author: PER CURIAM.

text:
    Vance Devon YOUNG, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    May 22, 1979.
    As Modified On Denial of Rehearing Aug. 21, 1979.
    Jack Emory Farley, Public Advocate, J. Vincent Aprile II, Asst. Deputy Public Advocate, William M. Radigan, Asst. Public Advocate, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., David R. Marshall, Asst. Atty. Gen., Frankfort, for appellee.
   PER CURIAM.

Appellant entered a plea of guilty to two counts of murder, having strangled two women in the course of rape. On the recommendation of the Commonwealth’s Attorney, the trial court imposed consecutive life sentences of imprisonment. Appellant rightly argues the sentence of consecutive life terms is not authorized by the Penal Code. KRS 532.110(l)(c); Shannon v. Commonwealth, Ky., 562 S.W.2d 301 (1978). The judgment is corrected to provide that the sentences run concurrently.

Next, appellant contends the trial court abused its discretion in refusing to order psychiatric observation and examination prior to sentencing. KRS 532.050(3). Under the facts as presented to the trial court, we cannot say this was an abuse of discretion.

Finally, appellant complains the trial court erred in refusing to order the county to pay $206 expense money to Dr. Bresler, a Carbondale, Illinois, clinical psychologist, for services to the defense in anticipation of trial.

It appears from the record that Dr. Bres-ler examined the appellant in February of 1978, while he was in the Bullitt County jail awaiting trial. On June 30, 1978, after the appellant had been sentenced pursuant to his pleas of guilty, and after he had taken an appeal to this court, Honorable J. Vincent Aprile II and Honorable William M. Radigan, Assistant Public Defenders who in March of 1978 had entered the case as co-counsel of Honorable Gene R. Osselmeier, his counsel of record, filed a motion in appellant’s. behalf that the Bullitt County Fiscal Court be directed to pay Dr. Bresler’s bill for professional services and for transportation. Although these two attorneys had not formally appeared as counsel for the appellant when Dr. Bresler’s services were performed, this motion recited, among other things such as the appellant’s indigen-cy, that “this particular defense expert was chosen by the undersigned counsel because of his long experience in the field of forensic psychology” and because “the undersigned counsel, after extensive interviews with the defendant, felt that the defendant was suffering from a mental disease or defect.” The motion was denied on July 13, 1978, by an order which recited that the appellant was being represented by Mr. Os-selmeier. A separate appeal was taken by the appellant from that order.

The authority advanced by counsel for an order requiring payment by the fiscal court is KRS 31.185. KRS 31.170 provides alternative means by which a county may elect to establish and maintain an office for public advocacy to represent needy persons. KRS 31.185 provides that any defending attorney operating under Chapter 31 may utilize the same state facilities for the evaluation of evidence as are available to counsel for the state. It further provides as follows: “If he considers their use impractical, the court concerned may authorize the use of private facilities to be paid for on court order by the county.”

KRS 31.190 directs the fiscal court of each county to appropriate sufficient funds “to administer the program of representation that it has elected under KRS 31.160.” (Emphasis added.)

Now, this record contains nothing to inform the court what program the Bullitt County Fiscal Court has chosen for the representation of indigent defendants or, indeed, whether it has adopted any program whatever. Nor does it tell us whether Mr. Osselmeier was acting pursuant to such a program or as paid counsel. The papers signed by him do not designate him as a public advocate or defender. There is no reference to á public defender until March 13, 1978, when Mr. Aprile and Mr. Radigan filed a “Notice of Appearance” stating that they would “appear as co-counsel for the defendant ... at his trial.” Most importantly, there is no indication that the trial court ever authorized the use of “private facilities.” Cf. KRS 31.185. We read that statute as requiring such authorization in advance of procuring the desired services.

It is clear from the motion filed by the public defenders on June 30, 1978, that it was they who had obtained the services of Dr. Bresler in February of 1978. As there was no order authorizing the employment, the responsibility for payment rests with the office of the public advocate for the state.

We readily concede that indigent defendants are entitled to reasonably necessary expert assistance. In this instance the appellant actually received that assistance, so he had not been aggrieved and is not in a position to complain. The aggrieved party is Dr. Bresler, and although we regret that the carelessness of the lawyers may require him to collect from the office that ordered his services rather than from the fiscal court, there is no tenable ground on which we can hold the order of the trial court in error.

The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: AKER, Justice.

license: Public Domain

text:
    Stanley DICK, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    July 3, 1979.
    Rehearing Denied Aug. 21, 1979.

      Jack Emory Farley, Public Defender, Edward C. Monahan, Asst. Public Defender, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., Patrick B. Kimberlin, III, Asst. Atty. Gen., Frankfort, for appellee.
   AKER, Justice.

Stanley Dick was convicted in the Callo-way Circuit Court of four counts of aiding in the commission of third-degree burglary and two counts of third-degree burglary. KRS 511.040. The jury fixed his punishment at five years’ imprisonment on one of the aiding and abetting counts and one year’s imprisonment on each of the other five counts. The trial judge ordered the sentences to run consecutively.

The Court of Appeals affirmed Dick’s conviction. He seeks review by this court. We affirm.

Appellant operated a pool hall located in Tennessee a short distance south of Callo-way County, Kentucky. Terry Gibson, a 15-year-old, testified that he was in appellant’s pool hall on February 2, 1976, and that he and Dick decided to break into the C & H Candy House in Hazel, Kentucky. The two drove to the store in appellant’s truck; Dick drove around while Gibson broke in and took 20 to 30 dollars. This procedure was repeated at J. C. Gallimore’s restaurant, a Texaco station, and a U-Totem Store. Gibson stated that both he and Dick entered the Hazel Lumber Company and took some change. A Hazel dry-cleaning establishment was the last business burglarized by the two; Gibson testified that Dick broke out the dry cleaner's window and Gibson entered.

Appellant’s defense was that he was intoxicated during the time the break-ins occurred. Appellant testified that he drank from early evening on February 2 until early the next morning and that he remembered nothing except loaning his truck to someone. Four other defense witnesses corroborated Dick’s testimony that he was intoxicated during the time in question.

Dick contends the trial court erroneously instructed the jury that it could find him guilty on each count if the businesses were entered by either Gibson or Dick pursuant to a conspiracy between them to commit the thefts. Appellant asserts that the instructions were improper as to the four counts of aiding in the commission of burglary because the indictment charged him with complicity by the method of aiding. He argues he was substantially prejudiced by his conviction of a form of complicity not charged in the indictment. Appellant concedes that the conspiracy instructions do not necessitate reversal of the convictions on the other two counts; therefore, our discussion will deal only with the charges of aiding.

The indictment charged that appellant committed four counts of third-degree burglary “by aiding and abeting (sic) Terry Gibson, a juvenile, in committing third-degree burglary by aiding and counseling the said Terry Gibson in unlawfully entering” the various businesses broken into. The instructions complained of authorized the jury to find Dick guilty of third-degree burglary if either he or Gibson entered the businesses “pursuant to, in furtherance of and during the continued existence of a conspiracy in which the defendant had agreed with Terry Gibson that one and more of them would enter the business house in question and commit or attempt to commit a theft.”

It is true, as appellant contends, that a defendant may not be convicted of an offense not charged in the indictment. Lovelace v. Commonwealth, 193 Ky. 425, 236 S.W. 567 (1922). However, the indictment charged the crime of third-degree burglary, and that is the offense of which Dick was convicted.

The rather inartfully drawn indictment charged appellant with “counseling” Gibson. Failure of the trial judge to include the term “counseling” in the instructions to the jury amounts at most to a non-prejudicial variance between the indictment and the instruction. As was stated by this court in Braswell v. Commonwealth, Ky., 339 S.W.2d 637 (1960), “ a variance between the indictment and the proof is not regarded as material unless it misleads the accused in making his defense . . . .” By a parity of reasoning, a variance between the language of the indictment and that of the instructions cannot be considered significant unless the accused was misled. The plain meaning of “counseling” is sufficiently akin to that of “conspiring” to put appellant on fair notice that evidence would be introduced to show he advised Gibson in the planning and execution of the named offenses. The notice given appellant of the charges against him sufficiently enabled him to prepare his defense. We therefore affirm.

The judgments of the trial court and the opinion of the Court of Appeals are affirmed.

All concur except CLAYTON, J., who is not sitting.


text:
    Jean SEBASTIAN, Movant, v. Perl FLOYD and Zona Floyd, Respondents.
    Supreme Court of Kentucky.
    July 3, 1979.

      Michael O’Hara, Northern Kentucky Legal Aid Society, Inc., Covington, for mov-ant.
    Clyde Middleton, Covington, for respondents.
   AKER, Justice.

This case presents the question whether a clause in an installment land sale contract providing for forfeiture of the buyer’s payments upon the buyer’s default may be enforced by the seller.

The movant, Jean Sebastian, contracted on November 8,1974, to buy a house and lot situated in Covington, Kentucky, from Perl and Zona Floyd, respondents in this motion for review. Sebastian paid $3,800.00 down and was to pay the balance of the $10,-900.00 purchase price, plus taxes, insurance, and interest at the rate of 8V2% per annum, in monthly installments of $120.00. A forfeiture clause in the contract provided that if Sebastian failed to make any monthly payment and remained in default for 60 days, the Floyds could terminate the contract and retain all payments previously made as rent and liquidated damages.

During the next 21 months, Sebastian missed seven installments. Including her down payment, she paid the Floyds a total of $5,480.00, rather than the $6,320.00 which was called for by the terms of the contract. Of this amount, $4,300.00, or nearly 40% of the contract price, had been applied against the principal.

The Floyds brought suit in the Kenton Circuit Court against Sebastian in August, 1976, seeking a judgment of $700.00 plus compensation for payments for taxes and insurance, and seeking enforcement of the forfeiture clause. Sebastian admitted by her answer that she was in default but asked the court not to enforce the forfeiture clause. Sebastian counterclaimed for all payments made pursuant to the contract. On advice of counsel, Sebastian ceased to make payments after the institution of this law suit.

