author: TODD, Judge.

text:
    Lois S. REED, Plaintiff-Appellant, v. Gordon R. ALLEN, Defendant-Appellee.
    Court of Appeals of Tennessee, Middle Section.
    June 28, 1974.
    Certiorari Denied by Supreme Court March 10, 1975.

      ■Cunningham, Mitchell & Hicks, Clarks-ville, for plaintiff-appellant.
    Runyon & Runyon, Clarksville, for defendant-appellee.
   OPINION

TODD, Judge.

The plaintiff, Lois S. Reed, has appealed from a jury verdict and judgment dismissing her suit against the defendant, Gordon R. Allen for personal injuries and property damages sustained in an automobile collision.

The collision in question occurred on October 18, 1970, at approximately 12:30 PM on Lylewood Road in Montgomery County, Tennessee. Plaintiff was driving her vehicle in a northerly direction, and defendant was driving his vehicle in a southerly direction. As the vehicles met, there was a collision. Each party testified that the other was “across the center on his left side of the road.”

The assignments of error refer to the testimony of two witnesses who did not see the collision, but who saw a vehicle similar to that of plaintiff a short distance from the collision and testified as to the manner of movement of said vehicle at the time and place where they saw it.

Plaintiff objects to the testimony of said two witnesses on two grounds, (a) failure of defendant to disclose the identity of such witnesses when asked in a discovery deposition, and (b) irrelevancy of the facts related by said witnesses.

The alleged discovery deposition is not a part of the record. At the bar of this Court, counsel stated that the defendant had been interrogated for discovery, but that the transcription of the interrogation was never filed with the Clerk of the Trial Court as required by Rule 30.06 of the Rules of Civil Procedure. Therefore, the contents of said discovery deposition are unavailable to this Court except as shown otherwise in the evidence.

During the cross examination the defendant testified that:

' (a) He had given a discovery deposition.
(b) At the time of the deposition, defendant knew that Mr. Gibbs, who was not present at the collision, had information which he was called upon to relate at the trial.
(c) On discovery defendant was asked “some questions: about “who you were going to use, or anticipated using as witnesses.”
(d) On discovery, defendant said nothing about anticipating using any witnesses except the occupants of his vehicle.

The mere showing that “some questions” were asked about the identity of anticipated witnesses to be called to the stand, not specifying the nature and content of the questions, did not necessarily burden defendant with a disclosure that Mr. Gibbs, or others might be called as witnesses.

Moreover, Rule 26.02, R.C.P. is not understood to require the disclosure of trial plans in respect to identity of persons who will be called as witnesses. Said rule requires only disclosure of “the identity and location of persons having knowledge of relevant facts.”

Inquiries related to “witnesses to the accident,” had the reasonable meaning of “persons who observed the accident.” As stated, the witnesses, Leonard Gibbs and Sherrie Lewis, were not present at the time of the accident, but observed events at another time and place.

The record does not disclose any motion for mistrial, recess, continuance or other relief, except the objection to the admission of the testimony. It would appear that an opportunity to investigate, interrogate or otherwise respond to surprise testimony would ordinarily contribute more to the information available and the justice of the result than, as insisted by plaintiff, the exclusion of evidence and consequent denial of information to the jury.

It is insisted that decisions under the former deposition law allow discovery of identity of witnesses. In MacDonnell v. Blankenship, 57 Tenn.App. 224, 417 S.W.2d 713 (1967), the plaintiff denied knowledge of “anyone who actually saw this accident happen,” and the Trial Judge ordered the plaintiff to obtain from her attorney and respond on further discovery with the names of any such “witnesses” known to counsel. This Court affirmed. In said case, it was obvious that the word “witnesses” referred to “anyone who actually saw this accident happen,” rather than to “any person you plan to call as a witness in court.”

In State ex rel Pack v. West Tennessee Distributing Co., 58 Tenn.App. 306, 430 S.W.2d 355 (1968), cited by appellant, this Court denied discovery of written appraisal reports from the files of counsel, where no sufficient need for same was shown. No question of discovery of names of prospective witnesses was involved. Likewise, Medic Ambulance Service Inc. v. McAdams, 216 Tenn. 304, 392 S.W.2d 103 (1965) and Southeastern Fleet Leasing, Inc. v. Gentry, 57 Tenn.App. 162, 416 S.W.2d 773 (1967) deal with the discovery of documents, rather than identity of witnesses.

Appellant further insists that, under the general rule, trial courts have discretion to exclude testimony of witnesses whose identity has not been disclosed on discovery. No Tennessee decisions are cited in support of this contention. Authorities cited from other jurisdictions do appear to support the discretionary power of trial courts to exclude testimony of witnesses offered by a party who failed to disclose such witnesses on discovery. However, said authorities appear to rest in part upon rules of civil procedure peculiar to the jurisdiction. Each recites the discretionary nature of the ruling, and the importance of the peculiar facts and circumstances of the case.

For example, in Mengel Properties v. City of Louisville, Ky., 400 S.W.2d 690 (1965), the Court held that whether a witness whose name has not been furnished may testify is a question for the sound discretion of the Trial Judge. In said case, the Trial Judge admitted the testimony and his action was held not to be an abuse of discretion.

In Carver v. Salt River Valley Water Users Assn., 8 Ariz.App. 386, 446 P.2d 492 (1968) the exclusion of testimony was held not to be an abuse of discretion under the “20 day pre-trial discovery deadline” of Arizona Rules; however, the Court said:

“[1-3] Our Rules of Civil Procedure are designed to promote decisions on the merits after a full and fair hearing, and the sanction of exclusion of a witness should never be lightly invoked. . Many variable circumstances determine whether a sanction is appropriate and if so, what sanction should be imposed. The precise nature of the interrogatories and discovery posture of the case, willfulness and the degree of prejudice are some of the important factors. There are cases holding that under some circumstances, exclusion . is inappropriate . and other cases holding exclusion justified . . . The decision is very largely a matter within the sound discretion of the trial court. (Citing Authorities)
“[4] In this case, the interrogatories were submitted to and answered by plaintiff after the pretrial conference, which followed plaintiff’s filing of her certificate of readiness and motion to set the case for trial.” 446 P.2d, p. 496

In the present case, the failure to place in evidence the entire deposition, or all of the pertinent parts thereof, the reasonable possibility of misunderstanding as to the meaning of questions asked, and the particular nature of the testimony admitted, all militate against the exclusion of evidence as a sanction for erroneous answer to discovery interrogation. That is to say, even if this Court were disposed to reverse a trial court for the admission of testimony of an undisclosed witness, this would not be a suitable case for such a ruling.

Furthermore, a study of our Tennessee Rules of Civil Procedure fails to disclose specific authority for so serious a sanction in cases such as this. Rule 37.02 provides for sanctions to follow “Failure to comply with Order,” but no provision is found regarding sanctions for concealment of witnesses or evidence.

The first assignment of error complains that the concealment by defendant prevented plaintiff from preparing for or refuting the testimony in question. The record discloses no effort to prepare for or refute said testimony by motion for recess or instanter subpoenaes, nor does the brief of appellant suggest any concrete, effective benefits which would have resulted from a prior disclosure.

It is particularly significant that the motion for new trial was not supported by affidavit of other evidence which would be available on a new trial to rebut or impeach the testimony admitted at the first trial.

For the reasons stated, the first assignment of error is respectfully overruled.

The second assignment insists that the testimony should have been excluded as irrelevant.

By the testimony of defendant, quoted supra, it was shown that, prior to the collision, defendant had been following a vehicle pulling a horse trailer.

The witness, Leonard Gibbs, testified that, at about the time of the collision, he was driving his vehicle pulling a horse trailer on the same road and in the same direction as defendant; that, a short time later, he returned along the same road and saw the vehicles of plaintiff and defendant off the road; and that one of said vehicles (plaintiff’s) was a Pontiac. As to said Pontiac, the witness testified as follows:

“Q. Now, where had you seen this car before, Mr. Gibbs ?
A. In the curve approximately 200 hards below there on my trip down.
Q. On your trip to leave the horses?
A. Right.
Q. This is where you said it was about 12:30 ?
A. Right.
Q. Was there anything about that vehicle which attracted your attention?
A. It was on my side of the road.
Q. What did you do ?
A. Or in the middle of the road— which it is a narrow road—
Q. O.K., what did you do ?
A. So, I tried to avoid a collision with it and which — I don’t know who was driving the automobile. I didn’t have time to look, because I was too busy trying to take care of mine, and as I passed the automobile, I mean, it didn’t make any effort — I mean sudden move to get back on the right side of the road, their side of the road. It just kept a normal path and I barely escaped and got by it.”

Appellant complains that there was insufficient identification of the vehicle referred to in the testimony just quoted. In this respect, the witness testified:

“Q. I’m going to show you three pictures that have been introduced by Mr. Cunningham. They are exhibits # 3, # 4 and # 5, in this trial, and ask you if they appear to be the car, or similar to the car that you saw ?
A. Well, it’s approximately the same model Pontiac, within a year or so. Now, the color, I couldn’t be sure — it was of a light color and I couldn’t be sure if it was cream, yellow — it was of a light color, and I would say that this looks like the same car, yes.
Q. and yet that appeared to be the same vehicle wrecked as the one that you had met?
A. In my own opinion, yes it was.
Q. These are some pictures that Mr. Cunningham has introduced and I am referring to Exhibit # 4 and # 5 in this case. Showing you those two exhibits, which are photographs, do they appear, as best you know, to be the car that you saw when you came back ?
A. It looks to be the car that I saw.
Q. Do you believe it was the same car that you saw wrecked later ?
A. It looked like the same car.
Q. Was it near the vicinity — when you saw it wrecked, was it in the general vicinity of where you all had your difficulty with it ?
A. Yes, sir, it wasn’t that far away.
While it is true that the witness was not positive in his identification of the vehicle, his testimony conveys such a basis for probability that it was not inadmissible for uncertainty.

