text:
    Arty POWELL, Appellant, v. MEL POWERS INVESTMENT BUILDER, Appellee.
    No. A2164.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Dec. 5, 1979.

      Fred L. Fraser, Houston, for appellant.
    William E. Yahner, Williams, Birnberg & Andersen, Houston, for appellee.
    Before J. CURTISS BROWN, C. J., and MILLER and PAUL PRESSLER, JJ.
   PAUL PRESSLER, Justice.

This is an appeal from a judgment in a forcible detainer action granting appellee possession of the premises and damages.

Appellant and appellee entered into a lease agreement on August 1, 1977, covering office space located at 1120 Nasa One, Houston, Texas. Appellant failed to pay the monthly rental due thereunder. Appel-lee gave appellant notice of the delinquency and demanded payment which was not forthcoming. Appellee then filed a forcible detainer action in justice court. On November 13, 1978, justice court rendered judgment for appellee. Appellant gave timely notice of appeal and a trial de novo was held in the county court. The judgment granted appellee possession of the premises, awarded $1,465.40 for the rental period between the dates of the judgments in the justice court and in the trial court, and $450.00 for attorney’s fees.

Appellant raises nine points of error. His first two points attack the judgment on the grounds that the trial court lacked jurisdiction of the subject matter since the pleadings contained no request for possession of the premises and there was no evidence that appellee ever demanded possession from appellant. While appellee’s petition did not in fact specifically request possession, it did include a request for “such other and further relief, both at law and in equity, general and special, to which plaintiff may show himself justly entitled.” This prayer is adequate to allow the trial court to award possession of the premises to appellee. We further hold that neither the deficiency in the prayer of appellee’s petition, nor its alleged failure to demand return of possession of the premises, deprives the trial court of subject matter jurisdiction in a forcible detainer action. Family Investment Co. of Houston v. Paley, 356 S.W.2d 353 (Tex.Civ.App.-Houston 1962, writ dism’d); Clayton v. Hurt, 88 Tex. 595, 32 S.W. 876 (1895).

Appellant’s third point alleges that there was no evidence to sustain the award to appellee of $1,465.00 in damages because there was no evidence that appellee gave appellant three days written notice to vacate the premises as required by Tex.Rev. Civ.Stat.Ann. art. 3975a (Vernon 1966). Tex.Rev.Civ.Stat.Ann. art. 3992 (Vernon 1966) provides that the judgment of the county court in actions for forcible detainer is conclusive of all litigation and expressly limits the appeal of such cases to those involving a judgment for damages in excess of $100.00. In addition, the rule appears to be firmly established that, even where the judgment includes damages exceeding $100.00, the scope of appellate review is limited to those issues affecting the award of damages only. Whether the three day notice was given is a threshold determination on the issue of possession. For that reason, we hold that we are without jurisdiction to consider this question.

Appellant’s points four through six attack certain determinations made by the court on the basis that there was no evidence or insufficient evidence. All of the contested findings or conclusions within these points are primarily concerned with the issue of possession and only secondarily with the issue of damages. Therefore, as above, we hold that we do not have jurisdiction to consider them.

Appellant contends in his seventh and eighth points that there is no evidence or insufficient evidence that appellant had occupied the leased premises from the time judgment was rendered for appellee in justice court until the time of the trial de novo in county court. He further contends that such a finding was necessary in order to support an award of damages under Tex.R. Civ.P. 752. We agree. The record shows no evidence of such occupancy. Appellee contends that the property is “self-evidently . deemed to be in the possession of defendant-appellant once he perfects his appeal to county court.” (Appellee’s brief, page 12). However, none of the authorities cited support such a contention. Rule 752 states,

On the trial of the cause in the county court the appellant or appellee shall be permitted to plead, prove and recover his damages, if any, suffered for withholding or defending possession of the premises during the pendency of the appeal.

The express terms of the Rule will not permit us to indulge such a presumption as that proposed by appellee. The burden was on appellee to “prove ... his damages, if any, . . . ” and he has failed to carry this burden. Therefore, we reverse the portion of the trial court’s judgment awarding appellee $1,465.00 and remand the cause for fuller development of the evidence on this point. Tex.R.Civ.P. 434.

Appellant’s ninth point of error claims that there is insufficient evidence to support the award of attorney’s fees. Ap-pellee testified that he had spent nineteen hours preparing the case giving a breakdown of how that time was spent, and that his billing rate was $60.00/hour. We find this to be sufficient evidence to support the trial court’s award of $450.00 in attorney’s fees to appellee and affirm that portion of the judgment.

Affirmed in part, reversed and remanded in part, and dismissed in part for want of jurisdiction.


source: Caselaw Access Project

author: REED, Justice.

license: Public Domain

text:
    KENTUCKY FARM BUREAU MUTUAL INSURANCE COMPANY, Movant, v. L. G. COOK, Executor and Trustee of Estate of W. F. Foster, et al., Respondents.
    Supreme Court of Kentucky.
    April 10, 1979.
    Francis T. Goheen, Paducah, Jack Q. Heath, Louisville, for movant.
    John C. Lovett, Benton, Earl T. Osborne, Craig Housman, Williams, Housman & Sparks, Earle T. Shoup, Paducah, for respondents.
   REED, Justice.

I

We granted Kentucky Farm Bureau Mutual Insurance Company’s motion for discretionary review but limited the grant to the holding of the Court of Appeals that the award of excess peremptory jury challenges to one side of the case though error was harmless and did not warrant a new trial.

In our view the two opinions rendered by the Court of Appeals in these complicated multi-party actions correctly dispose of all the issues except the one on which we have granted review. The opinions contain very helpful discussions of substantive law in an area infrequently considered. We direct these opinions be published except for Part III of the opinion which discussed and decided the excess peremptory jury challenges issue.

For a detailed recitation of the facts relevant to the issue on review see Kentucky Farm Bureau Mutual Insurance Co. v. Cook, Ky.App., 590 S.W.2d 885 (1978).

II

In the declaratory judgment action the evidence presented this critical question: “Was the Vaughn truck available for the regular use of the Foster Estate?” If the answer was “yes” Kentucky Farm Bureau as insurer did not provide coverage on that truck, but if the answer was “no” Kentucky Farm Bureau did extend coverage under the “other automobiles” clause of its policy.

In the selection of the jury to try this question, the trial court granted nine peremptory challenges to the defendants. Kentucky Farm Bureau, the plaintiff, was granted only three peremptory challenges. Kentucky Farm Bureau vigorously objected to the allocation of peremptory challenges and to the trial court’s action in allowing the defendants to confer prior to exercising their challenges.

The Court of Appeals found that all of the defendants took identical trial positions. KRS 29.290, in effect at the time of this trial, allowed additional peremptory challenges to multiple defendants or multiple plaintiffs only if their interests were antagonistic. The Court of Appeals properly held “that it was error for the trial court to grant the defendants six additional peremptory challenges.” It also held, however, that the error was harmless within the meaning of CR 61.01 and hence did not require reversal. The Court of Appeals concluded that the erroneous award of excess peremptory challenges to the defendants did not affect any substantial right of the plaintiff.

III

In Sodousky v. McGee, 27 Ky. (4 J.J. Marsh.) 267 (1830) a predecessor statute of KRS 29.290 [first section of an act of 1806 (II Dig. 694)] declared “each party litigant shall have the right of peremptory challenge to one-fourth of the jury summoned.” The court in construing this statute stated:

“The parties litigant, mean the antagonist [sic] sides of the controversy. If there be a plurality of plaintiffs, they are all only one party litigant. So a plurality of defendants constitute one, and but one party to the suit. The party plaintiff, can challenge peremptorily, no more than three jurors. Why should the party defending, be allowed a greater latitude? Should not the right be reciprocal?” Id. at 270.

This interpretation has been consistently applied to successor statutes. E. g., Cumberland Telephone & Telegraph Co. v. Ware’s Administratrix, 115 Ky. 581, 74 S.W. 289 (1903). The same interpretation was adopted in Pendly v. Illinois Central R.R. Co., 28 Ky.L.Rptr. 1324, 92 S.W. 1 (1906) where the chief ground for reversal was that the trial court erroneously allowed the two defendants a total of six peremptory challenges when they should have been allowed only three.

In Williams v. Whitaker, Ky., 293 S.W.2d 627 (1956), a defendant cross-claimed against his co-defendant and moved that he be granted three peremptory challenges. The trial judge denied the motion. We reversed because the defendants had antagonistic positions on the issue to be tried. We directed that the additional peremptory challenges be granted. Roberts v. Taylor, Ky., 339 S.W.2d 653 (1960) held that although filed cross claims might establish antagonistic positions between the parties litigant, the filing of cross claims was not required to establish the right to additional peremptory challenges if the co-defendants occupied antagonistic positions in fact. See also District Union Local 227, Amal. Meat Cutters v. Fleischaker, Ky., 384 S.W.2d 68 (1964) and R. E. Gaddie, Inc. v. Evans, Ky., 394 S.W.2d 118 (1965).

It is apparent that the allocation of peremptory challenges in civil cases has occupied a settled role as part of the trial process in this jurisdiction from 1830 to the present day. It is a defined mechanism and does not depend on the exercise of judicial discretion. “The purpose of the peremptory challenges is to afford parties a fair trial on the issue to be tried.” Penker Construction Co. v. Finley, Ky., 485 S.W.2d 244, 249-50 (1972).

