author: HUGHES, Justice.

text:
    DAIRYLAND COUNTY MUTUAL INSURANCE COMPANY of Texas, Appellant, v. HELM-LARY FORD, INC. and Criterion Insurance Company, Appellees.
    No. 17918.
    Court of Civil Appeals of Texas, Fort Worth.
    Jan. 5, 1978.
    Brown, Crowley, Simon & Peebles and Anne Gardner, Fort Worth, for appellant.
    Handy & Morgan, Inc. and James R. Handy, Hurst, for Helm-Lary Ford, Inc.
    Cantey, Hanger, Gooch, Munn & Collins and Tolbert L. Greenwood, Fort Worth, for Criterion Ins. Co.
   OPINION

HUGHES, Justice.

Dairyland County Mutual Insurance Company of Texas has appealed a summary judgment rendered against it in favor of Helm-Lary Ford, Incorporated, which judgment also dismissed defendant, Criterion Insurance Company, from the case. Partial summary judgment was granted as to liability against Dairyland. Damages were stipulated in the amount of $1,862.00, after which, final judgment was rendered.

We reverse and remand.

Dairyland summed up the statement of facts in this case (which was not disputed):

“Dairyland issued a collision and comprehensive automobile policy to Gregory Arth covering a 1972 Volkswagen which Arth had purchased from Helm-Lary Ford, Inc., in May of 1974 . . . . His roommate, Roger Hanson, also had a collision and comprehensive policy, issued by Criterion Insurance Company .

“In its original petition, Helm-Lary alleged that it loaned a 1973 Pinto automobile to Gregory Arth after his Volkswagen had been seized by the National Automobile Theft Bureau as a stolen automobile, that Gregory Arth gave his roommate, Roger Hanson, permission to drive the Pinto and that it was damaged in the collision while Hanson was driving it .

“The motions for summary judgment filed by plaintiff, Helm-Lary, and Dairy-land’s co-defendant, Criterion, were supported by answers of Dairyland to Requests for Admission and Interrogatories establishing the issuance and terms of Dairy-land’s policy and, in addition, by the affidavits of the two insureds, Gregory Arth and Roger Hanson.

“Gregory Arth stated that he purchased a 1972 Volkswagen from Helm-Lary on or about May 2, 1974, that he drove the car until sometime in July of 1974 ‘when the National Automobile Theft Bureau seized the Volkswagen alleging that it had been stolen.’ He reported the seizure to Helm-Lary and they ‘loaned me a 1973 Pinto automobile for temporary use.’ He further averred that he made a trip to D/FW Airport to pick up a paycheck on July 19, 1974 and gave his-roommate, Roger Hanson, express permission to drive the Pinto on that occasion and that, while Roger Hanson was driving the Pinto, it flipped over on its top on an access road at the Airport. About a month later, he ‘learned’ that the Volkswagen was at a lot in Richland Hills. He went to that location and the National Automobile Theft Bureau ‘relinquished control of the vehicle saying many items on the front end had been the subject of theft.’

“Roger Hanson stated in his affidavit that he was personally acquainted with Gregory Arth and knew that he had purchased the Volkswagen. He further stated essentially the same matters as contained in Arth’s affidavit with regard to ‘seizure’ of the Volkswagen by the National Auto Theft Bureau, request by Arth for another automobile from Helm-Lary for his ‘temporary use,’ occurrence of the accident and the eventual return of the Volkswagen. However he stated that he was not certain whether the Volkswagen was actually returned to Gregory Arth or to Helm-Lary.

“Dairyland’s policy issued to Gregory Arth provided for collision coverage under ‘Part III — Physical Damage’ for a non-owned automobile only if operated or used by the named insured or a relative, and then only if the non-owned automobile was not furnished for the regular use of the insured. Thus, if the 1973 Pinto is considered to be a ‘non-owned automobile’ then there is no coverage under Dairyland’s policy. However, any person using an ‘owned automobile’ with permission of the named insured would be an ‘insured person’ under that policy, and there would be coverage for the 1973 Pinto in that event, if the 1973 Pinto can be considered ‘owned.’

“The definition of ‘owned automobile' under Part III of the policy includes a ‘temporary substitute automobile.’ That term is defined in the policy on page 2, under Definitions, Part I, as follows:

‘“Temporary substitute automobile" means any automobile or trailer not owned by the named insured, while temporarily used with the permission of the owner as a substitute for the owned automobile or trailer when withdrawn from normal use because of its breakdown, repair, servicing, loss or destruction.’ . . .

“Helm-Lary and Criterion both contended in their motions for summary judgment that coverage for the loss of the 1973 Pinto should exist under Dairyland’s policy because, as a matter of law, (1) Roger Hanson was an ‘insured person’ since he had permission of Gregory Arth to use the Pinto, and (2) the Pinto was a ‘temporary substitute automobile.’ Criterion further contended that its coverage was ‘secondary’ and that of Dairyland was ‘primary.’ The Trial Court agreed with all of these contentions in granting the summary judgments.”

We sustain point of error No. 1. Dairy-land referred us to Criterion’s summary judgment motion which alleged primary coverage in Dairyland. Dairyland’s policy (in evidence) provides, under “Other Insurance”, “the insurance with respect to a temporary substitute automobile or non-owned automobile shall be excess insurance over any other valid and collectible insurance.” (Emphasis ours.)

Roger Hanson’s affidavit reflected that he had a Criterion policy providing collision coverage. However, Hanson’s policy was not placed in evidence and we cannot tell which of the two policies is primary or whether there might be two “excess” clauses. A conflict of such clauses could result in Criterion being established with the primary coverage, or in a proration of the loss. Hardware Deal. Mut. F. Ins. Co. v. Farmers Ins. Exch., 444 S.W.2d 583 (Tex.1969).

Under the foregoing circumstances, we hold that summary judgment movants failed to establish, as a matter of law, that Dairyland had primary coverage or that Criterion should be discharged from liability. Noland v. Allstate Insurance Company, 429 S.W.2d 653 (Tex.Civ.App.—Houston [1st Dist.] 1968, no writ).

Reversed and remanded.


source: Caselaw Access Project

author: RAY, Justice.

license: Public Domain

text:
    Vernon D. SUTHERLAND and Barbara Ann Sutherland, Appellants, v. Hazel Joyce SUTHERLAND, Appellee.
    No. 8507.
    Court of Civil Appeals of Texas, Texarkana.
    Jan. 10, 1978.
    Rehearing Denied Jan. 31, 1978.

      Charles H. Robertson, Johannes, Robertson & Wilkinson, Dallas, for appellants.
    W. Lawrence Evans, Sherman, for appel-lee.
   RAY, Justice.

This is a suit brought under the Texas Uniform Declaratory Judgment Act seeking to vacate, annul, or hold void a portion of a divorce decree. Vernon D. Sutherland, appellant (plaintiff), brought suit against appellee (defendant), Hazel Joyce Sutherland, appellant’s former wife, alleging that the trial court did not have power to treat future Fleet Reserve Retainer pay as property subject to partition under the previously entered divorce decree. Appellant requested the court to set aside or enjoin enforcement of those portions of the divorce decree which had awarded appellee one-half of the retainer pay and which had further ordered and directed appellant to pay to appellee one-half of all sums of retainer pay received by him after August 31,1971. Appellant’s present wife, Barbara Ann Sutherland, appellant (intervenor), filed a petition in intervention seeking to set aside or enjoin enforcement of the same sections of the judgment, but only as to retainer payments and sums received by her husband after January 20,1972, the date of her marriage to Mr. Sutherland.

Trial was had without a jury and judgment was entered in favor of appellee, Hazel Joyce Sutherland. Appellant, Vernon D. Sutherland, has perfected his appeal and submits seventeen points of error for our consideration. His wife, Barbara Ann Sutherland, has perfected her appeal and submits nineteen points of error for our consideration.

When this case was originally tried in the District Court of Fannin County, Mr. Sutherland gave notice of appeal, but did not perfect his appeal from the divorce decree and the judgment awarding appellee one-half of all Fleet Reserve payments became final. When Mr. Sutherland failed to deposit one-half of the retainer payments into the registry of the court as ordered, the trial court held him in contempt. He then attempted to collaterally attack the judgment in this Court and in the Texas Supreme Court by writ of habeas corpus. Ex Parte Sutherland, 515 S.W.2d 137 (Tex.Civ.App. Texarkana 1974, writ dism’d); Ex Parte Sutherland, 526 S.W.2d 536 (Tex.1975).

Mr. Sutherland contended in the habeas corpus proceeding that the order in the divorce decree commanding him to pay the retainer payments was not enforceable by contempt proceedings because (1) the payments were not community property but were his earnings and therefore his separate property; (2) the divorce decree was, in effect, one for alimony which was void because it was beyond the power of the court and against the public policy of this state; and, (3) the order was merely a judgment for debt which could not be enforced by contempt.

There was no question concerning the jurisdiction in the original proceeding over the person of Mr. Sutherland since he participated in that action. His contention is that the trial court did not have jurisdiction of the subject matter, that is, the Fleet Reserve Retainer payments. This Court stated in Ex Parte Sutherland, supra,

“In divorce actions the district court has the power, and indeed the duty to determine the spouses’ community property in existence at that time, and to decree a fair and equitable division of such property between the spouses. 20 T.J.2d Div. Sec. 206; Vernon’s Anno.Tex.Statute, Family Code, Sec. 3.63, V.T.C.A. As the court clearly had jurisdiction to determine whether relator’s entitlement to the retainer pay was a vested community asset, its adjudication of that issue was not void.”

This Court concluded that in a habeas corpus proceeding, the vested nature of Mr. Sutherland’s retainer pay as a community asset was not open to question because the trial court’s divorce decree had become final, and even if erroneous, it could not be collaterally attacked in a habeas corpus proceeding. We held that it was not sufficient to show that the order was erroneous. The Supreme Court in Ex Parte Sutherland, supra, held that the original divorce decree was not subject to collateral attack under the circumstances of this case.

Mr. Sutherland’s relief from the alleged erroneous decision of the trial court in the divorce proceedings was by appeal which he elected not to pursue. Writ of error to the Court of Civil Appeals was not available to him since he had participated in the trial of the case. Article 2255, Tex.Rev. Civ.Stat.Ann.; Rules 359, et seq., Tex.R. Civ.P.