Where facts perceived by the senses are numerous, and it is difficult to describe them adequately to the jury, and the conclusion or inference to be drawn from such facts is simple and within the range of common experience, and the witness can relate what he has seen more accurately and more easily by stating his conclusion than by attempting to detail the evidential facts, the conclusion or inference of the witness is admissible. National Life & Accident Ins. Co. v. Follett, 168 Tenn. 647, 80 S.W.2d 92 (1935). Wilson v. N. C. & St. L. Ry., 16 Tenn.App. 695, 65 S.W.2d 637 (1933).

Any uncertainty of identification is a proper consideration in respect to the weight of testimony; but, where there is sufficient certainty to impute some probative value, the testimony is not inadmissible.

Appellant also complains that the proffered evidence was too remote for consideration. As stated previously, the witness placed the time of his experience as very near the time of the collision and the place as 200 yards from the scene of the collision. Another persuasive circumstance is the fact related by defendant that he was following a horse trailer, and the witness was pulling a horse trailer. These circumstances are sufficient to create a reasonable inference that the vehicle observed, by the witness 200 yards from the scene was indeed the vehicle of plaintiff.

Nevertheless, plaintiff insists that evidence that plaintiff crossed the center line in meeting the witness Lewis 200 yards from the scene of her collision with defendant is too remote to be relevant to the issues in this case.

In Mason v. James et al, 19 Tenn.App. 479, 89 S.W.2d 910 (1935), this Court held that it was not reversible error to admit the testimony of a witness that he saw two ladies in a vehicle traveling about 75 miles per hour at a point 1½ miles from the point of collision. The witness admitted that he did not know the vehicle he saw was the one involved in the collision and did not know “what kind of car the ladies were driving.” This Court said:

“In An Automobile Accident Suit, by Anderson, page 419, section 389, the rule is stated: ‘It is generally held that the admissibility of evidence of speed at other times and places is committed to the sound legal discretion of the trial court and that his exercise thereof will not be reviewed except for abuse resulting in prejudice to the complaining party. Thus it is within the discretion of the court to receive evidence of the speed of an automobile before it reached the place of the occurrence complained of, providing the place where it is sought to establish speed is not too remote. Of course, if the evidence as to speed at another time or place is remote, it may be excluded within the legal discretion of the trial court. Generally, however, evidence of speed at other times and places has been received. . . . ” 19 Tenn. App., p. 482, 89 S.W.2d p. 912.

In Faulk v. McPherson, 27 Tenn.App. 506, 182 S.W.2d 130 (1943) this Court held that the Trial Court did not abuse its discretion by admitting testimony that defendant was observed several times on the day of the collision driving as carefully as one could drive.

In Blashfield Automobile Law and Practice, Third Edition, Volume 11, Sec. 425.1, pp. 437 et seq. is found the following text:

“It is within the discretion of the trial court to permit evidence of the driver’s conduct at a distance from the scene of the accident. In a variety of circumstances the court has found prior conduct of a party to be too remote to constitute evidence that the conduct continued to the time in question, and in other cases to be admissible.”

Appellant cites authorities wherein the exclusion of such evidence was affirmed. In Hanck v. Ruan Transport Corp., 3 Ill. App.2d 372, 122 N.E.2d 445 (1954) the occurrence was observed ¼ mile away. In Sauer v. Winkler, Mo., 263 S.W.2d 370 (1954) and Flesberg v. Prince Whse. Co., 37 Ill.App.2d 22, 184 N.E.2d 813 (1962), the occurrences were ½ mile away. In Janse v. Haywood, 270 Mich. 632, 259 N.W. 347 (1935) the evidence concerned the position of plaintiff, a pedestrian, 1000 feet from the collision site. In Butler v. Greenwood, 180 Va. 456, 23 S.E.2d 217 (1942) the occurrence was 900 to 1000 feet away.

In Jennings v. Arata, 83 Cal.App.2d 143, 188 P.2d 298 (1948), the California Court affirmed the admission of testimony that, about .½ mile from the scene, defendant ignored a speed sign and almost struck some workmen.

In Sosnowski v. Lenox, 133 Conn. 624, 53 A.2d 388 (1947), the Connecticut Court affirmed the admission of testimony that, two blocks from the scene the colliding automobile was traveling 40 miles per hour on the wrong side of the road.

In Boyd v. Midland Co-ops, Inc., Okla., 364 P.2d 670 (1961), the Oklahoma Court approved the admission of testimony that, shortly before the accident, a vehicle of the same description as plaintiff’s was not entirely on its proper side of the road.

The foregoing are sufficient to illustrate the variety of situations in which trial judges have been allowed to exercise their discretion in the admission of evidence of conduct of a party at a time or place other than that of the incident in controversy.

The circumstances of the present' case place the ruling of the Trial Judge well within the area of his discretion.

The second assignment of error is respectfully overruled.

No reversible error having been demonstrated, the judgment of the Trial Court is affirmed with costs.

Affirmed.

SHRIVER, P. J., and SMITH, S. J., concur.


source: Caselaw Access Project

author: SANDERS, Judge.

license: Public Domain

text:
    In re ADOPTION By Walter Lee McELROY and Virginia Lee W. McElroy. Ex parte Richard Louis TAYLOR, v. Mr. and Mrs. Walter Lee McELROY.
    Court of Appeals of Tennessee, Eastern Section.
    Feb. 7, 1975.
    Certiorari Denied by Supreme Court April 21, 1975.

      Thomas, Leitner, Mann, Warner & Owens, Chattanooga, for appellants.
    Crutchfield, Moore & Jenkins, Chattanooga, for appellee.
   OPINION

SANDERS, Judge.

The Defendants have appealed from a decree of the Chancery Court denying their petition to adopt an infant child and awarding her custody to the natural father.

The Defendants, Walter Lee McElroy and wife, Virginia Lee W. McElroy, filed a petition in the Chancery Court of Hamilton County to adopt an infant child which was born in Korea.

The Plaintiff, Richard Louis Taylor, filed suit in the same court alleging that he was the natural father of the child and that he had not consented to the adoption. He asked that the Defendants be enjoined from adopting the child and asked that her custody be given to him.

The Chancellor treated the complaint of the Plaintiff as an intervening petition in the adoption proceeding and heard the case on oral testimony. The Chancellor found the issues in favor of the Plaintiff and dismissed the Defendants’ petition to adopt the child and awarded her custody to the Plaintiff.

The Defendants have appealed to this court and assigned error as follows:

1. The Court erred as a matter of law in holding that the Act of State Doctrine did not apply in this case.

2. The Court erred as a matter of law in refusing to recognize the Act of a Foreign State and in exercising jurisdiction on the Act of a Foreign State which is reserved solely to the Executive Branch of the United States Government by the United States Constitution (Art. II).

3. The Court erred in reaching its conclusion concerning the identification of the McElroys’ child; and in holding that Mr. Taylor had parental rights in an illegitimate child in the absence of testimony from the natural mother, and in further holding that Mr. Taylor had not abandoned or otherwise surrendered his alleged parental rights.

The proof shows that the Plaintiff was assigned to duty with the United States Army in Korea in April of 1966. In August of that year he met a Korean girl named Kim Kyong Cha and shortly thereafter they started living together on a permanent basis. In April, 1967, the Plaintiff was transferred back to the United States. At the time of his transfer Kim Kyong Cha was six to seven months pregnant. On June 6, 1967, she gave birth to a baby girl. The child was named Kimta Francoise Taylor.

In February, 1968, the Plaintiff returned to Korea for the purpose of marrying Kim Kyong Cha and legitimating their child. In March, 1968, the Plaintiff and Kim Kyong Cha were married in Seoul, Korea, and their daughter, Kimta Francoise Taylor, was issued an American passport as a United States citizen.

It was the intention of the Plaintiff to bring his wife and daughter back to the States with him but due to delay in issuing a visa and passport to his wife, the Plaintiff returned to the States without them in April, 1968, with the understanding that they would follow as soon as the papers could be processed.

The proof indicates that after the Plaintiff returned to the States his wife lost interest in coming here. The Plaintiff kept up his correspondence with his wife and it was her insistence that she could not get a visa. The Plaintiff had his last correspondence from his wife in June, 1970.

In March, 1971, the Plaintiff learned that in July, 1970, his wife had abandoned their child. She had left. the child and gone to a store and was never heard from again.

After this the Plaintiff had considerable correspondence with friends and acquaintances in Korea concerning his child and learned that the people who had been taking care of her since she was deserted by her mother were considering placing her in an orphanage for adoption.

At about this juncture in time the Defendants had been in contact with Holt Adoption Program in Creswell, Oregon, which is a non-profit agency devoted to handling the adoption of orphan children in Korea by American citizens.