The case was referred to a master commissioner for hearing. The commissioner recommended termination of the land sale contract and enforcement of the forfeiture clause. The Kenton Circuit Court entered a judgment adopting the commissioner’s recommendations. On appeal, the Court of Appeals affirmed. We granted discretionary review to consider the validity of the forfeiture clause. We reverse.

When a typical installment land contract is used as the means of financing the purchase of property, legal title to the property remains in the seller until the buyer has paid the entire contract price or some agreed-upon portion thereof, at which time the seller tenders a deed to the buyer. However, equitable title passes to the buyer when the contract is entered. The seller holds nothing but the bare legal title, as security for the payment of the purchase price. Henkenberns v. Hauck, 314 Ky. 631, 236 S.W.2d 703 (1951).

There is no practical distinction between the land sale contract and a purchase money mortgage, in which the seller conveys legal title to the buyer but retains a lien on the property to secure payment. The significant feature of each device is the seller’s financing the buyer’s purchase of the property, using the property as collateral for the loan.

Where the purchaser of property has given a mortgage and subsequently defaults on his payments, his entire interest in the property is not forfeited. The mortgagor has the right to redeem the property by paying the full debt plus interest and expenses incurred by the creditor due to default. In order to cut off the mortgagor’s right to redeem, the mortgagee must request a court to sell the property at public auction. See Lewis, Reeves, How the Doctrine of Equitable Conversion Affects Land Sale Contract Forfeitures, 3 Real Estate Law Journal 249, 253 (1974). See also KRS 426.005, 426.525. From the proceeds of the sale, the mortgagee recovers the amount owed him on the mortgage, as well as the expenses of bringing suit; the mortgagor is entitled to the balance, if any.

The modern trend is for courts to treat land sale contracts as analogous to conventional mortgages, thus requiring a seller to seek a judicial sale of the property upon the buyer’s default. It was stated in Skendzel v. Marshall, 261 Ind. 226, 301 N.E.2d 641, 648 (1973):

“A conditional land contract in effect creates a vendor’s lien in the property to secure the unpaid balance owed under the contract. This lien is closely analogous to a mortgage — in fact, the vendor is commonly referred to as an ‘equitable mortgagee.’ ... In view of this characterization of the vendor as a lienholder, it is only logical that such a lien be enforced through foreclosure proceedings.”

See also H & L Land Company, Inc. v. Warner, Fla.App., 258 So.2d 293 (1972). We are of the opinion that a rule treating the seller’s interest as a lien will best protect the interests of both buyer and seller. Ordinarily, the seller will receive the balance due on the contract, plus expenses, thus fulfilling the expectations he had when he agreed to sell his land. In addition, the buyer’s equity in the property will be protected.

This holding comports with our decision in Real Estate and Mortgage Co. of Louisville v. Duke, 251 Ky. 385, 65 S.W.2d 81 (1933), wherein it was stated at page 82 of 65 S.W.2d:

“The forfeiture clause was intended simply as a security for the payment of the purchase price. In these circumstances the forfeiture provided for by the contract will be disregarded . . ..”

Respondents contend the preponderance of Kentucky cases permits enforcement of forfeiture clauses in land sale contracts. However, installment land contracts were not involved in two of the cases cited in respondents’ brief. In Ward Real Estate v. Childers, 223 Ky. 302, 3 S.W.2d 601 (1928), and Graves v. Winer, Ky., 351 S.W.2d 193 (1961), this court permitted retention by the sellers of “earnest money” deposited pursuant to an executory deposit receipt agreement. The ordinary short-term real estate contract presents a situation very different from the case at bar. Such an agreement generally provides that in the event the buyer fails to perform the contract, the seller may retain the down payment (usually no more than ten per cent of the contract price) as liquidated damages. In Ward, supra, and Graves, supra, the sum specified as liquidated damages clearly bore a reasonable relation to the actual damages suffered by the seller, which damages would be difficult to ascertain. Robert F. Simmons and Associates v. Urban Renewal and Community Development Agency of Louisville, Ky., 497 S.W.2d 705 (1973). Our holding therefore has no bearing on the typical earnest money deposit.

Respondents also cite Maschinot v. Moore, 275 Ky. 36, 120 S.W.2d 750 (1938). Their reliance on that case is misplaced, however, because there the court dealt with the question whether the vendor could maintain an action in ejectment against the vendee under a land sale contract; the court did not address the issue of the enforceability of a forfeiture clause such as that in the instant case.

In Miles v. Proffitt, Ky., 266 S.W.2d 333 (1954), we held that a party to an installment land sale contract who had advanced money in part performance and then failed to make further payments was not entitled to recover any of the money so advanced. The court relied on Kravitz v. Grimm, 273 Ky. 18, 115 S.W.2d 368 (1938), as authority for its holding in Miles. To the extent Miles and Kravitz uphold the validity of forfeiture clauses in installment land sale contracts, they are overruled. The seller’s remedy for breach of the contract is to obtain a judicial sale of the property.

The judgment of the trial court and the opinion of the Court of Appeals are reversed and the case remanded for further proceedings consistent with this opinion.

All concur except STERNBERG, J., who did not sit.


author: LUKOWSKY, Justice.

text:
    Patricia HALL, Movant, v. Amos Gerald HALL, Respondent.
    Supreme Court of Kentucky.
    July 3, 1979.
    Anthony L. Warth, Stallings & Stallings, Louisville, for movant.
    G. William Bailey, Jr., Pate, Richardson & Bailey, Elizabethtown, for respondent.
   LUKOWSKY, Justice.

The question presented is the authority of a circuit court in Kentucky to modify the child support provisions of a divorce judgment, granted in a sister state, on the petition of the custodial parent where both the custodial parent and the children are nonresidents and the noncustodial parent is a resident of this Commonwealth.

Patricia obtained a divorce in New Mexico and was granted the custody of her two infant children. Amos was ordered to pay $100.00 per month for the support of each child. Subsequently, Patricia moved to Indiana with the children and they now reside in that state. Amos now resides in Hardin County, Kentucky.

Over Amos’ objection that it lacked jurisdiction to do so, the Hardin Circuit Court modified the New Mexico decree and raised the amount of child support to $200.00 per month per child.

The Court of Appeals reversed and we granted discretionary review. We now reverse the Court of Appeals and affirm the trial court.

KRS 403.250(1) provides in pertinent part:

“[T]he provisions of any decree respecting support may be modified . (emphasis added)

This language is copied from Section 316(a) of the Uniform Marriage and Divorce Act. The Commissioners’ Comment to that section provides:

“If the judgment was rendered by another state, normal full faith and credit law would allow it to be reopened in the forum state if it can be reopened under the laws of the rendering state.”

This is the rule to be applied in Kentucky. See, e. g., White v. Bennett, Ky.App., 553 S.W.2d 845, 846 (1977).

N.M.Stat.Ann. 22-7-6C (1975) provides in pertinent part:

“The court may modify and change any order in respect to the . . maintenance or education of the children . . .” (emphasis added)

Despite these factors the Court of Appeals relied on a statement found in Section 27.1 of Petrilli, Kentucky Family Law (1977 Supp.) and held that KRS 403.140(l)(d) makes jurisdiction to decide issues of child support rest on jurisdiction to decide issues of child custody. They then extended this theory to hold that because the circuit court had no custody jurisdiction it had no support jurisdiction.

This statute was taken from Section 302(a)(4) of the Uniform Marriage and Divorce Act. It is neither a grant nor a withdrawal of jurisdiction. It merely requires the trial court to dispose of issues of custody, support, maintenance and property division, if it otherwise has jurisdiction to do so, when it enters a decree of dissolution of marriage. Commissioners’ Comment, Section 302(a), Uniform Marriage and Divorce Act.

Jurisdiction to decide child support issues is conferred upon the circuit courts by KRS 403.210 independently of the stringent restrictions placed upon the exercise of the child custody jurisdiction conferred by KRS 403.260. It is clear to us that the theory of “divisible divorce”, which recognizes that the multiple issues in domestic relations cases have distinct and separate jurisdictional foundations and may be determined independently of each other, is alive and well. In re Rinderknecht, Ind. App., 367 N.E.2d 1128 (1977).

It is equally lucid that Kentucky, the state in which Amos resides, practices medicine, farms and owns both real and personal property, is the proper forum to determine the amount he should be required to pay for the support of his children. Kulko v. Superior Court, 436 U.S. 84, 98 S.Ct. 1690, 56 L.Ed.2d 132 (1978). Certainly it does no violence to traditional notions of fair play and substantial justice to require a person to defend a claim conveniently at home, where he has every reason to anticipate that he may be sued and where the state has a strong general interest in his economic health. Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977).

The decision of the Court of Appeals is reversed and the judgment of the Hardin Circuit Court is affirmed.

All concur.

      . By use of the word “any” the legislature granted jurisdiction to modify foreign as well as domestic decrees.

      . We have repeatedly recognized the Commissioners’ Comments as persuasive authority in interpreting the act. See Moore v. Moore, Ky., 577 S.W.2d 613 (1979); Casale v. Casale, Ky., 549 S.W.2d 805 (1977); Turley v. Griffin, Ky., 508 S.W.2d 764 (1974).

      . This language is strikingly similar to that of KRS 403.250(1) and supports the view that the legislature of New Mexico intended that their judgments would be subject to out of state modification. See note 1, supra.

      . See note 2, supra.

      . Strict limitations were placed upon the exercise of child custody jurisdiction to remedy the intolerable state of affairs where self-help and the rule of “seize-and-run” prevail rather than the orderly processes of the law. See Simpson v. Simpson, Ky., 586 S.W.2d 33 (1979).


author: CLAYTON, Justice.

text:
    Betty KEATHLEY, Movant, v. U. S. SHOE COMPANY and Workmen’s Compensation Board of Kentucky, Respondents.
    Supreme Court of Kentucky.
    July 3, 1979.
    John David Preston, Perry & Preston, Paintsville, for movant.
    Eugene C. Rice, Paintsville, for respondent U. S. Shoe Co.
   CLAYTON, Justice.

