text:
    Henry GOTTLIEB, Appellant, v. Isaac SZAJNFELD, Respondent.
    No. KCD 28300.
    Missouri Court of Appeals, Kansas City District.
    May 2, 1977.
    Robert J. Campbell, James F. Davis, Kansas City, Brown, Koralchik, Fingersh & Sil-don, Kansas City, of counsel, for appellant.
    Walter R. Simpson, Kansas City, Sheridan, Sanders, Mason & Simpson, Kansas City, of counsel, for respondent.
    Before SWOFFORD, P. J., PRITCHARD, C. J., and DIXON, J.
   SWOFFORD, Presiding Judge.

This is an action for personal injuries sustained by the appellant (plaintiff) who, as a pedestrian while crossing 89th Street, was struck by an automobile driven by the respondent (defendant). A jury trial resulted in a verdict for the defendant and, after an unavailing motion for a new trial, the plaintiff appeals, asserting as his single assignment of error the trial court’s refusal of his proffered instruction submitting his cause upon the doctrine of humanitarian negligence. No question is raised as to the sufficiency of the refused instruction as to form or content, which instruction was MAI 17.15. The plaintiff maintains that the evidence adduced entitled him to this submission while the defendant, with equal vigor, argues that the record does not establish the elements of humanitarian negligence and was properly refused, as deficient in proof of the standards and required evidence in this type of negligence action since Banks v. Morris & Co., 302 Mo. 254, 257 S.W. 482, 484[1, 2] (Mo. banc 1924) and subsequent decisions.

It is admitted that the defendant’s motor vehicle struck the pedestrian-plaintiff resulting in personal injuries. The issues decisive of this appeal are whether or not the record supports a submission that the plaintiff was in a position of immediate danger (imminent peril) in time thereafter for the defendant to have acted under the humanitarian doctrine to have avoided striking and injuring him.

This court, in determining these narrowly confined issues and reaching a conclusion as to whether or not the proffered instruction was properly refused is guided and controlled by certain well-established principles. Where error is claimed by reason of the refusal of an instruction by a trial court, the reviewing court must consider the evidence in the light most favorable to the party offering such instruction and give such party the benefit of any favorable inferences that may be reasonably drawn therefrom, and disregard the other party’s evidence in conflict therewith. Worley v. Tucker Nevils, Inc., 503 S.W.2d 417, 421[3] (Mo. banc 1973); Middleman v. Complete Auto Transit, Inc., 486 S.W.2d 456, 460-461[4] (Mo. banc 1972); Page v. Baxter, 503 S.W.2d 32, 33[1] (Mo.App.1973); Hood v. Heppler, 503 S.W.2d 452, 455[4] (Mo.App.1973). An important corollary of this principle of review is that the party complaining of the refusal of an instruction may take advantage of and rely upon testimony or facts elicited from his opponent’s side of the case, so long as such testimony or facts does not contradict the appellant’s evidence and is not clearly at war with his theory of the ease. Worley v. Tucker Nevils, Inc., supra, 1. c. 421[3]; Middleman v. Complete Auto Transit Co., supra, 1. c. 461[4]; Crook v. Dooley, 389 S.W.2d 809, 813, 814[6 — 10] (Mo.1965); Williams v. Tuttle, 399 S.W.2d 44, 1. c. 47[1] (Mo. banc 1966).

When so viewed, the evidence pertinent to this appeal may be thus summarized:

The plaintiff introduced, without objection, a plat of the area of the accident which disclosed that 89th Street is an east-west, blacktop roadway approximately 22-24 feet in width. Summit Street is a north-south street ending at 89th, thus forming a “T” intersection. The first streets west of Summit are Western Hills Drive to the south and Madison to the north, at which point an eastbound car crests a hill and starts downgrade towards Summit. The crest of this hill is approximately 375 feet west of the “T” intersection at Summit.

On December 30, 1973, the plaintiff, who had attended a card party with friends and who lived on the south side of 89th Street at about opposite the “T” intersection of Summit, was driven to his home by a friend. At that time, the plaintiff was 71 years old, was retired and was living with his nephew. On the morning in question, the plaintiff’s friend drove him westbound on 89th and let him out of the automobile on the northeast corner of 89th and Summit, approximately across from his house. The friend proceeded west on 89th over the crest of the hill at Western Hills Drive. At the point where plaintiff left the automobile, it was necessary to cross 89th Street in order to reach his home. As he stood on the north curb of 89th, the family dog, a beige colored animal about the size of a German shepherd, came up to him and the plaintiff put his hand through the dog’s collar to take him home. While in this position on the curb, the plaintiff looked in both directions and saw no automobiles in either direction. He had a clear view of 89th west to the crest of the hill. The intersection was lighted by a large overhead light suspended over the roadway. The morning was clear and the streets were dry.

The plaintiff started across the street with his dog and did not look again for traffic. He had taken several steps when he saw a “big glare”, heard “screeching and banging!’ and was hit by the left front fender of an eastbound car, spun into the left side and was thrown about 47 feet up against the north curb of 89th.

Plaintiff testified that he was struck in the westbound lane of 89th, but all of the skid marks of the defendant’s car were in the eastbound lane and defendant testified he never left that lane prior to impact.

The defendant, a student 20 years of age at the time of trial in 1975, testified that he was eastbound on 89th Street driving a 1968 Oldsmobile at a speed of 35 miles per hour. As he crested the hill west of the point of impact, he was momentarily blinded by the lights of a westbound ear and took his foot off the accelerator and started down the hill. He did not give any estimate of his speed thereafter. He stated that when his view was clear of the glare, he saw a dog “very close to the yellow line” and “almost simultaneously” saw the plaintiff holding the dog’s collar, both moving south, and walking into the path of his car. He slammed on his brakes and turned his wheels to the right. He did not sound his horn at any time.

On cross-examination, he was asked to mark on the plat the location of his vehicle west of the point of impact when he first observed the dog and plaintiff, and he did so at a point which was approximately 200 to 250 feet west of the point the plaintiff was crossing 89th.