The Defendants are black and were interested in adopting a mixed-blood Korean and black orphan from Korea. The Plaintiff is also black, which made his daughter eligible for adoption by the Defendants.

A Korean orphan girl of mixed Korean and black blood whose date of birth was shown to be the same as that of the Plaintiff’s daughter, was processed for adoption from the Holt Adoption Program in Seoul, Korea, and sent to the Defendants’ home in Chattanooga, but her name was given as Kim Ji Yung.

The factual issue in this litigation is whether or not Kim Ji Yung is, in fact, Kimta Francoise Taylor, the daughter of the Plaintiff.

The proof shows that there are many orphaned, abandoned children in Korea. This is particularly true of children of illegitimate birth who have been sired by servicemen stationed in Korea. Under social standards of Korea a mixed-blood child, whether it be Korean and Caucasian or Korean and black, is not accepted into their society and is ostracized by the Korean people. This is responsible for many unwed mothers’ deserting their mixed-blood children.

When those abandoned children are found they are usually turned over to the police and placed in an orphanage and then placed for adoption.

The records of Holt Adoption Program show that Kim Ji Yung was found on February IS, 1971, in the An Yang Eup area of Seoul, which is the same area in which Kimta Francoise Taylor had been living, and she was placed with Holt Adoption Agency for adoption as a mixed-race child. The date of birth is shown to be June 6, 1967, but the record is not clear as to how this information was obtained. Since the parents of the child were unknown, it was given the family name of Kim Ji Yung.

Korea has a civil code of procedure governing the adoption of children by non-citizens and these procedures were followed in the placement of Kim Ji Yung for adoption by the Defendants.

The chronology of this procedure was as follows: On July 22, 1971, the family name of Kim Ji Yung was established. On July 24, 1971, Deuk Hwang Kim was appointed as her guardian by the Mayor of the Special City of Seoul. On the same date he executed a consent for her to be immigrated to the United States for adoption by suitable parents. In this same document he transferred to the Holt Adoption Program, Inc., all of his rights as guardian, including the right to place her in an adoptive home and to consent to her adoption.

On July 26, 1971, the Chief of the Ma Po District Office, Seoul, Korea, issued the following certificate upon the request of the Holt Adoption Program, Inc.: “This is to certify that the following-described child is a legal orphan, abandoned by its parents, and that said child is a nonsuccessive orphan in accordance with a census register provided by his district office.”

On February 14, 1972, Kim Ji Yung was issued an IR-4 Visa (Orphan to be adopted in the United States) and on February 24, 1972, she left Korea for the home of the Defendants. She was met by the Defendants in Chicago and taken to their home in Chattanooga.

During this interval of time the Plaintiff had continued correspondence' with people and agencies in Korea endeavoring to make arrangements to have his daughter brought to the United States. He had purchased an airline ticket for her from Pan American World Airways and had sought their assistance. In March, 1972, Pan Am wrote to the Plaintiff advising him that an attorney in Seoul with whom the Plaintiff had been corresponding informed them the latter part of December that his daughter was at Holt Adoption Agency.

The Plaintiff then contacted Holt Adoption Agency in Creswell, Oregon, to ascertain whether or not they had his daughter or had placed her for adoption. He was told they would check. He also sent them a picture of his daughter and a copy of her birth certificate but received negative results.

The Plaintiff then wrote to his congressman and to President Nixon soliciting their support in locating his daughter.

As a result of these efforts his congressman received a letter from the Department of State dated April 3, 1972, which read, in part, as follows: “The Department of State has been informed by the American Embassy at Seoul, Korea, in response to its recent inquiries in this matter, that the child was issued an IR-4 Immigrant Visa (Orphan to be adopted in the United States) on February 14, 1972, in the name of Kim Ji Yung and left Korea on February 24 destined for her adoptive parents, Mr. and Mrs. Walter Lee McElroy, 100 Arlington Terrace, Chattanooga, Tennessee. A member of my staff informed Mr. Taylor of the foregoing by telephone on March 30.”

It was this information which precipitated this litigation.

It is the insistence of the Defendants that there was no competent proof that Kim Ji Yung was one and the same person as Kimta Francoise Taylor.

We cannot agree. The Plaintiff identified the photograph of the child, furnished by the Holt Adoption Agency, as his daughter, and when he saw the child he further recognized her as his daughter.

The Court filed a memorandum opinion in which he found, in part, as follows: “Some question has been raised whether or not the child before the Court is the same child as the natural child of Mr. Taylor; but the Court having personally viewed the child in open court and having viewed many photographs which are exhibited in evidence taken over a period of years from the birth of .the child and from the testimony and other documents in the record, is firmly convinced that the natural child of Mr. Taylor is the same child as that before the Court.”

The Court also said in its memorandum opinion: “The Court finds that the petition for adoption by the McElroy’s must be dismissed because the child sought to be adopted by them is the natural child of Richard Louis Taylor and his former Korean wife, Kyong Cha Taylor, and that the parental rights of Richard Louis Taylor have not been lawfully terminated. Upon this point the Court finds specifically that the father, Richard' Louis Taylor, never at any time abandoned said child nor did he ever voluntarily surrender said parental rights nor in any way relinquish said rights voluntarily.”

We think the evidence supports the findings of fact by the Chancellor and we concur (except, of course, we did not see the child or the Plaintiff).

Defendants insist in their first two assignments of error that it was error for the Chancellor to fail to apply the “Act of State Doctrine.”

We cannot agree. In order for action taken by a foreign government to fall within the “Act of State Doctrine,” the action must have been taken by the sovereign nation rather than a subdivision of that government. 12 A.L.R.Fed. 339.

The only action taken in Korea relating to the case at bar was administrative action by officers of the City of Seoul.

In support of Defendants’ third assignment of error they argue, “The testimony concerning the identification of the Mc-Elroys’ child as being Taylor’s reported il-ligitimate child is hearsay and the Chancellor’s decision should be reversed in the absence of testimony from the child’s mother identifying the father and in the absence of admissible evidence conclusively identifying the child.”

Again, we cannot agree. The proof shows the Plaintiff married the child’s mother after its birth and under Korean law the child was legitimized by this marriage. After the child was legitimized we think she stands in the same posture as if she were of legitimate birth.

By the same token, we think the Plaintiff could testify as to their parent and child relationship. Also, the Plaintiff testified that upon his return to Korea to marry Kim Kyong Cha she told him that Kimta Francoise Taylor was his daughter and we think this is competent evidence as an exception to the hearsay rule relating to pedigree. Swink v. French, 79 Tenn. 78 (1883); 29 Am. Jur.2d, Evidence, § 508.

The assignments of error are overruled. The decree of the Chancellor is affirmed and the cost of this appeal is taxed to the Appellants.

PARROTT, P. J. (E.S.), and GODDARD, J., concur.


author: JONES, Justice. LUKOWSKY, Justice

text:
    David Lee PIERCE, Appellant, v. Dana Blake Redmon PIERCE et al., Appellees.
    Court of Appeals of Kentucky.
    April 25, 1975.
    Marion Rider, Frankfort, for appellant.
    Liebman & Ryan, William L. Graham, Frankfort, for appellees.
   JONES, Justice.

David Lee Pierce married Dana Blake Redmon on September 20, 1972. Dana was the mother of Michael, who was born out of wedlock. On September 29, 1972, David signed a petition to adopt Michael. The adoption petition was subsequently filed, and thereafter on November 3, 1972, a judgment of adoption was entered.

David returned from naval service on February 26, 1973. David and Dana separated shortly thereafter. Dana instituted proceedings to dissolve the marriage. She sought custody and support of Michael. In an answer and counterclaim, David asserted that the judgment of adoption was void. Dana moved to strike the answer because the counterclaim constituted a collateral attack upon the judgment. Before the trial court ruled on the motion, David filed an independent action attacking the judgment of adoption.

The trial court consolidated the actions. In a clear and concise opinion, he regrant-ed the adoption, effective retrospectively as of November 3, 1972. The marriage was dissolved. Dana was awarded custody of Michael. David was directed to pay Dana the sum of $30.00 per week for the support of Michael until he reached 18 years of age.

In this appeal, David contends that the trial court erred in regranting the adoption. The real issue presented is whether an adopting parent may have a judgment of adoption vacated by the court which entered the decree, and if so, under what circumstances.

This court will not be part or parcel of setting aside completed adoption proceedings by dissatisfied adopting parents. To do so would be at variance with the principle almost universally accepted by the great weight of authority.

It is unquestioned that the trial court had subject-matter jurisdiction when the original judgment of adoption was entered. All of David’s outcries concerning defects in the statutory procedure are irrelevant because he was the initiating party in the adoption proceeding and has no legal right or standing to object that some other person, in this instance the child, was deprived of its statutory rights. The guardian ad litem seeks to uphold the judgment of adoption.

An adopting parent may have a judgment of adoption vacated by the court which entered the decree upon the ground of fraud practiced upon him in obtaining the decree, as where the adopting parent was of weak mind and was subjected to undue influence of the child’s parent or other person in bringing about the child’s adoption. See 2 Am Jur 2d, Adoption, Sec. 79, p. 925.

