 917 (1933); Morgan v. Hart, 48 Ky. (9 B.Mon.) 79, 80 (1848).

“A person who has conferred a benefit upon another in compliance with a judgment ... is entitled to restitution if the judgment is reversed or set aside, unless restitution would be inequitable. . . (Emphasis added.) Restatement, Restitution, § 74.

The company insists that it is entitled to restitution in full. The Lewises rely on the portion of the Restatement, Restitution, § 74, that we have italicized, contending that in the name of “equity” restitution may be denied wholly or in part, as the circumstances warrant, and that in their situation it should be denied entirely. We see no just reason to deny any part of it.

The theory of restitution as a basis for recovery is about as old as the law itself. Though often assumed to be purely an equitable remedy, some of the earliest proceedings both at common law and in equity were founded upon it and were amplified in the course of time. Restatement, Restitution, Chapter 1, Introductory Note. The obvious justification for it is that one should not be unjustly enriched at the expense of another. Id., § 1.

In Bridges v. McAlister, 106 Ky. 791, 51 S.W. 603, 21 KLR 428, 45 LRA 80, 90 Am. St.Rep. 267 (1899), the accountability of a party for actions taken under authority of a judgment later set aside was discussed at some length. Among other things the court concluded as follows: “When a judgment is reversed, restitution must be made of all that has been received under it, but no further liability should in any case be imposed.” Id., 51 S.W. at p. 605. Our attention has not been directed to any precedent in this jurisdiction for relieving a party of the duty to restore all of the money paid to him under a judgment subsequently vacated. Understandably, of course, the receipt and disbursement of money by someone in a fiduciary capacity could very well present a different case, but when the party who received the money by authority of the judgment has spent some or all of it at his own volition and for his own ends, we find it difficult to accept the proposition that equity diminishes his accountability.

In this instance the Lewises spent $1935 to pay off a note, $1800 for improvements on their house, $3,000 for educating their son, $3155 for automobiles, and about $4800 for medical expenses and care of the returned daughter. They now have only about $6,000 in cash deposits, but their net worth substantially exceeds the amount received under the judgment against the insurance company.

According to § 142(1) of the Restatement, Restitution, “The right of a person to restitution from another because of a benefit received is terminated or diminished if, after the receipt of the benefit, circumstances have so changed that it would be inequitable to require the other to make full restitution.” The Comment following that section explains that there is no such change in circumstances “where the money is used for the payment of living expenses, or even used to make gifts, unless such expenses were incurred or gifts made because of the receipt of the money and the amount of such payment was of such size that considering the financial condition of the payee it would be inequitable to require payment.” [Emphasis added.]

The illustrations following that commentary do not reveal to our satisfaction a workable criterion for determining what is “inequitable.” “Equity” is a broad term, allowing for as many different definitions as there are people who are familiar with it. Often overlooked, however, is the simple fact that both equity and equality are derived from the same word and have much more in common than a similar sound. We think of equity as an implement of sympathy and compassion, but its real meaning is more akin to equality. What is fair for one must be fair for the other. In this case, is it fair that the stockholders of the insurance company lose $7200 because the Lewis-es have spent the money? We do not think so. It was not the insurance company, but the Lewises, who claimed their daughter was dead, and it is not at all unjust to hold that when they took the money they had to do so at the risk of having to repay it if their claim proved to be unfounded, as it did. We perceive nothing in this record to raise an equitable defense in mitigation of the demand for restitution.

On the question of interest, there can be no doubt that the insurance company’s claim for restitution, though quasi-contractual in nature, was “liquidated” and that interest ordinarily is recoverable as a matter of right on a liquidated claim. Shanklin v. Townsend, Ky., 434 S.W.2d 655, 656 (1968). Interest may be allowed also on the basis of an implied contract, or quasi-contract, and probably should be if the money or property has been used for profit-making. Curtis v. Campbell, Ky., 336 S.W.2d 355, 361 (1960); Henderson Cotton Mfg. Co. v. Lowell Machine-Shops, 86 Ky. 668, 7 S.W. 142, 145 (1888).

In Jackson County v. United States, 308 U.S. 343, 60 S.Ct. 285, 84 L.Ed. 313 (1939), the United States, in behalf of an Indian to whom land had been patented, sued Jackson County, Kansas, to recover taxes paid under a fee-simple patent that had been later cancelled. In holding that interest was not recoverable, the court had this to say with respect to actions based on quasi-contractual obligations:

“The cases teach that interest is not recovered according to a rigid theory of compensation for money withheld, but is given in response to considerations of fairness. It is denied when its exaction would be inequitable.”