Officer William Forbes of the Accident Investigation Unit of the Kansas City, Missouri Police Department testified that he had specialized training in accident investigation, including the stopping distances of motor vehicles under various conditions. His qualifications were not challenged. He stated that in response to a radio call he was sent to the scene of the accident here involved to make the investigation. At the time he arrived at the scene the plaintiff had been removed to the hospital. The defendant’s car was in the south parkway and partially in the driveway of the house just east of the plaintiff’s home. Leading back to the west from defendant’s car were skid marks 95 feet in length. By a mathematical formula involving the coefficient of friction, the road surface and weather conditions, Officer Forbes testified that at 35 miles per hour (the defendant’s statement of his maximum speed) it would require 94.51 feet to bring the defendant’s car to a stop. This figure he stated included consideration of the normal reaction time. He stated that the road surface that morning was dry and free from any sand or gravel.

In a case based upon humanitarian negligence the exact point at which an injured person comes into a zone of immediate danger, whether or not plaintiff was oblivious and whether his obliviousness should have been apparent to defendant are generally questions of fact for the determination by the jury. Leap v. Gangelhoff, 416 S.W.2d 65, 67[4] (Mo.1967); Brummet v. Parker, 509 S.W.2d 10, 13[5] (Mo.1974); Loyd v. Moore, 390 S.W.2d 951, 955[7] (Mo.App.1965); Yarrington v. Lininger, 327 S.W.2d 104, 108-109[6] (Mo.1959).

In a situation such as that presented by this record, where a pedestrian is moving into a collision course with an approaching automobile, the obliviousness of the pedestrian (plaintiff, here) extends the zone of immediate danger beyond the immediate path of the approaching vehicle. In Loyd v. Moore, 390 S.W.2d 951 (Mo.App.1965), recognizing this logical principle, the court stated, 1. c. 955[5]:

“* * * And a jury may reasonably find that a plaintiff’s zone of imminent peril is widened by reason of his obliviousness, if it further finds that such obliviousness should have been apparent to the defendant. * * *”

In McDonough v. St. Louis Public Service Company, 350 S.W.2d 739 (Mo. 1961), the court stated, 1. c. 743[1]:

“* * * Plaintiff’s obliviousness widened the zone of peril considerably beyond the immediate path of the bus and imposed upon the bus driver the duty to act in avoidance when he saw, or by the exercise of the highest degree of care could have seen, plaintiff approaching the path of the bus oblivious of the danger and intent upon continuing into its path.

Many cases have declared this rule to be a fundamental part of the doctrine of humanitarian negligence. Williams v. Funke, 428 S.W.2d 11, 16[7] (Mo.App.1968); Jordon v. Johnson, 411 S.W.2d 451, 454[5] (Mo.App.1967); and Newell v. Peters, 406 S.W.2d 814, 821[10] (Mo.App.1966).

In the ease at bar, the plaintiff testified that after he looked in both directions before starting across 89th Street with his dog, he was oblivious of the approach of the defendant’s car until an instant before impact. While he was unable to place himself at that time other than to state it as his belief that he was still in the westbound lane nearer the center line of 89th than the north curb, the undisputed physical evidence of the skid marks and the testimony of the defendant place him in the eastbound lane in the path of defendant’s car when he was struck. It should also be recalled that the evidence showed that this intersection was brightly lighted.

The defendant’s testimony in this regard is particularly significant. He stated that he first observed the dog “about the size of a German shepherd”, “very close to the yellow line” and that he “almost simultaneously” saw the plaintiff holding the collar of the dog and both walking into the path of his car. Under all reasonable appearances and any reasonable application of the above-stated rule as to the zone of immediate danger, the jury could find that at that moment the plaintiff was in immediate danger.

But the decisive question then presents itself as to where the defendant’s automobile was at the time he made these observations. Was he at a place when he made these observations where he could or should have acted to avoid the injury and did he fail to do so? The testimony of plaintiff does not aid in the answer since he did not observe defendant’s car until just before the impact. However, the defendant designated the location of his automobile at that time by marking the plat at a point 200-250 feet west of the plaintiff and his dog. Under the expert testimony of Officer Forbes, he could have stopped when traveling at a speed of 85 miles per hour in 94.6 feet. The defendant testified that when he made his observations of the plaintiff’s danger he did not honk his horn but turned to the right and applied his brakes. Had he done so at the point where he located his car on the plat, the jury could reasonably find that the accident would not have occurred.

But the defendant argues that the plaintiff’s marking of his location on the plat had no probative value but represented only his belief, opinion, guess, or, at best, his estimate. While the courts have held that such estimates or approximations are not to be taken as absolute, “the jury is entitled to take the whole circumstances, correlate the facts and, if such reasonably can be done from the evidence, arrive at a conclusion which may not exactly fit any of the estimates.” Lafferty v. Wattle, 349 S.W.2d 519, 525—526[4] (Mo.App.1961).

Most estimates of speed or distances by any witness or party are approximations representing judgment, at best, but have probative value for whatever weight the jury may give them. Smith v. Siereks, 277 S.W.2d 521, 525[3] (Mo.1955); Lafferty v. Wattle, 349 S.W.2d 519, 525-526[4] (Mo.App.1961); Brummet v. Parker, 509 S.W.2d 10, 13 (Mo.1974); Fowler v. Robinson, 465 S.W.2d 5, 9[2, 3] (Mo.App.1971); and Newell v. Peters, 406 S.W.2d 814, 821-822[13, 14] (Mo.App.1966).

The distinction between this line of cases and those relied upon by defendant in support of his argument on this point is obvious. In each of those cases the testimony involved was either about a matter which could have been positively stated if it were within the knowledge of the witness or was so equivocal, indefinite, vague or insubstantial as to destroy its probative value. Such is not the situation in the case at bar. The defendant’s testimony and his indication on the plat definitely had probative value as to the location of his automobile when he saw plaintiff. Of course, under the positive, undisputed testimony with the required stopping distance at 35 miles per hour under the circumstances then existing, the jury could also have reasonably found that the defendant could have had time and distance to swerve and even a longer interval of time to sound a warning and thus have avoided injuring plaintiff. Jordon v. Johnson, 411 S.W.2d 451, 455-456[7] (Mo. App.1967).

For the reasons herein stated, the plaintiff made a submissible case of humanitarian negligence and the court below erred in refusing his instruction on that subject.

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

All concur.


source: Caselaw Access Project

author: WASSERSTROM, Presiding Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Ron COY, Appellant.
    No. KCD28525.
    Missouri Court of Appeals, Kansas City District.
    May 2, 1977.
    Theodore M. Kranitz, St. Joseph, for appellant.
    John C. Danforth, Atty. Gen., William F. Arnet, Asst. Atty. Gen., Jefferson City, for respondent.
    Before WASSERSTROM, P. J., and SOMERVILLE and TURNAGE, JJ.
   WASSERSTROM, Presiding Judge.