Courts have generally recognized or at least assumed that an adoption decree may be annulled at the instance of the adopting parent but indicate reluctance to disturb the status of an adopted child unless the vacating of the decree would clearly be for its best interest. 2 A.L.R.2d § 8, p. 903. From the cases collected in the annotation just cited, it appears to be generally held that an adoption decree will not be vacated or annulled at the instance of an adoptive parent where his motives are purely selfish, or because of pecuniary interest in changing his position. Courts should not allow abrogation of an adoption if it is premised on the desire of adoptive parents to rid themselves of a bad bargain, or because of a mere change in attitude or regret. 2 Am Jur 2d, Adoption, Sec. 79, p. 925. The Kentucky adoption statutes provide for annulment of a judgment of adoption only in the instance of subsequently discovered ethnic differences in the child that were unknown to the adopting parents.

David claims that he is entitled to an annulment of the judgment of adoption because of duress and undue influence practiced upon him by his wife, the natural mother of the child. The trial judge made no findings concerning this issue.

To warrant a finding of undue influence in inducing the adoption of a child, it must appear that the person exercising the influence so far dominated the will of the person upon whom it was exercised as to substitute his will for that of the latter, with the result that the action brought about was not, in reality, that of the person whose act it was in form, but rather, was that of the person exercising the influence. Phillips v. Chase, 203 Mass. 556, 89 N.E. 1049, error dismd. 216 U.S. 616, 30 S.Ct. 577, 54 L.Ed. 639.

In our view David had the burden to demonstate by clear and convincing evidence the existence of undue influence. If this can be accomplished, it would clearly demonstrate that the annulment of the adoption judgment would be in the best interest of the infant child. The case is remanded with instructions to the trial court to make findings upon these questions which compose the real issue in the case.

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

The full court sitting.

REED, C. J., and CLAYTON, JONES, PALMORE and STERNBERG, JJ., concur.

LUKOWSKY, J., files a separate dissenting opinion, in which STEPHENSON, J., joins.

LUKOWSKY, Justice

(dissenting).

It is with deep regret I find that I am unable to agree with the opinion of my brothers whom I so much respect. The ease with which they pass over the enforcement of the legislative mandate on the bridges of sympathy and equitable es-toppel requires that I make public my views.

It is an elementary but guiding fact of legal history that adoption was unknown at common law and exists in this Commonwealth only by virtue of statutory enactment. 2 C.J.S. Adoption of Persons § 3; Commonwealth, Dept. of Child Welfare v. Lorenz, Ky., 407 S.W.2d 699. It is the relation of this principle to the facts of this case which necessitates the tedious discussion which follows.

Appellant David Lee Pierce appeals from a judgment holding that proceedings which he had instituted for the purpose of adopting Michael Douglas Redmon Pierce as his son were not void; that “* * * the adoption * * * should be granted;” and that David should support the child.

Michael was born out of wedlock on June 30, 1972, to Dana Blake Redmon, now Pierce. David and Dana were first together on August 4, 1972, when David was home on leave from the Navy; they were married on September 20, 1972. Nine days later, in a lawyer’s office, David signed a petition to adopt Michael, naming Dana and Michael the respondents. The adoption action, No. A-83515, was filed on October 2, 1972, while David was at his naval base, and a judgment of adoption was entered on November 3, 1972. There is no indication in the record that David had any word concerning the adoption proceedings and he claims that nothing was said to him about it, except on January 5, 1973, Dana remarked “You now have a son.” David did not list Michael with the Navy as a dependent, although he attempted to do so.

David returned home on February 26, 1973, after his discharge from the Navy; less than a month later he and Dana separated. On March 26, 1973, Dana instituted proceedings, No. 83968, to obtain a dissolution of the marriage and custody of and support for Michael. David filed an answer and counterclaim in which he asserted that the judgment of adoption was void and that he was not under any obligation to support Michael. Dana moved to strike the answer for the reasons that the counterclaim constituted a collateral attack on the judgment and David was estopped to question the validity of the adoption judgment as he was the petitioner. Before the trial court had ruled on the motion, David filed an independent action, No. 84117, attacking the judgment of adoption. On June 13, 1973, the trial court ordered that the allegations of the counterclaim in action 83968 attacking the adoption judgment be stricken, and on October 3, 1973, it ordered the adoption proceedings redocketed. David protested and moved that those proceedings be dismissed. After various steps had been taken in the litigation, including the appointment of a guardian ad litem for Michael, the court ordered that civil actions 83968 and 84117 be “ * * * consolidated * * * for all purposes * * * Later action A-83515 was consolidated with the other two cases, and a final judgment was entered on February 6, 1974. It adjudicated that the original judgment of adoption, having been redock-eted, would be effective as of November 3, 1972, and that as of that date Michael had become the adopted son of David. It also directed David to pay to Dana $30.00 per week for the support of Michael until Michael reached 18 years of age.

Appellant argues that the original judgment of adoption was void and that the trial court was powerless to enter a nunc pro tunc judgment of adoption. Appellees respond that the child was legally adopted without the nunc pro tunc judgment; that the entry of that judgment was a precautionary measure, and that appellant is es-topped “ * * * to attack a decree entered in an action which he instituted.”

Strict compliance with the statutes pertaining to adoptions is required. Higgason v. Henry, Ky., 313 S.W.2d 275 (1958). KRS 199.480(2) provides, in pertinent part, that “Each party defendant shall be brought before the court in the same manner as provided in other civil cases * * * CR 4.04(3) relates how unmarried infants are to be served with process. No summons was issued for either of the two respondents, Dana or her child. Dana says that serving her with a summons was unnecessary because she signed the petition and swore that its allegations were true. She claims that issuing a summons for serving it on Michael was useless. David cites Smith v. Canada, Ky., 290 S.W.2d 463 (1956), in which we wrote, “ * * * where infants under fourteen years of age were not summoned in the manner prescribed by the above provisions a judgment against them, directing a sale of their land, is void.” Almost one year after the original judgment of adoption was entered, the court ordered the clerk * * * to issue two summons for the infant defendant, one to be served * * * upon * * * the mother * * * and one to be served upon * * * Guardian ad Litem for the infant defendant.” These summonses were served as directed in that order. The guardian ad litem was not appointed until October 3, 1973.

KRS 199.500(1) states, “No adoption shall be granted without the sworn consent of * * * the mother of the child born out of wedlock * * *.” No “sworn consent” was ever filed, unless by verifying under oath the petition for adoption Dana complied with this statute. That petition did not allege that Dana had consented, although it is obvious that her consent was extant. We held in Higgason v. Henry, supra, that “ * * * the consent * * * was not given under oath * * * ” and “ * * * in the absence of sworn consent, the judgment granting adoption is erroneous and must be reversed.” In Hill v. Poole, Ky., 493 S.W.2d 482 (1973), we concluded that testimony by the father under oath that he had executed an unfiled written consent (apparently not sworn to) did not cure the failure to comply with KRS 199.500, and we reiterated the strict statutory compliance rule announced in Higgason.

The clerk of the court was required by KRS 199.510 to forward two copies of the petition for adoption, when filed, to the Department of Child Welfare; whereupon, the department was required to investigate various matters and report to the court. There was no compliance with this statute. However, we approved a judgment of adoption in Keeling v. Minton, Ky., 339 S. W.2d 464 (1960), even though the department had not reported, but the trial court used “ * * * a hearing as his method of investigation.” No investigative hearing was conducted in the case before us.

KRS 199.515 provides:
“After the report of the guardian ad litem, * * * and the report required by KRS 199.510 have been filed, the court at any time on motion of its own or that of any interested party may set a time for a hearing on the petition to be conducted in chambers in privacy, except as hereinafter provided. Notice of the hearing shall be given to all necessary parties at least ten (10) days in advance thereof, unless such parties shall have answered and agreed to the adoption or have failed to answer and the time for answering has expired, or shall have waived notice of the hearing. All necessary parties may be present and at least one (1) of the adopting parents and the guardian ad litem, if any, for the child must be present at the hearing.”

A hearing with the adopting parent present was necesssary. Dickey v. Boxley, Ky., 481 S.W.2d 283 (1972). It never occurred.

Before an effort was made to correct the omissions and failures and long before the entry of the nunc pro tunc judgment, David attempted to discontinue the efforts he had originated to adopt the child and he militantly sought to have the original judgment vacated and the proceedings dismissed. We have held in such cases as Hill v. Poole, supra, that a parent could withdraw consent to adoption at any time before final judgment upon a showing of sufficient reason. Also see Skaggs v. Gannon, 293 Ky. 795, 170 S.W.2d 12 (1943). In Greene v. Fitzpatrick, 220 Ky. 590, 295 S.W. 896 (1927), we concluded that a judgment granting adoption could be set aside when there was fraud in obtaining it. A decree of adoption may be vacated under appropriate circumstances. Hood v. Nichol, 236 Ky. 779, 34 S.W.2d 429 (1931); 2 C.J.S. Adoption of Persons § 113, p. 545. In Barber v. Barber, 280 Ky. 842, 134 S.W.2d 933 (1939), we affirmed a judgment vacating an adoption completed several months before it was attacked.

The legislature has countenanced actions such as David’s so long as they are taken within two years of the entry of judgment. KRS 199.540(2).

