author: STEPHENSON, Justice.

text:
    MID-AMERICA TERMINAL OF KENTUCKY, INC., Appellant, v. OWENSBORO RIVER SAND AND GRAVEL COMPANY, Appellee.
    Court of Appeals of Kentucky.
    Nov. 14, 1975.
    Rehearing Denied March 5, 1976.

      William L. Wiesman, Owensboro, Morton Holbrook, William E. Gary, III, E. Robert Goebel, Sandidge, Holbrook & Craig, PSC, Owensboro, for appellant.
    William L. Wilson, George S. Wilson, III, Wilson, Wilson & Plain, Owensboro, for ap-pellee.
   STEPHENSON, Justice.

The trial court enjoined Mid-America from conducting any activities which interfere with the sand and gravel rights of River Sand and mandatorily enjoined Mid-America to remove all pilings and structures previously placed in the Ohio River under which River Sand owns the sand and gravel rights. We reverse.

River Sand has for many years conducted a business of mining and removing sand and gravel from sand bars lying on the bed of the Ohio River, which were owned or leased by it. River Sand has permits from the U. S. Army Corps of Engineers for this type operation for a distance of 86 miles up and down the Ohio River. The dispute on this appeal involves two tracts of land, the McIntyre tract and the Wright tract. The McIntyre tract was acquired by River Sand and sold to the McIntyres with a recited further consideration “that the Party of the Second Part [Forrest McIntyre] and Mildred McIntyre, his wife, have this day executed to Party of the First Part [River Sand] by separate instrument a lease for the period of ninety-nine years, beginning with the date hereof [October 18, 1941] all of the sand and gravel rights which they have or may have in the bed of the Ohio River beyond timberline and lying opposite the tract of land hereinafter described and conveyed, together with the exclusive right to remove said sand and gravel during said period and other rights as in said lease more fully set forth.” On the same date, the McIntyres executed a lease to River Sand for “all of the sand and gravel rights which the parties of the First Part [McIntyres] have or may have in the bed of the Ohio River beyond timber line and lying opposite the following described tract of land which fronts 5,328 feet, more or less, on the Ohio River, together with the exclusive right to pump, dredge, dig, or otherwise recover and remove without payment of any further rent, royalties, or other consideration, all of the sand and gravel in the bed of the Ohio River beyond timberline and lying opposite said tract of land, and also the right to operate its boats, dredges, diggers, barges, and other water craft in the Ohio River opposite said land, and to do whatever may be necessary to recover and remove the said sand and gravel during said period of ninety-nine (99) years.”

The Wright tract adjoins the McIntyre tract on the shore of the Ohio River. River Sand acquired by deed “that certain piece of real estate, the same being a sand and gravel bar located in the Ohio River east of the City of Owensboro and running the full length of the following described land, the same being separated from said tract of land by the water line of said river at the present normal pool stage.”

Later Mid-America acquired title to the McIntyre tract and the Wright tract consisting of 745 acres of land along the shore of the Ohio River and the bed of the Ohio River, subject to the McIntyre lease and excluding the sand and gravel bar previously conveyed to River Sand.

Mid-America, after acquiring these properties with the intention of establishing a terminal for transshipment of coal and for handling oil and agricultural products, began construction of temporary facilities on the McIntyre tract. Pilings were driven into the bed of the river adjacent to the shore line, and a captive barge was moved to these pilings as a loading facility to support a conveyor to fill empty barges docked alongside. For this facility, the bank was cleared 600 feet along the shore line of the McIntyre tract to a point 40 to 50 feet on into the river. The testimony of Mid-America is that no commercial sand or gravel was encountered in this clearing operation.

In addition, Mid-America for a permanent facility excavated a slip 300 feet wide and 1,100 feet inland. This slip is completed except for the removal of a small plug of land along the bank of the river. It is contemplated that barges will move in and out of this slip for loading and unloading, and when it is put into operation, the temporary facility will no longer be needed.

Mid-America’s future plans include a similar slip farther downstream on the same lands. This involves widening a creek, known as Puppy Creek, where it empties into the river. The operation of the slips will require that a nine-foot channel be maintained between the mouths of the two slips and the navigable waters of the river. This will require clearing two channels, each approximately 300 feet wide, extending from the shore about 75 feet out to the navigable waters of the river.

The McIntyre and Wright tracts extend 6,470 feet along the shore line.

River Sand received notice of the intent of Mid-America to construct these facilities. By letter River Sand informed Mid-America that it objected to any encroachment upon its properties, being the sand and gravel on the McIntyre and Wright tracts.

After construction of the temporary facility commenced, River Sand filed a lawsuit against Mid-America seeking to enjoin Mid-America from any dredging or activity on its sand and gravel and to mandatorily enjoin it to remove the pilings and structures already in place.

It was stipulated by the parties that there is a common source of title to the respective estates and that ownership of both the McIntyre and Wright tracts includes the bed of the river to the thread of the stream of the Ohio River, some 1,300 feet from the river bank.

In its findings of fact and conclusions of law, the trial court found that Mid-America has invaded the area beyond the timberline on the McIntyre tract, which is under exclusive lease to River Sand regardless of the ownership of the river bank; that River Sand does not have an adequate remedy at law in that it will sustain irreparable injury with no pecuniary standard for the measurement of damages; that injunctive relief lies because of a “negative covenant” contained in the language of the McIntyre lease; and that the activities of Mid-America constitute a continuing trespass upon the estate of River Sand, an additional ground for injunctive relief.

The trial court then enjoined Mid-America from conducting any further activities over or across the lands of River Sand which would interfere in any way with the sand and gravel rights, specifically any future dredging or erection of piling or structures in the river beyond the timberline or low water mark as applicable and directed Mid-America to remove all structures previously placed in the Ohio River under which River Sand owns the sand and gravel rights.

This appeal presents us with the problem of determining the rights of the owners of these separate estates.

Mid-America is the owner of a fee simple title in the McIntyre tract including the bed of the Ohio River to the thread of the stream and the riparian rights, subject to the 99-year lease of the sand and gravel previously conveyed to River Sand. Mid-America is also the owner of a fee simple title in the Wright tract including the bed of the Ohio River to the thread of the stream and the riparian rights, but not including a separate estate in the sand and gravel which is owned by River Sand in fee simple by severance deed executed prior to Mid-America’s acquisition of title.