Betty Keathley sustained a work-related back injury on September 11, 1975, while in the employ of the U. S. Shoe Company. The Workmen’s Compensation Board found that Keathley sustained 100% occupational disability and awarded her KRS 342.740 maximum income benefits of $88.00 per week for the duration of her disability. The opinion and award of the Board was affirmed by the Floyd Circuit Court. The Court of Appeals held that there was insufficient evidence to support the Board’s finding that Keathley’s hourly wage was $4.76 and reversed that portion of the opinion, affirming in all other respects. We granted discretionary review.

Movant testified before the Board that at the time of her injury she was earning $4.76 per hour. Wages were based upon individual employe output, with a minimum base of $2.60 per hour. Movant also testified that she was earning above $4.00 per hour for over a year prior to her accident. No evidence relating to wages was introduced by the employer.

Workmen’s compensation benefits for total disability are based upon a percentage of the claimant’s average weekly wage. KRS 342.730(l)(a). The average weekly wage of a claimant whose wages are fixed by output is computed according to KRS 342.140(l)(d), which reads in relevant part:

[T]he average weekly wage shall be the wage most favorable to the employe computed by dividing by thirteen (13) the wages (not including overtime or premium pay) of said employe earned in the employ of the employer in the first, second, third, or fourth period of thirteen (13) consecutive calendar weeks in the fifty-two (52) weeks immediately preceding the injury.

It is evident that the Board failed to use the KRS 342.140(l)(d) formula in making its finding that movant’s hourly wage was $4.76. The error is harmless, however, in light of movant’s testimony that she was earning in excess of $4.00 per hour for more than a year prior to her injury. Using an hourly wage of $4.00 as a minimum, her average weekly wage under KRS 342.-140(l)(d) for any quarter of the year preceding the injury would be at least $160.00 ($4.00 per hour for 40 hours), in which case movant would still be entitled to the KRS 342.740 maximum award of $88.00 per week. Further findings of fact on movant’s average weekly wage are therefore unnecessary.

That portion of the decision of the Court of Appeals dealing with movant’s hourly wage is reversed. The decision is affirmed in all other respects. The judgment of the Floyd Circuit Court upholding the award of the Workmen’s Compensation Board is affirmed.

All concur.


author: PALMORE, Chief Justice.

text:
    Roger Dale CRAWLEY, Movant, v. George H. KUNZMAN, Judge, Jefferson Circuit Court, Respondent.
    Supreme Court of Kentucky.
    Aug. 21, 1979.
    Terrance R. Fitzgerald, Chief Appellate Defender, Richard L. Receveur, Asst. District Defender, Louisville, for movant.

      George H. Kunzman, Judge, Jefferson Circuit Court, Division Sixteen, Louisville, for respondent.
   PALMORE, Chief Justice.

On July 3, 1978, this court affirmed a judgment of the Jefferson Circuit Court convicting Roger Dale Crawley of first-degree robbery but reversed the judgment with respect to his conviction and sentence of 35 years in prison as a persistent felony-offender. The case was remanded with directions that Crawley be granted a new trial on the persistent-offender count, for the reason that the evidence produced at the previous trial was not sufficient to support a finding that he was at least 18 years old at the time he committed the first of two felonies that constituted the basis for the persistent-offender conviction. See Crawley v. Commonwealth, Ky., 568 S.W.2d 927 (1978).

In Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1, decided on June 14, 1978, the United States Supreme Court held that the Double Jeopardy Clause of the Fifth Amendment protects a defendant from retrial following reversal of a conviction on the ground that the evidence produced at the trial was not sufficient to justify submitting the charge to the jury.

The action now before this court is an appeal from an order of the Court of Appeals denying Crawley’s petition for an order prohibiting the respondent trial judge from subjecting him to a new trial on the persistent-offender charge. The ground on which the Court of Appeals denied relief was that it would be contrary to the mandate theretofore issued by this court pursuant to its opinion in Crawley,

When Crawley was decided by this court Burks had not been called to its attention. The rationale of Burks is that if the basis for an appellate reversal is that the defendant should have been given a directed verdict of acquittal by the trial court, the reversal in effect is an acquittal. The basis for our reversal of Crawley’s conviction as a persistent felony-offender was that by reason of an evidentiary insufficiency the issue should not have been submitted to the jury. Its effect, therefore, under Burks, was an acquittal on that particular count of the indictment, and our directions for a new trial were invalid.

The right of appeal is not an adequate remedy against double jeopardy. See Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977); Price v. Georgia, 398 U.S. 323, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970). Crawley therefore is entitled to an order of prohibition.

Accordingly, the respondent judge is prohibited from permitting the movant to be retried on the persistent felony-offender charge contained in Indictment No. 15586 now pending in the Jefferson Circuit Court.

All concur.


text:
    Harold WHORTON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    Aug. 21, 1979.

      Terrence R. Fitzgerald, Chief Appellate Defender, Daniel T. Goyette, Deputy Public Defender, Louisville, for appellant.
    Robert F. Stephens, Atty. Gen., Patrick B. Kimberlin, III, Asst. Atty. Gen., Frankfort, Ky., for appellee.
   PALMORE, Chief Justice.

In Whorton v. Commonwealth, Ky., 570 S.W.2d 627 (1978), we reversed the judgments in this ease on the ground and on the premise that under Taylor v. Kentucky, 436 U.S. 478, 98 S.Ct. 1930, 56 L.Ed.2d 468 (1978), Whorton’s constitutional right of due process had been violated by the trial court’s refusal to instruct the jury on the presumption of innocence. In Kentucky v. Whorton, - U.S. -, 99 S.Ct. 2088, 60 L.Ed.2d 640 (1979), the Supreme Court of the United States reversed that decision and remanded the case for further proceedings consistent with its opinion that this court’s inquiry “should have been directed to a determination of whether the failure to give such an instruction in the present case deprived the respondent of Due Process of Law in light of the totality of the circumstances,” which circumstances include, specifically, “all the instructions to the jury, the arguments of counsel, whether the weight of the evidence was overwhelming, and other relevant factors.”

The opinion in Kentucky v. Whorton confirmed the fears expressed in Whorton v. Commonwealth. That is, the defendant’s constitutional right to such an instruction actually does stand or fall on the circumstances of the individual trial. It is the rule of harmless error in reverse: If the failure to give the instruction would be harmless, the omission is not an error. Fortunately, anticipating the possibility of such a result and realizing the difficulty of living with it, this court, promptly after Taylor v. Kentucky came to its attention, amended RCr 9.56 to mandate the instruction in all cases when requested.

In our first opinion we held that it was an error to allow the jury to find Whorton guilty of wanton endangerment on the basis of his having fired a pistol-shot into the ceiling of Jerry’s Restaurant. From the record this appears to have been Instruction No. XIII, under which the jury found him guilty and fixed his punishment at five years’ imprisonment. To the extent that Whorton was adjudged guilty and sentenced in accordance with that particular verdict, the judgment must be reversed.

Having reviewed and considered the matters specified in Kentucky v. Whorton, we are of the opinion that in the light of the totality of the circumstances the trial court’s refusal to instruct on the presumption of innocence did not prejudice or deprive Whorton of his due-process right to a fair trial.

To the extent that one of the judgments in this proceeding finds the appellant guilty of lst-degree wanton endangerment pursuant to Count 14 of Indictment No. 157391 it is reversed with directions that the charge be dismissed. In all other respects the judgments are affirmed.

All concur.


author: WINTERSHEIMER, Judge.

text:
    Edward BEALERT, Administrator of the Estate of Allene S. Erd, Deceased, and Edward Bealert, Appellants, v. Roberta E. MITCHELL and First Federal Savings & Loan Association of Lexington, Appellees.
    Court of Appeals of Kentucky.
    March 2, 1979.
    Rehearing Denied May 4, 1979.
    Discretionary Review Denied Sept. 11,1979.
    Glen S. Bagby, Brock, Brock & Bagby, Lexington, for appellants.
    Charles C. Calk, Joseph H. Miller, Gess, Mattingly, Saunier & Atchison, James C. Clay, Lexington, for appellees.
    Before HOWARD, REYNOLDS and WINTERSHEIMER, JJ.
   WINTERSHEIMER, Judge.

This appeal is from a judgment entered April 10, 1978, which determined ownership of five joint savings certificate accounts opened by Robert L. Erd and Aliene S. Erd, husband and wife, between 1969 and 1974. The Erds were married for thirty-nine years and had no children of their marriage, but Mr. Erd had a daughter by an earlier marriage. That daughter is the appellee here. On April 10, 1975, Mr. Erd had Mrs. Erd’s name removed from all joint savings accounts in their names. An officer of the savings association required Mr. Erd to present a general power of attorney and also execute an instruction document before she removed Mrs. Erd’s name from the accounts. On August 14, 1975, Mr. Erd returned to the financial institution and requested that his name be removed from the same accounts and directed that they be placed in the name of his daughter by an earlier marriage, the appellee. On November 2,1975, Mr. Erd died and on January 23, 1976, Mrs. Erd died intestate. Mr. Erd died testate and Mrs. Roberta E. Mitchell, the appellee here, qualified as executrix of his estate. On October 8, 1976, Mrs. Erd’s nephew, Edward Bealert, was appointed administrator of her estate and on the same date filed the original complaint in this action. The trial judge decided that the certificates were not an asset of the estate of Aliene S. Erd. This appeal followed.

Appellants set out the following issues:

1) The trial court committed reversible error in finding that the joint accounts were revocable gifts, each to the other.
2) The trial judge committed reversible error in holding that the right to withdraw gives the right to appropriate.