IV

The thrust of the disposition by the Court of Appeals to treat the error as harmless must be based on the proposition that the plaintiff did not demonstrate actual prejudice. Whether an erroneous allocation of peremptory challenges must be accompanied by a showing of actual prejudice in order to secure a reversal and new trial is a question on which there is a split of authority in the various state jurisdictions. See Annot. 95 A.L.R.2d 957 (1970), entitled “Effect of Allowing Excessive Number of Peremptory Challenges.” We will not stultify the problem further with extended discussion and attempted analysis of the various cases cited in the annotation. Suffice it to say, whether it represents the numerical plurality of foreign decisions or not, we are persuaded that when the error is properly preserved, reversal and a new trial should be awarded as a matter of law.

The requirement of a showing of actual prejudice effectively nullifies the requirements of the rule on allocation of peremptory challenges. To show actual prejudice, the complaining litigant would be required to discover the unknowable and to reconstruct what might have been and never was, a jury properly constituted after running the gauntlet of challenge performed in accordance with the prescribed rule of the game. Add to this the further obstacle that it is the policy of the law to look with disfavor on attempts to invade the jury’s internal process of decision to impeach verdicts except in relatively rare instances.

It may be that peremptory challenges should be abolished in civil cases and only challenges for cause allowed. We are informed this is the present English practice. As long as they are retained as part of the trial process, however, we believe that their proper allocation between litigants is a substantial right which so pervades the process that its erroneous application requires reversal as a matter of law if the issue is properly preserved by the adversely affected litigant.

That part of the decision of the Court of Appeals concerning the allowance of excess peremptory challenges as discussed in Part III of its opinion is reversed. That part of the judgment of the Graves Circuit Court as modified by the Court of Appeals, which adjudges that the Kentucky Farm Bureau policies on the Foster Estate’s two trucks provide liability to L. G. Cook, Individually and as Executor of the Foster Estate, for the damages sustained by Bowen, Dabney and Holland when the automobile in which they were riding collided with a truck owned by Vaughn and driven by Baucom is likewise reversed for new trial on the issue of whether the Vaughn truck was “available for regular use” of the W. F. Foster Estate.

All concur except CLAYTON, J., who did not participate in the consideration of this case.

      . For discussion in depth of tort liability of fiduciaries, another issue presented by these cases, see Cook v. Holland, Ky.App., 590 S.W.2d 885 (1978).

      . The governing provisions now applicable to peremptory challenges in civil cases are contained in Administrative Procedures of the Court of Justice, Section 31, which provides in pertinent part that each opposing side shall have three peremptory challenges, but co-parties having antagonistic interests shall each have three peremptory challenges.

      .CR 61.01 provides in part: “The court at every stage of the proceedings must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties." (emphasis supplied).

      . See Traynor, “The Riddle of Harmless Error,” 66 (Ohio State Press, 1970).


text:
    COMMONWEALTH of Kentucky, Movant, v. William Lee BURRIS, Respondent. William Lee BURRIS, Movant, v. COMMONWEALTH of Kentucky, Respondent.
    Supreme Court of Kentucky.
    Nov. 26, 1979.
    Jack Emory Farley, Public Advocate, M. Gail Robinson, Asst. Public Advocate, Frankfort, for respondent Burris, in No. 79-SC-110-D and for movant Burris in No. 79-SC-105-DG.
    Robert F. Stephens, Atty. Gen., Martin Glazer, Asst. Atty. Gen., Frankfort, for movant Commonwealth of Kentucky, in No. 79-SC-105-DG and for respondent Com. of Kentucky in No. 79-SC-110-D.
   REED, Justice.

William Lee Burris was convicted by a jury of second-degree robbery. The penalty assessed was five years’ imprisonment. On September 26,1977, judgment and sentence were entered and on the same date Burris filed a motion for a new trial and also a motion for judgment notwithstanding the verdict. The trial judge denied the motion for a new trial, but granted the motion for judgment notwithstanding the verdict and entered the appropriate orders.

The Commonwealth appealed the action of the trial judge to the Court of Appeals. That court rejected the Commonwealth’s contention that the civil remedy expressed in CR 50.02 was not available in criminal cases. We agree with the Court of Appeals in that determination. The Court of Appeals, however, made a reassessment of the evidence produced at Burris’ trial and decided the trial judge erred in granting judgment n.o.v.; the judgment was reversed with direction to let the verdict stand. We are of the opinion that the Court of Appeals was without authority to reverse the judgment because it was not appealable by the Commonwealth. Accordingly, we reverse the decision of the Court of Appeals, dismiss the appeal of the Commonwealth, and remand the case to the circuit court with direction that the indictment be dismissed.

At the time of Burris’ trial, RCr 13.04 made provision for applicability of rules of civil procedure “heretofore applicable” to criminal cases and not superceded by the criminal rules. We agree with the Court of Appeals that “[t]he purpose of RCr 13.04 was clearly to provide parties to criminal actions with such remedies permitted under both the criminal and civil rules to prevent a miscarriage of justice.”

In the case of Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), the Supreme Court of the United States held that the Double Jeopardy Clause prevents a second trial for the purpose of affording the prosecution with another opportunity to supply such evidence it failed to produce in the first trial. As the Court of Appeals said: “Thus a motion for a new trial on the grounds of insufficient evidence has become an exercise in futility, as there can be no new trial.” Therefore CR 50.02 was the only effective remedy provided at the time Burris acted. He acted within the time limit provided by the civil rule applicable. The trial judge had authority to act.

Since the trial judge had authority to act, the inquiry then becomes whether his action was reviewable on appeal. We think his determination that the prosecution failed to present sufficient evidence to submit the case to the jury and that Burris was entitled to a directed verdict was functionally equivalent to a verdict or judgment of acquittal.

Section 115 of the Constitution of Kentucky provides in pertinent part:

“In all cases, civil and criminal, there shall be allowed as a matter of right at least one appeal to another court, except that the Commonwealth may not appeal from a judgment oí acquittal in a criminal case, . . . .” (emphasis supplied).

We hold that the Commonwealth was barred from securing appellate review of the judgment n,o.v. by the express provision of our Constitution.

The decision of the Court of Appeals is reversed, the Commonwealth’s appeal is dismissed, and the cause is remanded to the Henderson Circuit Court with direction to dismiss the indictment as required by Burks v. United States, supra.

All concur, except CLAYTON, J., who dissents.


author: CLAYTON, Justice.

text:
    Donald G. HARDY, Movant, v. COMMONWEALTH of Kentucky, Respondent.
    Supreme Court of Kentucky.
    Dec. 4, 1979.

      Jack Emory Farley, Public Advocate, Frankfort, William A. Dykeman, Lexington, for movant.
    Robert F. Stephens, Atty. Gen., Ellen Liebman, Asst. Atty. Gen., Frankfort, for respondent.
   CLAYTON, Justice.

In March 1978, Donald G. Hardy, movant, was sentenced to two six-month terms in jail for misdemeanor offenses, to be served consecutively, by the Fayette Circuit Court, First Division. The following month, mov-ant was sentenced to a third six-month term for an unrelated misdemeanor offense. The Fayette Circuit Court, Third Division, ordered that sentence to run consecutively with any sentences movant was then serving, making Hardy’s total period of incarceration 18 months.

On appeal to the Court of Appeals, mov-ant argued that the language of KRS 532.-110(lXb) prohibited the courts from imposing consecutive terms of imprisonment to run for more than one year. The Court of Appeals disagreed and affirmed the order of the Fayette Circuit Court.

However, we find that the statutory language of KRS 532.110(lXb) is unequivocal in limiting the discretion allowed the courts in sentencing criminals. As the law states: “The aggregate of consecutive definite terms shall not exceed one year . . ..” There appears to be no ambiguity in what this court perceives to be a clear expression of legislative intent.

The decision of the Court of Appeals and the judgment of the Fayette Circuit Court are reversed and the case is remanded to the Fayette Circuit Court, Third Division, for entry of a judgment consistent with this opinion.

All concur.


author: /s/ John S. Palmore Chief Justice.

text:
    Carman CANN, Movant, v. KENTUCKY FARM BUREAU MUTUAL INSURANCE COMPANY, Respondent.
    Supreme Court of Kentucky.
    Nov. 6, 1979.
   OPINION AND ORDER

The Court, having considered the briefs of movant and respondent and having heard oral argument in this matter, is of the opinion that discretionary review was improvidently granted.

The court has also concluded that the opinion rendered by the Court of Appeals in this case accurately reflects the views of this Court concerning the issue presented and should be published.

The order granting discretionary review is vacated, and the case is remanded to the Court of Appeals for the issuance of its mandate with the further direction that the opinion rendered by the Court of Appeals in this case be published.

All concur.

Entered November 6, 1979.

/s/ John S. Palmore Chief Justice.


author: WILHOIT, Judge.

text:
    KENTUCKY FARM BUREAU MUTUAL INSURANCE COMPANY, Appellant, v. Carman CANN, Appellee.
    Court of Appeals of Kentucky.
    Feb. 2, 1979.
    Reford H. Coleman, Collier, Arnett, Coler man & Cooper, Elizabethtown, for appellant.
    Paul M. Lewis, Lewis, Bland & Preston, Elizabethtown, for appellee.