KRS 199.520(2) states:
“From and after the date of the judgment the child shall be deemed the child of petitioners and shall be considered for purposes of inheritance and succession and for all other legal considerations the natural, legitimate child of the parents adopting it the same as if born of their bodies. * * *

We have said many times that the welfare of the child is the paramount consideration. There is no evidence in the record indicating that the parental status which David and Michael would hold would be in the best interest of the infant. The majority would infer that it was for Michael’s best interest from the ordered support payments, ignoring that by so doing, they make the infant the child of a broken home, or place on David the onerous burden of proving a negative.

Among other things, KRS 199.520(1) provides:

“After hearing the case the court shall enter a judgment of adoption, if it finds that the facts stated in the petition were established; that all legal requirements, including jurisdiction, relating to the adoption have been complied with; that the petitioners are of good moral character of reputable standing in the community and of ability to properly maintain and educate the child, and that the best interest of the child will be promoted by the adoption and that the child is suitable for adoption. * * *

Under the rule that the adoption statutes must be strictly complied with, I would hold that the original adoption judgment was void when it was entered on November 3, 1972.

We wrote in Chester v. Graves, 159 Ky. 244, 166 S.W. 988, Ann.Cas.1915D, 678 (1914):

“If the court has not rendered a judgment that it might or should have rendered, or if it has rendered an imperfect or improper judgment, it has no power to remedy these errors or omissions by ordering the entry nunc pro tunc of a proper judgment * * *

With all of the gross irregularities and failures to comply with the statutes, the entry of the nunc pro tunc judgment was erroneous. It was also erroneous for the trial court to attempt to complete the adoption application in the face of militant efforts by the petitioner to abandon the proceedings and to set aside the judgment originally entered.

The guardian ad litem argues that David is estopped to attack the judgment of adoption because David instituted the suit. No Kentucky case is cited in support of that contention, but reliance is placed on 2 Am. Jur.2d, Adoption, Sec. 74, p. 921. The general rule in this state is that a person pro-curring a judgment is estopped to attack it. See such cases as Acker v. Henry Clay Oil Co., 196 Ky. 508, 245 S.W. 6 (1922), and Hopkins v. Jones, 193 Ky. 281, 235 S.W. 754 (1921). The Am.Jur.2d reference relates to cases in which the circumstances were quite different from those which exist in the matter now before us. Because of the rule requiring strict adherence to adoption statutes and the many failures to comply therewith, I would hold that the rule of estoppel should not prevail in the circumstances of this case and that the rationale expressed in Hill v. Poole, supra, which authorizes the withdrawal of parental consent before final judgment, should apply. Cf. Warner v. Ward, Ky., 401 S.W.2d 62 (1966).

We should not give our imprimatur to the flagrant disregard by counsel and the trial court of almost every requirement set by the legislature in regard to adoptions in Chapter 199 of the Kentucky Revised Statutes. The judgment entered February 6, 1974, should be reversed for further proceedings consistent herewith.

STEPHENSON, J., joins in this dissent.


author: CULLEN, Commissioner.

text:
    Robert BRUNER et al., Appellants, v. CITY OF OWENSBORO, Kentucky et al., Appellees.
    Court of Appeals of Kentucky.
    April 25, 1975.

      E. Louis Johnson, Ronald L. Presser, Humphreys, Wilson, Johnson & Presser, Owensboro, for appellants.
    John W. Beard, Jones, Beard & Harrington, Hugh D. Moore, Moore & Moore, Owensboro, for appellees.
   CULLEN, Commissioner.

The appellants, who are employed by the City Utility Commission of the City of Owensboro, brought action against the city, its mayor and commissioners and the City Utility Commission and its members, seeking damages for alleged discrimination and denial of equal protection in that the appellants were not being given the benefits of an ordinance of the city providing incentive and longevity salary increments for “all employees of the city.” The appellants alleged that they were in truth and fact employees of the city. The defendants (appellees) moved to dismiss the complaint for failure to state a claim on which relief could be granted, arguing that under the applicable statutes and ordinances the appellants are not employees of the city but are employees of the utility commission, which is a separate corporate body. The circuit court sustained the motion and entered judgment dismissing the complaint, from which judgment we have this appeal.

In KRS 96.530 the employees of a city utility commission, who are hired by the commission and whose compensation and terms of employment are fixed by the commission, are referred to as “its” employees and are distinguished from “city employees.” The ordinances of the City of Owensboro providing for its utility commission make the same distinction. We think it is clear from the statute and the ordinances that employees of the utility commission are not employees of the city.

Notwithstanding the reasonably clear provisions of the statute and ordinances, the appellants argue that their complaint should not have been dismissed, because of the rule that a motion to dismiss for failure to state a claim will not be sustained unless the plaintiff could not be entitled to relief under any state of facts which could be proved in support of the claim. The appellants maintain that they might have been able, despite the statute and ordinances, to prove that they were in fact employees of the city. The difficulty with their position is that they do not suggest what they conceivably could offer by way of proof to show that they are something different from what the statute and ordinances designate them to be.

The judgment is affirmed.

All concur.


author: ARMAND ANGELUCCI, Special Commissioner.

text:
    Robert MAXWELL and Mrs. Lela Sosh, Personal Representative of the Estate of Raymond Sosh, Deceased, Appellants, v. Maurice F. MOORMAN, Sr., and Annorah S. Moorman, Appellees.
    Court of Appeals of Kentucky.
    April 25, 1975.

      Marshall P. Eldred, Jr., Timothy W. Martin, Brown, Todd & Heyburn, Louisville, for appellants.
    McConnell & Haugh, Louisville, for ap-pellees.
   ARMAND ANGELUCCI, Special Commissioner.

This is an action for a proportionate reduction in the purchase price of certain tracts of land because of an alleged acreage deficiency. The Jefferson Circuit Court sustained the defendants’ motion to dismiss the complaint and granted judgment for the defendants. From that ruling the plaintiffs bring this appeal.

The relevant facts are those alleged in the appellants’ complaint, briefly reviewed here.

On November 9, 1963, the appellees, Maurice F. and Annorah S. Moorman, executed a contract for deed to sell farm land in Breckinridge County, Kentucky, to Ford and Anna R. Whitman. The land consisted of three tracts, described in the contract and agreement by metes and hounds with a total stated acreage of over 460 acres. The purchase price was set at $20,000.

On January 8, 1966, the Whitmans, who had been making installment payments for the land, assigned their interest in the contract to the appellant Robert Maxwell and his father, Raymond Sosh (since deceased, appellant Mrs. Lela Sosh being the personal representative of his estate). Under the terms of the assignment of the land contract the appellants reimbursed the Whit-mans for all of the payments made to the Moormans and the appellants assumed all of the obligations under the contract for deed. The assignment, which was expressly authorized under the contract for deed, contained basically the same metes and. bounds descriptions of the three tracts and the appellants state that at the time the assignment was made they believed that the property so described in the assignment and the contract actually contained over 460 acres and they relied on the described amounts and did not intend to risk the contingency of quantity.

On March 12, 1969, the appellants entered into a sales contract with Charles, Eugene and Dan Fentress for the same property. Before payment of the balance due under this contract, however, the buyers notified the appellants that the property described contained significantly less than 460 acres. The parties then employed an engineer to prepare a survey, which revealed that the three tracts contained only 355.9 acres. As a result of this deficiency the appellants were compelled to reduce the sale price to the Fentresses from $40,000 to $31,000.

In order to receive a deed of conveyance from the Moormans, so that the appellants could carry out their obligations under the sales contract with the Fentresses, it was necessary for the appellants to pay the balance due under the original contract for deed. The appellants paid this balance under protest after the appellees refused to reduce the $20,000 price to reflect the alleged deficiency. Thereupon, the appellants brought this action seeking a refund of $4,566, representing the proportionate amount of the purchase price received by the Moormans for the alleged 105-acre deficiency, which would be 22.83% of the amount involved.

The dispositive issue on this appeal is whether a vendee’s assignee can maintain an action for abatement of the purchase price on account of an acreage deficiency against the vendor, or whether the assignee must look to his assignor for relief. The main thrust of the appellees’ defense and the basis of the decision in the court below was that a claim for abatement of price because of an acreage deficiency rests on fraud or mistake, the right to assert which depends upon privity of contract, and that since the assignee does not have privity of contract with the vendor the assignee cannot recover for fraud or mistake in the original transaction between the vendor and the assignor.

It is true that in Boggs v. Bush, 137 Ky. 95, 122 S.W. 220 (1909), this court said that the claim in a suit based on an acreage deficiency is “for the deceit practiced by the successful party” or “upon the mutual mistake of the parties.” However, the opinion in Boggs makes clear that the fraud or mistake (in the case of a sale in gross where the deficiency is ten percent or more) is presumed, and the opinion says that fraud or mistake need not be specifically alleged. Subsequent cases, many of which are cited in Wallace v. Cummins, Ky., 334 S.W.2d 904 (1960) evidence that in the “ten-percent” cases the fraud or mistake is presumed, and the opinion in Wallace points out that the application of the rule is “almost automatic.”

Since the rule rests on a presumption of fraud or mistake, we are not fully persuaded that recovery should be denied to an assignee of a land-purchase contract simply by reason of the fact that the right of action has been classified as being in the fraud-or-mistake category. We can see a clear distinction between a presumed mistake or fraud as to quantity and an actual mistake or fraud as to quality, which latter would be limited in actual operative effect to the original vendee. We think that the right of recovery for acreage deficiency is based simply on broad principles of equity, and where the equitable considerations apply equally to the assignee as to the original vendee, we seen no reason why the assignee should not be permitted recovery against the vendor.