Under the circumstances of this case, the only avenue left open to Mr. Sutherland to set aside that portion of the divorce decree which he alleges was void, was by bill of review, that is, a direct attack upon the validity of the judgment. Rule 329b(5), Tex.R.Civ.P., provides in pertinent part,

“ . . . After the expiration of thirty (30) days from the date the judgment is rendered or motion for new trial overruled, the judgment cannot be set aside except by bill of review for sufficient cause, filed within the time allowed by law. . . . ”

The “time allowed by law” would ordinarily be determined by Article 5529, Tex. Rev.Civ.Stat.Ann., which is the four-year statute of limitations. It has been held that Article 5529, supra, is applicable to an equitable bill of review to set aside a divorce decree. Raney v. Mack, 504 S.W.2d 527 (Tex.Civ.App. Texarkana 1973, no writ); Ragsdale v. Ragsdale, 520 S.W.2d 839 (Tex.Civ.App. Fort Worth 1975, no writ). The present case was filed on September 1, 1976, a period of more than four years after the divorce decree was entered on August 31, 1971.

Under the facts of the present case, a proceeding in the nature of a bill of review was the exclusive method of vacating the divorce decree. McEwen v. Harrison, 162 Tex. 125, 345 S.W.2d 706 (1961); Deen v. Kirk, 508 S.W.2d 70 (Tex.1974). Mr. Sutherland’s suit for declaratory judgment is not a remedy available to him to set aside a final judgment.

If we construe Mr. Sutherland’s suit to vacate the judgment as being a bill of review, it comes too late because it is barred by the four-year statute of limitations. Further, there is no allegation and no proof that he was prevented from making his defense in the divorce proceedings by fraud, accident or wrongful act of appel-lee. Thus, one of the requirements for a bill of review has not been satisfied. Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996 (1950); Raney v. Mack, supra.

We have reviewed all of Vernon D. Sutherland’s points of error and find them to be without merit and they are therefore overruled.

We have examined the points of error submitted by appellant, Barbara Ann Sutherland, and find them also to be without merit and they are thus overruled. 34 Tex. Jur.2d, Judgments, Secs. 401, 402 and 409.

The judgment of the trial court is affirmed.


author: SHANNON, Justice. PHILLIPS, Chief Justice,

text:
    FURNITURE BARN, INC., Appellants, v. Benito LEAL et ux., Appellees.
    No. 12657.
    Court of Civil Appeals of Texas, Austin.
    Jan. 11, 1978.
    Rehearing Denied Feb. 1, 1978.

      Terrence Kendall, Kendall, Randle, Finch & Osborn, Austin, for appellants.
    ' J. David Phillips, Juarez, Camacho & Phillips, Austin, for appellees.
   SHANNON, Justice.

Appellees, Benito and Linda Leal, filed suit against appellant, Furniture Barn, Inc., in the county court at law of Travis County. Appellees sought treble damages for an alleged violation of Tex.Bus. & Comm.Code Ann. § 17.41, et seq., (1973), commonly termed the Deceptive Trade Praetices-Con-sumer Protection Act. After trial to the court, the court entered judgment for ap-pellees for $555.00 treble damages and $1,000.00 for attorney’s fees. We will reverse the judgment.

In their trial petition, appellees alleged that on May 12, 1975, appellant sold them furniture for $765.42. In connection with the sale, appellees signed a printed retail installment contract. Across the face of the printed contract appeared the words, “Layway [sic] only will pay 40.00 ea month until paid out.” Appellees paid $175.00 to appellant as a down payment.

By July, 1975, appellees decided that they could not afford to pay out the furniture. In July, appellees called appellant’s employee, Winkley, and requested him to refund the down payment. Winkley, instead, offered to reduce the monthly payment to ten dollars. Appellees accepted and paid one ten dollar installment, but appellant later refused appellees’ second tender of ten dollars and instead, insisted that appellees make the regular forty dollar payment.

On October 7, 1975, Winkley wrote appel-lees as follows:

“Under the terms of our agreement on this account it will be necessary for you to pay $40.00 by Saturday, October 11, 1975.
“If payment is not received your account will be closed and all monies deposited shall be forfeited.”

Appellees pleaded, among other things, that the quoted letter was a false and misleading statement by appellant in representing that the agreement conferred upon appellant or involved rights, remedies, or obligations which appellant did not have. Tex.Bus. & Comm.Code Ann. art. 17.-46(b)(12). Appellants, on the other hand, claim that appellees breached the agreement by failing to make the payments, and, as a result, appellant was entitled to retain the total sum paid as damages occasioned by the breach.

The case was submitted to the court upon an agreed statement of facts. Tex.R.Civ.P. 263. The only facts respecting the agreement included in the statement of facts, and not mentioned above, are that appellees were not to receive the furniture until the full price had been paid, and that at the time the layaway agreement was entered into, there was no discussion by the parties of any “charges or costs” which appellant might deduct from appellees’ payments,

Although the parties used a printed retail installment contract as a beginning point for their agreement, all of the blanks in the form were not completed. Moreover, it is clear that the parties intended to materially alter the terms of the form contract by the addition of the layaway agreement written across the form. It is a fair conclusion that the parties, at least on appeal, treat the layaway agreement, and not the installment contract, as the foundation for appel-lees’ claim of a violation of § 17.46(b)(12).

To make a case that Winkley’s letter was a “false or misleading statement” of appellant’s rights under the layaway agreement, appellees necessarily had to prove up the terms of the layaway agreement. The agreed statement showed that appellees were not entitled to possession of the furniture until the final payment was made. The only other proof was that there was no discussion between the parties at the time of the agreement as to any “charges or costs” which appellant was entitled to subtract from appellees’ payments.

Appellees’ proof that the parties did not discuss appellant’s entitlement to subtract “charges or costs” from appellees’ payments, is not proof of what the agreement did provide in case of appellees’ default. In the absence of proof of what the agreement provided in case of default, it cannot be said that Winkley’s letter was “false or misleading” with respect to the rights and remedies provided by the agreement.

The judgment is reversed, and judgment is here rendered that appellees take nothing.

PHILLIPS, Chief Justice,

dissenting.

I respectfully dissent.

Section 17.46 of the Deceptive Trade Practices Act subdivision (a) proscribes “false, misleading, or deceptive acts or practices in the conduct of any trade or commerce . . .” Subdivision (b)(12) forbids “representing that an agreement confers or involves rights, remedies, or obligations which it does not have or involve, or which are prohibited by law.” Appellees contend, in effect, that the mere use of the word “lay away” constitutes an oral agreement or implies the right to retain any amount of money deposited. I cannot agree. Implicit in this contention would be appellant’s right to forego any disclosure as to its possible cost in carrying out the “lay away” plan and would subject the buyer to the seller’s subjective assessment of his possible damages which, in fact, could be whatever the traffic would bear.

I would hold that the letter to appellees set out in the majority opinion declaring that the seller had the right to retain the down payment and partial installment payment was the declaration of a right that it did not have in that it had never disclosed its intention to appellees to proceed in this manner much less having entered into such a contract with appellees in case of default. In my judgment, the letter to appellees constituted a “false, misleading or deceptive act or practice” of the type that the legislature intended to proscribe and that appel-lees were “adversely affected” thereby.

I would affirm the judgment of the trial court.

      . Appellant cites Holland v. Brown, 15 Utah 2d 422, 394 P.2d 77 (1964), wherein the “lay away” plan was described as an option to purchase. Appellant then reasons that where the buyer breaches the contract — fails to accept the offer — the buyer’s liability is the loss of any consideration paid for the option. As we read the opinion, however, the court in Holland never addressed the question whether a total forfeiture of funds would lie for a breach of a “lay away” agreement much less sanction such a practice.

      . The damages claimed by appellant seem to vary throughout this lawsuit. In their First Amended Original Answer, appellants pleaded that the cost of storage was $10 per month for six months or $60.00. In his letter of November 12, 1975 to Mr. Sanders, appellant’s attorney stated that the cost of storage was $50.00 or five months at $10.00 per month, totaling $181.44, instead of the $191.44 appellant claimed in his pleadings. Then, in the stipulation of agreed facts, the parties stipulated that the damages incurred by appellant included a storage charge, a salesman’s commission, and collection expenses. The charge for “accumulated depreciation on merchandise” previously claimed as damages, however, does not appear.


author: PHILLIPS, Chief Justice.

text:
    H. L. H., Appellant, v. The STATE of Texas, Appellee.
    No. 12667.
    Court of Civil Appeals of Texas, Austin.
    Jan. 11, 1978.
    Rehearing Denied Feb. 1, 1978.
    Adrian L. Young, Lynch, Jolink, Zimmerman & Young, Austin, for appellant.
    Ronald H. Earle, Dist. Atty., Charles E. Hardy, Asst. Dist. Atty., Austin, for appel-lee.
   PHILLIPS, Chief Justice.

This is an appeal from an order of the district court of Travis County sitting as juvenile court of the county waiving its juvenile jurisdiction and transferring juvenile to district court for criminal prosecution.

We affirm this judgment.

The State of Texas petitioned the juvenile court for a waiver of jurisdiction and transfer hearing. Prior to the hearing, however, appellant filed a motion requesting that the court conduct a hearing pursuant to Section 55.04 of the Texas Family Code to determine whether appellant was mentally fit to proceed with the transfer hearing. A hearing was held on the motion. At the conclusion thereof, the trial court found that appellant was fit to proceed with the transfer hearing. Thereafter, the transfer hearing was held and appellant was certified to criminal court for prosecution. From this judgment, appellant perfected his appeal.

In his first point of error, appellant contends that the trial court erred in finding that appellant was fit to proceed with the hearing on transfer to the district court in that the finding of fitness by the court was against the great weight and preponderance of the evidence presented on the issue. We have reviewed all of the evidence and are of the opinion that the court’s finding of fitness is supported by the record.

Section 55.04 of the Texas Family Code reads in part:

“(a) No child who as a result of mental disease or defect lacks capacity to understand the proceedings in juvenile court or to assist in his own defense shall be subjected to discretionary transfer to criminal court, adjudication, disposition, or modification of disposition as long as such incapacity endures.”

In the instant case, there were five psychological evaluations of appellant dating from November 1973 to March 1977. Two witnesses testified. These reports, together with the testimony of the witnesses, form the evidence on the issue of appellant’s fitness to proceed with the transfer hearing. We have reviewed the evidence in light of the above standard and find that appellant’s mind was not so impaired that he was incapable of understanding the charges made against him or of consulting with his attorney in the preparation of his defense. This is especially true in light of the fact that appellant took the stand on his own behalf at the detention hearing and testified in a direct and lucid manner. In our opinion, the trial court did not err in finding that appellant was fit to proceed with the transfer hearing.