The dispositive equitable circumstance favoring the county in that case was that during the time it was collecting the taxes it had no reason to know that a subsequent event would result in their having been unauthorized. “The true ground upon which to put the allowance of interest is the fault of the party who is to pay the debt. If he has made default of payment, then, ex aequo et bono, he should reimburse the creditor for keeping him out of the use of his money. He should render an equivalent for the use of what is not his own.” Henderson Cotton Mfg. Co. v. Lowell Machine-Shops, supra, at 7 S.W. 145.

When an innocent party uses the money or property of another in reliance upon a final unappealed judgment that says it is his, it can hardly be said that he is at fault unless and until he is put on notice of circumstances that justify or call for setting the judgment aside. In this case the Lewis-es learned on July 25, 1971, that their daughter was still alive. A private investigator employed by the insurance company discovered it on August 25, 1971. On the basis of these facts we are of the opinion that interest on the amount recoverable by the insurance company should run from July 25, 1971.

The judgment is reversed on the appeal and affirmed on the cross-appeal, with directions that a new judgment be entered in conformity with this opinion.

All concur.


text:
    Larry Russell BERNING, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    April 22, 1977.
    Rehearing Denied June 10, 1977.
    Jack E. Farley, Public Defender, Timothy T. Riddell, Asst. Public Defender, Frankfort, for appellant.

      Robert F. Stephens, Atty. Gen., Patrick B. Kimberlin, III, Asst. Atty. Gen., Frankfort, for appellee.
   STERNBERG, Justice.

On January 20,1974, appellant broke into the Fifth Street Market in Henderson, Kentucky, and on February 12, 1974, he was indicted by the Henderson County Grand Jury for the offense of breaking and entering a storehouse (KRS 433.190 — Indictment No. 74-13). On August 24¿ 1974, appellant broke into the Sears Roebuck & Co. store, in Henderson, and engaged in the exchange of gunfire with police before being apprehended. On September 9, 1974, he was again indicted by the Henderson County Grand Jury for the offense of breaking into the Sears store (KRS 433.190), malicious shooting with intent to kill (KRS 435.-170(1)), and of being a habitual criminal (KRS 431.190 — Indictment No. 74-95). The indictments were consolidated for trial, and on November 22, 1974, appellant, who testified in his own behalf, was found guilty.

On appeal to this court appellant’s conviction on Indictment No. 74-95 was reversed in a memorandum opinion and the case sent back to the Henderson Circuit Court for a new trial. The judgment on Indictment No. 74-13 was affirmed.

On April 1,1976, appellant was retried on Indictment No. 74-95. The jury found that appellant had been convicted of two prior felonies, and found him guilty of storehouse breaking and guilty of malicious shooting with intent to kill. His sentences were fixed at life imprisonment on each of the primary offenses, as authorized by his two prior felony convictions. His sole and only defense was mental disease or defect. It is his contention that because of his personality, family background and consumption of alcoholic beverages, he acted from a diminished capacity at the time he broke into the Sears store.

To establish the two prior convictions (Indictment Nos. 73-08 and 73-28) and their sequence in time, the Commonwealth called two witnesses — the circuit clerk and a deputy sheriff. The clerk testified that Indictment No. 73-08 charged that the commission of the offense was on January 18,1973, and that a judgment finding appellant guilty was entered on March 16,1973. Concerning Indictment No. 73-28, the clerk attempted to read to the jury the specific charges made in that indictment. Objection was duly made by appellant’s counsel, sustained by the trial court, and the jury was duly admonished. However, shortly thereafter, the court, over objection, permitted the clerk to read to the jury the indictment that charged appellant with breaking and entering the Kraver Theater, the Pizza Roma restaurant, the city high school and the Seven Arts Cinema, all in Henderson. Over objection by counsel for appellant, the court permitted the deputy sheriff, Hugh Stone, to testify how and when he investigated these four break-ins. No explanation is made, nor any reason shown, why appellant’s prior convictions and the dates of the commission of the offenses were not established by having the circuit clerk read so much of the indictment as discloses the dates and by reading into the evidence the entry of the judgments as he had done when the Commonwealth established the conviction under Indictment No. 73-08.

On this appeal appellant charges three errors, as follows:

“1. Did the court below err to appellant’s substantial prejudice during his trial for being a habitual criminal when it allowed the Commonwealth to read and to use the indictment upon which the prior felony convictions were had?
2. Did the court below commit an error of reversible magnitude when its instructions failed to authorize the jury to return a verdict on the habitual criminal charge based on only one prior felony?
3. Did the court below deprive appellant of due process of law when it allowed the jury to convict appellant of two counts of being a habitual criminal under an indictment which charged appellant with only one count of being a habitual criminal?”