However, without regard to the validity of the proposition above discussed, it is our opinion that under the circumstances of this case the assignees were in all practical aspects in a situation of privity of contract with the vendors, the same as in Wilson v. Morris, 192 Ky. 469, 233 S.W. 1049 (1921). The assignees made the bulk of the payments for the land directly to the vendors, who dealt with them in place of the original vendee. And the deed was executed directly to the assignees.

It is our conclusion that the appellants were entitled to seek recovery from the appellees. The appellees’ right to defend will include any defenses they could have asserted against the original vendees.

The appellees maintain that if a contract with the appellants is to be found the descriptions originally rendered by the appellees are correct. This is a factual matter and is inappropriate for consideration here.

The secondary issue raised by the parties as to whether the appellees are equitably estopped from denying liability need not be considered since the appellants are held to have stated a claim on other grounds. To touch upon a final subsidiary issue raised by the appellants, the payment of the purchase price rendered the appellants real parties in interest so as to be entitled to bring this action in their own names, under CR 17.01, and the lack of any interest by the Whitmans and the ability to grant complete relief in their absence, without increasing the risk to any party, would make it clear that the Whit-mans are not indispensable parties whose joinder is required by CR 19.01. See Root v. John Deere Co. of Indianapolis, Inc., Ky., 413 S.W.2d 901 (1967).

It is our conclusion that the appellants stated a valid claim for relief and, therefore, the chancellor erred in dismissing the action.

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

All concur.


author: PALMORE, Justice.

text:
    COMMONWEALTH of Kentucky on relation of the KENTUCKY BOARD OF OPTOMETRIC EXAMINERS, Appellant, v. ECONOMY OPTICAL COMPANY et al., Appellees.
    Court of Appeals of Kentucky.
    April 25, 1975.

      William E. Johnson, Frankfort, for appellant.
    Irwin G. Waterman, Morris, Garlove, Waterman & Johnson, Shelton R. Weber,
    Handmaker, Weber & Meyer, Robert P. Hastings, Hardy, Logan & Hastings, Louisville, for appellees.
   PALMORE, Justice.

The question in this case is whether a licensed ophthalmic dispenser may fit contact lenses pursuant to a prescription from but not under the direct supervision of a physician, osteopath or optometrist. Cf. KRS 326.060. Our conclusion is that the statute very clearly forbids it.

KRS Ch. 326 (c. 27, Acts of 1954) defines the practice of ophthalmic dispensing, establishes a Board of Ophthalmic Dispensers, and requires the licensing of practitioners. KRS 326.060 provides as follows (emphasis added):

“326.060. Dispenser not to examine or treat eyes — Fitting of contact lenses.— Nothing in this chapter shall be construed to authorize or permit any opthalmic dispenser to hold himself out as being able to, or to either offer, undertake or attempt, by any means or method, to examine or exercise eyes, to fit contact lenses, or to diagnose, treat, correct, relieve, operate or prescribe for any human ailment, deficiency, deformity, disease, injury, pain or physical condition except that an ophthalmic dispenser holding a license as such issued hereunder may fit contact lenses under the supervision of a physician, ■osteopath or optometrist.”

The complaint in this action was initiated on the relation of the Kentucky Board of Optometric Examiners. Among other things, it is alleged that certain of the ap-pellees are unlawfully engaging in the practice of optometry. The Kentucky Board of Ophthalmic Dispensers is an intervening defendant-appellee taking the position that the activities of its co-appellees are within the scope of the practice of ophthalmic dispensers and are not unlawful.

The practice of optometry is defined by KRS 320.210(2) as follows (emphasis added) : “the employment of any means other than the use of drugs, medicine or surgery to examine the human eye, to determine the visual efficiency of the human eye, or to determine the powers or defects of vision; the prescribing, providing, furnishing, adapting, using or employing lenses, prisms, contact lenses, visual training, or-thoptics, ocular exercise or any other means or device other than the use of drugs, medicine or surgery for the aid, relief or correction of vision.”

Construing KRS Ch. 320 and 326 together, unquestionably the providing and fitting of contact lenses without a license to practice optometry violates KRS Ch. 320 unless it is authorized by KRS Ch. 326.060, which in so many words says that a licensed ophthalmic dispenser may fit contact lenses only “under the supervision of a physician, osteopath or optometrist.”

It is not necessary for us to describe in detail the procedures carried out by ophthalmic dispensers in the fitting of contact lenses for their customers, because the ■ question is not what they do, whether it is simple or complex, whether they are capable of doing it, whether it is a convenient or standard practice, or whether various prescribing physicians and optometrists regard it as safe and convenient, but whether they actually do it under supervision, as the statute explicitly requires. In this vital respect, suffice it to say that it is very clear from the testimony of the appellee Baker that in the usual instance he never has any communication whatever with or from the prescribing doctor except through reading the prescription presented to him by the patient and, after some four or five weeks during which the process of measuring for, procuring, grinding and fitting the lenses to his eyes has been completed, sending him back “to have the doctor check them to see if they are all right.” Whether the patient does in fact return to the doctor, as so recommended, is his own responsibility. In Baker’s words, “I would recommend it. Whether they went back or not, that’s up to them.”

It seems to us that all of the argument in this case is transcended by one simple question and answer appearing in the Baker deposition, as follows:

Q- “Did you perform these services that you have mentioned or the steps that you took on those four visits, did you render those services under the supervision of either a medical doctor or an optometrist?”

A- “No. I fit those lenses under the Kentucky State statutes that allow me to fit contact lenses.”

Unfortunately, if he read the statutes he did not read them very carefully.

The case is of first impression in Kentucky but our statutes seem quite clear without help from other jurisdictions. The decisions cited by appellees as supporting their position are not helpful, because neither of them involved a statute comparable with KRS 326;060.

We are of the opinion that a prescription beforehand and an inspection afterward do not under any reasonable definition of the word amount to “supervising” the process of fitting contact lenses.

Though it is stoutly argued that this practice has been going on for years, that doctors “cannot take the time to do the mechanical things now done by ophthalmic dispensers in the fitting of contact lenses”, and that “the public will be deprived of contact lenses” if the judgment of the trial court is not affirmed, the statutory intent is too plain to be upset by judicial construction. It is strictly a legislative matter.

The judgment is reversed with directions that a new judgment be entered in accordance with this opinion.

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

      . “Nowhere in our law is there any reference to contact lenses.” State Board of Optometry v. Chester, 251 Miss. 250, 169 So.2d 468, 471 (1964). “We think it is apparent from an examination of our statutes defining the practice of optometry and the business of a dipensing optician that the General Assembly has not expressly authorized either the op-metrist or the optician to fit contact lenses to the human eye, but that the general terms of the statutes governing both are broad enough to authorize the optometrist to do so and to authorize the dispensing optician to do so upon prescription of a physician, oculist or optometrist.” High v. Ridgeway’s Opticians, 258 N.C. 626, 129 S.E.2d 301, 303 (1963).

      . Of additional significance, we think, is that the return visit to the prescribing physician or optometrist does not necessarily take place. If it does not, the work of the ophthalmic dispenser has been completed without any participation by a physician or optometrist except for the initial writing of a prescription. Surely the prescribing physician or optometrist would be surprised to learn, in such a case, that the fitting process had been carried out under his “supervision” and that he might therefore be responsible for it.


author: GARDNER, Commissioner.

text:
    CITY OF PADUCAH, Appellant, v. James C. JOHNSON, Appellee.
    Court of Appeals of Kentucky.
    April 25, 1975.
    Samuel S. Boaz, W. David Denton, Corp. Counsel, Paducah, for appellant.
    Ernest W. Rivers, Melton & Rivers, Paducah, for appellee.
   GARDNER, Commissioner.

Appellee operated a junk yard prior to the lot’s being annexed by the City of Pad-ucah and prior to the enactment of a zoning ordinance, which had the effect of making appellee’s junk yard a nonconforming use. Subsequently the city enacted an ordinance which provided:

“Section 40.023 Amortization of Nonconforming Junk Yards
The nonconforming use of junk yards shall be discontinued within two (2) years from the effective date hereof.”

By summary judgment the trial court declared the amortization ordinance invalid as conflicting with KRS 100.253(1) and enjoined the enforcement of the ordinance.

The decision of the landmark case of Darlington v. Board of Councilmen, 282 Ky. 778, 140 S.W.2d 392 (1940), recognized that one had the right to utilize one’s property to conduct an established business not inimical to the health, safety or morals of the community, although a subsequent zoning ordinance excluded such business. The question now before us is whether a city may require the cessation of the business by a certain date.

City refers to some jurisdictions which sanction the amortization of nonconforming uses and submits that the current weight of authority favors the amortization concept. We find there is respectable authority supporting the city’s view, just as there is respectable authority representing the contrary view. We have been referred to no case, however, wherein this court has expressly adopted the view that nonconforming uses may be amortized. It might be said that in Gates v. Jarvis, Cornette & Payton, Ky., 465 S.W.2d 278 (1971), the court gave tacit approval of the concept, but the court did not pass on the validity of the amortization ordinance, rather it decided that the ordinance was not intended to apply to nonconforming trailer parks.