      Before COOPER, LESTER and WIL-HOIT, JJ.
   WILHOIT, Judge.

This is an appeal from judgment of the Grayson Circuit Court awarding appellee, Carman Cann, $825.80 in attorney’s fees for the defense of a workmen’s compensation claim made by a former employee against his business, Cann’s Egg Farm. In his complaint, filed against Kentucky Farm Bureau Mutual Insurance Company shortly after the workmen’s compensation claim was dismissed, Cann alleged that Kentucky Farm Bureau, in violation of an express provision in its Farmer’s Comprehensive Liability policy with him, refused to defend the workmen’s compensation claim, thereby forcing him to secure independent legal counsel. On appeal, the only question presented is whether Kentucky Farm Bureau had a duty to defend Cann in a workmen’s compensation proceeding under the terms of the Farmer’s Comprehensive Liability policy.

This controversy began on August 19, 1975, when Cann received a notice in the mail from the Workmen’s Compensation Board that a claim had been filed against his business by Elsie Lindsey, a former employee. That same day Cann took the notice to Albert Thompson, the agent through whom he had procured his Farmer’s Comprehensive Liability policy. He informed Thompson, a general agent for Kentucky Farm Bureau; Charles Cornell, a company adjuster; and another unidentified man that his time book disclosed that former-employee Lindsey had not worked for him since June 13, 1974, though she contended her work-related injury occurred the 21st or 22nd of August, 1974. Cann was advised at the time to take his time book to Lindsey’s attorney with the hope that the information as to the disparity between her last date of employment and the date of her injury would put an end to the claim. Cann immediately went to the attorney’s office, but was unsuccessful in halting the claim. He then returned to the insurance agency, where he was told by the adjuster to get an attorney and that they would “take care of it.”

Cann then hired a private attorney to defend the claim which was dismissed because there was no employer-employee relationship at the time of the injury. He then presented the bill for his attorney’s services to Albert Thompson. The insurance company first refused to pay the bill because Cann had not notified it of the accident within one year, and when the claim was resubmitted, the company declined to pay because it contended that it was a claim rather than a suit. The circuit court, after considering the various depositions and conducting a hearing, entered a judgment, without making any findings of fact, awarding Cann the full amount of his attorney’s fee.

Kentucky Farm Bureau argues that it had no duty to defend Cann in the workmen’s compensation proceeding because there was no specific coverage for workmen’s compensation claims in its policy, and because the policy contained a specific exclusion for such claims. The pertinent sections of the policy provide as follows:

I. COVERAGES
COVERAGE A — BODILY INJURY LIABILITY AND PROPERTY DAMAGE LIABILITY
To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of: (1) bodily injury, sickness or disease, including death at any time resulting therefrom, sustained by any person ....
EXCLUSIONS
This policy does not apply:
4. under Coverages A and B, to bodily injury to or sickness, disease or death of:
(b) any employee of the insured while engaged in the employment of the insured, if benefits therefor are either payable or required to be provided under any workmen’s compensation law
II. DEFENSE, SETTLEMENT, BONDS, SUPPLEMENTARY PAYMENTS
With respect to such insurance as is afforded by this policy under Coverage A, the Company shall:
a. defend any suit against the insured alleging such injury, sickness, disease or destruction and seeking damages on account thereof, even if such suit is groundless, false or fraudulent, but the company may make such investigation, negotiation and settlement of any claim or suit as it deems expedient .

Cann maintains that the action of Kentucky Farm Bureau’s agent in authorizing him to hire counsel estops Kentucky Farm Bureau from asserting that it had no duty to defend the claim. Moreover, Cann contends that notwithstanding the exclusion of workmen’s compensation claims, the policy obligated Kentucky Farm Bureau to defend the suit because Lindsey was not an employee at the time she suffered the injury.

In Ursprung v. Safeco Insurance Co., Ky., 497 S.W.2d 726, 729 (1973), the Court stated that an insurer’s “duty to defend would be determined by the type coverage for which a premium is paid, and this duty would arise when a claim within the coverage afforded accrues.” Here, it was clear to all concerned that, whether proper or not, a workmen’s compensation claim had been made and since the policy expressly excluded coverage of such a claim, no claim within the coverage accrued and no duty arose. In a case involving a very similar factual situation to the one before us, the court in Fitzsimmons v. United States Fire Insurance Co., 16 Misc.2d 972, 185 N.Y.S.2d 462, 466 (1959), provided an excellent explanation for its refusal to hold that the insurer had a duty to defend a workmen’s compensation claim under its comprehensive liability policy that excluded coverage of such claims:

In this case, the claim of the injured third party was presented to the Workmen’s Compensation Board the jurisdiction of which is limited to determination of claims for workmen’s compensation benefits and which was powerless to award damages for any other cause. If the company is not obligated to defend where the only action alleged in the complaint is solely within one of the exclusions of the policy, it is but the logical extension of that rule to hold that the insurer is not obligated to defend claims before the Workmen’s Compensation Board which has jurisdiction only of matters outside the coverage of the policy.

While it is true that the policy also provides for a defense of groundless suits, “[t]he ‘groundless, false, or fraudulent’ clause . . does not extend the obligation to defend without limits; it includes only defense to those actions of the nature and kind covered by the policy.” Hartford Accident and Indemnity Co. v. Civil Service Employees Insurance Co., 33 Cal.App.3d 26, 108 Cal.Rptr. 737, 742 (1973).

In considering the theory that Kentucky Farm Bureau is estopped to deny the obligation to defend based on the alleged promises of its adjuster Charles Cornell, we must look to both Cornell’s statements and the apparent acquiescence of agent Albert Thompson to the promise to pay for legal expenses. As stated in 45 C.J.S. insurance § 1102 (1946), the general rule as to an adjuster’s authority to bind the company is:

An adjuster’s authority is usually limited, however, to the ascertainment and adjustment of the loss; and he has no power merely as such, in the absence of some evidence as to his authority, to alter the contract, or waive any of its essential conditions; nor does he have authority to impose liability on the company for damages which are plainly not covered by the policy.

Here, by telling Cann that Kentucky Farm Bureau would pay the expenses of the defense, Cornell in effect placed Kentucky Farm Bureau in the position of assuming liability for damages not covered in the policy. Under the general rule, Kentucky Farm Bureau would not be bound by such a statement absent some showing of Cornell’s authority to bind it.

The only possible indication of authority vested by Kentucky Farm Bureau in Cornell would be Agent Thompson’s failure to object to Cornell’s promise to pay for the legal expenses. However, as set out in the policy, no terms can be waived or changed except by endorsement issued to form a part of the policy, signed by an authorized officer of the company, and countersigned by an authorized representative. Here, we have only the oral promise of adjuster Cornell and the acquiescence of agent Thompson. While an insurer can be bound by its agent’s actions within the apparent scope of his authority if the insured is not aware of any limitations on the agent’s power, Continental Insurance Co. v. Simpson, 220 Ky. 167, 294 S.W. 1048 (1927), when, as here, the policy expressly limits the agent’s authority to alter the conditions of the policy, the insured is chargeable with notice of these limitations. Calvert Fire Insurance Co. v. Horn, Ky., 253 S.W.2d 10 (1952).

As Cann was charged with notice that neither Cornell nor Thompson could change the terms of the policy so as to provide a defense to the workmen’s compensation claim, he could not rely on Thompson’s apparent acquiescence as either vesting authority in Cornell to waive the terms of the policy or as evidence of Thompson’s own independent sanction of the waiver. Kentucky Farm Bureau was not estopped from denying its obligation to defend the workmen’s compensation claim.

The judgment of the Grayson Circuit Court is reversed with directions to enter a judgment for Kentucky Farm Bureau Mutual Insurance Company.

All concur.

      . The policy provides:
      17. CHANGES — ALL COVERAGES
      Notice to any agent or knowledge possessed by any agent or by any person shall not effect a waiver or change in any part of this policy or stop the company from asserting any right under the terms of this policy; nor shall the terms of this policy be waived or changed except by endorsement issued to form a part of this policy signed by an authorized officer of the Company and countersigned by a duly authorized representative of the Company.


author: PARK, Judge.

text:
    KENTUCKY FARM BUREAU MUTUAL INSURANCE COMPANY, Appellant, v. L. G. COOK, as Executor of the Estate of W. F. Foster, Deceased and as Trustee under the Will of W. F. Foster, Deceased, Joseph Leland Baucum, Betty Ann Holland, Judy Bowen, Clemontine Dabney, Charles S. Foster, Katie Foster Long, Dennis Vaughn and L. G. Cook, Individually, Appellees. Joseph Leland BAUCUM, Cross-Appellant, v. KENTUCKY FARM BUREAU MUTUAL INSURANCE COMPANY, L. G. Cook, Executor and Trustee of W. F. Foster Estate, L. G. Cook, Individually, Betty Ann Holland, Judy Bowen, Clemontine Dabney, Charles S. Foster, Katie Foster Long, and Dennis Vaughn, Cross-Appellees. L. G. COOK, Individually, Cross-Appellant, v. KENTUCKY FARM BUREAU MUTUAL INSURANCE COMPANY, L. G. Cook, as Executor of the Estate of W. F. Foster, Deceased and as Trustee under the Will of W. F. Foster, Deceased, Joseph Leland Baucum, Betty Ann Holland, Judy Bowen, Clemontine Dabney, Charles S. Foster, Katie Foster Long, and Dennis Vaughn, Cross-Appellees. L. G. COOK, as Executor of the Estate of W. F. Foster, Deceased, and as Trustee under the Will of W. F. Foster, Deceased, Cross-Appellant, v. KENTUCKY FARM BUREAU MUTUAL INSURANCE COMPANY, Joseph Leland Baucum, Betty Ann Holland, Judy Bowen, Clemontine Dabney, Charles S. Foster, Katie Foster Long, Dennis Vaughn, and L. G. Cook, Individually, Cross-Appellees. Betty HOLLAND and Judy Bowen, Cross-Appellants, v. KENTUCKY FARM BUREAU MUTUAL INSURANCE COMPANY, Cross-Appellee.
    Court of Appeals of Kentucky.
    June 30, 1978.