Under his second point, appellant contends that the trial court abused its discretion in transferring appellant to criminal district court for prosecution. Appellant argues that the evidence was insufficient to support the court’s findings under Section 54.02(f) of the Texas Family Code. This contention is also without merit. We have considered the entire record and hold that the evidence supported the order of the court waiving its jurisdiction over appellant and certifying him as an adult for the purpose of adult criminal proceedings.

Under the record before us appellant’s referral record consists of the following incidents: (1) unlawfully carrying arms (knife) on September 27, 1972; (2) theft on June 30, 1973; (3) robbery by assault on October 30, 1973; (4) robbery by assault on November 29, 1973; (5) theft on June 10, 1975; (6) assault on a police officer, resisting arrest, and disorderly conduct on September 14, 1975; and (7) aggravated rape and aggravated robbery on June 13, 1977 (present offense). It should also be pointed out that since 1972 appellant has had contact with the following agencies: (1) Travis County Juvenile Court; (2) Rio Grande Rehabilitation Center; and (3) Texas Youth Council. Moreover, there is evidence that although appellant has not exhibited tendencies to escape from detention in the past, there are no fences around any of the Texas Youth Council campuses, and that the overall supervision is not adequate to prevent anyone in custody from escaping. We are of the opinion, therefore, that from an examination of the evidence it cannot be said that the trial court abused its discretion in transferring appellant to criminal district court. See Matter of I. J., 546 S.W.2d 110 (Tex.Civ.App.—Eastland 1977, no writ); Meza v. State, 543 S.W.2d 189 (Tex.Civ.App.—Austin 1976, no writ); B. L. C. v. State, 543 S.W.2d 151 (Tex.Civ.App.—Houston [14th Dist.], writ ref’d n. r. e.); R_ K_ M_ v. State, 535 S.W.2d 676 (Tex.Civ.App.—San Antonio 1976, no writ).

The judgment of the trial court is affirmed.

      . Tex. Family Code Ann. § 54.02 (1975).


author: PALMORE, Justice.

text:
    Cecil PENDLETON v. Bee PENDLETON et al., Appellees.
    Supreme Court of Kentucky.
    Oct. 7, 1977.
    As Modified On Denial of Rehearing Jan. 10, 1978.
    William C. Jacobs, Lexington, for appellant.
    Edward P. Roark, Lancaster, for appel-lees, Bee Pendleton, Jesse Pendleton and Frances Pendleton.
    Scotty Baesler, Lexington, for appellees, Carroll G. Cole and I. W. Smith.
    Phillip D. Scott, McDonald, Alford & Ros-zell, Lexington, for appellee, Marathon Oil Co.
   PALMORE, Justice.

In Pendleton v. Pendleton, Ky., 531 S.W.2d 507 (1975), this court affirmed a judgment of the Fayette Circuit Court dismissing the complaint in this proceeding. On May 16, 1977, having theretofore granted certiorari, the Supreme Court of the United States vacated the judgment [sic] of this court and remanded the case for further consideration in light of Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31 (decided on April 26, 1977).

Count 1 of the complaint was dismissed on the ground of improper venue, and to the extent that our decision affirmed that aspect of the judgment it is not affected by this review.

Count 2 sought to establish an ownership interest in real property located in Fayette County. Because the claim was based on inheritance by an illegitimate child from his father we held that it did not entitle the plaintiff to relief. In reaching that conclusion we observed that the United States Supreme Court in Labine v. Vincent, 401 U.S. 532, 91 S.Ct. 1017, 28 L.Ed.2d 288 (1971) and Gomez v. Perez, 409 U.S. 535, 93 S.Ct. 872, 35 L.Ed.2d 56 (1973), appeared to be speaking with a forked tongue, but as Gomez had conspicuously omitted any mention of Labine we felt obliged to regard Labine as still alive, preferring to let the Supreme Court resolve the anomaly rather than strike down a Kentucky statute on the strength of a guess that might prove to be wrong. So, too, had the Supreme Court of Illinois relied on Labine in its decisions leading up to Trimble, in which the statutory law of Illinois allowing an illegitimate child to inherit from its mother but not from its father was held to be in violation of the Equal Protection Clause of the 14th Amendment.

The Trimble opinion does mention Gomez with approval, and chides Labine as having left “the constitutional analysis incomplete,” but still it shrinks from overruling Labine, perhaps imparting to its own decisions, legitimate or illegitimate, the same equality the 14th Amendment guarantees to persons. In any event, whether Labine is left hanging like a withered arm or has actually been cut off and replaced by an unaccountable pretense that it is still there, Trimble certainly applies to this case and requires that we reverse the judgment to the extent that it dismisses Count 2 of the complaint.

KRS 391.090 provides for inheritance by a bastard from his mother, and from his father only if he has been legitimated through marriage of the parents to each other. We need not stultify ourselves by indulging in a “complete constitutional analysis” designed to support this distinction on the basis of objectives we know full well were neither intended nor imagined by the originators of the legislation. The plain fact is that the law was born and grew up in a man’s world, and the power of government says that such a world no longer exists and its laws cannot subsist without it. Except for nature, which often seems blind to those things seen only by human eyes, man and woman are one and the same, and KRS 391.090 is invalid.

What we said in our first opinion about the amended complaint still holds.

Insofar as it declares the invalidity of KRS 391.090 this opinion shall have no retroactive effect upon the devolution of any title occurring before April 26, 1977 (the date of the Trimble opinion), except for those specific instances in which the disposi-tive constitutional issue raised in this ease was then in the process of litigation.

The judgment is affirmed in its dismissal of Count 1 of the complaint. With respect to Count 2 of the complaint it is reversed for further proceedings consistent with this opinion.

All concur.

      . See In re Estate of Karas, 61 Ill.2d 40, 329 N.E.2d 234, 238 (1975).

      . We resort to this unfortunate terminology only because the statute uses it. It may be that the word itself is unconstitutional and, along with “man” and “woman,” is slated for extinction.


author: JONES, Justice. PALMORE, Chief Justice,

text:
    Danny HAMILTON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    Oct. 28, 1977.
    As Modified On Denial of Rehearing Jan. 10, 1978.

      Joseph J. Grace, James U. Glanville, Pa-ducah, for appellant.
    J. Albert Jones, Commonwealth’s Atty., 2nd Judicial Dist., Paducah, Robert F. Stephens, Atty. Gen., B. F. Radmacher, III, Asst. Atty. Gen., Frankfort, for appellee.
   JONES, Justice.

Danny Hamilton appeals from a judgment sentencing him to 20 years’ imprisonment pursuant to a jury verdict finding him guilty of murder under the provisions of KRS 507.020(l)(b).

The sole question presented by this appeal is whether the trial court erred in instructing the jury that it could find the defendant guilty of murder under KRS 507.020(l)(b), which defines murder as a homicide committed wantonly under circumstances manifesting extreme indifference to human life. Hamilton contends that the evidence was not sufficient to sustain his conviction of murder under that section and that it was the duty of the trial court not to instruct the jury it could find him guilty of murder.

In order that the issue be resolved this court deems it necessary to detail the pertinent facts presented to the jury.

On February 15, 1976, at about 12:30 A.M., in the city of Paducah, Kentucky, Patsy Ann Davidson was killed in a collision between her car and Hamilton’s truck. Several witnesses at the scene of the accident identified Hamilton as the driver of the truck. At the time of the collision, Ms. Davidson was driving her automobile south on 13th Street. Hamilton was operating his truck east on Broadway. Ms. Davidson was thrown from her car onto the curb and died later that night from a crushed skull.

Richard Caneer testified he was driving east on Broadway, a one-way street, when Hamilton passed him. Caneer testified that his speed was 30 or 35 miles per hour, and that Hamilton was going at least twice that fast. On cross-examination, Caneer admitted that he had previously testified at the coroner’s inquest and at that time had estimated Hamilton’s speed to be between 50 and 55 miles per hour. After passing Ca-neer, Hamilton’s truck moved into the right lane, then veered back into the left lane to avoid hitting a car stopped at the intersection of 13th Street and Broadway. Caneer testified that the traffic light on Broadway was red, but that Hamilton continued through the intersection. Ms. Davidson was driving on 13th Street through the intersection of 13th and Broadway. She had the green light for “go” when Hamilton’s truck collided with her vehicle.

Billy Wheeler was driving on 13th Street directly behind Ms. Davidson. He testified that he and Ms. Davidson had stopped at a red light at 13th and Jefferson Streets prior to proceeding to the Broadway intersection. He testified that the light at 13th and Broadway changed to green before either he or Ms. Davidson reached the intersection, and that Ms. Davidson continued to operate her car through the intersection. At that point, Hamilton’s truck struck Ms. Davidson’s car. Wheeler was asked, “Q. How far out in the intersection was she when she [Ms. Davidson] was hit? A. She was just starting across the street when his [Hamilton’s] truck came in the turn lane like he was going to come back this way.” Wheeler testified that “He [Hamilton] was going down Broadway in the turning lane. He was in the turning lane because there were two cars already there.” On being asked, “Where did it strike her car?” he replied, “about middle-ways.”

Virginia Morris, Wheeler’s sister, was in the car with Wheeler. She also observed the collision. Her testimony was substantially the same as that of her brother. Hamilton did not deny driving the truck, but testified that the light was green. He testified that he had no memory of the collision or the events afterwards.

There is an abundance of evidence that Hamilton behaved in a bizarre fashion after the collision. Caneer, several police officers, and the ambulance attendant testified that there was a noticeable odor of alcohol on Hamilton’s breach. Caneer described Hamilton’s behavior as unruly and boisterous. There was testimony from Caneer, Virginia Morris, and some of the police officers that Hamilton attempted to flee from the police and had to be apprehended. Eddie Hamilton, a police officer, testified that Danny Hamilton was saluting and calling out serial numbers as if he were in the military service. A breathalyzer test given to Hamilton at 2:25 A.M., some two hours after the accident, showed a level of 0.20%. A blood sample from Hamilton, tested by chemists for the Kentucky State Police Crime Laboratory, registered a level of 0.18%. Under the provisions of KRS 189.-520(c) it is provided that, “If there was 0.10 per cent (Vio%) or more by weight of alcohol in such blood, it shall be presumed that the defendant was under the influence of intoxicating beverages.”