Defendant appeals from a conviction of felonious assault with malice, with intent to kill, and a consequent sentence of 8 years imprisonment. In support, he assigns ten points of error. We reverse on Point I, relating to juror Walker’s failure to disclose certain pertinent facts on voir dire examination concerning his relations with the Sheriff and other law enforcement officials.

Because of the narrow basis for reversal, only the facts relevant to this issue need be outlined. As part of the voir dire examination, defense counsel asked numerous questions. Among those were the following:

“Testimony for the State will come in part from law enforcement officers. Do any of you believe or harbor any feelings that the testimony of a law enforcement officer is entitled, or crime laboratory agent for that matter, is entitled to more weight or is any more reliable simply because he is a police officer or highway patrolman or sheriff or a crime laboratory agent? In other words, do you feel by the badge on the chest the man is more reliable simply because he has got the badge there and the State behind him? He ‡ #

A little later, this question was asked:

“Do any of you know why you could not be a fair and impartial .juror in this case for any reason I haven’t touched on yet?”

Counsel then commenced questions pertaining to the various witnesses expected to testify for the prosecution. In the course of that interrogation, counsel asked the following:

“Now, we have Sheriff John Middleton and Deputy Sheriff Whittington and Whan. * * * By reason of the fact Mr. Middleton is your elected sheriff and presumably all or most of you voted for him would that fact he is sitting here in the witness box make you tend to give him any more credence simply because he is your elected sheriff up here, or would you evaluate his testimony just as impartially as you evaluate everyone else’s, is this right?
“And that’s also so of the two deputies?”

After going through the list of the witnesses, defense counsel followed up with this question: “Any of you a close friend, personal friend, business, neighbor of any of those people I have just read and identified?” And he asked, “Has any of you ever been actively engaged in law enforcement work?” Counsel then concluded his interrogation addressed to the whole panel with the following general question:

“Does any of you know of any reason upon which I may not have touched, anything I may have omitted, I am not perfect either, I have memory lapses and so forth, any of you know of any reason I might not have touched upon that would make it difficult, and you are the only people who would know, that would make it difficult for you to sit and render a fair and impartial verdict in this case?”

To none of these questions did juror Walker respond affirmatively to show any special relationship to the Sheriff or other law enforcement officers.

After the conclusion of the trial, defense counsel learned for the first time that Walker had been called by the Sheriff the night of the alleged crime for the purpose of towing in defendant’s vehicle to Walker’s garage. An affidavit to this effect was secured from Walker and submitted as an exhibit to defendant’s motion for new trial. On the basis of that information, defendant argued on his motion for new trial and continues to argue in this court that, “[i]t is not at all unreasonable to presume, and indeed it is even probable that Walker and the officer discussed the incident, the progress of the investigation, and certainly the reason Walker was authorized lawfully to impound the vehicle.” Defendant’s argument goes on that had the facts been known, Walker would have been challenged for cause and if that challenge had been disallowed then he would have been peremptorily challenged.

Responding to the affidavit by Walker attached to defendant’s motion for new trial, the prosecutor obtained another, further affidavit from Walker which he then submitted to the trial court along with suggestions in opposition to defendant’s motion for a new trial. This second affidavit details how Walker was first called by the Maryville Police dispatcher, how he went out and met with the Sheriff or his deputy and received instructions on towing the car to Maryville, that he did not know the reason why the car was impounded, and that he never discussed prior to trial anything about the case with the Prosecuting Attorney, Sheriff, Deputy Sheriff, Highway Patrol, Police or any other law enforcement official. However, the affidavit further contains a significant additional statement which opens up an even more important aspect of this situation. The additional statement in question reads: “I frequently tow in impounded vehicles for the police, Sheriff or Highway Patrol.”

That part of Walker’s second affidavit which swears that he did not discuss the case with any law enforcement official pri- or to trial adequately answers the specific question which defendant raised in his motion for new trial and serves to still the suspicion above quoted from the brief filed by defendant in this court. Nevertheless, the statement by Walker that he frequently towed in impounded vehicles clearly reflects that he did this as part of his regular garage business, and so now discloses a continuing business relationship which he should have made known at the time of the voir dire examination.

The most fundamental principles of American criminal law guarantee to the defendant a trial by a fair and impartial jury. To give that guarantee meaning, the defendant is permitted to interrogate the prospective jurymen in order to reach his own conclusion as to whom he wants to sit or not sit, and the law accords him not only the right to challenge for cause but also to exercise a certain number of peremptory challenges at his own discretion. In order to have a guide in making these choices, the defendant must have and is given the right to interrogate the prospective jurors by voir dire examination. The courts fully recognize that the effective exercise of these rights require that the veniremen answer fully and truthfully on the questions put to them. State v. Jacckson, 412 S.W.2d 428, 432 (Mo.1967); Beggs v. Universal C. I. T. Credit Corporation, 387 S.W.2d 499 (Mo. banc 1965).

Because of the foregoing background reasons, the intentional concealment by a prospective juror of facts on voir dire will give rise to an inference of bias and prejudice thereby requiring a new trial. State v. Jackson, supra; Rinkenbaugh v. Chicago, Rock Island & Pacific R. Co., 446 S.W.2d 623, 626 (Mo.1969); State v. Hermann, 283 S.W.2d 617, 619 (Mo.1955). In addition to the implication of bias and prejudice from the failure to answer, that silence is prejudicial because the defendant is thereby deprived of an opportunity to challenge for cause or to exercise a peremptory challenge. Rodenhauser v. Lashly, 481 S.W.2d 231, 234 (Mo.1972); Suavely v. Kansas City Terminal Railway Go., 461 S.W.2d 1, 4 (Mo.1970); Rinkenbaugh v. Chicago, Rock Island & Pacific R. Co., supra; State v. Hermann, supra. It has been held that these rules apply in a civil case to every one of the jurors even though only nine jurors are necessary to a civil verdict. Beggs v. Universal C. I. T. Credit Corporation, supra; Triplett v. St. Louis Public Service Co., 343 S.W.2d 670 (Mo.App.1961). If that be true in a civil case, how much more it must be true in a criminal case where a unanimous verdict of all 12 jurors is necessary.