On the first charge the Attorney General admits that the trial judge erred in permitting the indictments upon which appellant’s prior felony convictions were had to be read to the jury. He argues, however, that these errors did not substantially prejudice the appellant’s right to a fair trial. The right to a fair trial does not mean a perfect trial, free of any and all errors. Michigan v. Tucker, 417 U.S. 433, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974). What it does mean is “ * * * that a litigant is entitled to at least one tolerably fair trial of his action.” Neely v. Strong, 186 Ky. 540, 217 S.W. 898 (1920); Hudson v. Commonwealth, 220 Ky. 582, 295 S.W. 886 (1927). There was no need for the clerk to read the nature of the charges in Indictment No. 73-28, nor was it proper for the deputy sheriff to portray before the jury the investigation which he made which led to the arrest and conviction of appellant on that indictment. All that was necessary for the Commonwealth to do was to show the dates the former offenses were committed, which can be established from the indictment, and that there was a judgment of conviction, which can be shown by the judgment or order book of the court. All of the rest of this charade was unnecessary and was clearly improper. This error, however, did not affect the action of the jury in considering appellant’s guilt or innocence of the two principal offenses. It was, however, prejudicial to the nature or extent of the penalty that could be imposed upon a finding that the appellant was guilty of one or two prior felonies.

Next, appellant charges error in the court’s instructions to the jury. At first blush it may appear that there was error, perhaps technically there was, but, if so, it was not prejudicial to appellant. The indictment upon which appellant was tried charged two felonies and the habitual criminal penalty charge. The court, in the instructions for the primary offense of storehouse breaking, not only instructed on the principal offense but instructed on both one and two prior felony convictions. On the principal offense of willfully and maliciously shooting, the court only instructed on the principal offense and on two prior felony convictions. Although requested to by counsel for appellant, the court did not instruct in this instance on one prior felony conviction. It has long been established that both the one and two prior felony convictions must be the subject of an instruction, separate and apart from the principal offense. This is clearly delineated in Satterly v. Commonwealth, Ky., 437 S.W.2d 929 (1969). We need not, however, pass on the issue of whether a habitual criminal instruction must be given with each principal offense where multiple felonies are charged in a single indictment, because appellant has not demonstrated any damage or prejudice, notwithstanding the court adjudged that the two life sentences run consecutively. Appellant’s conviction carried two jury sentences of life. The complained of error is only directed at the action of the court where the principal charge is willfully and maliciously shooting, that being the one imposed where no instruction was given for one prior felony conviction. No complaint is made to the instructions of the court where the principal offense was storehouse breaking.

Assuming, for the sake of argument only, that appellant is correct and that he was entitled to an instruction on one prior conviction as related to the principal offense of willfully and maliciously shooting, he was also charged, convicted and sentenced upon the offense of storehouse breaking, and his punishment fixed at life imprisonment pursuant to instructions about which no complaint has been made.

As has been gloriously stated, “I regret that I have only one life to give for my country.” So be it with the appellant — he has only one life for which he can be sentenced, whether he has one or multiple sentences of life imprisonment. As far as being prejudiced by the action of the court in imposing two life sentences to run consecutively, KRS 197.045(2) protects him from losing parole and expiration of sentence benefits. This statute provides:

KRS 197.045(2) — “When two (2) or more consecutive sentences are to be served, the several sentences shall be merged and served in the aggregate for the purposes of the good time credit computation or in computing dates of expiration of sentence.”

Not only do all of the multiple life sentences run concurrently, but the appellant, by statute, is eligible for parole as if only one life sentence had been imposed.

In the third issue the appellant attacks the verdict of the jury and the judgment of the court imposing two life sentences where only one habitual criminal charge was made in the indictment. It has been called to our attention by the Attorney General that the alleged error has not been preserved for appellate review. However, since this case is being returned to the trial court, we deem it proper to dispose of this issue at this time.

In Wingo v. Ringo, Ky., 408 S.W.2d 469 (1966), we said:

“The fallacy in the opinion of the Lyon Circuit Court lies in its conclusion that only as to one subsequent felony can the punishment be enhanced by reason of previous felony convictions. Our cases make it clear that the enhancement validly is applicable to every subsequent felo- »

Suffice it is to say, therefore, that it is not necessary in an indictment to charge facts constituting a basis for the imposition of the habitual criminal penalty for each primary offense constituting separate counts of an indictment. One properly pleaded charge of being a habitual criminal is sufficient for an indictment containing multiple charges. This is not to say, however, that a habitual criminal instruction cannot properly be given as a part of the instruction on each principal offense.

All facts giving rise to this action occurred prior to the effective date of the Penal Code (1/1/75). Consequently, all statutory references are to the statutes as they existed prior thereto.

The appellant was properly found guilty of both storehouse breaking and maliciously shooting with intent to kill. It now becomes necessary to have a jury fix the sentence.

The judgment is reversed with directions for the appellant to be tried again solely on the question of the extent of his punishment.

All concur.