There is much evidence as to Hamilton’s activities prior to the fatal accident. According to his own testimony and that of other witnesses, Hamilton was at the Blue Ribbon Lounge in Paducah the evening of February 14, 1976, from 7:30 P.M. or 8:00 P.M. until sometime after midnight. Hamilton did not recall how much he drank, but the bartender testified that she served him 5 or 6 beers, and that she finally “cut him off” because she thought he had drunk too much. There is some conflict in the testimony of others at the bar as to Hamilton’s intoxication. John Teas testified on direct examination that Hamilton did not act drunk. The security guard at the Blue Ribbon Lounge testified that Hamilton was drunk and smelled of alcohol. Hamilton pretended to be a narcotics agent and threatened to pull a gun and make a “bust” at the Blue Ribbon Lounge. He called the police to report what he fancied to be a drug transaction. However, he was removed from the lounge by Mr. Teas at gunpoint. Hamilton denied that he had claimed to be a narcotics agent or that he was armed. He testified that when he left the lounge a car with two men followed him, and that he was scared, as he felt he was being chased. No other evidence was introduced as to the automobile that Hamilton claimed was following him.

The statute under which Hamilton was convicted provides:

“A person is guilty of murder when: (b) Under circumstances manifesting extreme indifference to human life, he wantonly engages in conduct which creates a grave risk of death to another person and thereby causes the death of another person.” (Emphasis added). KRS 507.-020(1).

Hamilton argues that the facts in this case are not within the ambit of that section of the statute, supra. He contends that “mere speeding and intoxication are not sufficient to sustain a conviction for murder because the defendant [Hamilton] did not have the culpable state of mind required.” Hamilton noted his objections at three junctures in the proceedings. He first filed a motion to quash the indictment. Next, he moved for a directed verdict at the close of the case for the prosecution, and finally, moved for a directed verdict at the close of his defense. All motions were denied.

In the instructions to the jury, the trial court followed Palmore’s pattern instructions verbatim. Palmore, Kentucky Instructions to Juries, § 2.03. He instructed the jury on murder, second degree manslaughter and reckless homicide. Under the definition of mental states proscribed by KRS 501.020(3), the court defined “wantonly”:

“A person acts wantonly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. A person who creates such a risk but is unaware thereof solely by reason of voluntary intoxication also acts wantonly with respect thereto.” (Emphasis added).

At common law, every homicide not excusable or justifiable was either murder or manslaughter. If the slayer was actuated by malice, express or implied, he was guilty of murder; in the absence of malice, the crime was manslaughter. Voluntary manslaughter is only slightly less culpable conduct than murder. The distinction as illustrated by the learned Justice Holmes is as follows:

“To explode a barrel of gunpowder in a crowded street, and kill people, is murder, although the actor hopes that no such harm will be done. But to kill a man by careless riding in the same street would commonly be manslaughter. Perhaps, however, a case could be put where the riding was so manifestly dangerous that it would be murder.” Holmes, The Common Law, p. 60.

Neither party cites a Kentucky case which imposes a murder conviction in the case of a vehicular collision. Indeed, both suggest this may be a case of first impression under the new Kentucky Penal Code. Both counsel for Hamilton and the Attorney General for the Commonwealth, in excellent briefs, turn to other jurisdictions for cases involving similar circumstances.

“It has been generally recognized that a vehicular homicide can justify a charge of murder where evidence discloses the requisite elements of murder in general.” 21 A.L.R.3d 116, 124. The courts of ten states and the District of Columbia have held that “the defendant’s intoxication at the time of the fatal occurrence in question has been considered a significant, if not controlling, factor in upholding the sufficiency of the evidence to sustain a conviction for murder in many vehicular homicide prosecutions.” 21 A.L.R.3d 116, 150.

The concept of negligent murder has been recognized in Kentucky for many years. As early as 1891, the accused, without reason, intentionally fired a gun into a crowded room and killed an occupant. This court held:

“[I]t is clearly established that the appellant, without lawful excuse, intentionally fired the pistol in a room crowded with persons. If he did this, not with the design of killing any one, but for his diversion merely, but killed one of the crowd, he is guilty of murder; for such conduct establishes ‘general malignity and recklessness of the lives and personal safety of others, which proceed from a heart void of just sense of social duty, and fatally bent on mischief.’ And whenever the fatal act is committed deliberately, or without adequate provocation, the jury has a right to presume that it was done with malice.” Brown v. Commonwealth, Ky., 17 S.W. 220 (1891), at p. 221.

In another case involving conduct comparable to that described in Brown, supra, the accused intentionally shot into a motor vehicle knowing it to be occupied. This court described the conduct constituting the offense as an act committed “In a reckless manner and without lawful excuse and without regard for human life.” Hill v. Commonwealth, 239 Ky. 646, 40 S.W.2d 261, 263 (1931).

In the Hill case, supra, this court held that jurors should be instructed on the offense of voluntary manslaughter. For a conviction the death-causing conduct had to involve a great deviation from the standard of reasonable behavior. The court most often labled this type of conduct as “reckless and wanton carelessness,” and as “negligent voluntary manslaughter.”

In 1926 this court accepted the view that the crime of voluntary manslaughter could be committed by an unintentional homicide. The case involved the death of a small child struck by an automobile. In reversing and remanding the case because the terms “wanton” and “reckless” conduct were not defined in the instructions, the court clarified the law on unintentional homicides as it then existed. It said:

“If [the defendant] operates [his automobile] upon the highway in a manner that he knows or has reasonable grounds to believe is reasonably calculated to injure others using the highway, and under such circumstances recklessly, wantonly and with gross carelessness strikes and kills another this constitutes voluntary manslaughter.” Jones v. Commonwealth, 213 Ky. 356, 281 S.W. 164, 167 (1926).

The concept of negligent voluntary manslaughter caused much confusion, because this court failed to distinguish clearly between “gross negligence” and “wanton and reckless carelessness.” It finally concluded that the standard for measuring criminality of the defendant’s conduct was dependent upon the instrumentality used to cause death. In 1939, under statutes then existing, this court upheld a conviction of voluntary manslaughter on a charge that the accused while intoxicated was driving an automobile which struck and killed a pedestrian. Newcomb v. Commonwealth, 276 Ky. 362, 124 S.W.2d 486, 489 (1939).

Another case involving a fatal automobile accident gave this court occasion to speak on voluntary manslaughter and unintentional conduct. The court said:

“It is our view that instructions in voluntary manslaughter cases should require a finding of reckless and wanton conduct, and instructions in involuntary manslaughter cases should require a finding of gross negligence in order to authorize a conviction.” Marye v. Commonwealth, Ky., 240 S.W.2d 852, 855 (1951).

Prior to 1962, Kentucky recognized three homicide offenses: murder, voluntary manslaughter, and involuntary manslaughter. The first two applied to intentional homicides; the third covered unintentional homicides. But this court began to accept the idea that the crime of voluntary manslaughter could be committed by an unintentional homicide. See Jones v. Commonwealth, supra.

“Then in 1962 the Kentucky legislature created the statutory offenses of involuntary manslaughter in the first and second degrees, using the term ‘wantonness’ to describe the former and ‘recklessness’ to describe the latter. Following the creation of these offenses, the Court of Appeals ruled that the crime of voluntary manslaughter could no longer be used to impose punitive sanctions upon an individual who had ‘unintentionally’ caused the death of another. Homicides resulting from ‘wanton or reckless’ conduct, after this decision, had to be prosecuted under the involuntary manslaughter statute . . . . ”

The facts in this case demonstrate that the accident was not the typical automobile accident where a driver makes a gross error of judgment and is tried for manslaughter or reckless homicide. Rather, Hamilton’s conduct surpasses the usual vehicle manslaughter case and demonstrates “wanton” conduct and extreme indifference to human life. The jury was instructed on murder, second degree manslaughter and reckless homicide. It found that Hamilton should have known of the plain and obvious likelihood that death or great bodily injury could have resulted from operating his truck, while in a drunken condition, through an intersection where a red light demanded that he stop.

This is a “hurry-up” world of people on the go, with heavy traffic by high-powered vehicles on all types of roads and at all times of the day or night. Such a situation coupled with a driver’s inclination to take “one or more [drinks] for the road,” increases the vehicular death rate on the highways of this Commonwealth. A majority of the members of this court is of the opinion that the legislature enacted KRS 507.020(l)(b) to deter such conduct. The legislature is commended for taking a giant step forward. Its action in enacting this statute will do much to decrease vehicular highway deaths by persons operating an automobile while under the influence of intoxicants.

The judgment is affirmed.

All concur except PALMORE, C. J., who files a dissenting opinion.

CLAYTON and LUKOWSKY, JJ„ join in the dissent.

PALMORE, Chief Justice,

dissenting.

I dissent from the majority opinion because I do not believe that either the drafters of the Kentucky Penal Code or the members of the General Assembly that enacted it had any intention of placing the reckless act of an automobile driver, whether drunk or sober, in the same category as that of a deliberate murderer. I concede that fatal carelessness in the operation of a motor vehicle calls for stern punishment, but murder is something else. There simply is a difference in culpability between committing an act that endangers people whose presence is known and an act that endangers people whose presence should be anticipated but in fact is not known. The quotation from Holmes in the majority opinion is misplaced. Certainly “a case could be made where the riding was so manifestly dangerous that it would be murder,” but in keeping with his illustration of exploding a barrel of gunpowder in a crowded street, that would be the case in which the guilty party rode or drove heedlessly into a person or persons known to be in his path or so near to it that he must have realized he would hit somebody. I have read a great deal of Holmes in my time. I suppose, indeed, that he has been my idol as a judicial philosopher. I am inclined to believe the decision in this case would give him an acute attack of gastritis.

I am authorized to state that CLAYTON and LUKOWSKY, JJ., join in this dissenting opinion.

      . Lawson, Robert G., Kentucky Law Journal, vol. 58, p. 250, (1969-70).


author: STERNBERG, Justice.

text:
    John Rancy HUFF, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    Nov. 18, 1977.

      Jack E. Farley, Public Defender, Kevin Michael McNally, Asst. Public Defender, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., Martin Glazer, Asst. Atty. Gen., Frankfort, for ap-pellee.
   STERNBERG, Justice.