The questions which were asked on voir dire by defense counsel were amply sufficient to put Walker on notice that he should answer and make known his on-going continuous business relationship with the Sheriff’s office and with other law enforcement officials. Counsel had advised the panel that the Sheriff and his two deputies were likely to be prosecution witnesses, and inquiry had been made as to whether special credence would be given to them or other law enforcement officers. The veniremen had been asked specifically whether any of them were close friends or were social or business associates of the witnesses introduced, including the Sheriff and his deputies. They had been asked specifically whether any of them were engaged in law enforcement work. To top it all off, the veniremen were invited at an early point to volunteer any information which would prevent any of them from being a fair juror and still later they were again asked to volunteer any other reason that would make it difficult for any of them to sit and render a fair and impartial verdict.

In view of all of those questions, juror Walker simply had to know that defense counsel wanted to hear of any special relationship which he might have with the Sheriff’s office which might possibly affect his vote as a juror. It was not necessary for this purpose that defense counsel pinpoint exactly the precise type of association which Walker in this case had with the prosecutor's office. As stated in Toombs v. State, 197 Tenn. 229, 270 S.W.2d 649 (1954), where the venire was asked generally to state any reasons why any of the veniremen could not give all sides a fair trial, it is not incumbent on the defendant to cover minutely all phases of the particular subject by a long series of specific questions, “ * * but [it] is sufficient to ask such questions as indicate to the mind of a fair and reasonable man what information the examining counsel seeks to elicit” (citing 39 Am.Jur. § 44, p. 65). So also in State v. Thompson, 24 Utah 314, 67 P. 789 (1902) a venireman answered negatively to a general question whether there was any reason why he should not sit as a member of the jury. In fact, he was a director and stockholder of the firm which had been burglarized. In holding that a new trial should have been granted because of the failure to make disclosure, the Utah Supreme Court held that the juror’s “answer to the question asked him by defendant’s attorney was well calculated to mislead the defendant and set his mind at rest in regard to the impartiality of the juror.”

A leading case on this subject as to the necessity of a prospective juror to answer even to a general question concerning any reason why he should not sit is Pearcy v. Michigan Mutual Life Ins. Co., 111 Ind. 59, 12 N.E. 98 (1887) where it was held: “It was not incumbent upon the appellee to minutely cover, by a long series of specific questions, all phases of the subject, but it was enough to ask such a question as would indicate to the mind of a fair and reasonable man what information the examining counsel sought to elicit. * * * The authorities support our conclusion that if the general question fairly arouses the juror’s attention, and directs it to the information desired, it is enough, without specific questions covering minute phases of the subject.” The Pearcy case has been cited, quoted and followed in Missouri. Triplett v. St. Louis Public Service Co., supra; Gibney v. St. Louis Transit Co., 204 Mo. 704, 103 S.W. 43 (1907). See also Bass v. Durand, 345 Mo. 870, 136 S.W.2d 988 (1940).

The prejudice to defendant of Walker’s failure to answer is free from doubt. It is clear beyond question from the questions asked on voir dire that defendant’s counsel was anxious to know of any special relationship between any prospective juror and the law enforcement officers, particularly the Sheriff and his deputies. If Walker had volunteered the information which finally came out in his post-trial affidavits, that information would certainly have influenced the exercise of peremptory strikes. It matters little how compelling the information may have seemed to Walker as a ground for a strike; the defendant is entitled to all the knowledge which he seeks (once it is passed by the court as a proper question) in order to exercise intelligently his right of peremptory challenge according to his own rights. The prospective juror cannot be permitted to become the final arbiter of his own qualifications by withholding pertinent information.

Moreover, it could hardly be said that defendant would be unjustified in objecting to Walker as a juror had this information been in hand at the time of choosing the jury. For example in Tate v. People, 125 Colo. 527, 247 P.2d 665 (1952) the challenged juror was a special deputy sheriff who was not regularly employed on a salary but who performed special services at the request of the Sheriff. In that ease the Colorado Supreme Court stated: “In this case the juror, as a deputy sheriff, would be presumed to be under ordinary allegiance to his superior, the sheriff, who was the prosecuting witness in the case and his remuneration as deputy sheriff was wholly dependent upon such services as he might perform at the request of his superior. * * * Where other law-enforcement officials, including the sheriff, were material witnesses in the case, the disqualification of this juror was not even a debatable question.” Along the same line, State v. Golubski, 45 S.W.2d 873 (Mo.App.1932) held that a deputy sheriff should have been stricken for partiality where his superior officer, the Sheriff, was the chief witness for the State. In this connection the court remarked that “[h]is loyalty to his chief and fellow deputies would certainly have its weight.”

The prejudice in this case from Walker sitting as a juror was exacerbated by certain newspaper publicity which was read by Walker the evening before the trial began. After the voir dire examination was completed late in the afternoon and while the opposing counsel were considering their peremptory challenges, the court excused the jurors overnight with instructions that those who were chosen for jury service would be advised to report the following morning. That evening the daily newspaper carried an article stating that the trial of this defendant had begun. The charge against him was described as “attempted murder.” That of course constituted a misstatement. The article also reported, “Coy already has been the subject of numerous court proceedings, most involving the reduction of bail.” (Emphasis added). The portion of the article last quoted could have been interpreted as meaning that Coy had been the subject of various criminal charges other than and in addition to the present proceeding. When court resumed the following morning, defense counsel called the court’s attention to the newspaper article and the court inquired of the jury members whether any of them had seen the article in question. Walker answered in the affirmative.

This newspaper article under other circumstances might be considered as relatively innocuous. However in the present case the misrepresentation and possible innuendo of the article came to a mind with special sensitive receptivity when read by juror Walker. He already had a degree of identification with law enforcement by reason of his regular employment in towing vehicles for law enforcement officers, and he had been made aware that law enforcement officers would be witnesses for the prosecution in this case. The newspaper article had a likelihood of creating the impression that this particular prosecution was an important one on which the eyes of the community were focused and therefore one which the prosecuting attorney and police officers were particularly anxious to see succeed. Emphasis on this point, however, is unnecessary since the failure of Walker to disclose his business relationship with the Sheriffs office in and of itself constitutes a sufficient reason for requiring a new trial.

The other points of error raised by defendant need not be considered since on retrial they either will not recur, or if they do, that will be in the context of different trial circumstances.