      Francis T. Goheen, Paducah, for appellant, cross-appellee, Kentucky Farm Bureau Mut. Ins. Co.
    Earle T. Shoup, Paducah, for appellee, cross-appellant, L. G. Cook, individually.
    Earl T. Osborne, Paducah, for appellee, cross-appellant, Joseph L. Baucum.
    Craig Housman, Williams, Housman & Sparks, Paducah, Stone & Greenwald, Louisville, for appellees, cross-appellants, Betty Ann Holland and Judy Bowen.
    Tom Garrett, Paducah, for appellee, Clemontine Dabney.
    John C. Lovett, Lovett, Johnson & Shapiro, Benton, for appellee, cross-appellant, L. G. Cook, as executor and trustee of the estate of W. F. Foster.
    Before PARK, VANCE and WINTER-SHEIMER, JJ.
   PARK, Judge.

These consolidated appeals are from a declaratory judgment entered by the Graves Circuit Court in an action brought by the plaintiff (appellant), Kentucky Farm Bureau Insurance Company. In that action, Kentucky Farm Bureau sought a determination whether it afforded any liability insurance coverage for claims arising out of a collision between a truck operated by the defendant (appellee and cross-appellant), Joseph Leland Baucum, and an automobile driven by the defendant (appellee), Clemontine Dabney.

For a number of years prior to his death, W. F. Foster owned and operated a farm containing approximately 485 acres. Bau-cum was employed by Foster as farm manager. Following the death of Foster in 1967, L. G. Cook qualified as executor and trustee under the will of W. F. Foster. Cook continued to employ Baucum as farm manager. Cook was a defendant in the trial court both individually and as executor and trustee. Cook is an appellee and cross-appellant in both capacities.

On October 23,1971, Baucum was operating a farm truck owned by the defendant (appellee), Dennis Vaughn. In order to haul a load of corn from one part of the Foster farm to another, it was necessary for Baucum to travel along a portion of Kentucky Highway 121. As he entered the highway driving Vaughn’s truck, Baucum collided with the automobile driven by Ms. Dabney in which the defendants (appellees and cross-appellants), Betty Ann Holland and Judy Bowen, were passengers.

Prior to his death, Foster had secured three policies of liability insurance from Kentucky Farm Bureau. He was the named insured of two automobile liability insurance policies covering two farm trucks used by Foster in the operation of the farm. In addition, Kentucky Farm Bureau had issued a policy to Foster affording general farmer’s liability insurance protection. After he qualified as executor and trustee under the will of W. F. Foster, Cook renewed the three policies of insurance and increased the policy limits to $100,000— $300,000 for any one accident.

In a separate proceeding, Holland and Bowen brought an action for personal injuries against Baucum, Vaughn, Dabney and Cook in both his individual and fiduciary capacities. See Cook v. Holland, Ky.App., 575 S.W.2d 468 (this day decided). Dabney cross-claimed against the other defendants for the damage to her automobile and for personal injuries.

Numerous issues are raised on the appeal and cross-appeals relating to (1) the construction of the two automobile liability policies, (2) the coverage afforded by the farmer’s comprehensive liability policy, and (3) the trial proceedings in circuit court.

I

Cook as a Named Insured of the Automobile Liability Policies

Under the heading “NAMED INSURED AND ADDRESS,” each automobile liability policy provided:

FOSTER W F ESTATE

L G COOK

N 12th St

MAYFIELD KY

Kentucky Farm Bureau asserts that the sole named insured is the W. F. Foster estate and that Cook’s name appears on the declaration only as the address of the estate. Under this interpretation of the policies, Cook would be afforded no protection for any personal liability arising out of the accident. The trial court agreed holding that the two automobile liability policies provided coverage only to the W. F. Foster estate. On his cross-appeal, Cook claims the policies also afforded coverage for any personal liability which he might have arising out of the accident of October 23, 1971.

In determining whether Cook individually was a named insured or whether his name appeared on the policy declarations only as an address for the Foster estate, consideration should be given to the nature of a fiduciary’s tort liability. If there is ambiguity in the designation of the named insured, that ambiguity should be resolved in light of the nature of the risk insured against:

In the context of property and casualty insurance the term “insured” ordinarily signifies a person whose risk of economic loss of a designated type is part of the subject matter of the contract—a person whose loss is an occasion for liability of the insurer to pay benefits.

R. Keeton, Basic Text on Insurance Law § 4.1(b) at 176 (1971).

At the outset, we must recognize that the W. F. Foster estate is not a separate legal entity. As stated by Judge Cardozo in Whiting v. Hudson Trust Co., 234 N.Y. 394, 138 N.E. 33, 25 A.L.R. 1470, 1478 (1923):

It is only a form of words when we speak of him [the trustee] as the representative of an “estate.” The “estate” had no separate existence. It was not a legal person. The only person was the trustee.

Cook was executor and trustee of the W. F. Foster estate. Because the estate had no separate existence, the only person who could be sued was L. G. Cook. The designation “FOSTER W F ESTATE” was the same as specifying L. G. Cook as a named insured. See State v. Insurance Co. of North America, 39 A.D.2d 205, 333 N.Y.S.2d 486 (1972).

This does not mean that Cook was a named insured for all purposes. We do not believe that it can be seriously contended that the policies covered any liability which Cook might incur for activities unrelated to his duties as executor and trustee of the Foster estate not involving the vehicles specified in the declarations.

In the present case, any liability which Cook might have as a result of the accident of October 23, 1971, was directly related to his duties as executor and trustee of the Foster estate. Nevertheless, Kentucky Farm Bureau would construe the policy to cover only those liabilities which must be satisfied out of the assets of the estate. Kentucky Farm Bureau contends that it would afford no protection to Cook if he were personally liable even though his lia-, bility arose out of his duties as executor and trustee of the estate.

In the companion case of Cook v. Holland, Ky.App., 575 S.W.2d 468 (this day decided), we have discussed in greater detail the tort liability of fiduciaries. Under the orthodox common law rule, a trustee or other fiduciary is personally liable for torts arising out of the administration of the estate. Only if the fiduciary is completely without personal fault may he receive indemnification out of the corpus of the trust estate. Restatement (Second) of Trusts §§ 247, and 264; Louisville Trust Co. v. Morgan, 180 Ky. 609, 203 S.W. 555, 7 A.L.R. 396 (1918). A tort creditor can satisfy his claim out of the corpus of the trust only in a limited number of circumstances. Restatement (Second) of Trusts §§ 266-271A.

Considering the traditional common law rule governing the tort liability of fiduciaries, a trustee purchasing liability insurance would reasonably expect to be insured against any liability arising out of the administration of the trust estate for acts covered by the terms of the policy. The liability of Kentucky Farm Bureau under the two policies is not limited to those situations in which the tort creditor could reach the assets of the estate. The trial court erred in failing to hold that the two policies insured Cook against any personal liability arising out of the administration of the trust for acts otherwise covered by the policies.

There is no merit to the argument of Kentucky Farm Bureau that a trustee has no power to secure, at the expense of the estate, liability insurance which gives him personal protection from liability for acts arising out of the administration of the trust estate. 3 Scott on Trusts § 188.1 (3d ed. 1967); see also KRS 386.810(3)(q) enacted in 1976.

Applicability of “Other Automobiles” Clause

In addition to the two trucks specifically described in the policy declarations, Kentucky Farm Bureau afforded coverage for other vehicles under the clause, “Use of Other Automobiles.” Under this clause, coverage is afforded to the named insured, “if an individual.” Because Baucum was operating a truck which was not described in either policy declaration, Kentucky Farm Bureau would afford no coverage for the accident unless Baucum’s operation of the Vaughn truck fell within the scope of the “other automobiles” clause of each policy. Kentucky Farm Bureau asserts that the Foster Estate is not an individual and that, therefore, no coverage is afforded under the “other automobiles” clause. The trial court held that the clause was applicable and that the policies afforded coverage to the Foster Estate for any liability arising out of Bau-cum’s operation of the Vaughn truck.

The W. F. Foster estate is not an entity, much less “an individual.” However, as we have construed the policies, the named insured is L. G. Cook who is an individual. This is not a situation in which the trustee is a corporate fiduciary. A corporation can act only through agents and employees. Such considerations justify limiting the “other automobiles” clause to named insureds who are individuals. A corporation is not an individual within the meaning of such clauses. See Continental Casualty Co. v. Suttenfield, 236 F.2d 433 (5th Cir. 1956); Sentry Security Systems v. Detroit Automobile Inter-Insurance Exchange, 394 Mich. 96, 228 N.W.2d 779 (1975). Because he is an individual, Cook personally can perform the same acts in administering the trust as were performed by W. F. Foster prior to his death. It will be remembered that the two farm trucks owned by the estate were originally insured through Kentucky Farm Bureau by Foster himself. Cook has done no more than step into Foster’s shoes after qualifying as executor and trustee. We know of no reason why Cook should not be deemed “an individual” entitled to coverage under the “other automobiles” clause. The trial court did not err in so holding.