On September 27,1976, the appellant was indicted by the Fayette County Grand Jury for the intentional murder of Martha Williams (KRS 507.020). A two-day trial, which commenced on January 19, 1977, resulted in the conviction of appellant as charged, and he was sentenced to 20 years’ imprisonment. On this appeal appellant argues six alleged errors.

The first two alleged errors are so closely related that the facts relating to both must be considered together in disposing of each of them. First, appellant charges that the trial court erroneously refused to grant him a competency hearing and, secondly, that the trial court erred in not granting him a mistrial or in not permitting him to plead “not guilty by reason of insanity” at the time of the commission of the offense.

At his trial appellant was represented by two counsel. Several days prior to the trial, both of appellant’s counsel advised the trial judge that appellant had had a competency examination by Dr. N. H. Sandler and that he was found competent to stand trial. The court was then advised that appellant was ready for trial because Dr. Sandler had given counsel the “okay sign.” The trial then proceeded as scheduled. On the second and last day of the trial appellant’s counsel advised the court that they had requested and received appellant’s medical records from Central State Hospital. The records reflected that appellant was admitted to the hospital on May 22, 1962, at a time when he was serving a life sentence at the State Reformatory in LaGrange for the murder of his wife. At the time of his admission appellant was diagnosed as “schizophrenic reaction, catatonic type (stu-per).” He was released from the hospital and returned to the reformatory on May 31, 1962, with the prognosis of “poor” in regards to future psycotic episodes. With this information brought to the attention of the trial court, appellant moved for a mistrial so that he could make a plea of “not guilty by reason of insanity.”

RCr 8.06 provides as follows:

“If upon arraignment or during the proceedings there are reasonable grounds to believe that the defendant is insane, the proceedings shall be postponed and the issue of sanity determined as provided by law. If the defendant is found to be insane, the court shall direct that he be confined in a mental institution until his mind is restored, at which time he shall be returned to the court for further proceedings.”

Nowhere in the record is it made manifest that appellant was not competent to stand trial. As a matter of fact, the record clearly and unequivocally shows that on January 6, 1977, appellant was found medically competent to stand trial. Counsel for appellant argues that the facts in this case certainly create a reasonable doubt as to appellant’s competency at the time of trial. In Commonwealth v. Strickland, Ky., 375 S.W.2d 701, 703 (1964), this court discussed the proper test to be applied in determining whether a person is properly fit to plead or defend himself in a criminal proceeding. We said:

“ * * * For this purpose, whatever may be the technical classification of his mental state, legally or medically, the test is whether he has substantial capacity to comprehend the nature and consequences of the proceeding pending against him and to participate rationally in his defense.”

Being diagnosed as schizophrenic some 15 years before the trial, with no intervening action or conduct of irregularity, is not such reasonable grounds that would put a trial judge on notice that appellant was not competent to stand trial. On the contrary, just two weeks prior to the trial appellant’s psychiatric examination disclosed that he had substantial capacity to comprehend the nature and consequences of the proceedings and to participate rationally in his defense. The trial judge was fully advised of this examination and the results thereof. He had the opportunity to view the appellant during the first full day of the trial and to evaluate his conduct. In its order of February 7,1977, the trial court said, “Again, the Court is unable to find any substantial evidence in this case which would raise a reasonable doubt about the defendant’s ability to stand trial or even to continue it.” We concur.

As to the second issue, counsel for appellant would have this court believe that there was sufficient showing made to require the trial court to grant a mistrial and to permit the appellant to plead “not guilty by reason of insanity.”

KRS 504.050 provides:

“(1) Evidence of mental disease or defect which is offered to show lack of criminal responsibility is not admissible unless the defendant files a written notice of his intention to rely on such defense at least 20 days prior to the day of trial or at such later time as the court may for good cause permit. Upon filing of such notice, the prosecution shall be granted reasonable time prior to trial to move for an examination of the defendant under subsection (2) and to prepare the case for the commonwealth.”

The killing of Martha Williams took place on August 12, 1976. The appellant was indicted in September, 1976. Some two weeks prior to the scheduled trial date appellant underwent a psychiatric examination and was found competent to stand trial. On January 19, 1977, four months after the indictment was returned, his trial commenced. Appellant urges, without persuasion, that “the medical records from Central State Hospital raise serious doubts about appellant’s sanity.” Further discussion of appellant’s competency to stand trial or his responsibility for his criminal conduct would only add recognition to the alleged errors, which were and are factually without merit from the very beginning.

Appellant’s present counsel, who was not his trial counsel, says, “In the alternative, if this Court decides that there was no excuse for the failure of appellant to prepare an insanity defense before trial, appellant would submit that he has been denied the effective assistance of counsel.’’ Suffice it to say that the trial court has not been afforded an opportunity to pass on that question, which has not been presented by an appropriate motion. Lee v. Commonwealth, Ky., 547 S.W.2d 792 (1977).

Next, appellant complains of the refusal of the trial court to interrogate the members of the jury as to whether any of them had read a current newspaper article relating to his 1961 conviction for the murder of his wife. While the trial jury was deliberating, appellant’s counsel requested, and was granted, an in-ehambers conference. The record reveals that the following colloquy took place between appellant’s counsel and the trial judge:

“THE FOLLOWING PROCEEDINGS WERE HAD AT THE COURT’S CHAMBER WITH COUNSEL FOR BOTH PARTIES PRESENT WHILE THE JURY WAS DELIBERATING:
MR. CHARTERS: Let it be shown that prior to the return of the verdict, in chambers, counsel for defense raised the question that the Lexington Leader printed an article in the afternoon edition noting the fact that the defendant had been convicted of murdering his wife in 1961, a fact which was instrumental in causing the defense not to put the defendant on the stand and that we were informed by a local member of the bar that jurors now serving on this case, but included in the same panel from which this jury was selected, were discussing that prior conviction in the hallway outside the courtroom in which this case was tried and that consequently we have moved the Court to inquire of the jury, if a guilty verdict is returned, as to whether or not in the course of the trial they received information from any source as to that prior conviction and consequently whether or not that had any effect on their deliberations or verdict.
THE COURT: All right, let me ask you if the information that you’ve got from that member of the bar indicated that any of the members of that jury panel talked to any of the members of this jury trying this case.
MR. CHARTERS: It did not.
THE COURT: I overrule your motion. (END OF PROCEEDINGS HAD IN CHAMBERS.)”

In Gravett v. Commonwealth, Ky., 449 S.W.2d 416, 417 (1970), this court wrote:

“The appellant’s primary argument is that the trial court erred in overruling motions that the jurors be polled as to whether any of them, in violation of the court’s admonitions, had read newspaper accounts of the case published during the trial.”

After stating the facts of the case, we disposed of the issue in this manner:

“From our study and evaluation of the decisions of other courts on the subject, as collated in the annotation services above cited, we have concluded that the best rule is that the trial court must be allowed considerable discretion as to whether the jurors should be polled concerning their having read newspaper accounts of the case in violation of the court’s admonitions, and that where the admonitions have been adequate in content and frequency the decision of the trial court not to poll the jurors will not be disturbed on appeal, unless perhaps the newspaper material is of a highly prejudicial nature, and has been so prominently displayed that it would have been difficult for the jurors to refrain from seeing it. The trial judge is best qualified to weigh the possibilities of his admonitions having been disobeyed, by his knowledge and observation of the community and of the jurors.
Applying the above rule to this case we find no abuse of discretion by the trial judge in refusing to poll the jury. His admonitions were plain and frequent. There was no showing that the jurors were subscribers to the Leader or otherwise presumably had reason to have had it in their possession. The only papers shown to have been in possession of jurors were issues of the Herald, which contained nothing calculated to be prejudicial.”

In the case at bar, the trial judge had a discretion as to whether polling the jury was necessary to preserve to the appellant a fair trial. He decided that such was not the case. We see no abuse of that discretion.

Further, the appellant contends that during the direct examination of Detective James Clifford Latimer, he was permitted to testify, over objection of appellant, regarding oral statements made by appellant during his post arrest custodial interrogation. After counsel’s objection, all counsel approached the bench of the court and out of the hearing of the jury counsel for appellant said:

“MR. CHARTERS: Your Honor, I don’t know that any of the four of us are aware of an oral statement made by this Defendant. I think that before Detective Latimer proceeds that we ought to hear it out of the hearing of the Jury and see what it is that he’s got on his mind.
MR. FAMULARO: I would agree.”

Immediately thereafter, an in-chambers conference was held. It disclosed:

“THE FOLLOWING PROCEEDINGS TOOK PLACE IN THE COURT’S CHAMBER ROOM OUT OF THE HEARING OF THE JURY WITH COUNSEL FOR BOTH PARTIES PRESENT:
BY THE COURT: On the record and out of the hearing of the Jury, back in the Court’s Chamber, and John will continue to ask, I guess.
MR. FAMULARO: Detective Latimer, I believe we were up to the point where I asked you whether Mr. Huff had made any statements after being advised of his rights, and then I think I further clarified that as to this particular offense. I believe your answer was ‘Not as to this particular offense.’ Let me at this time ask you basically, since we are out of the presence of the Jury, exactly what statements he did make to you, and additionally whether he made any denial of this particular charge?
DETECTIVE LATIMER: Mr. Huff stated to me that he had been in prison. He stated that he had killed his first wife and that he was guilty of that; he was not guilty of this, and he refused to respond to any questions regarding this incident by flatly refusing to respond.
MR. FAMULARO: So he basically denied this charge, but that denial came after admission of a previous murder and previous incarceration?
DETECTIVE LATIMER: Yes, sir.
MR. FAMULARO: Were those the only statements he made?
DETECTIVE LATIMER: Just general statements, like he would refer to the Bible on questioning if he had anything to do with this incident; Mr. Huff would refer to the Bible. He stated that he could not read. The only written document was the Bible and that’s all. I did call his Pastor or Minister and his Minister did come down and no other statements were made to me in regard to this case, either that he did or didn’t.
MR. FAMULARO: Anything further, Detective, as to admission as to other offenses?
DETECTIVE LATIMER: No, sir.
MR. CHARTERS: No questions.
BY THE COURT: Are you asking that he be allowed to make that answer, the fact that he said something about denying it? I think the rest of the statement is not responsive. You asked Detective Latimer about this Defendant denying it, and upon further questioning, he referred really to the fact that he could not read. I’m going to let all those go in.
MR. FAMULARO: Did he really quote the Bible as being the only document he could read? I don’t think we could go any further; I’m not sure, but to do so we would be back here.
BY THE COURT: Okay; let’s go back and put Jim on the stand. You ask him that question. Jim, you exclude from your answer the first part of that answer, otherwise we will have to try it again. (END OF HEARING IN COURT’S CHAMBERS.)”