The trial court construed the language of the McIntyre lease granting an “exclusive right to mine and remove the sand and gravel” as a “negative covenant” authorizing the issuance of an injunction. This is the language of an instrument of lease as opposed to the language of a fee simple grant in a deed such as the grant in the Wright deed to River Sand conveying the sand and gravel. We are of the opinion that there is not a “negative covenant” present here, and in this ruling the trial court was in error. The word “exclusive” in a lease, pertaining to the right to enjoy the fruits of the lease, does not in itself warrant an inference of a covenant not to perform an act or acts. Likewise, the activities of Mid-America here could not be considered a trespass in the ordinary definition of the term.

Much of the argument of River Sand is premised on the “exclusive right to remove sand and gravel.” We would point out that the grant of fee simple title in the Wright deed to the sand and gravel is not terminable, and we do not believe that River Sand would contend that its title there is of lesser dignity than the rights granted in a 99-year lease which would expire at the end of the term.

For the purposes of this case, River Sand owns an estate in the sand and gravel located in the bed of the river on both tracts, and the rights insofar as they affect Mid-America are the same — that is, they require a determination of how far, if at all, one estate can interfere with the enjoyment of the other estate.

Mid-America argues first that it should be permitted to continue its present activities and its proposed development because of the riparian rights incident to the ownership of the shore. River Sand concedes the riparian rights of Mid-America but argues that this right of ownership does not carry with it the right to dredge and maintain a channel from the shore to the navigable portion of the river for ingress and egress of barges to the proposed slips or to drive pilings in the riverbed along the shore. We have reviewed the authorities cited on this proposition and are of the opinion that they do not resolve this question and prefer to decide the matter on the respective rights incident to the severed estates.

The question presented here is a matter of first impression in this jurisdiction, and so far as we can tell in other jurisdictions as well. The severance of estates here and respective rights of the owners of such estates in the factual situation presented here has an analogy, if there is one at all, as stated in 54 Am.Jur.2d, Mines and Minerals, § 118:

“Where the mineral estate has been severed from the surface, the question arises whether the surface owner has a right of access, through the solid mineral conveyed, to reach underlying strata, water supply, oil and gas, or other seams of solid minerals. The courts have permitted the surface owner such access even where the deed conveying the particular solid mineral contains no reservation of a way of access. Such a right of access has been held to be a way of necessity, an easement appurtenant to the land or estate therein retained by the grantor. To enjoy this right, it is not necessary for the surface owner to show that he could not have reached his substrata estate without penetrating the grantee’s minerals. Accordingly, a surface owner has the right to drill a well through a grantee’s seam of coal, and this is so regardless of whether he is drilling for water or for oil.”

To make this analogy applicable here, we must place the surface of the Ohio River in the category of surface lands, the sand and gravel as a severed mineral estate, and the bed of the river and its underlying strata as comprising the balance. Chartiers Block Coal Co. v. Mellon, 152 Pa. 286, 25 A. 597 (1893), in sustaining the right of access through a coal seam to underlying strata stated that it “should be sustained in a reasonable manner, having due regard for the interest and rights of both parties. But it cannot be permitted to an extent that will destroy the grant of the coal, nor even to seriously depreciate it without ample compensation.”

The problem presented is the extent to which this access can interfere with the enjoyment of the other estate.

We are of the opinion that in the factual situation presented here each of the parties is entitled to prevent the other from exercising its rights of ownership of the severed estate arbitrarily, capriciously, oppressively, or wantonly and thereby depriving the other of its respective estate, but each may use the respective estates in a reasonable, prudent manner, having due regard to and consistent with the interests and rights of the other.

The area comprising the sand and gravel rights of River Sand is substantial. We note that the exhibits show sand bars in irregularly shaped formations over part of the area. We cannot say from the record to what extent the activities of Mid-America will interfere with River Sand in its future operations, if at all. Suffice to say, there is no showing of irreparable injury in this record; and we are of the opinion that should an unreasonable interference with the enjoyment of the estate of River Sand develop, a pecuniary standard of damages can be ascertained.

The judgment is reversed.

All concur.


source: Caselaw Access Project

author: LUKOWSKY, Justice.

license: Public Domain

text:
    Johnnie R. SKAGGS, Appellant, v. Haskell R. STANTON, Appellee.
    Court of Appeals of Kentucky.
    Nov. 14, 1975.
    Larry D. Raikes, Hodgenville, for appellant.
    Kenneth H. Goff, Goff & Meredith, Leitchfield, for appellee.
   LUKOWSKY, Justice.

This is an appeal from a summary judgment entered by the Grayson Circuit Court pursuant to CR 12.02 dismissing the complaint of the appellant for alienation of affections on the ground that the action was not commenced within one year of the date of the accrual of the cause of action.

The appellant submits that the five year statute of limitations, KRS 413.120(7), not the one year statute of limitations, KRS 413.140(l)(c), controls.

The solution to this problem lies in the answer to the question, are criminal conversation and alienation of affections separate and distinct torts or are they merely methods by which the same tort may be committed?

The first judicial dissection in Kentucky which exposed the problem was made by Thomas, J. in Justice v. Justice, 295 Ky. 610, 175 S.W.2d 21 (1943), when he wrote:

“Before determining such issues we deem it proper to say that the distinction between tort actions for ‘Criminal Conversation’ and ‘Alienation of Affections’ is still attempted to be maintained in the law, but with hazy foundation upon which to rest. Each seek damages for invasions of plaintiff’s right of consortium, and a destruction or impairment of the consequences thereof, and the right of action for each of the wrongs are so near akin that we in the cases of Merritt v. Cravens, 168 Ky. 155, 181 S.W. 970, L.R.A.1917F, 935, and Gross’ Adm’r v. Ledford, 190 Ky. 526, 228 S.W. 24, 14 A.L.R. 689, held that they might be joined in one action. See, also, the text of 27 Am.Jur. 120 and 174, Sections 519 and 570.”

Prosser in his Handbook of the Law of Torts, Fourth Edition, at 876, makes the point in the following language:

“Criminal conversation, enticement and alienation of affections still are often treated as separate torts, but there is no good reason for distinguishing them. They represent three forms of interference with aspects of the same relational interest, and of course all three may be present in the same case. When the action is for criminal conversation, proof of enticement or alienation will go to increase the damages, and the converse is likewise true.. There is now a decided tendency to confuse the three, or to lump them together, usually under the general name of ‘alienation of affections,’ without any attempt to distinguish the possible elements of the tort.”

We have reached the conclusion that the time has come to raise the curtains of confusion and hold that the tort is interference with the marriage relation and that criminal conversation, enticement and alienation of affections are no more than methods by which this tort may be committed.