Because of the non-disclosure by juror Walker, the judgment of conviction is reversed and this cause is remanded for a new trial.

All concur.


author: HIGGINS, Special Judge.

text:
    STATE ex rel. FEE FEE TRUNK SEWER, INC., a corporation, Relator-Respondent, v. PUBLIC SERVICE COMMISSION OF MISSOURI, Respondent-Appellant. STATE ex rel. ST. LOUIS COUNTY, Missouri and the Home Builders Association of Greater St. Louis, Relators-Respondents, v. PUBLIC SERVICE COMMISSION OF MISSOURI, Respondent-Appellant.
    No. 28732.
    Missouri Court of Appeals, Kansas City District.
    May 2, 1977.
    Leland B. Curtis, Thomas A. Hughes, Byron E. Francis, Public Serv. Comm., Jefferson City, for respondent-appellant.
    Russell A. Grantham, Bridgeton, for Fee Fee.
    Herman W. Huber, Jefferson City, for St. Louis County.
    George F. Gunn, Jr., County Counselor, Clayton, for relator-respondent.
    Before SHANGLER, P. J., and WEL-BORN and HIGGINS, Special Judges.
   HIGGINS, Special Judge.

Appeal by Public Service Commission from judgment which reversed an Interim Report and Order which purported to set rates to be charged by Fee Fee Trunk Sewer, Inc., for its services. Affirmed.

On February 16, 1971, Fee Fee Trunk Sewer, Inc., filed with the Public Service Commission a schedule of rates for sewer service which, if approved, would increase charges to all customers and would raise charges to residential customers from $28.80 to $60.00 annually. On March 11, 1971, the Commission suspended the proposed rates to July 16, 1971, and ordered Fee Fee to present its evidence in support of its proposed rates at a hearing May 3, 1971, Fee Fee presented its evidence and petitioned for interim rate relief pending final determination of its proposed rate increase. The hearing was continued. On May 12, 1971, the Commission denied the petition for interim relief and ordered its staff to file its prepared testimony by September 15,1971, and set further hearing for September 27, 1971. In the interim, the Commission further suspended the proposed rates to January 16, 1972.

On September 27 and 28, and on October 26, 1971, the hearing was resumed, and the evidence was completed. On January 14, 1972, Fee Fee’s proposed rates were further suspended pending issuance of a report and order to be effective February 1, 1972.

On January 20, 1972, the Commission issued a Report and Order effective January 31,1972, by which Fee Fee’s proposed rates for commercial customers were approved; its suspended proposed rates for residential customers were set at $3.50 monthly, $21.00 semiannually. On February 1, 1972, the Commission granted a rehearing upon motion of Fee Fee, among others, and, by separate order, approved the rates set’ by the Report and Order of January 20 in order to have rates on file pending rehearing and final report and order.

On May 25, 1972, the Commission issued subject Interim Report and Order, effective June 1, 1972, by which Fee Fee’s proposed rates for commercial customers were again approved; its suspended proposed rates for residential customers were again canceled; its rates for residential customers approved by the Commission February 1, 1972, were canceled; and rates for residential customers were set at $3.00 monthly effective July 1, 1972.

Fee Fee petitioned for review under Section 386.510, RSMo 1969, and on June 15, 1973, the court remanded the cause “for further proceedings.” (Additional evidence.) Upon appeal by the Commission, the cause was remanded to the circuit court for review of the Interim Report and Order on its merits. State ex rel. Fee Fee T. Sew. Inc. v. Public Serv. Com’n, 522 S.W.2d 67 (Mo.App.1975).

On October 20, 1975, the Interim Report and Order of May 25, 1972, was again submitted to the circuit court for review.

On March 3, 1976, the court determined that the Interim Report and Order which fixed Fee Fee’s rates was not based on competent and substantial evidence upon the whole record, and reversed the order.

Appellant Public Service Commission contends the court erred in reversing the Interim Report and Order of May 25, 1972, “because said report and order was based upon competent and substantial evidence upon the whole record.”

Upon review of a decision of the Public Service Commission, the inquiry of the circuit court goes to the reasonableness or lawfulness of the order, and reversal of the order is warranted if it appears that the action of the Commission was arbitrary, capricious, and without reasonable basis. Section 386.510, supra; State ex rel. Anderson Motor Serv. Co. v. Public Service Commission, 234 Mo.App. 470, 134 S.W.2d 1069, 1076[8] (1939); State ex rel. Anderson Motor Serv. Co. v. Public Service Commission, 348 Mo. 613, 154 S.W.2d 777 (1941). The judicial function neither requires nor justifies disregard of the findings of the Commission. They are “prima facie correct” and are reasonable or lawful if “supported by competent and substantial evidence upon the whole record” or are not “against the overwhelming weight of the evidence.” State ex rel. Chicago, R. I. & P. Railroad Co. v. Public Service Commission, 312 S.W.2d 791, 796 (Mo. banc 1958).

Appellant would support its contention with a brief and argument limited to an attempt to discredit Fee Fee’s officers-witnesses and its engineering study in support of its proposed increased rates. Nowhere does the Commission demonstrate any evidence to support its own residential rate determination ordered in the Interim Report and Order of May 25, 1972. This absence is demonstrated in the Commission’s findings and conclusions, e. g., “It is not possible for the Commission to make a determination of the value of the property of the Applicant used and useful in public service at this time. * * * In order for the Commission to make a meaningful determination of rate base, it is necessary that an original cost study be completed by the Staff, to include all of Applicant’s property devoted to public use. It also is not possible to make a determination of the fair value of the Applicant’s property until a complete original cost study has been made by the Staff. * * * As has been stated above in the Findings of Fact, it is not possible at this time to determine a rate base for the Applicant. * * * It is the opinion of this Commission that an original cost study should be completed by the Staff of this Commission as soon as possible in order to determine the original cost of plant in service and also to determine what portion of that plant in service has been built with contributions in aid of construction.”

The Commission’s action is arbitrary and capricious also in that its Interim Report and Order purported to approve rates for commercial customers and cancel proposed residential rates and, at the same time, recited an insufficiency of evidence upon which to determine rates for residential customers and yet purported to set such rates at $3.00 per month. Such inconsistency is destructive of any credibility of the Report and Order in question.