The “other automobiles” clause further provides that it does not apply to any vehicle “available for the regular use of the named insured.” Such exclusions are intended to preclude a person from insuring several vehicles for the price of one without defeating the general objective of the “other automobiles” clause to protect the named insured during occasional use of some vehicle other than his own. R. Keeton, Basic Text on Insurance Law § 4.9(b) (1971). With these considerations in mind, we will examine the facts to determine whether Kentucky Farm Bureau was entitled to a directed verdict on the issue of “regular use” of the Vaughn truck.

Because the jury returned a verdict that the Vaughn truck was not available for the regular use of the Foster estate, this Court must draw all fair and rational inferences from the evidence in favor of the defendants. Covington v. Friend Tractor & Motor Co., Ky.App., 547 S.W.2d 771, 775 (1977). The evidence establishes that Baucum and Vaughn traded work. Vaughn assisted Baucum in harvesting crops on the Foster farm, and Baucum assisted Vaughn with work on a farm owned by Vaughn’s brother. Vaughn frequently stored his truck in a barn on the Foster farm. Although the keys were left in the truck, Baucum never used the truck without obtaining Vaughn’s permission. Vaughn had purchased the truck in 1964. Normally, the truck was used by Baucum on the Foster farm only at harvest time when he and Vaughn were trading work. There were two or three other isolated instances in which Vaughn gave Baucum permission to use the truck to haul rock.

At the time of the accident of October 23, 1971, Vaughn was operating his own equipment harvesting corn on the Foster farm. Baucum was using the Vaughn truck to haul the harvested corn because it had a hydraulic lift. The trucks owned by the Foster estate were not so equipped. The hydraulic lift enabled Baucum to unload the truck without manual labor.

Although Kentucky Farm Bureau sought to impeach the testimony of both Baucum and Vaughn, the credibility of the witnesses was for the jury. Having in mind the purpose of the exclusion of vehicles “available for regular use” of the insured, we conclude that there was a jury issue and that Kentucky Farm Bureau was not entitled to a directed verdict. Kentucky Farm Bureau Mutual Insurance Co. v. Hill, Ky., 278 S.W.2d 729 (1955).

Instruction On Regular Use

Kentucky Farm Bureau argues that the trial court committed reversible error when it defined the term “regular use” in the following instruction to the jury:

The term “available for regular use” means that thing to which it refers can usually and regularly be had or be used whenever it is wanted, needed or desired and that such use may be made without seeking permission of the owner for each such use.

Kentucky Farm Bureau argues that the truck could be “available for regular use” even though the permission of. Vaughn was required for each use. A similar issue was before the court in Kentucky Farm Bureau Mutual Insurance Co. v. Hill, supra. As in this case, the jury was required to determine whether a motor vehicle was available for the “regular use” of the insured. The issue was submitted to the jury on special interrogatories which required the jury to determine whether the insured could use the automobile in question only with the owner’s permission. On appeal, the court held that the instructions and special interrogatories properly submitted to the jury the issue whether the automobile was furnished to the insured on a regular basis. The instruction given in this case is in harmony with those approved in the Hill case.

II

Coverage Under Farmer’s Comprehensive Liability Policy

On their cross-appeals, Baucum and Cook (who filed separate cross-appeals as an individual and in his fiduciary capacity) contend that the farmer’s comprehensive liability policy issued by Kentucky Farm Bureau afforded coverage for the accident. The trial court granted summary judgment in favor of Kentucky Farm Bureau on this policy because the accident occurred on a “public highway” rather than on “the premises insured” under the policy.

The farmer’s comprehensive liability policy provided public liability coverage for bodily injury and medical payments (Coverage L). This policy also contained an exclusion providing that the policy did not apply under Covérage L “to the ownership, maintenance or use, or the loading or unloading of motor vehicles, trailers or semi-trailers, while away from the premises . .” The policy defined the term “premises” to mean “all premises described in the declaration and the private approaches thereto.” The policy declaration described the premises insured as being a tract of 405 acres and a second tract of 80 acres. The 80 acre tract was further described as being located one-half mile north of the “homeplace.”

Baucum and Cook (in his individual capacity) claim that the two tracts should be treated as a single farm operation. Because it was necessary to travel over the Kentucky Highway 121 to haul the corn from one tract to the other, it is argued that the truck was not “away from the premises” when the accident occurred. We do not agree. Public liability insurance policies commonly provide an exclusion for the off-premises use of motor vehicles. The reason for such exclusions is very simple. Operation of a motor vehicle on public highways involves greater risks than operation of the same vehicle on privately owned farms. Coverage for off-premises use of motor vehicles is ordinarily procured as automobile public liability insurance. 12 Couch on Insurance (Second) § 44:453 (1964). An accident on a public highway such as occurred in this case would be covered by a standard automobile public liability insurance policy.

A similar argument was made in Connolly v. Standard Casualty Co., 76 S.D. 95, 73 N.W.2d 119 (1955). The South Dakota court considered a comprehensive farm liability policy which contained an exclusion similar to, but more narrowly drawn than the exclusion presented in this policy. The exclusion in that case provided that liability coverage should not apply to the ownership or operation of an automobile “while away from the premises or the ways immediately adjoining. . . .” In construing this provision, the South Dakota court stated:

To hold that the policy covered all accidents caused by insured’s automobiles while used in connection with the farm on all highways necessarily traveled in going from one part of the farm to another would give to it a meaning clearly not intended.

Id., 73 N.W.2d at 121. In the present case, Kentucky Highway 121 was not a part of the premises described in the declaration, nor was it a part of the “private approaches thereto.” Because the accident occurred on the highway, the accident must be deemed to have occurred “away from the premises.” The trial court was correct in holding that the exclusion did apply to the accident.

In his fiduciary capacity, Cook also asserts that coverage is afforded under subsection 2 of Coverage L. That provision provides public medical payments coverage if the injury “arises out of the premises or a condition in the ways immediately adjoining.” He argues that Kentucky Highway 121 constituted “the ways immediately adjoining” the premises. This argument has two fatal flaws. First, the coverage applies only to “a condition” in the ways immediately adjoining the premises. The accident in question did not arise out of the condition of the highway, but rather the manner in which the vehicles were operated. Second, this coverage is subject to the express exclusion discussed above relating to the operation of motor vehicles while away from the premises. Because of the policy exclusion of any liability related to the operation of the truck “while away from the premises,” it is immaterial that the accident may have occurred on the “ways immediately adjoining” the premises.

The trial court did not err in granting summary judgment to Kentucky Farm Bureau relating to its liability under the farmer’s comprehensive liability policy.

III

[Editor’s Note: Part III, which decided the excess peremptory jury challenges issue as to which the Supreme Court of Kentucky granted discretionary review, is omitted at the direction of the Supreme Court (see 590 S.W.2d 875, at page 875).]

IV

The judgment of the circuit court is affirmed in CA — 1505-MR, CA-1511-MR and CA-1519-MR; the judgment is reversed in CA-1511-MR and CA-1619-MR with directions to enter a new judgment that Kentucky Farm Bureau afforded Cook coverage under the two automobile policies for any personal liability which he might have arising out of the accident of October 23,197Í.

All concur.

      . This clause provided in part:
      V. Use of Other Automobiles
      Such insurance as is afforded by this policy with respect to the automobile described in the declarations applies to the named insured, if an individual, and, if residents of the same household as the named insured, his spouse, and if licensed drivers, the minor dependent children of either, with respect to the operation of any other automobile of the private passenger, farm truck, or utility type, by or in behalf of such named insured, spouse or minor child. The insuring agreement does not apply to:
      A. any automobile owned by, registered in the name of, or available for the regular use of the named insured, spouse, minor child or any resident of the named insured’s household;

      C. any insured or automobile other than as provided in this paragraph.


author: LESTER, Judge.

text:
    Susan A. HAFLEY, Appellant, v. Willie E. McCUBBINS, Mary C. McCubbins and Unknown Defendant, Appellees.
    Court of Appeals of Kentucky.
    Nov. 2, 1979.

      Robert E. Webb, Jr., Louisville, for appellant.
    H. Douglas Mann, Allen K. Gailor, Louisville, for appellees.
    Before COOPER, LESTER and WIL-HOIT, JJ.
   LESTER, Judge.

This was an interpleader action wherein the trial court entered a summary judgment awarding the proceeds of the decedent’s servicemen’s group life insurance policy to his stepparents rather than to his natural mother.

The appellant, Susan Albina Darrell, (now Hafley), gave birth to twin boys on December 4,1956; their father was Morgan Len Bailey. Prior to entering the hospital, the appellant made an arrangement with the appellees whereby the newborns, including the decedent, Donald Daymond Bailey (the surname of the real father), were to come live with and be reared by the McCub-bins, because appellant had seven children, and because she was unmarried, was untrained for work and was medically unable to maintain employment. Susan Hafley lived with the appellees for six weeks after Donald and his brother were bom, • and thereafter moved to quarters of her own leaving the child to be raised as Donald Daymond McCubbins. There is evidence that appellant orally agreed to an adoption by appellees, but due to financial circumstances, this was never accomplished.