This Court affirms the judgment of the trial court.

The trial court did not commit reversible error in finding that the joint accounts were established by contracts which provided that the deposits were a revocable and conditional gift, each to the other. The signature cards applicable to each specific savings account indicate that the association must act pursuant to the directions of any one or more of the joint tenant’s instructions and must pay without liability to any one or the survivor of them at any time. The provisions of KRS 289.391 provides for the same result. Any interest Mrs. Erd had in the accounts was terminated by her husband when he removed her name from the accounts. This action was tantamount to a withdrawal of the funds. The record indicates that the only reason Mr. Erd did not withdraw the money from the accounts was to avoid the loss of interest and a penalty charge. We believe it is obvious that the right to withdraw encompasses the right to delete the name of another on a joint account.

The facts indicate that the savings association required Mr. Erd to produce a power of attorney and execute a written instruction sheet. It is our opinion that the power of attorney was not necessary because the language of the agreement between the parties clearly provided for the right to withdraw and all necessary rights directly related thereto.

Appellants cite several cases refusing to recognize the right of withdrawal by one of the joint tenants in a savings account, but this Court believes that the critical difference between the authority urged by the appellants and the situation here is that in each case used by the appellants, the withdrawal of funds was without consent or knowledge of the joint tenant. In this situation Mrs. Erd did consent. We believe the appellants misinterpret Hensley v. Ball, Ky., 380 S.W.2d 279 (1966). Proper consideration of that case would require the parties to follow the terms of their contract, which in this situation creates a revocable gift which could be terminated by either party at any time. In the Hensley case there were not signature cards designating the rights of the parties. Here, the signature cards clearly set out their relationship. The case of Saylor v. Saylor, Ky., 389 S.W.2d 904 (1965), does not apply to the circumstances here because the question in that case involved differing designations of ownership between a ledger card and a passbook. It should be noted that the Court in the Saylor, supra, case observed that normally the joint portions of an authorized signature card establish the rights of the parties in the joint account.

As in any case that is tried without the intervention of a jury, the findings of fact of the trial court should not be reversed unless they are determined to be clearly erroneous. In making such consideration the appellate court must keep in mind that the trial court had the opportunity to hear the evidence and observe the witnesses, so' as to judge their credibility, and therefore, is in the best position to make findings of fact. 7 W. Clay, Kentucky Practice, CR 52.01. After a ’careful consideration of the entire record in this case, we believe that the trial judge’s findings were not clearly erroneous.

It is the holding of this Court by reason of the statute, KRS 289.391, and the contract between the parties, that the trial judge was correct in determining that Mr. Erd had the legal authority to withdraw the funds on deposit and that authority also necessarily included the right to change the accounts by deleting the name of Mrs. Erd. His subsequent action in transferring the deposits to his daughter was also within his authority.

Therefore, the judgment of the trial court is affirmed.

All concur.


author: GANT, Judge.

text:
    The HOME INDEMNITY COMPANY, Reserve Insurance Company, and L & B Express, Inc., Appellants, v. ST. PAUL FIRE & MARINE INSURANCE COMPANY, Lloyd F. Adams, Roy Alfred Davis, Regina Davis, Stephen Harris, Individually and as Administrator of the Estate of Lydia Harris, Deceased, Appellees.
    Court of Appeals of Kentucky.
    March 9, 1979.
    Discretionary Review Denied Sept. 11, 1979.
    William Mellor, Louisville, for Home In-dem. Co.

      William Mellor, Louisville, Henry A. Triplett, Hogan, Taylor, Denzer & Bennett, Louisville, for Reserve Ins. Co.
    William Mellor, Louisville, William S. Cooper, Elizabethtown, for L & B Express, Inc.
    Robert Spragens, Jr., Lebanon, for St. Paul Fire & Marine Ins. Co.
    Raymond Overstreet, Liberty, for Lloyd F. Adams.
    Morris R. Butler, Greensburg, William A. Miller, Louisville, for Roy Alfred Davis and Regina Davis.
    Robert L. Dowell, Greensburg, for Stephen Harris, Individually and as Administrator of the Estate of Lydia Harris, Deceased.
    Before GANT, COOPER and WILHOIT, JJ.
   GANT, Judge.

This declaratory judgment action was brought to determine the extent of liability, if any, of Home Indemnity Company (Home), Reserve Insurance Company (Reserve), and St. Paul Fire & Marine Insurance Company (St. Paul) with respect to an automobile accident involving a tractor-trailer owned and operated by Lloyd F. Adams and leased to L & B Express, Inc., a common carrier operating under Interstate Commerce Commission (ICC) regulations.

At the time of the accident, Adams was under dispatch from L & B to transport a load in Ohio on the day after the accident. On the day the accident occurred, Adams was driving his leased tractor to Indiana for the purpose of picking up a trailer he had purchased. The previous day Adams’s employee had delivered L & B’s trailer to its Madisonville terminal. The accident occurred in Kentucky, a state in which L & B was licensed to operate, before Adams reached Indiana, where L & B was not authorized by the ICC to operate. The trial court found, and there is sufficient evidence to support the conclusion, that L & B had knowledge of the purchase of the new trailer, and that L & B had given its implied consent for the use of the new trailer in its business.

The accident occurred on May 27, 1973. Roy Davis, Regina Davis and Stephen Harris were injured, and Lydia Harris was killed. Two tort actions were brought by these parties solely against Adams. More than one year later L & B was added as a party defendant to the action brought by Stephen Harris and the Estate of Lydia Harris. Home negotiated a settlement on behalf of L & B in that action and an order was entered dismissing all claims against L & B with prejudice. The other claims were consolidated for appeal and are decided as a companion ease herewith.

This action was instituted to determine coverage between the three insurance policies. Home and Reserve have agreed by order entered January 28, 1978, that both their policies afford coverage to L & B for any liability which may be adjudged against L & B as a result of this accident. St. Paul in its brief concedes the correctness of the judgment of the trial court which determined that St. Paul’s policy covered Adams in these circumstances with the coverage by the terms of the policy to be on a pro rata basis with any other insurance. This leaves only the following issues to be decided here.

1. Is Adams an “insured” under the Home/Reserve policies? In order to answer this question, we must consider the lease between Adams and L & B, the insurance policies and the applicable ICC regulations. The Home/Reserve policies are identical with respect to the terms of coverage, the only difference being the amount of coverage. The pertinent parts of the documents in question are as follows:

ICC REGULATIONS
I. 49 CFR § 1043.1 [N]o common or contractual carrier ■. . . shall engage in interstate commerce . . . until there shall have been filed with and accepted by the [Interstate Commerce] Commission a Certificate of Insurance . . . conditioned to pay any final judgment recovered against such motor carrier for bodily injuries to or the death of any person resulting from the negligent operation, maintenance or use of such motor vehicle .
II. 49 CFR § 1057.4, setting forth the requirements for using leased vehicles, provides: (a) Contract requirements. The contract, lease or other arrangement for the use of such equipment . (4) shall provide for the exclusive possession, control and use of the equipment; and for the complete assumption of responsibility in respect thereto, by the lessee for the duration of the contract, lease or other arrangement. .
The lease between Adams and L & B states at Paragraphs 7 and 20:
LEASE BETWEEN ADAMS AND L & B
7. During the existence of this agreement, the Carrier assumes liability for bodily injuries to or death of any person (except the Contractor, or the employees, agents or servants of the Contractor) or the loss or damage to the property of others (except the Contractor, or the employees, agents or servants of the Contractor) resulting from the negligent operation, maintenance or use of the vehicles described in Appendix A . The Carrier shall maintain insurance for the aforesaid liability for injuries, losses or damages as required by the ICC and state regulatory authorities. .
20. It is to be clearly understood and agreed and it is the intention of the parties of this agreement that the Contractor is and shall remain an independent contractor only and is not the agent, employee or representative of Carrier for any purpose whatever. Nothing herein contained shall be construed as inconsistent with that status. Neither the contractor nor the employees, agents or servants of the Contractor, are to be considered the employees or servants of the Carrier at any time, or under any circumstances.
INSURANCE POLICIES OF HOME AND RESERVE
II. PERSONS INSURED
Each of the following is an insured under this insurance 'to the extent set forth below:
(c) any other person while using an owned automobile or a hired automobile with the permission of the named insured, providing his actual operation or (if he is not operating) his other actual use thereof is within the scope of such permission, .
None of the following is an insured:
(ii) the owner or lessee (of whom the named insured is a sub-lessee) of a hired automobile or the owner of a non-owned automobile, or any agent or employee of such owner or lessee;
TRUCKMEN — FORM B
It is agreed that the insurance applies with respect to any owned or hired automobile or the owner of a non-owned automobile of the commercial type, subject to the following additional provisions:
(d) The insurance does not cover as an insured the owner or any lessee (of whom the named insured is a sub-lessee) of a hired automobile ... if the bodily injury or property damage occurs:
(1) while the automobile is not being used exclusively in the business of the named insured and over a route the named insured is authorized to serve by federal or public authority; but this limitation shall not apply to an automobile while en route, at the request of the named insured, to engage in such exclusive use and not transporting property for others;
and sub-paragraph (ii) of the “Persons Insured” provision is amended accordingly-

Let us examine the language of these more closely to determine whether Adams is covered under them. First, under the insurance policies Adams is obviously specifically excluded as an insured by subpara-graph (ii) of II, Persons Insured. This section is modified and specifically amended by the Truckmen — Form B endorsement, however, which does provide coverage for . . any person . . . engaged in transporting property by automobile for the name insured . . . ” so long as it is in the exclusive business of L & B. Further, Section (d) of the endorsement denies coverage to an owner/operator only if he is not using the vehicle in question exclusively in the business of L & B, thus modifying the “Persons Insured” section.