Accordingly, the judgment reversing the Interim Report and Order of the Public Service Commission of May 25, 1972, is affirmed and the cause is remanded.

All concur.

      . Remand is in order at least to the extent necessary for consideration of disposition of the escrow account described in the transcript, briefs, and in State ex rel. Fee Fee T. Sew. Inc. v. Public Serv. Com'n, supra, 522 S.W.2d 70, 71.


author: PER CURIAM.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Charles Leon HOPKINS, Defendant-Appellant.
    No. 10276.
    Missouri Court of Appeals, Springfield District.
    May 3, 1977.

      John C. Danforth, Atty. Gen., William F. Arnet, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    John S. Pratt, Springfield, for defendant-appellant.
   PER CURIAM.

The trial court granted defendant’s motion for a new trial after he had been jury-tried and convicted of second degree murder. Thereafter, defendant waived a jury and consented to be retried by the court upon the transcript of the first trial. We assume from the verbiage contained in the transcript on appeal that on January 24, 1976, the court believed defendant guilty of manslaughter and proceeded, inter alia, as follows: “The Court: Mr. Hopkins [the defendant], I again inquire whether you have any lawful reason why this court should not impose a sentence at this time? Mr. Hopkins: None, Your Honor . . . . The Court: It’s the Order, Sentence and Judgment that . . . the defendant be committed to the Department of Corrections for a period of five years.” A motion for new trial was never filed. Defendant’s notice of appeal was filed February 7, 1976.

“We are again confronted with a record which requires that we dismiss an appeal because no final judgment has been entered. It has been repeatedly held that a trial court sitting as a jury and rendering a verdict . . may not impose sentence and judgment until the time for the filing of a motion for new trial has expired. . . . In this case it appears that no motion for new trial was ever filed. . . . Likewise, there is no formal verdict of guilty, although the court indicated such would be his finding. Thus, ... the defendant’s right to file a motion for new trial and reinstate his appeal would be in question if a verdict had, in fact, been rendered. Rule 27.20, V.A.M.R. We shall, therefore, . . . set aside the submission, dismiss the appeal and remand the cause to the trial court with directions to enter a verdict, receive and rule upon a motion for new trial, if any be filed, and make an entry of final judgment in accordance with Rule 27.20.” State v. Spear, 503 S.W.2d 52 (Mo.App.1973).

All concur.


author: HENRY, Justice. FONES, Justice, HENRY, Justice.

text:
    STATE of Tennessee, Petitioner, v. Ronald W. PURSLEY, Respondent.
    Supreme Court of Tennessee.
    Feb. 28, 1977.
    Rehearing Denied April 11, 1977.
    R. A. Ashley, Jr., Atty. Gen., John F. Southworth, Jr., Asst. Atty. Gen., Nashville, J. William Pope, Dist. Atty. Gen., Pikeville, for petitioner.
    Harold Brown, William Brown, Chattanooga, for respondent.
   OPINION

HENRY, Justice.

This case presents the issue of whether the trial judge erred in failing to make a conclusive determination of the voluntariness and admissibility of a criminal defendant’s confession, prior to its submission to the jury. The Court of Criminal Appeals unanimously concluded that the procedure employed by the trial judge in determining the admissibility to the defendant’s confession was improper. We affirm.

I.

Defendant’s conviction for first degree murder was based, in substantial part, upon his confession. Prior to the trial of this case, the defendant moved to suppress his confession, contending that it had been obtained through coercion. A pre-trial admissibility hearing was conducted for the purpose of determining voluntariness of the confession, and numerous witnesses were called to testify. At the conclusion of this hearing, the trial judge stated: “I’m going to overrule your motion at the present time.” The trial then proceeded, with some duplication of proof as to the voluntariness of the defendant’s confession. Finally, in his instructions to the jury, and after stating the general rules for the admissibility of confessions, the trial judge charged:

Ordinarily, the question as to whether a confession is voluntary or not is one mixed law and fact (sic), to be decided by the Court, but, in this case, under all the facts and circumstances the Court submits to you for your determination from all the evidence, whether, first, was there, in fact, a confession as I have defined it herein; and second, whether if made, it was free and voluntary. .

Implicit in the fact that the trial judge overruled the defendant’s motion to suppress his confession is the conclusion that he considered it to have been voluntarily obtained. Nonetheless, thé instructions quoted supra, indicate that he was in doubt as to the voluntariness of the confession at the close of the proof, since the jury was also allowed to pass upon this question.

We granted certiorari to consider the correctness of the trial judge’s actions, and to clarify what we perceive to be a source of some confusion as to the proper procedure concerning the admissibility of confessions in this state.

II.

The clear weight of authority in Tennessee requires that in determining the admissibility of a criminal defendant’s confession, the initial decision as to its volun-tariness is to be made by the trial judge alone. Wynn v. State, 181 Tenn. 325, 181 S.W.2d 332 (1944). Quoting from an early opinion in Self v. State, 65 Tenn. 244 (1873), Chief Justice Grafton Green, in Wynn, supra, approved the following language:

When confessions are offered as evidence, their competency becomes a preliminary question, to be determined by the court. This imposes upon the presiding judge the duty of deciding the fact whether the party making the confession was influenced by hope or fear. This rule is so well established, that if the judge allowed the jury to determine the preliminary fact, it is error, for which the judgment will be reversed, (citation omitted). 181 Tenn. at 328, 181 S.W.2d at 333.

Thus, when objection to the admissibility of a confession is raised, the proper procedure is to conduct a hearing outside the presence of the jury, at the conclusion of which the trial judge determines the question of admissibility with “unmistakable clarity.” See Sims v. Georgia, 385 U.S. 538, 87 S.Ct. 639, 17 L.Ed.2d 593 (1967). This procedure, sometimes referred to as the “orthodox” rule, has long been accepted by courts in Tennessee as the proper method of determining the admissibility of a criminal defendant’s confession. See Wynn v. State, 181 Tenn. 325, 181 S.W.2d 332 (1944); Self v. State, 65 Tenn. 244 (1873); Boyd v. State, 21 Tenn. 39 (1840).

Under the “orthodox” rule, the admissibility of a confession is not a proper matter for submission to the jury, however, once admitted, the weight to be given a confession does become a matter for the jury’s consideration. As stated by the Court in Wynn, supra, the jury’s purpose

is to determine whether defendant made the confession and whether the statements contained in it are true. To aid them in resolving these questions the jury may hear evidence of the circumstances under which the confession was procured. 181 Tenn. at 329, 181 S.W.2d at 333.