The five year statute is the catchall statute of limitations which applies to injuries not arising upon contract and not otherwise enumerated. The one year statute specifically mentions and applies to criminal conversation. We are of the opinion that when the legislature chose to specifically mention criminal conversation in the one year statute it evidenced a legislative intent that the one year statute apply to all actions founded on interference with the marriage relation. To the extent that Davis v. Butler, 198 Ky. 795, 250 S.W. 126 (1923), Justice, supra and any other of our cases may be in conflict herewith, they are overruled.

Unfortunately, this exercise in logic is not dispositive of this case. This action was commenced on April 13, 1973 and the evidentiary materials which support the summary judgment are as subject to the inference that there was no interference with the marriage relation until June of 1972 as they are to the inference that there was an interference with the marriage relation before Christmas of 1971. A case in such a posture is not ripe for summary judgment. Pessin v. Keeneland Association, D.C.Ky., 45 F.R.D. 10 (1968); Ogden v. Employers Fire Insurance Company, Ky., 503 S.W.2d 727 (1974).

The judgment is reversed and the cause is remanded for trial.

All concur.


author: JONES, Justice.

text:
    Henry W. ALBERS, Appellant, v. Thomas TOWNES et al., Appellees.
    Court of Appeals of Kentucky.
    Nov. 26, 1975.
    Rehearing Denied March 5, 1976.

      James F. Clay, Sr., Clay & Clay, Danville, for appellant.
    Merle C. Clark, Rodes & Clark, Danville, • for appellees.
   JONES, Justice.

This litigation arises out of an action by Thomas Townes and others to enjoin the practice of dentistry by Dr. Henry W. Alb-ers on the residential property owned by his wife, Jane Albers. The basis of the suit is an alleged violation of deed restrictions.

The residential properties are located in Argyll Subdivision near Danville, Kentucky. The pertinent restrictive covenants on the Albers lot as well as all other lots in Argyll are:

“(1) All lots in Argyll Subdivision shall be used solely and exclusively for single-family residential purposes. No more than one residential unit shall be erected on each building lot.
“(17) Any lot owner may enforce the restrictions by appropriate legal procedure.”

Dr. Albers answered the complaint with a general denial and raised the defenses of laches and estoppel.

Townes and other appellees moved for summary judgment. After a hearing on the merits, the trial court sustained the motion and. judgment was entered on March 12, 1974. The summary judgment contained a permanent injunction, worded as follows:

“It is therefore, ordered and adjudged: that the defendant, Henry Albers, is hereby permanently enjoined from using his residence in Argyll Subdivision as a place to carry on the practice of dentistry, and is permanently restrained and enjoined from all acts done in the furtherance of and in relation to the practice of dentistry at his residence.”

There was no appeal from that judgment.

Dr. Albers ignored the injunction and continued the practice of dentistry in Ar-gyll Subdivision.

Townes and other appellees filed a motion to require Dr. Albers to show cause why he should not be held in contempt for violation of the court’s clear and concise order.

On December 17, 1974, Dr. Albers was adjudged in contempt and attorneys’ fees in the sum of $150.00 were directed to be paid Townes’ attorneys. On December 21, 1974, Dr. Albers appeared with counsel and the trial court fixed his punishment at a fine of $350.00 and directed that he be confined in the county jail for a period of six months.

From that judgment, Dr. Albers instituted this appeal. He alleges numerous errors of the trial court. However, only one of these has been preserved for appellate review. Dr. Albers contends that he was entitled to a jury trial. The other alleged errors were not presented to the trial court.

Dr. Albers’ contention that he was entitled to a jury trial is totally without merit. This court has established with clarity guidelines in contempt proceedings. The court held that when the existence or nonexistence of a contempt, civil or criminal, requires the resolution of a factual issue, the trial court may resolve that issue. This, of course, must be based upon a hearing in which the offender is afforded a fair opportunity to present a defense. The trial court may not impose a fine greater than $500.00 and incarceration for more than six months except upon the unanimous verdict of a jury. See Miller v. Vettiner, Ky., 481 S.W.2d 32 (1972).

At the sentencing on December 21, 1974, Dr. Albers’ defense was that the restrictive covenant did not apply to him because he is a “stranger in title.” Dr. Alb-ers’ contention was premised on the theory that since the property belonged to his wife, the injunction did not apply to him. The wife of Dr. Albers is a party to this action. As her husband, Dr. Albers has a right to curtesy in the residence occupied by both of them.

Despite the allegations in Dr. Albers’ brief that the summary imposition of a harsh and exclusively punitive sentence, even if the injunction was valid, was arbitrary, tyrannical, and unconstitutional, the record refutes such allegation.

The trial court has been compassionate with Dr. Albers. He granted Dr. Albers ample opportunity to comply with the judgment. Because of Dr. Albers’ physical condition, the trial court suspended until May 1975 the part of the judgment that provided incarceration in prison. This was done so that Dr. Albers could spend the winter in Florida.

Dr. Albers’ flagrant violation of the injunction indicates that he feels that he is exempt from any duty to obey the order of the court.

Since Dr. Albers had been afforded every opportunity to present any defenses to the trial court at the hearing, it was not error on the part of the trial court to determine the factual issues and impose the sentence.

The judgment is affirmed.

All concur.

      . In the brief of Dr. Albers it is stated:
      “This appeal is from a judgment imposing a fine of $500.00 and a jail sentence of six months.” Apparently counsel for Dr. Alb-ers considered the $150.00 awarded Townes et al., to be a part of the fine.


author: STERNBERG, Justice.

text:
    James BARTLEY et al., Appellants, v. PIKEVILLE NATIONAL BANK & TRUST COMPANY et al., Appellees.
    Court of Appeals of Kentucky.
    Nov. 26, 1975.
    Rehearing Denied March 5, 1976.
    Garred 0. Cline, Pikeville, for appellants.

      Charles E. Lowe, Sr., Lowe & Lowe, Jean L. Auxier, Pikeville, for appellees.
   STERNBERG, Justice.

This foreclosure action was instituted by the Pikeville National Bank & Trust Company to recover money due from Lucy Bart-ley, appellants James Bartley and Faye Bartley, his wife, appellees Herbert Lee Bartley and Annisteen Bartley, his wife, and Lookout Coal Company.

On May 20, 1960, Spairel Bartley, owner of Lookout Coal Company, and Lucy Bart-ley, his wife, executed a note and mortgage in the amount of $15,000 to the Pikeville National Bank & Trust Company. Shortly thereafter, Spairel Bartley died. He devised all of his estate to his widow Lucy Bartley. (On August 27, 1968, Lucy Bart-ley executed a renewal of the $15,000 note which was secured by the original mortgage.)