Appellants contend that Adams is excluded under the policies because he was neither using the vehicle in the exclusive business of L & B nor could he be classified as an employee of L & B under the policies. The testimony reveals that the purpose of the policies here in question was to comply with ICC regulations. It is our opinion that the policies must be construed simultaneously with those regulations and with the lease agreement, not as isolated documents.

The first case cited by appellants, American Fidelity & Casualty Co. et al. v. Pennsylvania Casualty Co. et al., Ky., 258 S.W.2d 5 (1953), dealt with coverage as between two policies covering two ICC licensed carriers, one of which had leased passenger buses to the other. The court held only that as to endorsements contained in both policies purchased to enable the respective insureds to obtain ICC certificates, the word “insured” “. . .is necessarily restricted to the motor carrier who obtains the permit or certificate [as opposed to one operating under an entirely different permit or endorsement].” Id., page 8. This has no bearing on our factual situation.

The two cases most clearly in point, Wellman v. Liberty Mutual Insurance Co., 496 F.2d 131 (8th Cir. 1974), and Cosmopolitan Mutual Insurance Co. v. White, 336 F.Supp. 92 (D.Del.1972), are not totally contradictory when one examines the facts of each. In Cosmopolitan, an accident occurred involving a vehicle operating under the standard ICC lease, where the driver (deceased, an employee of the owner) had delivered the carrier’s load and was en route to pick up a load of a third party. Considering the factors'of (1) failure of the carrier to remove his ICC placard or obtain a receipt from the driver and (2) evidence of the carrier’s acquiescence in the driver’s practice of obtaining loads for third parties, the court found that the driver was on the “exclusive business” of the carrier under a policy almost identical to the Home/Reserve policies.

The Wellman court was faced with the same question, but vastly different facts. There the plaintiff had obtained a default judgment against the owner/operator of the vehicle and the third party for whom he was hauling a load. The lessee of the truck was dismissed as a party on motion of the plaintiffs after the action was instituted. The court noted that the third party for whom the owner/operator was hauling was not an ICC approved carrier nor did the owner/operator have the lessee’s permission to make this delivery. A footnote indicates that the police report of the accident shows the accident was entirely the fault of the injured party, with no negligence on the part of the owner/operator, although this issue was never litigated and the default judgment was entered. An action was then instituted by the default plaintiffs in an attempt to recover their judgment from the lessee’s insurer under a policy substantially identical to that in Cosmopolitan and thé Home/Reserve policies. The court found that the owner/operator was not an insured. There, however, the owner/operator was obviously not on the exclusive business of the lessee and the court refused to find that the owner/operator was an employee of the lessee while he was engaged in the business of a third party. It appears that the court in Wellman was merely reluctant to impose liability upon a carrier or his insurer where the driver was hauling a load for a third party without the carrier’s permission and was involved in an accident in which he was not at fault.

The weight of authority is that ICC carriers may generally not avoid liability by “attempting to differentiate between uses of leased vehicles which are in the business of the carrier and those which are not. Mellon National Bank & Trust Co. v. Sophie Lines, Inc., 289 F.2d 473 (3rd Cir. 1961); American Transit Lines v. Smith, 246 F.2d 86 (6th Cir. 1967); Cosmopolitan, supra. In the present case, appellants maintain that because Adams was purchasing the trailer for himself he was not on the exclusive business of L & B; that he was on business for his own profit. As the opinion of the trial court pointed out, Adams’s business and that of L & B coincide when Adams is driving the truck under the lease — both Adams and L & B profit from the arrangement. If an owner/operator was excluded under a policy such as this merely because he also made a profit from the lease arrangement, the policy would only cover vehicles owned by the company. L & B owned no tractors itself, so this is clearly not the proper construction of this contract. Here the evidence indicates that L & B acquiesced in Adams’s purchase of the trailer. L & B did not require that Adams remove the ICC sticker or permit from the tractor during the trip, nor was he carrying a load or attempting to carry a load for a third party. (Adams testified that he had never hauled a load for any other parties while he was under lease to L & B, nor could he do so without L & B’s permission.) As the trailer was to be used in L & B’s business, it was in L & B’s interest as well as that of Adams that he acquire it. The cases cited above clearly indicate that Adams is covered by both Home and Reserve policies under these circumstances. Furthermore, at least one case has held that the only way a carrier can release itself from liability for the negligent operation of leased vehicles is to comply with the ICC regulation — removal of the ICC stickers and obtaining a receipt from the owner of the vehicle. ICC Rule, § 207.4. Otherwise, “. . . as a matter of law [lessee] is to be considered as the owner of the 'tractor and in full control if it ..” Bankers & Shippers Ins. Co. of N.Y. v. Watson, 216 Va. 807, 224 S.E.2d 312 (1976), citing Mellon, supra and Cosmopolitan, supra.

Moreover, it is the opinion of this Court that Adams is also covered as an “employee” under the Home/Reserve policies, contrary to the holding of the court in Wellman. In Cox v. Bond Transportation, Inc., 53 N.J. 186, 249 A.2d 579 (1969), another accident case involving an ICC carrier, the question was again whether the owner/operator was on the business of the lessee. The court noted:

The fact that he was driving as an independent contractor ... of itself has no important significance. The statute 49 U.S.C. § 304(e) and the regulations based thereon, when applicable, eliminate the common law distinction between an independent contractor and an employee. They create a type of statutory employment under which the franchised carrier becomes responsible for the negligence of the owner/operator, at least when he is engaged in the activities of the carrier. (In view of the public policy expressed by the regulations, it can be persuasively argued that when owner-operated equipment is leased by a carrier, the exclusive possession, control and use thereof, and ‘complete’ assumption of responsibility imposed on the carrier for the ‘duration’ of the lease, subjects it to liability for the lessor’s negligent operation so long as the lessor is on the public highway with the permission of the carrier. (Cf. Mellon, supra). Id., page 589.

Thus it is apparent that so long as Adams was engaged in the business of L & B, as we have determined he was, he is also an employee of L & B for liability purposes, despite language in the insurance policies and .the lease to the contrary. Weeks v. Kelley, Me.1977, 377 A.2d 444; Cosmopolitan, supra; Mellon, supra. As the trial judge observed, both the lease and the insurance policies were written to comply with ICC regulations and as such must be construed in light of those regulations. This further explains the apparent conflict of the Wellman case, supra, i. e., a finding that the vehicle is being used in the business of the lessee is necessary before the driver/operator can be categorized as an employee. As aptly stated in Simmons v. King, 478 F.2d 857 (5th Cir. 1973):

The deliberate fulfillment of these statutory [requirements] [execution of lease, display of ICC placards] by the parties must be viewed as giving rise to a statutory relationship, since these regulations have the force and effect of law, Cox v. Bond, supra [249 A.2d at 586]. Since under the lease [lessee] assumed exclusive possession, control and use of the vehicle and responsibility to the public, then [owner/operator] became his statutory employee . . .. Id., page 867.

The overwhelming weight of authority confirms that under the facts here presented Adams was a statutory employee of L & B and under the application thereof was operating the vehicle in the exclusive business of L & B. He therefore was a statutory employee of L & B under the insurance policies when these policies are further construed in light of those statutory provisions. We find that Adams is covered as an insured under the Home/Reserve policies with regard to any liability arising from this accident.

The second question presented is whether any claims of the Davises against L & B are barred by the one-year statute of limitations for actions based in tort or if claims may be maintained as an action based on contract with the governing 15-year statute of limitations. Appellants point to the language in Cosmopolitan, supra, that would seem to be conclusive on this point. There the court indicated that, since the lessee was not made a party to the original suit against the owner/operator, he could not be joined in that action after the one-year statute of limitations had run, nor could he be held liable for any judgment arising from the accident. Nowhere in its analysis of that lessee’s liability, however, did the court mention any provision of the lease between the parties of a nature similar to Paragraph 7 in the Adams and L & B lease, which in effect creates contractual rights in injured third parties. The court in Cosmopolitan does discuss third party contract rights with regard to the insurance carrier as follows:

Since the ICC regulations were enacted for the benefit of the public, Cox, supra, and Mellon, supra, the ICC insurance requirements referred to above create a right in the plaintiffs in the state court action as third party beneficiaries of the . insurance contract. Id., page 101.

Considering the lease provision, L & B’s position is more nearly that of the insurance company than the lessee in Cosmopolitan. This position is further supported by Weeks, supra: “In the absence of any indemnification agreement providing otherwise, the lessee remains contractually (as well as statutorily) responsible for injuries sustained by the travelling public as a result of the negligent operation of the equipment . . . [L]essor, may enforce that contractual obligation.” Id., page 447. If there is a contractual obligation, there is no need to cite authority for the well-settled rule that third party beneficiaries may enforce their rights thereunder. Any action brought by the Davises based on their standing as third party beneficiaries of this contract will be governed by the 15-year statute of limitations for contracts.

The final question before us, the allocation of liability among the three policies, Home, Reserve and St. Paul, may be decided from the language of the policies themselves. The “Truckmen — Form B” endorsement states that it modifies the coverage provided in the policy relating to comprehensive automobile liability insurance and automobile medical payments insurance. The provision: “Excess insurance— Hired and non-owned automobiles. With respect to a hired automobile or a non-owned automobile, this insurance shall be excess insurance over any other valid and collectible insurance available to the insured” is prior to the Form B endorsement which contains the following:

(f) With respect to any automobile while leased or loaned to any person or organization other than the named insured, engaged in the business of transporting property by automobile for others, the insurance under this endorsement shall be excess insurance over any other valid and collectible insurance available to the insured. Otherwise, the insurance under this endorsement is primary insurance.

This plainly means that any automobile that is leased to any person or organization other than L & B is covered by the policy only in excess of other available coverage. As to any auto leased to L & B, it is primary coverage. The language admits of no other interpretation.

Therefore, the trial judge was correct in his determination of the liabilities of the three companies as follows:

There is $1,100,000 total coverage afforded by the three policies, St. Paul having $100,000, or Vn thereof. Its pro rata share (admitted by it) is therefore Vu of any judgment. Home and Reserve are responsible for the other 10/n, with Home first paying its $100,000 policy limits and Reserve paying the excess, since it is by its terms a following policy.