A substantial number of jurisdictions apply what is known as the “Massachusetts” rule in determining the admissibility of a criminal defendant’s confession. Under this rule, after the trial judge has initially determined the admissibility of a confession, the jury is allowed to reconsider its admissibility by independently assessing the evidence of its voluntariness. The jury, if it finds the confession to have been freely and voluntarily given, may then consider the truthfulness of the confession. The distinctions between these two rules as well as the procedures adopted by the various jurisdictions which apply them, are the subject of an annotation entitled, “voluntariness of confession admitted by court as question for jury,” in 85 A.L.R. 870 (1933), and supplemented in 170 A.L.R. 567 (1947). See also Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), Appendix A.

Both the “orthodox” and the “Massachusetts” rules have been upheld as against due process challenges under the Federal Constitution. See Jackson v. Denno, supra. Unquestionably, as pointed out supra, Tennessee adheres to the “orthodox” rule. However, use of the “Massachusetts” rule, by inadvertence or otherwise, has not previously been considered as constituting reversible error in Tennessee. See, e. g. Beaver v. State, 220 Tenn. 133, 414 S.W.2d 841 (1967); Shafer v. State, 214 Tenn. 416, 381 S.W.2d 254 (1964).

III.

The trial judge, in the instant case, instructed the jury that it was to determine both the admissibility and credibility of the defendant’s confession, despite the fact that he had previously made his own independent, final determination as to admissibility. Although such a procedure does contravene Tennessee’s “orthodox” rule, the State insists that it merely constitutes harmless error under the circumstances of this case. The State’s argument is based upon the rationale that since the trial court initially determined at the suppression hearing that the confession was voluntary, re-submission of the admissibility issue to the jury merely converted the “orthodox” procedure into the “Massachusetts” rule, a mistake which previous Tennessee courts have refused to consider as constituting reversible error.

Reliance is placed upon Shafer v. State, 214 Tenn. 416, 381 S.W.2d 254 (1964), a case which involved a search and seizure suppression hearing. The Court, equating such procedures to those involved in the determination of admissibility of confessions reasoned that:

[i]f the Trial Judge went further in this case and applied what is termed as the “Massachusetts or Humane Rule” referred to in Jackson v. Denno, that would not be a denial of due process under the ruling of the United States Supreme Court in that case, nor would it be reversible error. ...
The defendants could not possible be harmed by having the jury in addition to the Trial Judge pass upon the legality of the search in this case. (Emphasis supplied). 214 Tenn. at 431, 381 S.W.2d at 261.

Subsequently, in Beaver v. State, 220 Tenn. 133, 414 S.W.2d 841 (1967), the Court again considered the effect of such an instruction.

We in Shafer v. State, 214 Tenn. 416, 381 S.W.2d 254, discuss this procedure of the court and the jury both passing upon the legality of searches and confessions and determine that it certainly wasn’t error and no harm was done the defendant. As a matter of fact he was getting the best of the situation. (Emphasis supplied). 220 Tenn. at 147, 414 S.W.2d at 848.

After carefully reviewing the procedures employed by the trial judge in the instant case, we are unable to concur with the State’s reliance upon Beaver v. State, supra, and Shafer v. State, supra, to the effect that any error was harmless. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774,12 L.Ed.2d 908 (1964), requires that the determination of voluntariness of a confession must be resolved separately from the issue of its reliability or weight, and that such a determination cannot be made solely by the convicting jury.

Although the “Massachusetts” rule itself was specifically approved in Jackson v. Demo, supra, the use of such a rule, as previously discussed, assumes that the trial judge has already made his own independent and final determination as to voluntar-iness. In the present case, after denying the defendant’s motion to suppress the confession “at the present time," the trial judge subsequently instructed the jury that “[ojrdinarily, the question as to whether a confession is voluntary or not is . to be decided by the Court, but, in this case, under all the facts and circumstances the Court submits to you for your determination from all the evidence” whether the confession was voluntarily given. The unmistakable conclusion to be drawn from such a charge is that the trial judge was abdicating his responsibility of making a final determination and, as suggested by the Court of Criminal Appeals, was in doubt as to the voluntariness of the confession. Under these circumstances, the trial judge did not, with “unmistakable clarity,” make his own independent determination as to the voluntariness of the defendant’s confession.

In holding that the trial judge erred by submitting the questions of voluntariness and reliability of the defendant’s confession to the jury for its sole determination, we also expressly reaffirm the use of the “orthodox” rule. Specifically, we herein adopt that version of the rule as stated in Wynn v. State, 181 Tenn. at 328,181 S.W.2d 332, as the proper procedure to be employed in this state with regard to the admission of a criminal defendant’s confession. To the extent that Beaver v. State, supra, and Shafer v. State, supra, have applied a standard which differs from this “orthodox” rule, we hereby disapprove the use of such procedures in all future cases. In so doing, we note that the “Massachusetts” rule and other similar procedures, even if considered not to be prejudicial to a criminal defendant, are nonetheless prejudicial to the State, which in our adversary system of criminal justice, is also entitled to receive a fair trial, free from undue prejudice. Cf. Corlew v. State, 181 Tenn. 220, 180 S.W.2d 900 (1944).

The judgment of the Court of Criminal Appeals is hereby

Affirmed.

COOPER, C. J., and BROCK, J., concur.

FONES and HARBISON, JJ., dissent.

FONES, Justice,

dissenting.

I cannot agree that the trial judge committed reversible error in this case.

In my opinion, the trial judge found that defendant confessed freely and voluntarily. Had he not done so, it was his duty to suppress the confession and exclude from the jury any consideration of voluntariness or truthfulness.

It seems to me that the majority places undue significance upon the trial judge’s addition of the phrase “at the present time,” to his statement overruling the motion to exclude the confession.

I agree that the charge allowed the jury to reconsider the voluntariness of the confession, thus adhering to the “Massachusetts” rule rather than the “orthodox” rule. I agree that in Tennessee we have had, and should continue to adhere to, the “orthodox” rule.