Be that as it may, we believe KRS 100.-253 is controlling when it provides:

“(1) The lawful use of a building or premises, existing at the time of the adoption of any zoning regulations affecting it may be continued, although such use does not conform to the provisions of such regulations, except as otherwise provided herein.
“(2) The board of adjustments shall not allow the enlargement or extension of a nonconforming use beyond the scope and area of its operation at the time the regulation which makes its use nonconforming was adopted. Nor shall the board permit a change from one (1) nonconforming use to another unless the new nonconforming use is in the same or a more restrictive classification.”

The statute clearly states that a nonconforming use may continue subject to the exceptions stated in KRS 100.253(2). There has been no attempt made to bring this case within any exception referred to in KRS 100.253(1). Nor is there any showing that the statute is invalid. Since we interpret the statute favorably to appellant, it is unnecessary to discuss the question of whether an amortization ordinance may be constitutional.

The court is of the opinion that the ordinance is in conflict with KRS 100.253(1), and is therefore invalid.

The judgment is affirmed.

All concur.


text:
    Jewel E. COMPTON, Appellant, v. Revon JOHNSON and Donna McCoy Johnson, Appellees.
    Court of Appeals of Kentucky.
    April 25, 1975.

      Joseph H. Miller, John R. Cook, Jr., Charles L. Calk, Gess, Mattingly, Saunier & Atchison, Lexington, for appellant.
    Oscar H. Geralds, Jr., Moloney & Molo-ney, Lexington, for appellees.
   PALMORE, Justice.

Jewel Compton appeals from a judgment entered on a jury verdict for the defendant in her action against Donna M. Johnson for personal injuries resulting from a collision at the intersection of Euclid and Ash-land Avenues in Lexington between an automobile driven by Mrs. Johnson and an automobile in which Mrs. Compton was a passenger.

The two questions before us are whether Mrs. Compton was entitled to a directed verdict of liability against Mrs. Johnson and whether the instruction given by the trial court with respect to Mrs. Johnson’s duties in making a turn at the intersection was prejudicially erroneous. It is our opinion that there was no error.

Euclid is a 4-lane street running east and west, with two lanes for traffic moving in each direction. Ashland is a 2-lane, 2-way street running north and south. They intersect at right angles. The intersection is controlled by a traffic light. At the time of the accident the light was green for all Euclid Avenue traffic.

The Compton automobile, driven by Mrs. Compton’s husband, Robert, was going east on Euclid in the south or curb lane. Mrs. Johnson, going west on Euclid, made a left turn southward onto Ashland and was struck by the Compton vehicle in the south lane of Euclid at about the center of Ash-land. Neither driver saw the other car until moments before the collision. There was no evidence of excessive speed on the part of either.

Compton had entered Euclid from the north, turning left from Lafayette. According to his evidence, he moved to the curb lane on the right as soon as traffic permitted and well before reaching the intersection of Ashland. All of the evidence is that as both the Compton and Johnson cars approached the intersection from opposite directions an eastbound vehicle on Euclid was stopped at the intersection waiting to make a left turn northward onto Ashland, and two, three or more vehicles were stopped behind it. These automobiles were in the north or inner lane of Euclid for eastbound traffic. It is likewise undisputed that Mrs. Johnson made her turn from the south or inner lane of Euclid for westbound traffic. The only real conflict in the evidence is that the Comptons say their car was in the south or curb lane all the time as it approached Ashland, whereas two eye-witnesses standing at the southeast corner waiting to cross Euclid said that the Compton car approached on the inner lane to the rear of the stopped vehicles and then swerved to the curb lane at a point three or four car-lengths short of the intersection. One of these witnesses testified that Compton changed lanes “approximately the same time she [Mrs. Johnson] came into the intersection.” Mrs. Johnson herself testified that she had a clear view to the west “for several blocks at least” up the south lane of Euclid and that “there was no one in that lane when I began my turn.”

This evidence to the effect that Compton moved into the curb lane at or about the time Mrs. Johnson turned distinguishes the case from those relied upon by Mrs. Compton for a directed verdict in her favor. Unquestionably the driver pursuing a straight course at an intersection has the right-of-way over another driver seeking to turn into or across his projected path. Rankin v. Green, Ky., 346 S.W.2d 477 (1961); Weaver v. Brooks, Ky., 350 S.W. 2d 639 (1961); Barnes v. Jones, Ky., 351 S.W.2d 506 (1961). Nor is there any doubt that KRS 189.380(1) enjoins a driver against changing course “unless and until such movement can be made with reasonable safety,” etc. Nowhere, however, has it been suggested in any of our cases that this duty is absolute, in the sense that the collision itself proves conclusively that the turn could not have been made with reasonable safety. To the contrary, for example, in Louisville Transit Company v. Gipe, Ky., 277 S.W.2d 52, 54 (1955), in which the turning driver was held negligent as a matter of law, the court distinguished those cases in which the vehicle on a straight course had approached at a high rate of speed.

The collision in State Farm Mut. Ins. Co. v. Marcum, Ky., 420 S.W.2d 113 (1967), occurred at the intersection of U.S. Highway 231 and Ky. Highway 136, when Bell, going north on U.S. 231, made a left turn into the path of Marcum, who was driving south on the same highway. No other traffic figured in the accident, and Bell should have been able to see the oncoming Marcum vehicle for a distance of some 350 to 400 feet. This court concurred in the trial court’s judgment that Bell was negligent as a matter of law. In Kentucky Bus Lines, Inc., v. Wilson, Ky., 258 S.W.2d 486 (1953), the driver of a truck towing another truck along a straight stretch of highway pulled into the left lane in order to negotiate a right turn into a side road. A collision occurred when the driver of a bus approaching from the rear attempted to pass on the right. The truck driver was held negligent as a matter of law. In Louisville Transit Company v. Gipe, Ky., 277 S.W.2d 52 (1955), the driver of an automobile on a 6-lane street in Louisville turned left into the path of an oncoming bus, mistakenly assuming it would stop at the corner in order to discharge or take on passengers. He admitted having seen the bus approaching at a distance of 80 feet beyond the intersection. He was held negligent as a matter of law. The collision in Smith v. Sizemore, Ky., 300 S.W.2d 225 (1957), took place when one driver, having full view of an approaching truck but, as in the Louisville Transit case, mistakenly assuming it was going to stop, made a left turn in front of it. He too was held negligent as a matter of law. In Hollar v. Harrison, Ky., 323 S.W.2d 219 (1959), a driver with a clear view 75 to 100 yards ahead turned left into the path of a truck approaching within a distance of 40 feet. Again, the turning driver was held negligent as a matter of law.

In each of these cases there was nothing to prevent the turning driver from observing the imminent approach of the vehicle that was traveling in a straight course and thus had the right-of-way. In this instance, however, there was room for a difference of opinion as to whether, if it is accepted as true that Compton switched into the curb lane at about the same time as Mrs. Johnson began her turn, she breached her duty to see that the turn could be made with reasonable safety.

The argument about the instruction brings into focus the question of just what is this duty to see that the turn “can be made with reasonable safety.” It was given to the jury as follows: “and not to make the turn if it reasonably appeared that that movement or operation might affect the movement of the [Compton] automobile.” The instruction tendered by Compton, but not given, would have been to the effect that it was Mrs. Johnson’s duty “to see that there was sufficient time and space to make a left turn into South Ashland Avenue in reasonable safety and not to make the turn if that movement might affect the movement or operation of Robert Compton’s automobile.” So it may be seen that the basic difference is whether the duty should be expressed in the absolute or in terms of ordinary care.

Fundamentally, the turning driver’s duty is neither more nor less than a duty to yield the right-of-way. In other situations, right-of-way and duty to yield generally have been held not to be absolute, but to apply in terms of reasonable care. See, for example, discussion in Conley v. Rice, Ky., 444 S.W.2d 898, 900 (1969), in the context of pedestrian cases. A comparable example is presented by KRS 189.080, which in absolute terms requires a motorist to sound his horn as a warning to pedestrians and other drivers “whenever necessary.” Yet we have held that “whenever necessary” does not mean what may afterward appear to have been necessary in fact, but what reasonably appeared to be necessary at the time. Barrett v. Stephany, Ky., 510 S.W.2d 524, 527 (1974). And so it is our opinion that in such cases as this, the criterion to which the motorist must be held in judging whether a change of course can be executed “with reasonable safety” is the standard of ordinary care.

In future trials we suggest that the “unless and until” clause of KRS 189.-380(1) be phrased in the instructions as “unless and until it appeared to him in the exercise of ordinary care that such movement could be made with reasonable safety.” As it is, we think the phraseology “reasonably appeared” as used in this case was sufficient to convey the same thought and that the instructions were not erroneous in that respect.

The judgment is affirmed.

All concur.


author: LUKOWSKY, Justice.

text:
    POLICEMAN’S AND FIREMAN’S RETIREMENT FUND OF CITY OF ASHLAND, Kentucky, Appellant, v. James F. RICHARDSON, Assistant Chief, Retired, Appellee.
    Court of Appeals of Kentucky.
    April 25, 1975.
    Frank W. Burke, Louisville, for appellant.
    Thomas M. Howe, Ashland, for appellee.
   LUKOWSKY, Justice.