The judgment of the trial court is therefore affirmed.

All concur.


author: WHITE, Judge.

text:
    Jesse E. TEAGUE, Deceased, by Mary G. Teague, Appellant, v. SOUTH CENTRAL BELL and Workmen’s Compensation Board, Appellees.
    Court of Appeals of Kentucky.
    April 13, 1979.
    Discretionary Review Denied Sept. 11, 1979.

      W. Fletcher McMurry Schrock, McMurry & Livingston, Paducah, for appellant.
    Samuel S. Boaz, Paducah, for appellee, South Central Bell Tel. Co.
    Before WHITE, GANT and WILHOIT, JJ.
   WHITE, Judge.

This is an appeal from the McCracken Circuit Court affirming the Workmen’s Compensation Board’s dismissal of appellant’s claim.

Three issues were contested before the Board and appellant now seeks their review by this court. The issues raised are (i) whether a work-related injury occurred, (ii) whether the injury caused death and (iii) whether the deceased failed to follow competent medical advice.

Appellant, Mary Teague, petitioned the Board for benefits as a result of the death of her husband, an employee of appellee, South Central Bell. Appellant contends that the deceased twisted his ankle sometime during work on August 6, 1974. Mr. Teague’s supervisor testified that Teague had complained he had turned his ankle alighting from his car when going to work. Teague’s treating physician testified that in taking a history from Teague on August 13, 1974, he related that he had turned his ankle at work a few days before. Appellant claims Teague suffered thrombophlebi-tis as a result of this injury, which created a pulmonary embolus causing Teague’s death.

Three medical experts testified in this case — Teague’s treating physician Dr. Sloan, and Doctors Hosbach and Nightingale, who were deposed by hypothetical questions. Dr. Sloan testified that he examined Teague and diagnosed his condition as superficial thrombophlebitis. He recommended hospitalization, which Teague refused, and Dr. Sloan consented to treat Teague as an outpatient “against my better judgment.” At the second examination, Dr. Sloan noted some improvement and recommended Teague continue the prescribed course of treatment. On August 25, one day prior to an appointment with Dr. Sloan, Teague died.

Mrs. Teague testified that Teague collapsed on the afternoon of the 25th, at which time she summoned an ambulance. By the time the ambulance arrived, Teague had regained consciousness but refused to be transported to the hospital at that time because he was scheduled to see his doctor again the next day. Mrs. Teague testified that she and her four children pleaded with Mr. Teague to go to the hospital, but he insisted that he felt better and would see his doctor the next day at the regular appointment. At approximately nine o’clock that evening, Teague died. It was Dr. Sloan’s medical opinion that Teague died from “a massive pulmonary embolus arising from the thrombophlebitic vein.”

I

Was the injury work related?

KRS 342.680 offers a presumption in favor of the claimant in situations where the employee suffers an injury and subsequently dies. The statute specifically states:

In any claim for compensation, where the employe has been killed, or is physically or mentally unable to testify and where there is unrebutted prima fa-cie evidence that indicates that the injury was work related it shall be presumed, in the absence of substantial evidence to the contrary, that the injury was work related .

The evidence before the Board is consistent and unrefuted concerning decedent’s injury. Mrs. Teague related that her husband had said he had turned his ankle at work. This explanation is also recorded by Teague’s treating physician. Teague’s supervisor testified that Teague told him he had turned the ankle in alighting from his car while going to work. It is noted that this occurred in the employer’s parking lot. There is no other evidence presented as to the occurrence of the injury. All the evidence is consistent with the statutory presumption that the injury was work related.

From the evidence presented, the Board concluded that Teague sustained no work-related injury. Even though it is true that “[fjactual findings by the board, based upon substantial evidence, are conclusive and binding on the court,” Armco Steel Corporation v. Mullins, Ky., 501 S.W.2d 261 (1973), nevertheless, here there is no substantial evidence to overcome the statutory presumption. In light of the uncontradict-ed evidence as to the occurrence of the injury and the presumption of KRS 342.680, we are at a loss to understand how the Board could have concluded that the injury was not work related. The Board’s finding was clearly erroneous on this issue.

II

Did the injury cause death?

Teague’s treating physician attributed the cause of death to “a massive pulmonary embolus arising from the thrombophlebitic vein.” Dr. Sloan attributed the thrombo-phlebitic condition to the trauma sustained when Teague twisted his ankle. Upon deposition, Dr. Sloan testified as follows:

Q. And as I understand your testimony previously, what you are stating is that as a physician for Mr. Teague, you are stating that while it is within the realm of possibility. I take that to mean that you cannot state within any degree of medical certainty that that was a cause of the condition; the related ankle turning or whatever it was?
A. No, I can’t say that was a certainty, but I’d say it is probable, (emphasis added)

Dr. Sloan further stated by letter of June 19,1976: “If this sequence of events, which is highly logical, is true, an injury on duty was responsible for his death.”

Two other physicians, Doctors Hosbach and Nightingale, offered expert testimony by way of deposition. They were deposed following Teague’s death and had never treated or examined Teague. Questions were posed hypothetically. Most of the medical testimony is conjectural and concerns the difference between deep-vein and superficial thrombophlebitis, but neither contradicts Dr. Sloan’s conclusion of causal relationship. Both Dr. Hosbach and Dr. Nightingale noted that a pulmonary embo-lus from superficial thrombophlebitis is rare or may be remote but that such does occur.

The Board seemed to focus on the fact that the coroner, in his report, listed cause of death as coronary occlusion, and, coupled with the fact that decedent had in June 1973 complained of shortness of breath and chest pains, concluded that he had died from natural causes. Dr. Sloan testified, however, that the coroner was not a medical doctor and that a layman would often confuse a coronary occlusion with a pulmonary embolus. Furthermore, Dr. Sloan testified that Teague had no noticeable heart condition in June 1973 and an electrocardiogram showed no abnormalities.

Again we find no substantial evidence to support the Board’s finding that no causal connection between injury and death existed. Under the circumstances as we have here where the treating physician was the only one to actually examine the claimant before his death, his testimony must be given the greatest weight. As treating physician, Dr. Sloan attributed a causal relation between Teague’s injury and death. Doctors Hosbach and Nightingale’s testimony in no way contradicts that of Dr. Sloan. A thorough reading of the evidence constrains us to conclude that the finding of the Board on this issue is also clearly erroneous.

Ill

Did the deceased fail to follow competent medical advice?

KRS 342.035(2) states that “[n]o compensation shall be payable for the death or disability of an employe if his death is caused . . . by an unreasonable failure to submit to or follow any competent surgical treatment or medical aid or advice.”

Dr. Sloan testified that he recommended hospitalization, which Teague refused, and therefore Dr. Sloan consented to treat Teague as an outpatient “against my better judgment.” In an exhibit attached to Dr. Sloan’s deposition, he stated: “He was advised to be hospitalized but he refused. He was treated with Orenzyme and Tandearil, but was not given anticoagulants which would have been done in the hospital. (The purpose of anticoagulants in phlebitis is the prevention of pulmonary embolism.)”

Whether KRS 342.035(2) bars recovery in this instance turns on the question of whether Teague’s actions were reasonable in view of the knowledge he possessed concerning his injury. We note that Dr. Sloan’s statements concerning a prescribed treatment of anticoagulants if Teague were hospitalized and that he treated Teague as an outpatient against his better judgment were both made subsequent to decedent’s death. There is nothing in Dr. Sloan’s testimony indicating that these facts were conveyed to Teague. A doctor’s knowledge or assumption of probable results cannot be imputed to the patient unless the patient is so notified. There is nothing in the record indicating that Teague was ever aware of the gravity of his condition.

Mrs. Teague testified that her husband followed the advice of Dr. Sloan; i. e., he took the prescribed medication, applied heat to the injury and kept the leg elevated. No testimony in the record reveals that Teague was told that his course of treatment if hospitalized would differ from the treatment he followed at home. Teague’s conduct simply contains no element of unreasonable failure to follow medical advice. In any event, the statute proscribes compensation where death is caused by an unreasonable failure to follow competent medical advice. In this case, there has been no showing that Teague’s refusal to go to the hospital actually caused his death. The ap-pellees would have us deny compensation on an implication that Teague’s refusal to be hospitalized caused his death. Without substantial proof offered by appellees, mere implication or supposition will not suffice.

KRS 342.035(2) provides an affirmative defense to the employer and we feel places the burden of proof of such defense upon the employer. The defense contains two elements: (i) failure to follow medical advice and (ii) that such failure was unreasonable. Neither of these elements was supported by substantial evidence. In light of the testimony given, and under KRS 342.-680, we find the Board was clearly erroneous in dismissing appellant’s claim.

The judgment is reversed with instructions to the McCracken Circuit Court to remand the case to the Workmen’s Compensation Board for entry of an award for appellant in conformity with this opinion.

All concur.


author: WHITE, Judge. WILHOIT, Judge,

text:
    Delbert BROWN, Appellant, v. CITY OF LOUISVILLE, Appellee.
    Court of Appeals of Kentucky.
    April 20, 1979.
    As Modified April 27, 1979.
    Discretionary Review Denied Sept. 11, 1979.

      James C. Ludwig, Louisville, for appellant.
    Laurence J. Zielke, Director of Law, Stuart E. Alexander, Asst. Director of Law, Louisville, for appellee.
    Before WHITE, GANT and WILHOIT, JJ.
   WHITE, Judge.

Summary judgment was granted appel-lee, City of Louisville, in a negligence action brought by appellant Brown for fire damage to property owned by appellant. We agree with the Jefferson Circuit Court that appellee was entitled to judgment as a matter of law.