By virtue of an agreement dated April 13, 1965, Herbert Bartley and James Bart-ley became the sole shareholders in Lookout Coal Company.

On December 21, 1966, Lookout Coal Company, Lucy Bartley, James Bartley, Faye Bartley, Herbert Bartley, and Annisteen Bartley executed a note and mortgage in the amount of $27,000 to the Pikeville National Bank & Trust Company.

The proceeds of these two notes went to Lookout Coal Company. There was a default on the two notes, and on May 12,1969, the Pikeville National Bank & Trust Company filed a complaint in the Pike Circuit Court against Lookout Coal Company, Lucy Bartley, James Bartley, Faye Bartley, Herbert Bartley, Annisteen Bartley, and other various secondary lienholders who are not parties to this appeal. In the complaint the bank alleged that $15,000 with interest was due on the first note and $22,378.99 with interest was due as the outstanding balance on the second note. It sought to sell several parcels to satisfy the first note and additional parcels to satisfy the debt on the second note. Some, but not all, of the parcels which secured the first note also secured the second note.

On August 4, 1969, the bank’s action was consolidated with other actions against Lookout Coal Company, Herbert Bartley, and James Bartley by various other creditors. On September 15, 1969, a default judgment was entered against Lookout Coal Company and Lucy Bartley on the first note and against Lookout Coal Company, Herbert Bartley, Annisteen Bartley, James Bartley, Faye Bartley, and Lucy Bartley on the second note. After a hearing held subsequently, with appellants present, it was discovered that several tracts of land which were encumbered by either one or both of the mortgages had been transferred to third parties. Also, it was discovered that other liens which had been perfected subsequent to the mortgages had attached to the lands remaining with Lookout Coal Company, James Bartley, and Herbert Bartley. Consequently, all parties necessary to the full determination of the issues were brought before the court by amended complaints.

An order of sale was entered. The total proceeds of the sale of all of the tracts were $195,990.

After payment of each parcel’s proportionate share of the two notes, interest, and costs, the court distributed the balance of the sale price of each parcel to its former owner, provided the parcel was not subject to secondary liens. The remaining proceeds were next used to fully discharge the secondary lienholders. After all liabilities were fully discharged, the court, by agreement of the parties, distributed the balance equally among the former owners of tracts which had been subject to the secondary liens.

Appellants filed a motion in the circuit court seeking to eliminate Tract 17 Lot 5 from the order of sale. This motion, along with certain exceptions to the sale which had been filed, was overruled.

On appeal Faye Bartley and her husband, James Bartley, again contend that Tract 17 Lot 5 should not have been sold since (1) only the two mortgages of Pikeville National Bank & Trust Company encumbered its title, and (2) the proceeds of the sale of tracts owned by Lookout Coal Company were sufficient to discharge liabilities on both of the notes.

The trial court applied the proceeds of the judicial sale in such a manner that each tract which was subject to one or both of the mortgages would bear its proportionate share of the debt, interest, and costs of the action.

Appellants argue that this method of distribution of the proceeds of sale was grossly inequitable for two reasons:

(1) The inverse order of alienation doctrine would preclude Tract 17 Lot 5 from being liable on the notes, and
(2) The doctrine of marshaling assets was improperly applied.

Briefly stated, the inverse order of alienation doctrine is that where land which is subject to a lien had been conveyed in whole or in part, the lienholder must satisfy his debt out of the land remaining in the grantor, if possible. If such remaining land is insufficient to satisfy the debt, then and in that event he must resort to separate parcels which have been conveyed successively in the inverse order of alienation. 53 Am.Jur.2d, Marshaling Assets, § 2. The doctrine of inverse order of alienation was specifically rejected by this court in Bronaugh v. Burley Tobacco Co., 212 Ky. 680, 280 S.W. 97. We see no reason not to follow that decision.

The doctrine of marshaling assets requires that where two or more creditors seek satisfaction out of the assets of their common debtor, and one of them can resort to two funds where another has recourse to only one of the funds, the former creditor may be required to seek satisfaction out of the funds which the latter creditor cannot reach, before resorting to the other fund. By this method of distribution both creditors may be paid or both funds will be exhausted. 53 Am.Jur.2d, Marshaling Assets, § 2.

Appellants maintain that the trial court wrongfully applied this doctrine by requiring that all of the mortgaged tracts bear a pro rata share of the liability on the notes. This contention has merit.

The doctrine of marshaling assets does not apply unless the litigants are creditors of the same debtor and both funds are in the hands of a common debtor of both creditors. 53 Am.Jur.2d, Marshaling Assets, § 9; Gaines v. Hill, 147 Ky. 445, 144 S.W. 92. That is, the litigants must be creditors of the same debtor and both funds or properties must be owned by the debtor.

In the instant case, one fund or group of properties is subject to the secondary tax and execution liens, as well as the mortgages, while the second fund or group of properties in the hands of different owners is subject only to the mortgages. The two funds are not owned by a common debtor. Therefore, the doctrine of marshaling assets would not be applicable in this case.

The question remains as to whether equity requires that Tract 17 Lot 5 be sold in order that the proceeds may contribute to the payment of notes which are secured by mortgages on this parcel along with others.

In the present case, Lookout Coal Company was the principal debtor on each of the two notes to Pikeville National Bank & Trust Company, since it received the proceeds of the notes. James Bartley, Faye Bartley’s grantor of Tract 17 Lot 5, signed merely as an accommodating party. Rommel Bros. v. Clark, 255 Ky. 554, 74 S.W.2d 933.

In Gaines v. Hill, supra, a situation analogous to the present case existed. In that case Creditor A had a claim against two debtors, one a principal and the other a surety. Creditor B of the principal debtor attempted to compel Creditor A to exhaust his remedy against the surety before going against the principal. The court held that Creditor B could not compel Creditor A to proceed in such a manner.

The question in the instant case is whether this court will reverse a case in which the lower court followed such a procedure.

Under KRS 355.3-415(2) an accommodation maker (or his successor in interest) is liable in the capacity in which he signs. However, where both the principal and accommodation party are before the court, it is inequitable to order a judicial sale of security of the accommodation party if the security of the principal is adequate to satisfy the claim of the creditor. The fact that there are secondary claims against the tracts held by Lookout Coal Company does not alter this principal. The accommodation party is not in a position of lending his name to any of these secondary obligations. It would be grossly inequitable to require him to contribute toward payment of the notes which he signed merely because the principal has incurred additional unrelated debts. While this conclusion extends the holding of Gaines v. Hill, supra, it is well within the spirit of that ease. Thus, since James Bartley was not liable on the accommodation agreement in this case, the mortgaged property which he transferred to Faye Bartley should not have been subjected to the judicial sale.