The parties returned to the courtroom and to further interrogation of Detective Latimer by the Commonwealth’s Attorney. No objection was made to anything that took place at the in-chambers hearing. There is nothing in the record to disclose whether counsel for appellant was satisfied or dissatisfied with the results of the in-chambers hearing. Also, the record does not reflect that the judge admonished the jury in any respect, nor does the record reflect that counsel for appellant sought an admonition of any kind. It is most difficult to affix appellant’s argument to any particular testimony of Detective Latimer. His interrogation covers 30 typewritten pages, and the sole and only objection made by counsel for appellant was the one made immediately preceding the in-chambers conference. Counsel for the Commonwealth contends that this issue, if in fact there is one, was not preserved for appellate review. We concur. RCr 9.54; Brown v. Commonwealth, Ky., 551 S.W.2d 557 (1977); McDonald v. Commonwealth, Ky., 554 S.W.2d 84 (1977).

The trial judge did not instruct the jury on the “under the influence of an extreme emotional disturbance” defense. Appellant argues that the question of acting under the influence of an extreme emotional disturbance constitutes an element of the offense of murder. Thus he argues that it must be negated by the Commonwealth, the same as other elements of the offense must be affirmatively proven. The record reveals that the court instructed the jury without any help or assistance from counsel for appellant. Counsel did not object to the instructions given, nor did they offer any instructions to be given. The question has not been preserved for appellate review. RCr 9.54.

Lastly, the appellant argues that the trial court erred in permitting Detective Latimer to testify to his unsupported conclusion on how appellant made his escape. In appellant’s brief, after characterizing what he conceives to be the Commonwealth’s theory of how appellant escaped from the police, counsel writes:

“The only support for this theory is the unqualified and improper opinion expressed by Detective Latimer that appellant’s physical appearance when taken to the police station indicated that appellant had been ‘running through bushes’ and had ‘fallen on . (his) hand’ or had fallen ‘through a wire fence or something like that . . .’ (T.E., p. 27). There was no evidence introduced at trial which could have possibly led to such a conclusion. Yet, Detective Latimer was permitted to make this bold conclusion. Clearly, this expressed a personal opinion on a conclusion which only could be reached by a juror, if it could be reached at all.”

Counsel for appellant therein erroneously refers to T.E. p. 27 in support of his argu-ment. This citation refers only to interrogation by counsel for appellant on his voir dire examination of the jury. It is not on page 27, nor is it on page 72, but the correct page is 227. RAP 1.210(a) requires not only a page reference, but a correct page reference. The testimony was given without objection by anyone. As a matter of fact, Detective Latimer was cross-examined by counsel for appellant in an effort to make it clear to the jury that this statement was only a supposition on the part of the witness. However, not having objected when the testimony was given, appellant cannot now complain. Foster v. Commonwealth, Ky., 507 S.W.2d 443 (1974).

The judgment is affirmed.

All concur.


text:
    William A. HOLLADAY et al., Appellants and Cross-Appellees, v. PEABODY COAL COMPANY et al., Appellees and Cross-Appellants. Joe GRIDER et al., Appellants and Cross-Appellees, v. PEABODY COAL COMPANY et al., Appellees and Cross-Appellants.
    Supreme Court of Kentucky.
    Nov. 18, 1977.
    Rehearing Denied Jan. 31, 1978.

      E. F. Martin, Jr., Hartford, William M. Gant, William T. Carroll, Gant & Carroll, Owensboro, for appellants and cross-appel-lees.
    Sam T. Jarvis, Greenville, Clarence Bartlett, Bartlett, McCarroll & Nunley, Owens-boro, for appellees and cross-appellants.
   STERNBERG, Justice.

These actions were filed in the Ohio Circuit Court by the Peabody Coal Company. It sought to acquire a 50-foot permanent easement for constructing and maintaining a roadway and an overhead coal conveyer system over a portion of the lands of appellants from a mine opening not located on appellants’ properties.

On these appeals and cross-appeals the issues are the same in both cases; accordingly, we will dispose of the issues with a single opinion. The Peabody Coal Company and the Beaver Dam Coal Company, who was permitted to intervene in each case and whose position is compatible with that of Peabody Coal Company, will be collectively referred to as “Peabody” throughout this opinion. In appeal number 75-673 the appellants are William A. Holladay and others, whose interests are likewise compatible. They will be' collectively referred to as “Holladay.” The appellants in appeal number 75-659 are Joe Grider and others, whose interests are also compatible. They will be collectively referred to as “Grider.”

In the original petitions filed on January 21,1972, Peabody, pursuant to KRS 277.040 and 416.410 to 416.520, charged that it is authorized to condemn a permanent easement in order to transport its mined products from the mine to the most convenient and accessible point to the Louisville & Nashville Railroad tracks. Several amendments were filed to the petitions. However, on July 15, 1972, Peabody filed an amendment in each case which materially changed its cause of action. In this amendment it charged that it, Holladay and Gri-der, respectively, acquired title to and interest in the land sought to be utilized from common sources. It asserts that it has record title to, owns, and has the right to utilize the surface of the subject lands of Holladay and Grider for its stated purposes; that Holladay and Grider refused to permit it access to their properties; and that they are slandering its title. Peabody demands to have its ownership and right of usage quieted and to have Holladay and Grider permanently enjoined from interfering with its desired usage of the subject property. In the alternative, however, Peabody demands that in the event its ownership of the surface rights is denied by the court, it should be permitted to condemn the land as sought in its original petition.

Not only was Peabody’s title to the surface rights put in issue, but the existence of facts necessary to justify the eminent domain proceeding also was put in issue. Hol-laday and Grider pleaded affirmative defenses, which, if sustained, would deny Peabody the relief it seeks. One defense of particular significance is that there has been a complete and absolute abandonment of mining operations upon the premises and in the vicinity of the premises which are the subject of these actions, as a result of which all of the rights, privileges and easements granted by their common grantor have reverted and are lost to Peabody.

Procedural scuffles before the trial court need not be dealt with, other than those about which comment will be made.

On September 18, 1972, the trial judge entered interlocutory orders wherein he determined that, (1) Peabody has a right, pursuant to the designated statutes, to maintain these eminent domain actions; (2) the subject statutes do not violate sections 12 and 242 of the Kentucky Constitution or the related sections of the Constitution of the United States; and (3) pursuant to payment of the amount of money awarded by the court commissioners, Peabody could take immediate possession of and utilize the Holladay and Grider properties for the described purposes. This order (September 18, 1972) is conspicuous by the fact that no finding was made “that there is no just reason for delay.” CR 54.02. On December 15,1972, nearly two months after the notice of appeal was filed in the Ohio Circuit Court, the trial court entered an order attempting to correct and modify the order of September 18, 1972, by adding the phrase “and the court now determines, pursuant to CR 54.02, that there is no just reason for delay.” Holladay and Grider filed their notices of appeal from the orders of September 18, 1972, on October 17, 1972. The appeals were styled William A. Holladay and Lucille Holladay, et al. v. Peabody Coal Company (No. 73-67) and Joe Grider and Bertha Santale Grider v. Peabody Coal Company (No. 73-68). Motions to dismiss the appeals were filed in this court by Peabody, and on May 10, 1973, in granting the motions, this court entered an order in each case providing in part as follows:

“The court is of the opinion that the order appealed from in each case entered on the 18th day of September, 1972, is not a final order or judgment and is therefore not appealable.
The court is further of the opinion that an order entered in each case on December 1, 1972, which purported to modify and correct the order appealed from by adding the finding that there was no just reason for delay, did not relate back to the entry of the original order.
The question of whether the December 1, 1972, order was a nullity and if not, what legal effect it had, is not before us since no appeal has been attempted from that order, nor do we reach the question of whether the right to take in a condemnation proceeding is a separable claim under CR 54.02.”

Thus endeth the former appeals.

These present appeals and cross-appeals are from judgments of the Ohio Circuit Court dated March 5, 1975, pursuant to Peabody’s motions for summary judgments. We construe the judgments to provide that:

1. Peabody and Beaver Dam Coal Company are the owners of the coal and other minerals in, on and under the land described in deeds to Peter O. McKinney dated May 4, 1908, and recorded in the office of the County Court Clerk of Ohio County, Kentucky, in deed book 32, at pages 363 (Holladay) and 357 (Grider).
2. Predicated on a finding that the use of the subject property for mining purposes had been abandoned, the trial court adjudged that certain mining privileges and rights granted in the subject deeds had been lost.
3. As owners of the coal and other minerals, however, Peabody and Beaver Dam do have such rights to mine and remove the coal as may be implied by law from their ownership.

In other words, the trial judge held that even though Peabody is the owner of the coal and minerals, it only has such rights to mine and remove them as are granted to it by implication of law, it having lost the rights and privileges granted to it in the deeds by reason of abandonment.

Holladay and Grider contend that the trial court erred in separating the nonreversion of the ownership of the coal and other minerals from the reversion of the rights and privileges to the use of the surface as set out in the deeds. They contend that both reverted and were lost to Peabody. On the other hand, Peabody complains of the court’s findings that, (1) there has been an abandonment of the mining operations, and (2) the rights granted by the subject deeds have been lost to it.

The titles of Peabody, Holladay and Gri-der in and to the subject tracts of land came from a common grantor, Peabody having acquired the coal and other minerals and Holladay and Grider having acquired the surfaces.

Holladay-Peabody Deed

Cortez P. Brown was the owner of not only the surface but also the underlying minerals in a 157.28-acre tract of land in Ohio County, Kentucky. On May 4, 1908, Brown conveyed all of the coal, other minerals and certain specified surface rights and easements to Peter 0. McKinney by deed of record in the office of the County Court Clerk of Ohio County, Kentucky, in deed book 32, p. 363. Hereafter, this conveyance will be referred to as the Holladay deed.

Peabody is a remote vendee of the minerals and certain surface rights and easements through the McKinney deed. Holla-day, other than Ohio Valley Oil & Gas Company, is the remote vendee of the surface through mesne conveyances from Brown.