Appellant leased the premises known as “The Little Cabaret” located in the Portland area of Louisville. On the night of January 5, 1974, the Louisville police were summoned by the operator of the tavern to quell a disturbance. Upon arrival, the two police officers called to the scene noticed a patron brandishing a shotgun. The patron refused to drop the firearm and surrender; he and three other individuals then barricaded themselves inside the tavern behind a pool table. Police reinforcements were summoned, and between six and eight tear gas rounds were fired into the building before the barricaded individuals surrendered to the police. After everyone was removed from the building and the premises searched, a fire was discovered and the fire department called. Subsequently, appellant instituted this suit seeking $22,000 compensatory damages, claiming the Louisville police were negligent in employing “continuous-bum” tear gas canisters inside appellant’s premises. Appellee moved for summary judgment on the ground that no duty was owed appellant, and therefore the city could not be liable for any damages. Summary judgment was granted and this appeal ensued.

In Haney v. City of Lexington, Ky., 386 S.W.2d 738 (1964), the doctrine of municipal immunity for tort liability was removed as a valid defense within this jurisdiction. Subsequent cases recognized that municipalities were liable for “ordinary torts,” but noted there were distinguishing duties owed to the public by a municipality which could limit its liabilities. See City of Russellville v. Greer, Ky., 440 S.W.2d 269, 270-271 (1968, As Modified on Denial of Rehearing 1969); City of Louisville v. Louisville Seed Company, Ky., 433 S.W.2d 638 (1968); Fryar v. Stovall, Ky., 504 S.W.2d 701, 703 (1973); Frankfort Variety, Inc. v. City of Frankfort, Ky., 552 S.W.2d 653 (1977). The common thread running through these cases is that when a municipality, through its employees or agents, is performing some municipal function affecting or in behalf of the general public, no duty arises to protect any individual on a personal basis. Therefore, there is no ground for negligence on which the municipality can be held liable. However, if the municipality attempts to deal on ah individual level with a person isolated from any general public function and the municipality is negligent in those dealings, then it can be found liable.

Having established the boundaries of municipal liability, the question before the court in this case is whether the actions of the Louisville Police Department affected the general public or became “personal dealings” with appellant. On the night in question, the Louisville police were summoned to restore peace after a fracas in a local tavern where shots had been fired. Upon arrival of the policemen, certain individual patrons barricaded themselves within and fired upon them. Not only were the policemen’s lives in danger, but also the lives of any pedestrians and other patrons not involved in the fracas but unable to flee the tavern. In an attempt to minimize violence, the police fired tear gas, hoping the individuals inside would surrender peaceably. Surely such actions must be characterized as affecting the general public and not simply appellant, as owner of the property, on an individual basis. That a fire occurred is unfortunate.

When it [a municipality] undertakes measures for the protection of its citizens, it is not to be held to the same standards of performance that would be required of a professional organization hired to do the job. If it were, it very well might hesitate to undertake them. In any event, when a city provides police and fire protection . . . the degree of success that should or will be attained in any particular instance cannot be guaranteed, nor can it be defined in terms of duties. A city cannot be held liable for its omission to do all the things that could or should have been done in an effort to protect life and property. Frankfort Variety, Inc. v. City of Frankfort, supra at 655.

We agree with the Jefferson Circuit Court that the appellee was entitled to summary judgment as a matter of law. The judgment is affirmed.

GANT, J., concurs.

WILHOIT, J., dissents.

WILHOIT, Judge,

dissenting.

I respectfully dissent from the majority opinion. Based upon the record before us I do not believe that the City of Louisville, at this point, can be said as a matter of law to be free from liability to the appellant. The law in this jurisdiction with respect to the tort liability of municipalities has been in a state of flux for the past few years, but I believe it has now crystallized into one rule of liability for municipalities where the injury is caused by a nonfeasance and another where the injury is caused by a misfeasance. It seems to me the majority has applied the rule for cases of a nonfeasance to this case which is clearly a case of a misfeasance.

Haney v. City of Lexington, Ky., 386 S.W.2d 738 (1964) abolished the doctrine of municipal immunity as it had previously existed and set out the principle that thenceforward liability would be the rule and immunity the exception except when a municipality was exercising a legislative or quasi-legislative function or a judicial or quasi-judicial function. City of Louisville v. Chapman, Ky., 413 S.W.2d 74 (1967) followed affirming Haney and observing:

Municipal functions have become so varied and extensive that public safety demands that municipal employees be held to the same safety standards as other citizens. Private citizens voluntarily and for good economic reasons insure themselves against tort liability. Why shouldn’t a collection of citizens classified as a municipality do likewise? City of Louisville v. Chapman, supra at 77.

Then came a series of cases which constituted if not a retreat certainly a thoughtful “strategic withdrawal” from Haney and Chapman.

Beginning with City of Louisville v. Louisville Seed Co., Ky., 433 S.W.2d 638 (1968) down to the most recent decision in Grogan v. Commonwealth, Ky., 577 S.W.2d 4 (1979) the Court expounded the rule that in providing fire, police or flood protection a municipality does not owe an individual member of the general public the duty of doing everything that could or should be done to avoid injury to that individual’s person or property. Failure tó do all that could or should have been done in such cases does not constitute actionable negligence unless in its failure to act the municipality has somehow singled out and dealt with the injured party as an individual or his injury is isolated from that of the general public. City of Louisville v. Louisville Seed Co., supra; City of Russellville v. Greer, Ky., 440 S.W.2d 269 (1968); Frankfort Variety, Inc. v. City of Frankfort, Ky., 552 S.W.2d 653 (1977).

This then, is the rule where a city through its officers or employees has failed to act or omitted to do all it could or should have done. The case before us, however, involves not a failure to act or an omission but an alleged positive act of negligence, a misfeasance rather than a nonfeasance. In such cases the rule in Haney and Chapman still applies. Both the practical and theoretical considerations are much different from those in “failure to act cases.”

      . Admittedly, Fryar v. Stoval, Ky., 504 S.W.2d 701 (1974), fits this rule in result only, but if the “singling out” standard applies to misfeasance cases I cannot see how Fryar was any more singled out than Frankfort Variety.


author: HOWERTON, Judge. GANT, Judge,

text:
    FRENCH BANK OF CALIFORNIA, Appellant, v. FIRST NATIONAL BANK OF LOUISVILLE, Appellee.
    Court of Appeals of Kentucky.
    Aug. 3, 1979.
    Edward S. Bonnie, Stephen R. Schmidt, Brown, Todd & Heyburn, Louisville, for appellant.
    David M. Pottinger, David W. Harper, Morgan & Pottinger, Louisville, for appel-lee.
    Before COOPER, GANT and HOWER-TON, JJ.
   HOWERTON, Judge.

French Bank of California (French Bank) appeals from a summary judgment entered by the Jefferson Circuit Court dismissing its claim for the restitution of $30,000.00 mistakenly transferred to the First National Bank of Louisville (First National). There appears to be no genuine issue of material fact, so the basic issue is whether under the facts First National was entitled to judgment as a matter of law.

On February 27, 1975, French Bank transferred by wire $30,000.00 from the account of its customer, Fossil Energy Corporation, to Bank of America which wired the funds to First National to be transferred to the account of Total Coal Sales, Inc., a customer of First National. A telex operator, employed by French Bank, sent the message three times instead of just once, but Bank of America only instructed First National to make two transfers. First National received- the first transfer of $30,-000.00 on Friday, February 28, and the second transfer of $30,000.00 on Monday, March 3. It credited both transfers to the account of Total Coal Sales.

It was not until Thursday, March 13, that French Bank learned of its mistake. On Friday, March 14, at 3:00 p. m. Louisville time, Mr. Maugein, a vice-president at French Bank, called William Earley, a vice-president at First National. Maugein requested First National to return the $30,-000.00 or freeze that amount in Total Coal’s account to prevent withdrawal. Around 4:00 p. m., Maugein again called Earley and proposed that French Bank would indemnify First National if they would return the $30,000.00. On Monday, March 17, Earley received a letter from Maugein confirming the Friday telephone conversations and expressing a willingness to indemnify First National. The letter merely read in part, “We are willing to supply to you a statement to the effect that the second transfer was a duplication in error of the first one and to guarantee those facts so as to protect and indemnify you.” No document constituting an indemnifying agreement or bond was ever submitted, however.

Frederick Harned, an officer at First National, talked to John Collins, president of Total Coal Sales, and asked to see him personally the next day. Collins went to First National on Tuesday, the 18th, but avoided meeting with Mr. Harned and instead transferred $30,000.00 from Total Coal’s account to an account of the Breath-itt Coal Sales Company in Paris, Kentucky. At this point, approximately $6,000.00 remained in Total Coal’s account. Total Coal later became insolvent, and French Bank now looks to First National to recover its mistaken transfer of $30,000.00.

French Bank argues that equity requires the restitution of money paid under a mistake of fact when the party receiving the money has notice of the mistake and has not irrevocably changed its position so that it would be inequitable for the party to return the money. German Security Bank v. Columbia Finance and Trust Company, 27 Ky. 581, 85 S.W. 761 (1905). French Bank claims that First National received notice of the mistaken transfer on Friday, March 14, and that it was still in possession of the money. French Bank further argues that First National had not irrevocably changed its position, and it was therefore incumbent upon First National to return the money. We cannot agree, because we conclude that First National had irrevocably changed its position to its detriment once it credited the money to the customer’s account.

If Total Coal had attempted to transfer the money and First National had wrongfully dishonored the transfer, because it had returned the money to French Bank, First National would have been liable for damages caused to Total Coal by the wrongful dishonor. KRS 355.4-402. First National was caught between two potential claims for the money.