The judgment is reversed, and the case remanded to the trial court for proceedings consistent with this opinion.

All concur.


author: STERNBERG, Justice. STERNBERG, Justice

text:
    Wilhelmenia HALL, Administratrix of the Estate of Clarence L. Hall, Deceased, and Thomas Hall, Administrator of the Estate of John Franklin Gilbert, Deceased, Appellants, v. MIDWEST BOTTLED GAS DISTRIBUTORS, INC., et al., Appellees.
    Court of Appeals of Kentucky.
    Dec. 12, 1975.
    Rehearing Denied March 5, 1976.

      Charles J. Schear, A. Berry Howe, Newport, Donald L. Stepner, Covington, for appellants.
    William O. Bertelsman, Newport, W. Marvin Davis, Edwin A. Monroe, Jr., Fal-mouth, for appellees.
   STERNBERG, Justice.

The personal representative of the estate of Clarence L. Hall brought an action alleging that the negligence of appellees Midwest Bottled Gas Distributors, Inc., County Jailer Clyde Hamilton, and Assistant County Jailer Hazel Hamilton resulted in the death of his intestate. A similar action was brought by the personal representative of the estate of John Franklin Gilbert against Midwest Bottled Gas Distributors, Inc., Jailer Clyde Hamilton, named members of the Fiscal Court of Pendleton County, Kentucky, and Pendleton County, Kentucky. The two suits, although brought separately, were consolidated by the Pendleton Circuit Court.

The circuit judge sustained the defendants’ motions for summary judgment and dismissed each of the complaints on the theory that there was no genuine issue as to any material fact and that the defendants were entitled to judgment as a matter of law. CR 56.03. This appeal is from that judgment. We affirm the judgment as to appellees Pendleton County, Kentucky, county judge, members of the fiscal court, and Midwest Bottled Gas Distributors, Inc. We reverse the judgment in favor of appel-lees jailer and assistant jailer.

On June 1,1968, Officer Ben Schrader, of the Kentucky State Police, observed an automobile being driven in an erratic manner by Theodore Payne. The officer stopped the vehicle and arrested Payne for driving while intoxicated. He also arrested Clarence Hall, a passenger, for public intoxication. Hall was very passive; however, Payne was quite belligerent. The officer was forced to handcuff him, but even this did not restrain Payne from shouting belligerent comments. At the jail Payne was unhandcuffed. Hazel Hamilton, assistant county jailer, placed him and Hall in a common-cell area (“bull-pen”) with John Gilbert, another prisoner who was already confined in that area of the jail. Once in the cell Payne continued to act disorderly; Hall lay quietly on a cot; and Gilbert remained orderly.

Sidney “Snip” Owens, who was visiting the daughter of Jailer Hamilton, was helping with the chores of the evening meal at the jail shortly after Payne and Hall were brought to the jail. When Owens went into the area of confinement to retrieve some dirty glasses, he observed that the line leading to the LP gas heater unit, located in the area where the prisoners were confined, had been broken. Upon observing the broken gas line Owens left the cell area to inform the jailer of the damage. As Owens returned to the area to evacuate the prisoners, an explosion occurred. Following the explosion he unlocked the cell block and then made his escape from the burning building.

It was discovered that Payne had broken a gas line. No motive for his action was apparent.

Hall, Payne, and Gilbert escaped from the burning jail, but all died shortly thereafter as a result of burns which they had received during the explosion and fire.

The heating unit which exploded had been installed in January, 1956 by Midwest Bottled Gas Distributors, Inc., pursuant to a contract with Pendleton County. A storage tank to hold the LP gas was placed outside the jail building. A shut-off valve was located at the top of the tank. Three-eighths inch copper tubing ran underground for approximately 30 feet from the storage tank to the jail. That pipe was coupled to a three-fourths inch rigid black iron pipe which ran up the outside wall and extended through the wall approximately six inches into the “bull-pen” area of the jail. At this point Midwest attached to the black iron pipe a one-half inch copper tubing which ran 18 inches to the heating unit. The copper tubing and heating unit were installed five feet ten inches above the floor of the jail.

In the Hall complaint it was alleged that negligence by “Midwest Bottled Gas Distributors, Inc. in the installation, service, maintenance, location, repair, handling, use and design” of the LP gas system for the jail caused Hall’s death. Further, the complaint alleged that the Jailers Clyde Hamilton and Hazel Hamilton breached their duty of providing for the safety and needs of the prisoners.

The Gilbert complaint alleged that Midwest was negligent in installing and servicing the LP gas system. The complaint further alleged that the jailer, county judge, and the members of the Pendleton County Fiscal Court breached their duty to control and supervise the Pendleton County Jail. Although Pendleton County is a named defendant, there are no allegations in the complaint with respect to the county. The trial court found that Payne’s conduct was an intervening criminal action which alone brought about the explosion, his death, and the deaths of Hall and Gilbert. The court further found that there was no negligence on the part of any of the defendants which contributed to bring about the disaster.

In determining whether the circuit court properly granted the motions for summary judgment, we must first consider whether a genuine issue of material fact existed as to negligence by Midwest in the installation, location, or maintenance of “manually breakable” copper tubing in the “bull-pen” area of the jail. A majority of the members of this court, not including the writer of this opinion, are of the opinion that there was not a genuine issue of material fact which would support a finding of negligence and that the summary judgment for Midwest was proper. Nothing in the record indicates that Midwest violated any state regulations which were in effect at the time of installation. Appellants refer to the Standards of the National Board of Fire Underwriters for the Installation of Gas Piping and Gas Appliances in Buildings., September 1954, and point out violations of these standards. However, these regulations had not been adopted by the State of Kentucky at the time of installation. Since these standards were not adopted by the state or by a state administrative agency, violations of them do not show negligence per se.

The next issue to be considered is whether the portion of the summary judgment in favor of the jailer and assistant jailer was granted properly. We must determine if a genuine issue of fact exists as to whether the prisoners were cared for properly.