At the age of sixteen, the boy was told that appellant was his natural mother, and from time-to-time he would visit her and even reside with her for brief periods of time. Shortly after reaching seventeen, Donald enlisted in the army under appel-lees’ name, but that type of life apparently disagreed with him so he managed to obtain a medical discharge. Returning home, he found that he could not obtain a job. He became restless and unruly to such a point that he found it necessary to leave the McCubbins’ home and take up residency with his mother. After becoming involved with the law enforcement authorities, Donald reconsidered the military life and concluded to re-enlist, but in order to do so, he had to use the name of Bailey. In December, 1976, Bailey was killed in a nonmilitary-connected incident.

Pursuant to 38 U.S.C. § 765, et seq., the decedent's life was covered by Servicemen’s Group Life Insurance which, in this instance, was in the amount of $20,000.00 issued by The Prudential Insurance Company of America. Being made aware of the factual situation, the carrier filed an inter-pleader action which had the effect of bringing the parties to this appeal in contention for the funds. The precipitating factors were that the decedent had inserted in the designation of beneficiary the language “By Law” and both Hafley and the McCubbins filed their respective claims for death benefits.

As part of its complaint for interpleader, Prudential set out the pertinent provisions of the definitions section of the congressional act, namely, 38 U.S.C. § 765(9) which provides that “[n]o person who abandoned or willfully failed to support a child during his minority, or consented to his adoption may be recognized as a parent for the purpose of this subchapter.”

The appellees filed a “Claim For Funds” to which was attached some twenty-three exhibits, while appellant filed her answer and cross-claim. Both parties filed motions for summary judgment (appellant’s being supported by four affidavits) which the court granted to the McCubbins unaccompanied by any specific findings. Appellees had also filed a claim against the estate for funds expended in raising the child and funeral expenses.

The prime issue involved is what is considered to be an abandonment of a child. The United States Code itself sheds no light whatsoever, and the only annotation thereunder refers to Rahn v. Prudential Insur ance Company of America, 259 N.W.2d 838 (Iowa 1977), to the effect that there is no single accepted definition of the term “abandon,” but that the element of support is universally held to be a significant factor. The courts of this jurisdiction have construed the abandonment concept only from the criminal aspect for the purposes of KRS Chapter 199, but never in the field of the civil law. We must, therefore, look to the jurisprudence of our sister states.

We wish to emphasize that we are not concerned here with the best interests of a child since that factor is primarily one to be considered in custody and adoption litigation. Moreover, we hesitate to apply the definitions found in KRS 199.011(5) and KRS 530.040, because these statutes deal with protective services, including adoption, and criminal prosecutions involving a minor child in being. What we seek is an acceptable criteria for civil matters involving recovery of damages or benefits by a parent as opposed to a custodial nonparent where it is alleged that the natural parent has “abandoned” the offspring.

Many elements may, and have been, considered in determining what constitutes abandonment of a child by its parent, such as a course of conduct suggesting a conscious disregard or indifference of parental obligations, Emmons v. Dinelli, 235 Ind. 249, 113 N.E.2d 56 (1956); having a child in the care of others on a permanent or indefinite basis, Finn v. Rees, 65 Idaho 181, 141 P.2d 976 (1943), although this act must involve more than a mere temporary absence or neglect of duty, 2 Am.Jur.2d Adoption § 34 at 889 (1962); the length of time of placement with individuals or an agency; failure to provide support, Stadler v. Stone, 412 Ill. 488, 107 N.E.2d 696, 35 A.L.R.2d 653 (1952); and the resumption or nonresumption of the parental obligation, Re Cozza, 163 Cal. 514, 126 P. 161 (1912), and Re Kline’s Adoption, 24 Del.Ch. 427, 8 A.2d 505 (1939). See also Re Burns, 474 Pa. 615, 379 A.2d 535 (1977).

Collected at 1 Words and Phrases, Abandon; Abandonment at the subheadings Child-Recovery for Injuries or Death of Child (p. 40) are twelve cases, of which eleven are New York authorities, dealing with wrongful death actions while the remaining one is Texas litigation for injuries received. New York, the same as 38 U.S.C. § 765(9), precluded a parent who had abandoned his child from sharing in the damages resulting from the wrongful death of the child. In construing the term, the New York Court held that it meant neglect and refusal to perform natural and legal obligations to care and support, withholding of parental care, presence, opportunity to display voluntary affection and neglect to lend support and maintenance. In Re Herbster’s Estate, 121 N.Y.S.2d 360, 362 (1953). It means also the failure to fulfill responsibility of care, training and guidance during the child’s formative years, Pridell v. Reynolds, 206 Misc. 316, 133 N.Y.S.2d 203, 206 (1954); Matter Of Commissioner Of Social Services, 84 Misc.2d 253, 376 N.Y.S.2d 387, 392 (1975). These concepts have been adopted by other jurisdictions. Matter Of Adoption Of Doe, (Ct.App.) 89 N.M. 606, 555 P.2d 906, 918 (1976); Anonymous v. Anonymous, 25 Ariz. App. 10, 540 P.2d 741 (1975) and In Re Ayres, Mo.App., 513 S.W.2d 731, 734 (1974). We believe that the receipt of benefits whether for wrongful death or from a contract of life insurance to be so closely akin that the principles enunciated above should be applicable to both.

In the case at bar, the appellant, even prior to the birth, attempted to designate the appellees as the true parents by listing Willie McCubbins as the father and giving the child that surname. Immediately upon leaving the hospital, she placed the boy in the care of appellees where he remained for sixteen years. Even though Donald was not aware of his true parentage for a long period of time, Susan Hafley knew of his whereabouts and made no effort to resume her parental obligations after a great span of indifference as to his care and guidance during his formative years. There is little indication of support being furnished by the natural mother even to the point of lack of contribution to his funeral expenses. From the standpoint of her intent to abandon her child, we need look no further than her oral agreement to permit adoption by the McCubbins.

Based upon the standards herein-above set forth, it is apparent that the appellant had abandoned her son, which brings into focus the question of to whom are the insurance proceeds payable. In its summary judgment, the circuit court awarded appellees the money “as partial payment of their claim against the Estate of Donald D. Bailey A/K/A Donald D. McCubbins.” This approach is the only possible way in which the McCubbins could prevail for those standing in the shoes of persons in loco parentis, or, for that matter, stepparents, are not parents within the meaning of 38 U.S.C. § 765(9). Prudential Insurance Company v. Ellwein, 435 F.Supp. 248 (D.C.N.Y.1977). However, Susan Haf-ley resisted the proof of claim in the record, but had no opportunity to refute it. We believe that the appellees should be required to demonstrate the validity of this type of allegation and its amount if the court gets to that point because it will be recalled that the deceased serviceman designated the beneficiary as “By Law” and it might well be that the trial court would conclude that the funds should be paid to the estate for eventual distribution pursuant to the statutes of this jurisdiction.

Our conclusion is that since appellant abandoned the decedent, she is not entitled to any recovery whatsoever, but since the trial court has not made a determination of either who the proper beneficiaries might be, or the validity of the claim of appellees, there are factual issues remaining.

Therefore, the judgment is affirmed in part and reversed in part, and remanded for further proceedings consistent with views contained in this opinion.

All concur.


author: WINTERSHEIMER, Judge.

text:
    Karl BODIE, Appellant, v. Louisa Green BODIE, Appellee.
    No. 79-CA-45-MR.
    Court of Appeals of Kentucky.
    Nov. 30, 1979.
    Charles J. McEnroe, Mandt, McEnroe & Polk, Somerset, for appellant.
    Ray. H. Bailiff, Jr., Adams & Adams, Somerset, for appellee.
    Before GUDGEL, HOGGE and WIN-TERSHEIMER, JJ.
   WINTERSHEIMER, Judge.

This appeal is from a judgment entered October 3, 1978, which held that certain debts incurred during the marriage of the parties were nonmarital, and therefore, were to be paid solely by the appellant. The question presented is whether there exists a presumption that all debts incurred during marriage are marital debts.

The parties were first married in 1960 and this marriage was dissolved in 1972. They remarried in December of that year. The present proceedings for dissolution were initiated by the wife’s petition on September 12, 1977. The parties orally agreed on child custody, support and property division. The only real property was the marital home and they agreed to a sale of the residence which resulted in a net profit of $14,802.20. The trial judge ordered the sale proceeds to be equally divided. The sole contention on appeal deals with the trial court’s disposition of various debts.

Appellant argues that the trial judge committed reversible error in finding that a portion of the debts incurred during the marriage, totalling approximately $14,-610.00, was not proven to be a marital debt. The appellant maintains that the trial judge erred in placing the burden of proof upon him in view of KRS 403.190 and Bruton v. Bruton, Ky.App., 569 S.W.2d 182 (1978).

The appellee contends that the findings of fact by the trial court are not clearly erroneous and should not be disturbed.

The appellant states that the $14,610.00 was borrowed over a three to four year period and expended for marital purposes in order to maintain a lifestyle higher than possible on his salary. The appellant declined to answer tendered questions, relative to the nature of the debts, on the advice of his attorney. No cancelled checks, bills or receipts were introduced.