Grider-Peabody Deed

Clinton S. Rowe was the owner of not only the surface but also the underlying minerals in a 39.84-acre tract of land in Ohio County, Kentucky. On May 4, 1908, Rowe conveyed all of the coal, other minerals and certain specified surface rights and easements to Peter 0. McKinney by deed of record in the office of the County Court Clerk of Ohio County, Kentucky, in deed book 32, p. 357. Hereafter, this conveyance will be referred to as the Grider deed.

Peabody is the remote vendee of the minerals and certain surface rights and easements through the McKinney deed. Grider is the remote vendee of the surface through mesne conveyances from Rowe.

These appeals and cross-appeals involve identical mineral deeds which Peabody seeks to have construed so as to permit it to construct the overhead coal conveyer system without first securing consent from Holladay and Grider. The right to utilize the surface of the Holladay-Grider lands, in keeping with the McKinney deeds, is lost if there was an abandonment; if not, then it becomes necessary to apply the four-corner rule of construction so as to determine whether the deeds are subject to the construction affixed to them by Peabody. It, therefore, behooves us to talk about whether there has been an abandonment as defined in the McKinney deeds.

After talking about the rights, privileges and easements which were to run with the lands, the deeds provide that “ * * * to the said Peter O. McKinney, his heirs and assigns forever, so long as he, or they, shall operate a mine or mines under said premises, or under premises adjoining, or in the vicinity thereof; temporary suspension of mining operations shall not work a forfeiture of said rights, but upon complete and absolute abandonment of mining operations by the said Peter 0. McKinney, his heirs and assigns, in the vicinity of said premises, the rights, privileges and easements herein granted shall revert to the grantor, his heirs or assigns. * * * ”

Abandonment was put in issue by Holladay and Grider and the burden of proving it was with them. Their counsel, in his brief, advises us that counsel for Peabody admits that there has been an abandonment, but this charge is vigorously denied by counsel for Peabody, who affirmatively states that there has been no abandonment. The only other place in the record where the subject of abandonment is mentioned is in the trial court’s opinion. Therein it is written:

“Insofar as this Court has been able to determine, the record is silent as to whether there is or ever has been any mining operations on this property, however, all parties appear to agree in their briefs that there has been no mining activity on the property for over thirty years and the Court in disposing of this matter assumes this to be true.”

These actions came before the trial judge on Peabody’s motions for summary judgment. In such posture, the inquiry of the trial court was whether a genuine issue of material fact existed as to whether, under the terms of the subject deeds, a nonuser for a period of thirty years or a failure to commence mining operations constitutes abandonment. The reversion of the rights, privileges and easements in the subject deeds is predicated upon a complete and absolute abandonment of mining in the vicinity. Apparently it is undisputed that the record is silent as to whether there is or ever has been any mining operation on these properties. There have been no mining activities on the properties for over thirty years. As to the former, the proposition is posed as to whether there can be an abandonment of mining operations where no mining operations were ever commenced. Since abandonment was pleaded by Holladay and Grider and the record is silent as to whether there ever has been mining operations on the properties, there was a failure of evidence to support any finding of abandonment, and we do not reach the question of whether there can be an abandonment of mining operations where no mining operations were ever commenced. A finding to the contrary would have been clearly erroneous. As to the latter, the trial court determined that since there had been no mining activities on the properties for over thirty years, this was sufficient evidence to support a finding that there had been a complete and absolute abandonment of mining operations in the vicinity of the subject properties. Consequently, the reverter clause as to the special rights, privileges and easements became effective.

We must ask ourselves: Does the simple failure of Peabody to commence mining operations for thirty years constitute an abandonment, not only failure to operate a mine on the subject premises, but failure to operate a mine in the vicinity? We must either fix an arbitrary number of years that constitutes abandonment or look at the surrounding circumstances and let each case stand on its own bottom. Equity does not permit the former. As to the latter, when attempting to ascertain the intention of the parties to a mineral deed, the court must consider the situation and circumstances which existed when the deed was made. Martin v. Kentucky Oak Mining Company, Ky., 429 S.W.2d 395 (1968). Also, the same result is reached when we carefully scrutinize Bardhill v. Sellers, Ky., 298 S.W.2d 5 (1956). Therein, this court held that there had been an abandonment where there had been a failure for more than fifty years to cause a reasonable development of oil and gas. This result was reached, however, when we considered the circumstances surrounding, and the consideration for, the execution of the mineral deed. We call attention to the fact that the consideration for the conveyance was the agreement to transfer 43 shares of fully paid up and nonassessable capital stock, of the par value of $100 each, of Owensboro Hawesville Gas & Mineral Company to the grantor, which was not done. We further noted that two years after the conveyance, the mining company became insolvent, made an assignment of its assets, and was dissolved. We affirmed the proposition that “in the case of a conveyance of mineral rights, an implied condition of reasonable development will be read into the conveyance, unless there is an immediate valuable consideration paid to the grantor, as distinguished from a consideration dependent solely upon the election of the grantee as to future activity.”

In the case at bar, there is no evidence that the consideration for the conveyance was not fully satisfied or, as a matter of fact, that there remains anything yet to be done to fully satisfy that consideration. The trial court found that there was an outright sale of the coal and other minerals. We concur. As such, we recognize that a sale and conveyance of minerals in place is a severance of the title as to that part of the realty. Kentucky Bank & Trust Co. v. Ashland Oil & Transp. Co., Ky., 310 S.W.2d 287 (1958). Being the owner of the coal and other minerals, Peabody was under no duty to mine them, unless, of course, there was some compulsion contained in the deed. This court can, and does, take judicial cognizance of the fact that there are many reasons why a particular tract of coal is mined or not mined. For example, did Peabody own other lands in the vicinity that could be mined? Was Peabody operating other mines in the vicinity? Was the market price of coal such as to warrant its mining? Were the physical surroundings such as to induce going after the coal? Had engineering studies and assurances been received that there was coal in sufficient quantity and quality to justify its being mined? Were explorations being made that would affect mining on the subject property? So, on and on.

We cannot concur with the trial court that since there had been no mining activities on the subject property for over thirty years there was an abandonment as contemplated by the mineral deeds. Having determined that there was no abandonment of mining operations, it necessarily follows that there was no reversion of the rights, privileges or easements.

Having disposed of the reversion issue contrary to the contention of Holladay and Grider, we now reach the issue of whether the mineral deeds are subject to an interpretation sufficiently broad so as to permit Peabody to construct a conveyer system upon and over the lands of Holladay and Grider for the purpose of moving coal from the mine to the transportation point on the Louisville & Nashville Railroad. The trial court did not reach this issue since there was a finding that the rights, privileges and easements set out in the mineral deeds had been lost to Peabody.

As heretofore stated, the judgments from which these appeals and cross-appeals are taken came about by reason of the trial court’s action on Peabody’s motions for summary judgment. We have written many times, and we again reaffirm that position, that summary judgments must be cautiously granted and that the summary-judgment procedure is not a substitute for a trial. Where it is perfectly clear that there is no dispute as to the evidentiary facts in a case but only as to the legal conclusions to be drawn therefrom, a summary judgment is proper. Rowland v. Miller’s Adm’r, Ky., 307 S.W.2d 3 (1957).

The subject deeds speak for themselves, to which we need only apply the law. We choose, therefore, to give the deeds a four-corner examination and to dispose of the issue. For Peabody to sustain its right to relief by the terms of the Holladay and Grider deeds, it must be shown that the deeds expressly vest that right in it or its predecessors in title through whom it claims. Marlowe v. Marcum, Ky., 294 Ky. 405, 171 S.W.2d 997 (1943); Wiser Oil Company v. Conley, Ky., 346 S.W.2d 718 (1961).

To ascertain what the parties meant by what they wrote, we must try to place ourselves in their shoes. We then, psychologically, substitute ourselves for the contracting parties and take into effect the social and economic conditions of the times and of the parties, the usual practice of the trade, the familiarity of the parties with the subject matter, and the education and business advantages of the parties.

The rights, privileges and easements which are set out in the subject deeds may be paraphrased as follows: First, there is a reference to air shafts, drains and waterways necessary to the operation of a mine. Next, there is a grant of authority to erect electric wiring necessary in the operation of a mine. Then, there is a grant of a convenient right-of-way for the purpose of performing or carrying out the erection of the electric wires and the construction, operation or erection of air shafts, etc. Thereafter follows a grant to transport coal from the subject land, adjacent lands or other lands in the vicinity through any entries in and under the subject premises. Next follows a right to drain water from mines being operated on the subject premises. There is a disclaimer of liability for damages in carrying out the rights, privileges and easements therein set out. The next and most significant grant or a right or privilege, as it affects the present issue, is:

“PROVIDED, HOWEVER, that if the said Peter 0. McKinney, his heirs or assigns shall desire to use the surface of any portion of the land hereinabove specifically described, for the purpose of constructing, erecting and operating any platforms, roads, railroads, switches, sidetracks, machinery, tipples, chutes, buildings and other structures, as he or they may deem necessary or convenient to facilitate the mining and removal of said coal or other minerals, he or they, before using such surface, shall purchase the land, the surface of which he or they shall desire to use, under the option and privilege of purchase hereinbefore contained, * * * if

As has been heretofore pointed out, the mine from which the coal is proposed to be taken is not on either the Holladay or Gri-der tracts but from a mine which has its opening on a tract of land separate and apart from the Holladay and Grider tracts. The “said coal or other minerals” refers to the coal and minerals located on the subject Holladay and Grider tracts. The rights and privileges for which the surface of the Hol-laday and Grider tracts may be used by Peabody are limited to the coal or other minerals located in the subject lands and taken from an opening on the subject lands. Since the mine in the present actions is not on either the Holladay and Grider tracts and the right to utilize the surface of these lands is limited to the mining and removal of coal or other minerals taken from these tracts, the subject deeds do not confer on Peabody any right to utilize the surface, as it herein seeks to do, without the consent of Holladay and Grider. The deeds appear to have been prepared by a person experienced in drafting such instruments. The references in the deeds to “premises,” “adjoining,” “in the vicinity of,” “right to erect convenient right-of-ways over the surface,” and “transport coal from the above described” are indicative of the fact that the documents clearly say what the parties wanted them to say.

The judgments of the Ohio Circuit Court, from which these appeals and cross-appeals are taken, are:

1. Affirmed insofar as they decree Peabody to be the owner of the coal and minerals in, on and under the lands described in the pleadings by virtue of the deeds to Peter 0. McKinney dated May 4, 1908, and recorded in the office of the County Court Clerk of Ohio County, Kentucky, in deed book 82, at pages 363 (Holladay) and 357 (Grider).