It is provided by KRS 71.020 that:

“Each jailer shall have the custody, rule and charge of the jail in his county and all persons in the jail and shall keep the same himself or by his deputy or deputies. * * *”

The jailer owes a duty to the prisoner to keep him safe and to protect him from unnecessary harm. 60 Am.Jur.2d, Penal and Correctional Institutions, § 17. Ratliff v. Stanley, 224 Ky. 819, 7 S.W.2d 230 (1928), imposed a duty on a jailer to exercise reasonable and ordinary care and diligence to prevent unlawful injury to a prisoner placed in his custody. However, the court held that a jailer cannot be negligent for failing to prevent what he could not reasonably anticipate. See Lamb v. Clark, 282 Ky. 167, 138 S.W.2d 350 (1940).

The testimony is sufficient to demonstrate a genuine issue of fact as to whether the jailer and assistant jailer reasonably could have anticipated that Payne would present danger to the other prisoners. Glover v. Hazelwood, Ky., 387 S.W.2d 600 (1965).

If the jury finds that the duty to protect the prisoners was breached by the jailer or assistant jailer, then one or both of them may be liable for negligence.

Another question to be considered in determining if the summary judgment was granted properly is whether the action by Payne was a superseding cause of the injuries to Hall and Gilbert. If it was, then any negligence by these defendants would not be the legal cause of the injuries. The issue is a question of law to be resolved by the court. House v. Kellerman, Ky., 519 S.W.2d 380 (1975). As in that case (519 S.W.2d at 383), we cannot say as a matter of law that the act of a drunken, unruly prisoner in tearing loose the exposed gas line was so extraordinary and unforeseeable as to override the causal significance of the assistant jailer’s negligence, if any, in failing to anticipate it.

The acts and conduct of the prisoner Payne were not such as to insulate the jailer or assistant jailer from liability in the event it is determined by a jury that the assistant jailer was negligent.

It should be noted that American Home Fire Assurance Co. v. Louisville Gas & Electric Co., Ky., 307 S.W.2d 562 (1957), cited by the lower court, is not dispositive of the instant case. In American Home, supra, a contractor disconnected a pipeline leading directly from the street main at its connection with the meter, to bleed air from the gas line, but made no attempt to learn if the pipe had been bled previously or if gas was present in the line. He then tightened the union and struck a match to light the gas water heater. An explosion resulted. The court held that the conduct of the contractor, who was not a licensed plumber and had no previous training in handling gas, was the proximate cause of the damage to the home from the explosion and the contractor’s action would supersede any negligence chargeable to the gas company, which was not associated with the contrac.tor. In American Home the gas company had no duty to foresee the action of an untrained contractor. However, the instant case is distinguishable in that a jury reasonably could find that the assistant jailer should have foreseen the unruly conduct of Payne in the Pendleton County jail. This same distinction applies to Collins Company v. Rowe, Ky., 428 S.W.2d 194 (1968).

Finally, this court must decide whether the summary judgment in favor of the members of the fiscal court and county judge, each of whom was sued in his official capacity, was granted properly.

KRS 67.080(4) provides that the fiscal court may secure a sufficient jail. In Spillman v. Beauchamp, Ky., 362 S.W.2d 33 (1962), we said:

“The ordinary rule is that a public officer when acting in good faith within the scope of his authority is not personally liable for damages sustained by a member of the public as a result of his action, unless he acted negligently, that is, failed to meet the standard of the ordinarily prudent man. 67 C.J.S. Officers § 125, pp. 417, 418; J. F. Schneider & Son v. Watt, Ky., 252 S.W.2d 898. In our opinion this is a proper rule and if under a particular set of facts liability would not exist under this rule liability should not be imposed on the officer simply because the government cannot be made to pay.”

There is no evidence in the record to support a finding that the members of the fiscal court or the county judge acted negligently or failed to meet the standard of the ordinarily prudent man. Therefore, the circuit court properly granted a summary judgment with respect to these appellees.

The summary judgment in favor of Pendleton County was proper since no allegations were pleaded concerning this party.

The portion of the summary judgment of the circuit court dismissing the action against the county judge, members of the fiscal court, Pendleton County, and Midwest Bottled Gas Distributors, Inc., is affirmed. In all other respects the judgment is reversed and the case remanded to the trial court for further proceedings consistent with this opinion.

All concur, except JONES, LUKOWSKY and STERNBERG, JJ., who dissent from so much of the opinion as affirms the action of the circuit judge dismissing Midwest Bottled Gas Distributors, Inc.

STERNBERG, J., files herewith a separate dissenting opinion, in which JONES and LUKOWSKY, JJ., join.

STERNBERG, Justice

(dissenting).

The heating unit was installed by Midwest in the bull-pen area of the jail in 1958, where it remained without disturbance or relocation until the explosion in June 1968. No question has been raised as to the expertise of the representatives of Midwest or their knowledgeability in the installation, servicing, or caring for LP gas equipment. Midwest has been charged in both the Hall case and the Gilbert case with negligence in the installation and servicing of the gas system. Additional charges have been made by Hall that Midwest also was negligent in maintaining, locating, repairing, handling, use, and design of the system.

The trial court found that there was no genuine issue of any material fact existing as to any negligence on the part of Midwest and dismissed it. This action was affirmed by a majority of this court.

The obligation of Midwest in the installation of the heating unit in the county jail is different from its obligation in installing a heating unit in a person’s private residence. The responsibility of Midwest should be correlated with the location of and the use to which the heating unit was to be put. A higher duty rests on Midwest in the installation, servicing, maintaining, locating, repairing, and handling of the heating unit in the bull-pen area of the jail than in a private residence.

In Fields v. Western Kentucky Gas Company, Ky., 478 S.W.2d 20 (1972), the court established the duty of a gas supplier to be as follows:

“ * * * The defendant gas company is generally held to the standard of ordinary care, provided that care is exercised with regard to the dangerous character of the commodity transported through the company’s pipes. * * *”

This duty is further defined in Union Light, Heat & Power Co. v. Blackwell’s Adm’r, Ky., 291 S.W.2d 539 (1956), where this court said:

“Foresight or reasonable anticipation is the standard of diligence, and precaution a duty where there is reason for apprehension of danger. * * *”

The facts in this case indicate that Midwest chose to locate the heating unit within the bull-pen area and to use easily breakable copper tubing to supply gas to the unit. Also, Midwest failed to relocate the unit or replace the breakable pipe at any time following the initial installation.

Arguably, it was foreseeable that the system, if located in the bull-pen area, would be subjected to abusive treatment by the inmates. A jail is where society incarcerates disorderly persons and those who may be expected to act in an unruly manner. Conceivably, negligence could be found by a jury in the failure of Midwest to locate the unit in a place which could not be reached by the inmates or in the failure to use unbreakable piping. It may very well be that a jury would not believe that the evidence demonstrates negligence by Midwest. However, that is a question for jury determination. On the present record, it cannot-be said that no reasonable man could believe otherwise.