The appellee testified that she did not sign the bank notes and had no knowledge of the loans. She stated that the parties had not made any large purchases, except for a dishwasher, but that she did know that they were in debt.

This Court affirms the judgment of the trial court because it was not error for the trial judge to find that the $14,610.00 amount was not proved as a marital debt.

We cannot accept the argument that KRS 403.190 creates a presumption that all debts acquired during the marriage are marital debts. The appellant is the only logical party who can produce evidence as to the marital nature of the debts. Bruton, supra, can be distinguished because the ap-pellee had no knowledge of the indebtedness.

There is no Kentucky law precisely on point as to a presumption of marital indebtedness. Although it can be argued that a converse presumption could be implied from KRS 403.190(3), the judicial reasoning used in Herron v. Herron, Ky., 573 S.W.2d 342 (1978), precludes that result. In Herron, supra, the Kentucky Supreme Court disapproved gratuitous presumptions in regard to marital property. Herron, supra, is obviously distinguishable on its facts, but we believe the reasoning is applicable to this situation. The statute itself does not create a presumption as to marital debts and we do not believe one can be judicially implied. All debts incurred during marriage are not necessarily marital debts. Consideration should be given to the nature of the debts based upon the receipt of benefits and the extent of participation. Inman v. Inman, Ky.App., 578 S.W.2d 266 (1979).

Generally, household furniture would be considered as marital property, but there is no evidence of probative value here to establish that fact.

The burden of proof rested with the appellant. Ledford v. Hubbard, 219 Ky. 9, 292 S.W. 345 (1926). The fact that the appellant refused to answer questions concerning the debts brings this situation within the rule in Guthrie v. Foster, 256 Ky. 753, 76 S.W.2d 927 (1934).

Appellee had no knowledge of the debts incurred during the marriage and the appellant refused to testify regarding the debts. In such a situation no presumption can be judicially inferred.

Therefore, the judgment of the trial court is affirmed.

All concur.


author: GUDGEL, Judge.

text:
    HACKER BROTHERS CONSTRUCTION COMPANY, INC., Appellant, v. BOARD OF EDUCATION OF WHITLEY COUNTY; and J. L. Cooper; Virgil Moore; Charles Craig; Steely Alsip; and Lincoln Prewitt; Individually as members of the Board of Education of Whitley County for the year of 1976; and Gorman Frazier; Steely Alsip; Lincoln Prewitt; J. A. Cooper; and Roscoe Croley, Individually as present members of the Board of Education of Whitley County; and J. C. Cooper; Gorman Frazier; and Roscoe Croley, Individually, Appellees.
    Court of Appeals of Kentucky.
    Nov. 30, 1979.
    Franklin Stivers, Stivers & Stivers, London, for appellant.
    William H. McCann Brown, Sledd & McCann, Lexington, for appellees.
    Gardner L. Turner, Sturgill, Turner & Truitt,. Lexington, for appellees (amicus curiae).
    Before GUDGEL, HOGGE and WIN-TERSHEIMER, JJ.
   GUDGEL, Judge.

This is an appeal from a summary judgment order of the Whitley Circuit Court. The issue is whether the appellant, Hacker Brothers Construction Company, Inc., and appellee, the Board of Education of Whitley County (Board), entered a valid and enforceable contract. The court below adjudged that they did not. We affirm.

After a State Department of Education survey of the Whitley County school system, a new middle school for the county was recommended. An architect was employed, and plans for the new school prepared and approved by the Board and various state agencies. A bid date was set. Appellant was the successful low bidder on the project, and on December 13, 1976, the chairman of the Board executed the acceptance portion of appellant’s bid proposal. On the same date, the superintendent of the Whitley County Schools and the Board members went before the Whitley Fiscal Court asking for authority to sell revenue bonds necessary to finance the new school. The county judge/executive and the fiscal court refused to act on the request of the Board.

The term of these Board members expired December 31, 1976. In an election held the previous November, several had been defeated by candidates opposed to the construction of the new school. When the new Board took office in January of 1977, it refused to take any action to force the Whitley Fiscal Court to take the steps necessary to cause the school’s construction. Appellant filed this action on February 2, 1977, seeking compensatory and punitive damages for breach of contract against the Board and its individual members. On November 29, 1978, the court granted a summary judgment in favor of the appellees, and appellant prosecuted this appeal.

Appellant assigns two errors as grounds for reversal of the judgment below: (1) that the court erred when it granted summary judgment in favor of appellees on the basis that the contract violated Section 157 of the Kentucky Constitution; and (2) when it determined that the Whitley County Board of Education did not follow the statutory procedures required by KRS Chapter 162.

Resolution of these issues requires us to review the methods available to county boards of education for financing school construction. A board’s authority to contract is subject to the limitation of Section 157 of the Constitution, which provides in pertinent part as follows:

No county, city, town, taxing district, or other municipality, shall be authorized or permitted to become indebted, in any manner or for any purpose, to an amount exceeding, in any year, the income and revenue provided for such year, without the assent of two-thirds of the voters thereof, voting at an election to be held for that purpose; and any indebtedness contracted in violation of this section shall be void. Nor shall such contract be enforceable by the person with whom made; .

Thus, if a board incurs an indebtedness by contracting for construction of a school, and its cost exceeds its income and revenue for the current year, the contract is unenforceable unless it has been approved by two-thirds of the voters of the area affected. Scobee v. Board of Education, 157 Ky. 510, 163 S.W. 472 (1914).

The statutes authorizing school construction are contained in KRS Chapter 162. Three separate and distinct methods are set forth. KRS 162.060 to KRS 162.100, inclusive, set forth the steps the Board must follow to incur the indebtedness itself by securing approval of the voters, as required by Section 157 of the Constitution.

KRS 162.120 to KRS 162.290⅛ inclusive, provide two alternate methods. These alternate methods avoid the restriction of Section 157 of the Constitution by authorizing the county to issue revenue bonds which do not constitute an indebtedness of the county or the board. See e. g., City of Bowling Green v. Board of Education, Ky., 443 S.W.2d 243 (1969), and Wagner v. Fiscal Court of Jessamine County, Ky., 306 S.W.2d 288 (1957).

However, both KRS 162.130 and KRS 162.160(2), dealing with entering a contract for construction of a school where the revenue bond method of financing is being utilized, state that the county enters the contract. Thus, a board of education lacks the power or capacity to enter a contract for school construction where the revenue bond method provided in KRS Chapter 162.120 to KRS 162.290 is utilized. Cf. Fosson v. Fiscal Court of Boyd County, Ky., 369 S.W.2d 108 (1963).

It is clear then that if appellant is attempting to maintain this action on the basis that it has a valid contract with the school board, the contract is unenforceable because the approval of the voters of Whitley County was not obtained, as required by Section 157 of the Constitution. On the other hand, if the appellant is attempting to maintain this action on the basis that the revenue bond methods provided for in KRS 162.120 to KRS 162.290 were followed, the contract is unenforceable because the only government agency possessing the power and authority to execute such a contract failed to do so.

At oral argument, appellant conceded the requirement of Section 157 of the Constitution had not been met and that the revenue bond method provided for in KRS 162.120 to KRS 162.290 had not been completed. It argued that there is an additional method established by the State Board of Education which was followed. The record contains a list of steps for implementing this alleged method. Step 6 indicates that once bids are secured and opened, a contract is awarded, a fiscal agent employed to issue revenue bonds, and a date for their sale set.

However, this “list of steps” is silent as to which government agency awards or enters the contract. Therefore, the list does not support appellant’s contention that the Board was entitled to do so. Further, if any list of steps or any regulation of the State Board of Education authorizes a school board to enter a construction contract in violation of Section 157 of the Constitution or KRS 162.120 to KRS 162.290, it is invalid.

Appellant also contended that the summary judgment order is premature because it was denied an opportunity to prove the existence of an alternate method for financing not considered by the court below. However, appellant had twenty-two months to establish the existence of such a method and failed to do so. In addition, it was unable to cite this Court to any statute authorizing a method not considered in this opinion. Accordingly, we hold that the court below correctly determined that the contract sued upon is unenforceable.

The Associated General Contractors of Kentucky, amicus curiae, advance the policy argument that unless this court holds that appellant’s contract is enforceable, there will be a chilling effect on the willingness of contractors to enter construction contracts with public agencies. We disagree.

We are not dealing here with a situation where a valid and enforceable contract has been repudiated. If that were true, the contention might have merit. Rather, we are dealing with a contract which is unenforceable because the agency which executed it lacked the power or capacity to do so. A party deals with a public agency at its peril if it contracts with one and fails to inquire into the power of the agency to execute it. 64 Am.Jur.2d Public Works and Contracts, § 8 (1972). Here, the Board possessed no power or capacity to enter the contract, and appellant’s failure to inquire into the Board’s power to execute it precludes recovery for its* breach.

The summary judgment order is affirmed.

All concur.

      . See Fyfe, et al. v. Hardin County Board of Education, 305 Ky. 589, 205 S.W.2d 165 (1947).