2. Reversed insofar as they decree an abandonment of the mining operations.

3. Reversed insofar as they decree a reversion of the rights, privileges and easements contained in the said deeds.

These cases are remanded to the Ohio Circuit Court for the entry of judgments consistent with this opinion.

All concur.


text:
    Honorable Robert F. STEPHENS ex rel. as Special Prosecutor pursuant to KRS 15.190, et al., Appellants, v. Honorable Daniel J. GOODENOUGH, Judge, Kenton Circuit Court, 16th Judicial District, Appellee.
    Supreme Court of Kentucky.
    Dec. 9, 1977.
    Rehearing Denied Jan. 31, 1978.

      Robert F. Stephens, Atty. Gen., Sam E. Isaacs, II, Raymond M. Larson, Asst. Attys. Gen., Frankfort, for appellants.
    R. Barry Wehrman, Covington, for appel-lee.
   STERNBERG, Justice.

The present proceeding is a double-barreled attack on the September 6,1977, order of the Court of Appeals of Kentucky denying a writ of prohibition against the Honorable Daniel J. Goodenough, a judge of the Kenton Circuit Court. The seed that germinated into this bag of worms was the issuance on February 11, 1977, of search warrants by the appellee and a seizure of gambling paraphernalia pursuant to authority of the warrants.

The appellants are Robert F. Stephens, Attorney General of the Commonwealth of Kentucky, acting pursuant to and under the authority of KRS 15.190, and Frank Trusty, the duly elected, qualified and acting Commonwealth’s Attorney in and for the 16th Judicial District of this commonwealth. The appellee is one of the duly elected, qualified and acting judges of the Kenton Circuit Court in and for the 16th Judicial District of the Commonwealth of Kentucky.

The proceedings are presently before this court on appellee’s motion to dismiss the appeal from the September 6,1977, order of the Court of Appeals, to set aside the temporary writ of prohibition issued herefrom on September 15, 1977, and to deny the appellants’ petition for a permanent writ of prohibition against appellee. For purposes of the disposition of this motion, it will not be necessary that we go into a lengthy discussion of the full, prior proceedings.

Counsel for appellee charges that the proper method of bringing the challenged order of the Court of Appeals to this court for review is by the route of a motion for discretionary review (RAP 1.180), not by direct appeal. If the right of appeal herein is discretionary, then, and in that event, the appellants have not proceeded as required by RAP 1.180 and it would be subject to dismissal.

Section 115 of the Kentucky Constitution provides as follows: “In all cases, civil and criminal, there shall be allowed as a matter of right at least one appeal to another court, * * *. Procedural rules shall provide for expeditious and inexpensive appeals. * * * ” Thus, since the writ of prohibition from the denial of which this appeal has been taken commenced as an original action in the Court of Appeals and since the appellants are entitled to one appeal (Ky. Const. Sec. 115) and since any such appeal from the Court of Appeals would be to the next highest court (CR 73.01(2)), this appeal to this court would be as a matter of right.

The issue originally presented to the Kenton Circuit Court is whether it possessed authority to require the restoration of the property seized under the search warrants. This was answered in the affirmative by the trial judge on April 22,1977, and appellants forthwith proceeded to take an appeal from that order to the Court of Appeals. In addition thereto, the appellants filed a petition for a writ of prohibition in the Court of Appeals against this appellee. This petition was denied because the appellants had sought to challenge the April 22, 1977, order by appeal to the Court of Appeals. However, on August 3, 1977, the appellants made a motion to dismiss the appeal in the Court of Appeals, which was granted, and the appeal was dismissed. At that point in time there was no action or proceeding pending in the Court of Appeals which prohibited the trial judge from enforcing his order of restoration. The trial judge proposed to do just that, and on August 16, 1977, the appellants filed an original action in the Court of Appeals again seeking to prohibit the appellee from carrying out the order of restoration. A temporary writ of prohibition was forthwith issued by a single judge of the Court of Appeals; however, on September 6, 1977, the petition for a writ of prohibition was dismissed by a full panel of the Court of Appeals. In doing so, the Court of Appeals said:

“It appears to this Court that the doctrine of res judicata is applicable to this action. The identical issue was presented by the very same parties in CA-1074-OA, i. e., whether the Kenton Circuit Court had jurisdiction to return property seized under a search warrant prior to the return of any criminal indictments and absent the filing of any civil action. While the facts have altered slightly since that time, in that criminal indictments have now been returned and that an appeal is not now pending, the issue nevertheless remains whether the order of the Kenton Circuit Court was valid at the time it was issued.”

This court has long followed the rule that the doctrine of res judicata, except in special cases, goes not only to points upon which the court was actually required by the parties to form an opinion and pronounce judgment, but to every point which properly belonged to the subject litigation and which the parties, exercising reasonable diligence, might have brought forward. The parties herein are the same in both instances; the subject matter is the same in both instances. The only difference is that at the time of the filing of the second application for a writ of prohibition the owners of the seized property had been proceeded against by indictments and criminal warrants. There was no appeal pending in the Court of Appeals from any order of the Kenton Circuit Court.

The status and factual situations constitute a difference in fact without a distinction in law. The Court of Appeals properly held that the judgment in the first application for a writ of prohibition (CA 1074-OA) operated as a denial of appellants’ second petition for a writ of prohibition (CA 1614-OA).

In these present proceedings we not only have an appeal from an order of the Court of Appeals denying a petition for writ of prohibition but we also have an original proceeding in this court seeking a writ of prohibition against the appellee on facts substantially the same in both instances. As a matter of fact, two original proceedings for a writ of prohibition were filed in the Court of Appeals and one in this court. The facts on which each of the petitions are predicated are substantially the same. Inasmuch as the determination of the first application for a writ of prohibition constituted a res judicata determination of the second petition for writ of prohibition and since the alleged facts in all three cases are substantially the same, the court’s determination of the first petition for writ of prohibition would likewise be a res judicata determination of the third petition for writ of prohibition, which is the one currently before this court.

The motion of appellee to dismiss the appeal is denied. The September 6, 1977, order of the Court of Appeals is affirmed. The motion of appellee to set aside the temporary writ of prohibition issued from this court on September 15, 1977, is granted, and appellant’s motion for application for a writ of prohibition is denied.

All concur.


text:
    Leslie CAPPS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    Dec. 9, 1977.
    Jack E. Farley, Public Defender, Erwin W. Lewis, Asst. Public Defender, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., Gerald Henry, Asst. Atty. Gen., Frankfort, for ap-pellee.
   STERNBERG, Justice.

The appellant, Leslie Capps, was indicted by the Fayette County Grand Jury for the offense of first-degree sodomy by engaging in deviate sexual intercourse with Billy Carol Cook, a female less than 12 years of age (KRS 510.070). He was tried and convicted on December 27, 1976, and his punishment fixed at 30 years’ imprisonment. On this appeal appellant presents three issues.

First, the appellant contends that the court abused its discretion in permitting the prosecutrix, a 5V2-year-old child, to testify. He argues that the witness was well coached by the Commonwealth, yet, upon cross-examination, was broken down.

The standard of competency of a child witness by which the discretion of the trial judge is to be guided is stated in Moore v. Commonwealth, Ky., 384 S.W.2d 498 (1964), as follows:

“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.”

We affirmed this standard in Hendricks v. Commonwealth, Ky., 550 S.W.2d 551 (1977).

An independent reading and evaluation of the transcript of testimony of Billy Carol Cook and Barbara Lawrence, who testified as to the competency of the prose-cutrix, are necessary.

The trial judge permitted a voir dire of Billy Carol Cook and Barbara Lawrence out of the hearing of the jury in order to determine the competency of the prosecutrix to testify. First of all, Barbara Lawrence, who was a social worker with the Kentucky Department of Child Services, told the judge that she had known Billy Carol since September, 1976; that the family is on AFDC benefits; and that Billy Carol had no preschool educational training, but nevertheless was a very alert five-year-old child who related well with her mother, natural father and her siblings. The testimony of the prosecutrix demonstrated that she knew where her mother worked and where her father worked, and she knew the name of the Commonwealth’s Attorney. She also demonstrated her ability to knowingly telling a lie and advised that when she tells a lie or is bad, or uses bad words, her mother and father whip her. She said that she lived in Winchester, Kentucky, with her mother and father. She counted to ten for the appellant’s counsel and related her favorite TV programs, one of which is Bugs Bunny, who she thought was a real person who brings her candy at Eastertime. She also expressed displeasure with counsel for appellant; referred to him as a “nut”; and stated that if he didn’t stop asking such silly questions she would kill him and he would be an angel after all his blood ran out. She avowed to tell the truth. The testimony of the prosecutrix clearly and unequivocally demonstrates her to be a sassy and uncontrolled child, who has been reared in an environment conducive to being feisty and precocious.

It was not the prerogative of the trial judge to weigh the effectiveness of the testimony; that was the jury’s prerogative. Whether Billy Carol Cook, measured by the standard set out Moore v. Commonwealth, supra, was competent to testify is a question which addresses itself to the sound discretion of the court. The judge having found her competent to testify, the jury was entitled to weigh her testimony as it would the testimony of any other witness. Swanigan v. Commonwealth, 240 Ky. 504, 42 S.W.2d 726 (1931). The transcript of testimony fully supports the action of the trial court in permitting Billy Carol to testify-

Next, appellant alleges that the Commonwealth failed to lay the proper foundation to impeach the witness Andrew Lloyd Capps on the basis of a prior alleged inconsistent statement. Appellant’s trial-counsel made no objection to this line of interrogation; thus the trial court had no opportunity to rule on its competency. The appellant having failed to object to this line of questioning and having failed to afford the trial judge the opportunity to pass on its competency, the issue is.not preserved for review. Morris v. Commonwealth, Ky., 459 S.W.2d 589 (1970).

Appellant further alleges that the Commonwealth’s Attorney made improper and opinionated comments in his closing argument. The appellant failed to object to this alleged error at the trial and failed to move for a new trial. The alleged error is unpreserved for appellate review. Hopper v. Commonwealth, Ky., 516 S.W.2d 855 (1974); McDonald v. Commonwealth, Ky., 554 S.W.2d 84 (1977).

The judgment is affirmed.

All concur.