So much of the opinion as discusses the legal principles applicable to the question of foreseeability as it applies to the jailer and assistant jailer applies with equal force to Midwest.

In addition to reversing as to the jailer and assistant jailer, I would also reverse as to Midwest.

JONES and LUKOWSKY, JJ., join in this dissent.


author: MORGAN, Judge.

text:
    Hubert M. MORRIS, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 59042.
    Supreme Court of Missouri, En Banc.
    Feb. 9, 1976.
    Robert E. Heisler, Clayton, for movant-appellant.
    John C. Danforth, Atty. Gen., Robert H. House, Asst. Atty. Gen., for respondent.
   MORGAN, Judge.

On September 19, 1968, appellant was tried, as a second offender, for the crime of Robbery in the First Degree. The jury returned a verdict of guilty; and, the court assessed punishment at confinement for eighteen years. The judgment was affirmed by this court on June 8, 1970, in an opinion reported at 454 S.W.2d 570 (Mo.).

On September 29, 1970, appellant filed a motion to vacate judgment and sentence pursuant to Supreme Court Rule 27.26. After an evidentiary hearing, the trial court entered findings of fact and conclusions of law and denied relief. While movant’s appeal was pending in the Court of Appeals, St. Louis District, we sustained the state’s application to transfer, prior to opinion, for the purpose of reexamining the existing law as to the stage of proceedings at which the right to counsel at a lineup attaches. Necessarily, other issues properly preserved for review will be considered.

In the opinion disposing of the original appeal, the facts were summarized as follows, l.c. 570:

Defendant Morris does not question the sufficiency of the evidence to support his conviction; * * * Shortly after nine o’clock P. M., on March 7,1968, two negro men, one armed with a revolver, entered the Quick Shop at 1923 North Hanley Road in St. Louis county, Missouri, pointed the gun at and threatened to shoot Jerome Link, and took from Link and Robert Murphy, employees in charge of the Quick Shop, approximately $200 and thirty cartons of cigarettes, property of their employer. Mr. Murphy identified defendant as one of the two robbers. Defendant was apprehended fleeing from the scene in an automobile a short distance from the Quick Shop and within a few minutes after the robbery. Defendant did not testify. His witness, Lamar Houston, testified that he met defendant in front of a pool room in Kin-loch near seven o’clock P. M., on a date he could not remember; that he and an acquaintance named Earl agreed to take defendant to St. Louis in Earl’s car for $2; that en route to St. Louis they were stopped on St. Charles Rock Road by the police at about 7:15 or 7:30 P. M., and defendant was arrested.

First, we consider the absence of counsel at the lineup held the morning after the arrest — late the night before. From the record made, it is impossible to determine exactly when the complaint was filed and a warrant was issued relative to the lineup. At the evidentiary hearing, appellant was of the opinion the lineup preceded issuance of the warrant. In any event, we must reexamine the existing law and seek to remove any uncertainty created by opinions of this court; and, we quote from a sufficient number to evidence the same.

In State v. Walters, 457 S.W.2d 817 (Mo.1970), the court said, l.c. 818-819:

The facts show that appellant did not have counsel at the lineup, but also that he had not been indicted and no information had been filed against him at that time. A number of other state jurisdictions have expressly held that the cases of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, apply only to post-indictment situations. People v. Palmer, 41 Ill.2d 571, 244 N.E.2d 173, 175[2, 3]; People v. Cesarz, 44 Ill.2d 180, 255 N.E.2d 1, 4[2-5]; People v. Green, 118 Ill.App.2d 36, 254 N.E.2d 663, 665[5]; State v. Thomas, 107 N.J.Super. 128, 257 A.2d 377, 380; State v. Fields, 104 Ariz. 486, 455 P.2d 964, 965[1], See also Commonwealth v. Bumpus, 354 Mass. 494, 238 N.E.2d 343. In the concurring opinion of Hayes v. State, 46 Wis.2d 93, 175 N.W.2d 625, 633, after noting that the rationale of the Wade and Gilbert cases was that a post-indictment lineup was a critical stage of the proceedings, it was said, “At earlier stages the practical difficulties of appointing or arranging for the presence of counsel appears formidable. Thus the limiting of the Wade-Gilbert rule to post-indictment situations has sound reasons to recommend it. Regardless of the reasons, the limitation is stated in the rule. If the rule is to be extended to earlier stages or other situations, the court that authorized the rule should do the extending.” For a court holding contrary to the foregoing cases see People v. Fowler, 1 Cal.3d 335, 82 Cal.Rptr. 363, 461 P.2d 643, 650. For the reason that appellant’s lineup identification preceded the filing of the information against him, the Gilbert rule does not apply.

In State v. West, 484 S.W.2d 191 (Mo.1972), the court said, l.c. 192:

The lineup was conducted on May 13, 1970; the information was filed June 29, 1970. The lineup having been conducted prior to the filing of the information the per se exclusionary rule of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, has no application. Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (United States Supreme Court, June 7, 1972); State v. Chavez, Mo.Sup., 483 S.W.2d 68 (July 10, 1972).

In Arnold v. State, 484 S.W.2d 248 (Mo.1972), the court said, l.c. 250:

The trial court’s findings here indicate that the lineup in question occurred after the complaint charging movant had been filed and a warrant issued. Although filing of a complaint does not constitute a “criminal prosecution” (State v. Caffey, Mo.Sup., 438 S.W.2d 167, 171[1, 2]), filing of a complaint is the first step in the institution of a criminal charge under Missouri procedure. State v. Nichols, 330 Mo. 114, 49 S.W.2d 14, 19[8, 11], The filing of a complaint and issuance of a warrant is the initiation of “adversary judicial proceedings” within the Kirby case. Thereafter, right to counsel attaches, including the right, under Wade, to have counsel present in any planned confrontation with witnesses. The effect of denial of such right is determined, insofar as a witness’s at-trial identification is concerned by the Wade requirement that the at-trial identification be based upon observations of the suspect other than the lineup identification. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149. At-trial evidence of the lineup identification in the absence of counsel without waiver is subject to the per se exclusionary rule laid down in Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178.

In State v. Petrechko, 486 S.W.2d 217 (Mo.1972), the court said, l.c. 219:

Also, the lineup in this case was held before appellant was charged by indictment or information, and the presence of counsel was not required. Therefore, no advice concerning the right to presence of counsel was required. State v. Walters, Mo., 457 S.W.2d 817; Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411.