The question of adverse claims against deposits seems to have been resolved for future situations by the enactment of KRS 287.800 in 1978. Under the new statute, French Bank would have had to obtain a court order or execute an acceptable indemnifying bond in order to withdraw or hold the deposit. The Uniform Commercial Code had already established similar requirements for adverse claims against negotiable instruments. KRS 355.3-603. The policy is sound, and with or without the new statute, it is appropriate in this situation. First National innocently received the $30,000.00 and made the deposit as instructed. Ten days later it was informed by one side of a mistake. First National could either ignore the claim, until protected, and incur the wrath of French Bank, or honor the claim and subject itself to damages by its customer for potential wrongful dishonor, a no-win situation. The protection was not provided, and we agree with the trial court that the law in this situation was for First National.

Many states, including California, have statutes similar to KRS 287.800. They are necessary for sound modern banking. They reaffirm the determination that it is commercially inappropriate and impractical to subject a bank to liability for wrongful dishonor because of an adverse claim against the deposit, when the claim is unaccompanied by sufficient indemnity, an injunction, or court order.

The summary judgment is affirmed.

COOPER, J., concurs.

GANT, J., dissents.

GANT, Judge,

dissenting.

As the majority points out, the problem here presented has been resolved for the future by the enactment of KRS 287.800, but this statute was not in effect at the time of the transaction here involved.

Of particular significance here are the conversations between the appellant and appellee. When appellant first notified ap-pellee of the mistake, First National requested a letter from French Bank, and a letter only. The impression was thus given by First National to French Bank that nothing else would be required. First National admits that it made no request of French Bank for a bond to protect it. Thus, with no statute requiring the posting of a bond and no request by First National, French Bank sent the requested letter, setting out in detail the error and requesting assistance. The letter further offered to guarantee, protect, and indemnify First National against any loss. This letter was not requested, and First National even erroneously informed French Bank that there were not sufficient funds in the depositor’s account when, in fact, the funds had not been withdrawn.

The majority frets itself needlessly over the possibility of damages from a “potential wrongful dishonor.” Here, there was no wrongful dishonor, in fact no dishonor at all. The law is well stated in 10 Am.Jur.2d, Banks, § 510, where it is pointed out as follows:

It is generally held that where a bank receives money by mistake, and in some manner turns the money over to its depositor or customer, and it cannot readily recover the payment by charging the customer’s account or otherwise, it has changed its position and is not liable for the money paid to it by mistake. However, where the bank is able to recover the money, as by charging the payment against the account of a depositor, it is no defense that it has turned the mistaken payment over to its customer. (Emphasis added).

See also German Security Bank v. Columbia Finance and Trust Co., 27 Ky. 581, 85 S.W. 761 (1905), in which the court held that an irrevocable change of position must occur before the bank can assert a defense against such an error.

Under the facts of this case, where French Bank notified First National of the mistake prior to the time that there had been any change in position, where there was no law requiring the posting of a bond and French Bank offered to guarantee First National against any loss, where every conversation between the parties indicated that the actions taken by French Bank were satisfactory to First National, the law should fall on First National.

I must therefore dissent.


author: VANCE, Judge.

text:
    William A. LaBACH, Appellant, v. Bobbie HAMPTON, Appellee.
    Court of Appeals of Kentucky.
    Aug. 3, 1979.
    William A. LaBach, pro se.
    Julian W. Knippenberg, Lexington, Dee-dra Benthall, Danville, for appellee.
    Before HOWARD, VANCE and WHITE, JJ.
   VANCE, Judge.

This appeal raises several questions concerning the correct procedures to be utilized in determining the fee for an attorney who has been employed under a contingent fee contract and who is discharged without cause after rendering some services but before completing the services he was engaged to perform.

The appellee, Bobbie Hampton, engaged David Graves, Jr., attorney, to institute proceedings against her employer and third parties to recover damages for injuries suffered by appellee in an industrial accident. Appellee also instituted proceedings under the Workmen’s Compensation Act. It was agreed that Attorney Graves would receive a contingent fee equal to 40% of the amount of any recovery from the separate litigation.

Graves, after he had done substantial work on this claim, was discharged by ap-pellee, and appellant, LaBach, was employed to continue the litigation under a 33⅛% contingent fee contract. LaBach also performed substantial services for appellee and obtained a settlement offer which was not accepted by appellee.

Appellee then discharged LaBach and engaged her present attorneys, and the case was settled for $20,000.00. The terms of the employment of the present attorneys and the nature of the services rendered by them in connection with the settlement are not disclosed by the record. Apparently the question of their fee was agreeably settled, and no dispute as to that fee is presented by this appeal.

By agreement of all parties and attorneys the $20,000.00 was paid into court and the defendants were discharged from liability. Attorney Graves filed a motion for an allowance of an attorney’s fee and served it upon the other attorneys. The compensation carrier waived its right to subrogation, and thus appellee was entitled to all of the proceeds of the settlement except such amounts as she might be required to pay for the services of her attorneys and for costs.

Attorney LaBach objected to the jurisdiction of the trial court to determine his fee and alternatively contended that he was entitled to a jury trial. The trial court proceeded to hear the matter and allowed $2,000.00 to Attorney Graves and $1,000.00 to Attorney LaBach.

No appeal was taken from the allowance to Attorney Graves and that allowance is now final. Attorney LaBach has appealed. His first contention is that the trial court had no jurisdiction to determine, upon motion, the amount of a fee to be paid him by his own client. He relies upon Sullivan v. Levin, Ky., 555 S.W.2d 261 (1977), and Oliver v. Yates, Ky., 555 S.W.2d 263 (1977).

Sullivan and Oliver, supra, were divorce cases and decided that a trial court in a divorce case does not have jurisdiction to fix a fee for an attorney against his own client because the controversy as to the fee is foreign to the subject matter of the action. No claim was asserted in those cases that the attorney was entitled to a lien.

The situation in this case is different because the claim was for the recovery of money, and KRS 376.460 gives to an attorney a lien upon the claim or the proceeds of settlement to secure the payment of his fee. The existence of the lien against the proceeds of the recovery causes the claim for a fee to be an integral part of the subject matter of the action rather than a matter foreign to it.

In this case the proceeds of the recovery were paid into court but were subject to the attorneys’ liens, and the fund could not properly be distributed without a determination and award of fees to the attorneys involved. In view of this necessity any interested party could have instituted an action for a determination of the fees, and we see no reason why the matter could not be raised upon proper notice by motion or intervening petition in the original action. The right to enforce an attorney’s lien either by independent action or by motion in the original action has long been recognized in this Commonwealth. Johnston v. Stephens, 206 Ky. 83, 266 S.W. 881 (1924). We find no case deciding this precise point since the adoption of our civil rules, but it would seem that for reason of judicial economy, if for no other reason, this procedure should still be available.

Appellant next claims that he was entitled to a jury trial for a determination of the factual issues concerning his claim. Some states deny a jury trial on this issue for the reason that the enforcement of a lien is an equitable matter. See Fein v. Schwartz, Mo.App., 404 S.W.2d 210 (1966). The distinction between actions in equity and in law have been largely abolished in this state, and it may be that in some cases of this type there would be an entitlement to a jury determination of factual issues, even where the proceeding is by motion.

We need not decide that question because under the facts of this case we find no error in the decision of the court to deny a jury. The hearing involved the legal work done by three separate attorneys, two of whom had contingent fee contracts, and the proper assessment of fees necessarily required a determination of the value of the reasonably necessary services rendered by each of them. The trial judge was in a much better position than a jury to make this determination, and the ruling of the trial court in this case was justified under the discretion allowed by CR 39.01(c).

Appellant finally complains that the amount of the allowance to him was inadequate. There is considerable confusion in our case law as to the proper measure for the allowance of a fee to an attorney employed under a contingent contract who is discharged without cause before completion of the contract.

It was decided in Henry v. Vance, 111 Ky. 72, 63 S.W. 273 (1901), that the fee should be computed upon a quantum meruit basis. Although designated as quantum meruit, the actual holding of the case was that the recovery should be the amount of the contingent fee “less such proportion of that sum as is reasonably represented by the labor and attention and expense that would have been required of plaintiffs to complete their undertaking, but which they did not do.” Id., 63 S.W. at 275-276.

In Gilbert v. Walbeck, Ky., 339 S.W.2d 450 (1960), the Court noted that the contingent fee contract was no longer of significance because the attorney was discharged before he completed the contract and held that recovery must be on the basis of quantum meruit, but it cited as authority Henry v. Vance, supra.

We conclude from this that our courts have used the term quantum meruit to indicate that the discharged attorney cannot rely upon the contract to collect a full fee but must deduct from the contract fee the reasonable cost of services of other attorneys required to complete the contract.

This rule as applied to this case means that Attorney Graves was entitled to a fee of 40% of the recovery less the value of the services reasonably required of other attorneys to complete the contract. He was awarded $2,000.00 and apparently all parties were satisfied with that allowance. At least, there was no appeal.

Attorney LaBach agreed to continue the litigation for a contingent fee of 33⅛%. Because he was discharged without cause before he had completed his services he was entitled to a recovery of 33⅛% of the amount later recovered less the value of the services reasonably required of others to complete the contract.

No evidence was offered by appellee as to the value of the services reasonably required to complete the contract. Appellee’s theory was that appellant should have a value placed upon the services rendered by him, and apparently this was the basis used by the trial court to compute appellant’s fee. This was erroneous.

While he was representing appellee, the appellant received a settlement offer of $10,000.00. His only contention before the trial court was that he was entitled to 33⅛% of the $10,000.00 offer which he had obtained. The measure of recovery advanced by appellant was not proper, and under the determination we have made it is possible that he actually may have been entitled under his contract to a greater fee than he requested.

On retrial, the appellant’s fee will be 33⅛% of the amount eventually recovered ($20,000,00) less such sum as is determined to be the reasonable value of the services of the attorneys who completed the litigation after appellant’s discharge, but in no event shall the fee exceed $3,333.33, the amount appellant claimed at trial. In addition to the fee, appellant shall be allowed to recover any reasonable expenses of litigation which were advanced by him.

The judgment is reversed for further proceedings in conformity with this opinion.

All concur.