This is an appeal from a judgment of the Boyd Circuit Court requiring appellant, Policeman’s and Fireman’s Retirement Fund of City of Ashland, Kentucky, to increase the retirement annuity of appellee, James F. Richardson, by the sum of $72.09 per month.

The agreed statement of facts filed by the parties limited the task of the trial court to answering a single question of law, whether the term “average salary” defined in KRS 95.85 l(m) includes sums paid to appellee by the City of Ashland as a result of its voluntary participation in the law enforcement foundation program fund, KRS 15.410 to 15.510. The trial court answered this question in the affirmative and we agree.

KRS 95.867 requires the director of finance of the city to deduct from the current salary of each policeman the designated percentagé contribution to the retirement fund.

KRS 15.490(2) requires the city to include the additional compensation paid to each police officer from the law enforcement foundation program fund as a part of the officer’s salary in determining all payroll deductions.

The Random House Dictionary of the English Language, Unabridged Edition, defines salary as “a fixed compensation periodically paid to a person for regular work or services.” The salary ordinance of the city, the law enforcement foundation program fund statutes and the ordinance of the city electing to participate in the law enforcement foundation program fund fixed the compensation periodically to be paid to appellee for his services as assistant chief of police.

It is beyond cavil that the salary of ap-pellee included both the sums paid to him by the city from its general fund and from its participation in the law enforcement foundation program fund. Therefore, it is inescapable that in computing “average salary” the total of these two sums must be used.

In the last analysis, when the legislature expressly required appellee to make additional contributions to the pension fund, it impliedly required the city to do the same. Each met the obligation. It is axiomatic that there is no such thing as “free money.” Every grant in aid and contribution has its string. So it follows that the increased salary and contributions require increased benefits.

The other issues raised in appellant’s brief were not presented to the trial court. They are patently without merit and need not be further discussed.

The judgment is affirmed.

All concur. '


author: STERNBERG, Justice.

text:
    Barbara Ellen Hunt CROSIER, Appellant, v. John Fred HUNT, Appellee.
    Court of Appeals of Kentucky.
    April 25, 1975.
    Lawrence R. Webster, Pikeville, for appellant.
    C. Kilmer Combs, Kelsey E. Friend Law Firm, Pikeville, for appellee.
   STERNBERG, Justice.

On May 26, 1973, the judge of the Pike Circuit Court entered an order awarding to appellee the care, custody and control of the parties’ infant son, John Fred Hunt, II, who was born on September 4, 1967. No appeal was taken from that order. On February 11, 1974, the appellant filed in the Pike Circuit Court a “Motion to Re-docket and Motion to Modify Previous Custody Order.” After traversing the allegations of the motion, appellee called the court’s attention to KRS 403.340. The court, however, permitted the motion to be filed and caused an inquiry to be made into the custodial arrangements for the infant, and appellee’s objection to the filing of the •motion was overruled. On May 1, 1974, appellant’s motion was heard by the court, after which it found that the infant’s environment was not endangering his physical, mental, moral or emotional health. Thereupon, the court overruled appellant’s motion to change the custody. The record reflects that the trial judge was most patient and liberal in permitting extensive testimony relative to the welfare of the child (KRS 403.270), rather than limiting the evidence to the infant’s present environment (KRS 403.340).

It will serve no useful purpose to recite the evidence. Suffice it is to say that the judge of the Pike Circuit Court heard the testimony, witnessed the demean- or of the witnesses, and determined that the custodial arrangement should not be changed. With this ruling of the court, we agree.

In appellant’s brief, complaint is made that the trial judge did not grant appellant her relief under CR 60.02. No motion was ever made for such relief. Appellant sought relief pursuant to KRS 403.-340; however, in a memorandum filed in support of the motion, appellant argues for relief pursuant to CR 60.02. Although the trial judge considered the proceeding before him as one authorized by KRS 403.-340(1), there is nothing in the record to show whether the court considered the efficacy of CR 60.02 in arriving at his judgment. This court, however, has carefully considered the transcript of testimony and the record and finds that there is not a fragment of proof whereby appellant would be entitled to relief under CR 60.02.

Appellant contends that the circuit judge erred as a matter of law in not making the transcript of the record of a criminal trial in which appellant was charged and acquitted a part of the record in this case, and further erred in not considering the record and the judgment m the criminal case in arriving at his decision in the present case.

In Shatz v. American Surety Company of New York, Ky., 295 S.W.2d 809, we held that a judgment of acquittal was incompetent and inadmissible in a civil action involving the same facts.

The judgment is affirmed.

REED, C. J., and PALMORE, JONES, LUKOWSKY, STERNBERG and CLAYTON, JJ., sitting.

All concur.


author: JONES, Justice.

text:
    FISCAL COURT OF CAMPBELL COUNTY, Kentucky, et al., Appellants, v. BOARD OF EDUCATION OF CAMPBELL COUNTY, Kentucky, Appellee.
    Court of Appeals of Kentucky.
    April 25, 1975.

      George Muehlenkamp, Raymond E. Lape, Jr., Kevin E. Quill, Asst. Campbell County Atty., Newport, Robert E. Sanders, Special Counsel, Covington, for appellants.
    Ben B. Fowler, Frankfort, Carl H. Ebert, Newport, for appellee.
   JONES, Justice.

On February 19, 1973, the Fiscal Court of Campbell County levied a 3 per cent tax on utilities in the Campbell County and the Bellevue Independent School Districts.

On April 2, 1973, a petition for a referendum on the tax, containing a number of names equal to 15 per cent of the votes cast in each school district at the last preceding Presidential election, was filed with the fiscal court. The fiscal court entered an order suspending the levy and directed the question of the tax levy to be placed on the ballot in each district at the May 1973 primary.

The fiscal court rescinded that order on April 16, 1973, because the statute required the recall election to be held at a regular rather than a primary election. The fiscal court reordered the recall election to be held at the regular election on November 6,1973.

The county board of education appealed the fiscal court order of April 16, 1973, to the Campbell Circuit Court.

The trial court held invalid the fiscal court’s order of April 16, 1973, suspending the levy and directing the election.

Although the fiscal court presents other questions in this appeal, the main issue is:

Did the trial court err in holding that 15 per cent (15%) of the specified voters countywide must sign a recall petition, rather than 15 per cent (15%) of the specified voters in the school district requesting the levy ?

In 1966 the legislature enacted a statute authorizing “one or more boards of education of school districts which contain at least ninety per cent (90%) of the county’s inhabitants . . . [to] request the fiscal court to levy [a utility tax].” KRS 160.593. In 1972 the legislature amended the statute to allow any school district to request the levy even though other districts within the county failed or refused to join in the request.

The statutory provision for recall in force in 1973 was as follows:

“(2) The order or resolution of the fiscal court imposing license fees pursuant to subsections (1), (2), or (4) of KRS 160.484 shall go into effect thirty (30) days after its passage. If during the thirty (30) days next following the passage of the order or resolution a petition signed by a number of registered and . qualified voters equal to fifteen per cent (15%) of the votes cast in the county (emphasis added) for the office receiving the greatest total vote at the last preceding presidential election is presented to the fiscal court protesting against passage of the order or resolution, the order or resolution shall be suspended from going into effect until after the election referred to in subsection (3) of this section. Each sheet of the petition shall contain the names and addresses of voters in but one (1) voting precinct, and each sheet shall state the name, number, or designation of the precinct and, where applicable, the name, designation, or number of the district or ward wherein the precinct is situated. Each voter shall sign his name in the same manner as he signed the current registration form described in KRS 117.630 or subsection (2) of KRS 117.720, as the case may be. If the signature is difficult to read, the voter shall, on the same line legibly write or print his name in the same fashion as he signed it. One or more persons shall verify by affidavit the signatures and addresses of the signers of the petition. The board or boards of registration in the county shall give necessary and appropriate aid to the fiscal court so that the latter body may make the initial, but not conclusive, determination of whether the petition contains enough signatures of qualified voters to suspend the effect of the order or resolution.” KRS 160.485(2).

This court is of the opinion that the provision for the number of signatures required for a recall petition was clear. It required a number of signatures equal to 15 per cent (15%) of the votes cast for the office receiving the greatest total vote in the last preceding Presidential election in the entire county.

Robert T. Nau, County Court Clerk of Campbell County, in an affidavit stated that at the last preceding Presidential election the number of votes cast for the office receiving the greatest number of votes in Campbell County was 29,445. William Corbin checked the registration books of Campbell County for the purpose of verifying the names contained on the petition for recall. He made an affidavit that the petition contained 2,017 names. It is obvious that this number is- far less than the required 15 per cent (15%). The actual number of names required under the formula contained in the statute was 4,417.

This was the basis for the trial court’s finding that the petition was not in compliance with KRS 160.485(2). It is the opinion of this court that the fiscal court of Campbell County was not authorized to order the levy suspended pending a recall election beyond the term of the agreement with the board of education.

The fiscal court contends that the action of the legislature in 1974 is the applicable law in this controversy. This court does not agree with that premise. The levy was made in 1973 under the provisions of the law in effect at that time. The board chose to stand by the 1973 levy. That levy is effective because the recall petition was insufficient.

The court finds no merit in the fiscal court’s other contentions.

The judgment is affirmed.

All concur.

      . The 1974 legislature made several amendments to the statutes governing the imposition of permissive school taxes. The levy and recall of taxes may be made by a single school district, and the recall and election will apply only to that district.