See also State v. Chavez, 483 S.W.2d 68, 69 (Mo.1972); State v. Hamilton, 490 S.W.2d 96, 97 (Mo.1973); Brown v. State, 495 S.W.2d 690, 695 (Mo.App.1973); and, State v. Jordan, 506 S.W.2d 74, 80 (Mo.App.1974).

In Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972), the Supreme Court declared, l.c. 688, 689-690, 92 S.Ct. 1881-1883:

In a line of constitutional cases in this Court stemming back to the Court’s landmark opinion in Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, it has been firmly established that a person’s Sixth and Fourteenth Amendment right to counsel attaches only at or after the time that adversary judicial proceedings have been initiated against him. See Powell v. Alabama, supra; Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461; Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114; Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799; White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193; Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246; United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178; Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387.
The initiation of judicial criminal proceedings is far from a mere formalism. It is the starting point of our whole system of adversary criminal justice. For it is only then that the government has committed itself to prosecute, and only then that the adverse positions of government and defendant have solidified. It is then that a defendant finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law. It is this point, therefore, that marks the commencement of the “criminal prosecutions” to which alone the explicit guarantees of the Sixth Amendment are applicable. See Powell v. Alabama, 287 U.S., at 66-71, 53 S.Ct. at 63; Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246; Spano v. New York, 360 U.S. 315, 324, 79 S.Ct. 1202, 1207, 3 L.Ed.2d 1265 (Douglas, J., concurring).
In this case we are asked to import into a routine police investigation an absolute constitutional guarantee historically and rationally applicable only after the onset of formal prosecutorial proceedings. We decline to do so. Less than a year after Wade and Gilbert were decided, the Court explained the rule of those decisions as follows: “The rationale of those cases was that an accused is entitled to counsel at any ‘critical stage of the prosecution,’ and that a post-indictment lineup is such a ‘critical stage.’ ” (Emphasis supplied.) Simmons v. United States, 390 U.S. 377, 382-383, 88 S.Ct. 967, 970, 19 L.Ed.2d 1247. We decline to depart from that rationale today by imposing a per se exclusionary rule upon testimony concerning an identification that took place long before the commencement of any prosecution whatever.

After articulating the reasons why the right to counsel, and the per se exclusionary rule, were not applicable to an investigatory confrontation or lineup, the court did emphasize, however, that: “That Due Process Clause of the Fifth and Fourteenth Amendments forbids a lineup that is unnecessarily suggestive and conducive to irreparable mistaken identification. Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199; Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402.” (Kirby, l.c. 406 U.S. 691, 92 S.Ct. 1883.)

More recently, the Supreme Court in Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975), held that: “. . . a State may not impose such greater restrictions as a matter of federal constitutional law when this Court specifically refrains from imposing them.”

Thus, we look again to the holding in Kirby v. Illinois, supra, relative to the facts in the instant case. Therein, at l.c. 406 U.S. 689, 92 S.Ct. 1882, it was said that: “. while members of the Court have differed as to the existence of the right to counsel in the contexts of some of the above cases, all of those cases have involved points of time at or after the initiation of adversary judicial criminal proceedings — whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.” Conspicuous by its absence is the date of issuance of an arrest warrant, and we have concluded that our holding in Arnold v. State, supra, is in conflict with other decisions of this court, which are consistent with the holding in the Kirby case on the question involved, and that it should no longer be accepted as reflecting the law in this state. We do note the absence of any due process question in the instant case.

Appellant, perhaps in anticipation of the decision now made, seeks to distinguish his case by asserting at the post-conviction hearing (27.26) that he answered “yes” when the police inquired if he wanted counsel on the night of his arrest. He relies basically on Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) and Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964). The answer may be found in the Kirby case, and we again quote therefrom, to-wit: The Court in retrospect perceived that the ‘prime purpose’ of Escobedo was not to vindicate the constitutional right to counsel as such, but, like Miranda, ‘to guarantee full effectuation of the privilege against self-incrimination . . . ’ Johnson v. New Jersey, 384 U.S. 719, 729, 86 S.Ct. 1772, 1779, 16 L.Ed.2d 882.” 406 U.S. at 689, 92 S.Ct. at 1882. It is not suggested, nor does the record reflect, that any statement of appellant was used against him at the trial. The argument is rejected.

Second, appellant contends that he was denied effective assistance of counsel, primarily, by his failure to file pretrial motions seeking to explore the evidence underlying the subsequent in-court identification. It is asserted that appellant’s lineup in 1968 preceded the opinion in the Kirby case in 1972, and that: “It is the position of the Appellant that in order to determine if Appellant had the effective assistance of counsel . . the law of 1968 must be considered not the present law.” Reliance is based on Saltys v. Adams, 465 F.2d 1023 (2nd Cir. 1972). It is sufficient to say that we are not persuaded by the opinion noted and point out that a 1968 lineup was considered by this court in State v. Walters, supra, in 1970 (prior to the Kirby case) and arguments comparable to those now presented were rejected.

As to the alleged lack of investigation by defense counsel, the trial court found that: “He was represented by the Public Defender’s office at the preliminary hearing, arraignment, all court appearances after that, and at the trial in Circuit Court * * ⅜ Concerning the investigation, Petitioner [appellant] offers only his conclusion that none was made, and can point to nothing which more investigation would have produced, or how that would have affected the trial.”

Claimed ineffectiveness of counsel is also based on his failure to request the court to declare a mistrial because the prosecuting attorney was seen by appellant coming from the jury room during a recess. The judge at the original trial testified that the jury was never in the room that appellant observed and the complaint was rejected.

Third, it is argued that misconduct of the prosecuting attorney denied appellant a fair trial. Mingling with the jury is again alleged, but the finding under point two establishes lack of merit in this contention. References were made to a tattoo on the arm of one of the robbers, and it is contended this “mislead the jury into believing appellant had a tattoo on his arm.” The evidence established that it was on the companion of appellant and was part of the factual setting established by one of the victims. The complaint is totally without merit.

It is contended that too many officers, involved in the arrest on the street, were called to testify and thus the jury was overly convinced. Such a complaint would be tenuous at best, and in this case it is totally inapplicable. Appellant by his alibi witness sought to show that he was a passenger in a car which was required to stop because of the confusion when the suspects were being taken from a car in the street; and, that the appellant merely “wandered” into the crowd. Those officers taking part in the removal of appellant from the “getaway” car were necessary to establish the state’s case and refute the sole defense offered.

Nothing could be gained by quoting further from the findings of the trial court, which are consistent with our review of the record, and we find that such findings are not clearly erroneous.

The judgment is affirmed.-

All concur.