      . KRS 162.120 to KRS 162.140 provide one method; and KRS 162.150 to KRS 162.290 the other.


author: SEILER, Judge. DONNELLY, Judge,

text:
    In re 1979 BUDGET OF the JUVENILE COURT OF ST. LOUIS COUNTY.
    No. 61232.
    Supreme Court of Missouri, En Banc.
    Sept. 19, 1979.
    Rehearing Denied Jan. 15, 1980.
    Thomas W. Wehrle, St. Louis County Counselor, Robert H. Grant, Associate County Counselor, Clayton, for petitioner.
    Shulamith Simon, Clifford E. Librach, Husch, Eppenberger, Donohue, Elson & Cornfeld, St. Louis, for respondent.
   SEILER, Judge.

This is a petition for review of the budget of the juvenile court of St. Louis County filed by St. Louis County challenging several items in the 1979 budget as not reasonably necessary for the juvenile court’s performance of its essential functions. Jurisdiction is in this court under its exercise of general superintending control over the circuit court of St. Louis County and its juvenile court. Mo.Const. Art. V, § 4.

The county council enacted Ordinance No. 9031 which approved the 1979 budget for all county offices and departments and in so doing deleted several items in the budget requested by the circuit court. Specific deletions are as follows: $41,099 to fund three positions in the Youth Opportunities Unlimited career counseling project (this sum was requested to match a grant for a project formerly funded fully by a private corporation); $55,910 to fund the 10% local share of four special programs (this sum was requested to enable the juvenile court to receive 90% federal funding for the following programs: Family Treatment Unit, Detention Diversion, Status Prevention and Release, and Project L.E.A. R.N. diagnostic services); $55,268 of the $112,608 requested to fund the Regional Group Home (initially all but 10% of this program was funded by the Missouri Council on Criminal Justice, then the 10% county share was increased to 50%, and finally, as of October 1,1978, the county paid all costs so that the program would not end abruptly); $127,597 of the $262,651 requested to fund the Court Community Services Program (initially all but 10% of this program was funded by the Missouri Council on Criminal Justice, then the 10% county share was increased to 50%, and finally, as of October 1, 1978, the county paid 100% of costs so that the program would not end abruptly); and, lastly, the entire $110,504 requested for the Diagnostic Treatment Services Program (this program was initially funded 90% by a federal grant in 1977, with the county paying 10%; in 1978 the county funded all costs). After the county council enacted the ordinance with the above deletions, the circuit court en banc informed the county council by letter that it did not consent to all the deletions in the juvenile court budget. The county then filed a petition for review in this court under the procedure directed by State ex rel. Weinstein v. St Louis County, 451 S.W.2d 99 (Mo. banc 1970).

We begin with the inquiry of whether, as contended by the circuit court, the disputed items are required by law other than through the inherent power of the circuit court, for if the circuit court were correct, this petition for review would be improper. Section 50.640, RSMo 1978, requires the legislative branch to approve and fund lawful budget estimates of the judicial department. The circuit court cites State ex rel. Judges for the 22nd Judicial Circuit v. City of St. Louis, 494 S.W.2d 39 (Mo. banc 1973) as authority for the lawfulness of the budget estimates and the contention that the county is compelled to fund them. In that case, this court classified three categories of “lawful” expenditures: (1) those fixed by statute or absolutely reposed in the court’s discretion; (2) those the local government unit is required to provide to meet such expenditures as may have been authorized previously; and, (3) those reasonably necessary for the court to carry out its functions. 494 S.W.2d at 41.

The circuit court refers to the state legislature’s creation of a statewide juvenile court system, which this court recognized in J.D.H. v. Juvenile Court of St. Louis County, 508 S.W.2d 497 (Mo. banc 1974). Moreover, the circuit court submits that in § 211.011 et seq., RSMo 1978, the legislature has clearly declared its purpose that the juvenile courts act as parens patriae and thus committed to the juvenile court judge the right to provide such personnel as the court deems necessary to provide proper diagnostic, clinical, and treatment services for children under its jurisdiction.

The circuit court assumes that the legislature’s delegation of the above responsibilities has fixed by statute or absolutely reposed in the juvenile court’s discretion the right to compel the specific funding levels and programs disputed in this litigation. There is no doubt that these experimental projects are within the broad mission or scope of the juvenile court. If these were the only diagnostic, clinical and treatment services available, there would be a serious question as to whether they could go unfunded. But the circuit court has not shown that these are the only programs that provide these services and that their reduced or deleted budget items will seriously impair the juvenile court’s delivery of diagnostic, clinical and treatment services. In contrast, the county points out that these programs originated, not in the enactments of the legislature, but as the result of incentive or “seed money” funding by federal grant programs. Moreover, the county submits that the circuit court already has at its disposal the facilities and personnel for providing the services required by statute or absolutely reposed in the discretion of the juvenile court. We conclude that the specific programs in dispute are not expenditures fixed by statute or absolutely reposed in the discretion of the juvenile court.

The circuit court also argues that under State ex rel. Judges for the 22nd Judicial Circuit, the county is compelled to fund all but one of these programs because it previously authorized their funding in other fiscal years. Such a reading of the second category of required “lawful” expenditures mentioned in that case would destroy the county’s incentive to be innovative and experimental for fear of being saddled with a continuing obligation to fund unsuccessful projects. The projects disputed here were innovative and experimental, encouraged by federal grant incentives. The “previously authorized” category of lawful expenditures in State ex rel. Judges for the 22nd Judicial Circuit states a presumption favoring past budget items of the court. This presumption was not meant to shackle the county for all time to continue experimental programs, regardless of the county’s future assessment of the programs under cost-benefit analysis.

Having considered the first two categories of lawful expenditures enunciated in State ex rel. Judges of the 22nd Judicial Circuit, we now address whether the expenditures fall within the third category, “[tjhose reasonably necessary for the court to carry out its functions.” 494 S.W.2d at 41. This category of lawful expenditures involves the inherent power of the circuit court to incur and order paid all such expenses “as are reasonably necessary for the holding of court and the administration of the duties of courts of justice,” as enunciated in State ex rel. Weinstein v. St. Louis County, 421 S.W.2d 249, 255 (Mo. banc 1967). In State ex rel. Judges of the 22nd Judicial Circuit, we held that the burden of proving that expenditures are “reasonably necessary” is upon the circuit court and it must “attempt to show a ‘factual need’ instead of merely a ‘declared need.’ ” 494 S.W.2d at 41. The circuit court has failed to meet this burden of persuasion. The essential functions of the juvenile court remain the same as they were prior to the inception of the federal grant incentive programs that induced the establishment of the programs at issue in this case. On what is before us, we cannot say that without these programs the juvenile court will be unable to perform its essential functions.

In conclusion, we find that the disputed expenditures are not required by statute or absolutely reposed in the discretion of the juvenile court, nor have they been shown to be reasonably necessary for the functioning of the court. Accordingly, we order that the items in question be deleted from the 1979 budget of the juvenile court.

BARDGETT, C. J., WELLIVER and MORGAN, JJ., and HENLEY, Senior Judge, concur.

DONNELLY, J., concurs in result in separate opinion filed.

RENDLEN, J., concurs in result and concurs in separate opinion of DONNELLY, J.

HIGGINS, J., not participating because not a member of the court when cause was submitted.

DONNELLY, Judge,

concurring in result.

In State ex rel. Weinstein v. St. Louis County, 451 S.W.2d 99, 102 (Mo. banc 1970), this Court held:

“If, after the Juvenile Court, acting under the supervisory control of the Circuit Court of St. Louis County, determines its needs as to personnel and fixes compensation, the County Council deems such action to be unreasonable, the County Council may file a petition for review and final determination of such question in this Court, which has final superintending control over the Circuit Court of St. Louis County and its Juvenile Court. Article V, § 4, Const, of Mo. 1945, V.A. M.S. Necessarily, in order not to interfere with operations of the Juvenile Court, such petition must be filed without unnecessary delay. In the absence of a determination, pursuant to such petition for review, that the action of the Juvenile Court is unreasonable, its order with respect to the personnel reasonably needed and their compensation will be final, and under such circumstances mandamus will lie, if necessary, to compel payment.”

We have now had several years’ experience with the Weinstein procedure. I believe it has failed its purpose and that a different approach is demanded.

I agree that in order that a Circuit Court may administer justice it is essential that it control the employees who assist it. However, the Circuit Court does not have power to levy taxes in order to defray expenses necessary to perform its judicial functions. The taxing power is in the County. Mo. Const. Art. X, § 1 and Art. YI, § 18(d). Therefore, I believe a more reasonable and practical approach requires that the Circuit Court fix the compensation of employees serving it, but that, in so doing, it not exceed reasonable amounts appropriated by the County for the total operation of the Court. It is the County which must supply the funds.-

In Missouri, the powers of government are divided into three distinct departments — the legislative, executive and judicial. Mo.Const. Art. II, § 1. The fiscal power is in the County. The Court should comply with the fiscal limitation set by the County. Should the County officials act arbitrarily or capriciously and fail to provide for the payment of adequate compensation to employees serving the Court, resulting in an impairment or destruction of the administration of justice, they should be required to do so by mandamus. Cf. Leahey v. Farrell, 362 Pa. 52, 66 A.2d 577; State ex rel. Koehler v. Bulger, 289 Mo. 441, 233 S.W. 486; State ex rel. Shartel v. Humphreys, 338 Mo. 1091, 93. S.W.2d 924. In short, I would shift the burden of showing unreasonableness from the County to the Court.

I concur in the result.