The United States Supreme Court has approved the “Massachusetts” rule as well as the “orthodox” rule. I do not believe that Court intended the expression “unmistakable clarity,” used in Sims v. Georgia, supra, with regard to the trial judge’s independent determination of the voluntariness, to be so narrowly and rigidly construed. That observation is based upon a careful reading of both Jackson v. Denno, supra, and Sims, and particularly the following from the latter case:

“Furthermore, Georgia’s highest court, in finding that its rule satisfied the requirements of Jackson, overlooked the fact that the same safeguards offered by the Georgia practice were present in the procedures of New York in Jackson and were rejected by this Court. A constitutional rule was laid down in that case that a jury is not to hear a confession unless and until the trial judge has determined that it was freely and voluntarily given. The rule allows the jury, if it so chooses, to give absolutely no weight to the confession in determining the guilt or innocence of the defendant but it is not for the jury to make the primary determination of voluntariness. Although the judge need not make formal findings of fact or write an opinion, his conclusion that the confession is voluntary must appear from the record with unmistakable clarity. Here there has been absolutely no ruling on that issue and it is therefore impossible to know whether the judge thought the confession voluntary or if the jury considered it as such in its determination of guilt.” 87 S.Ct. at 643.

But, if it be conceded that the trial judge failed to comply with the dictates of Sims, reversal of this case is unwarranted for the reasons expressed in the quotes from Shafer v. State, supra, and Beaver v. State, supra, in the majority opinion.

Lack of prejudice to the defendant seems to be conceded by the majority, but it is said, that, if the defendant was not prejudiced, the State was. No assignment of error has been made by the State on the basis that it was prejudiced. To the contrary, it asserts that the error was in favor of defendant and that it was harmless. It is fundamental that a defendant is not prejudiced by error in his favor. Sullivan v. State, 513 S.W.2d 152 (Tenn.Cr.App.1974). Also see State v. Collins, 528 S.W.2d 814 (Tenn.1975) and cases cited at 819.

However, it appears more likely that the majority reverses because Shafer v. State, supra, and Beaver v. State, supra, held a departure from the “orthodox” rule to be harmless error and, implicitly, we must never do so again, to insure strict compliance with that rule.

Both defendant and the State have had a fair trial. I am convinced that the technical error in applying the “Massachusetts” rule was harmless, beyond a reasonable doubt and to a moral certainty.

I would reverse the Court of Criminal Appeals and reinstate the judgment of the trial court finding defendant guilty of murder in the first degree and sentencing him to life imprisonment.

I am authorized to say that Justice Har-bison joins in this dissent.

OPINION ON PETITION TO REHEAR

HENRY, Justice.

The State has petitioned us to rehear this case, and to reconsider the opinion which we rendered in the same.

The State’s petition presents two issues for our consideration.

First, the State renews its contention that the trial judge made a final determination of the admissibility of Pursley’s confession with “unmistakable clarity,” citing several portions of the Bill of Exceptions and of the Wayside Bill of Exceptions in support thereof. In response, we can only reiterate what we stated in our Opinion: It is our considered belief that the judge’s statements at trial, and in particular his charge to the jury, indicate that he abdicated his responsibility to make an independent and final determination of the admissibility of the confession. Such an abdication is clearly improper, under both the “orthodox” and the “Massachusetts” rules.

Secondly, the State asks us to reconsider our opinion to the extent that it is based on a solicitude for the State’s interests, in that they do not believe that the relief granted the defendant — a new trial — will prove of benefit to them in this instance. The State’s request is based on a misapprehension of the reasons for our decision. Although we believe that, as a general rule, departures from the “orthodox” rule will tend to be prejudicial to the State, that concern does not motivate our holding in the present ease. We affirmed the judgment of the Court of Criminal Appeals because we believe that Pursley was prejudiced by the failure of the trial judge to make an independent determination of the question of admissibility.

For the reasons set forth above, the petition is denied.

COOPER, C. J., and BROCK, J., concur.

FONES and HARBISON, JJ., dissent.


author: GALBKEATH, Judge.

text:
    Max Gordon COX, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Nov. 10, 1976.
    Certiorari Denied by Supreme Court April 25, 1977.
    William F. Durham and Arthur McClellan, Gallatin, for appellant.
    R. A. Ashley, Jr., Atty. Gen., Donald S. Caulkins, Asst. Atty. Gen., Nashville, O’Brien Price, Dist. Atty. Gen., Springfield, Lance B. Bracey, Asst. Dist. Atty. Gen., Springfield, for appellee.
   OPINION

GALBKEATH, Judge.

We must reverse the conviction of the appellant for murder in the first degree for a number of reasons.

It was proved at the urging of the State that the defendant was insane for some years following the murder and necrophilic rape of the teen-age victim in Gallatin near midnight of the 1st day of February, 1966. This insanity frustrated repeated efforts on behalf of the defendant to be tried on the indictment which was not served on him because of his mental incapacitation until more than two years after its return.

The record leaves no reasonable room for doubt that from the time he was first evaluated in 1966 at Central State Hospital until after the decision by the United States Supreme Court in Jackson v. Indiana, 406 U.S. 715, 92 S.Ct. 1845, 32 L.Ed.2d 435 in 1972 the defendant was insane. Jackson held that persons accused of crime who could not be tried because of insanity may not be detained on criminal charges beyond a reasonable time. It takes little reading between the lines to appreciate the dilemma the State confronted in the face of Jackson. An obviously insane person accused of committing one of the most heinous crimes possible would have to be released from criminal custodial restraint or found, in the face or prior adjudications to the contrary, to be sane and tried, hopefully, before the restraint could be termed unreasonable. Inasmuch as the United States Supreme Court had held that some three and one half years was an unreasonable period of time, it is difficult to understand how almost ten years could, under any view, be considered reasonable, particularly when the delay was occasioned, in large measure, by the State’s insistence that the defendant throughout the decade that passed was not able to advise counsel in his defense.

The last of a number of unsuccessful attempts on the appellant’s behalf to have his sanity restored in order that he could be tried was made on the 18th day of October, 1973, and a jury, for the fourth time as in 1966, 1970, and 1973, found Cox to be insane. The proceedings of the 1973 hearing are before us in bill of exception form. But we have only the minute entries setting out the judgments in the prior hearings and on the final petition successfully seeking restoration on the 9th day of September, 1975.

The record in this case is in a deplorable condition. The motion to dismiss for failure to grant a speedy trial is included in the technical record, but nowhere do we find a copy of the minute entry overruling it. Nor is there a bill of exceptions preserving the evidence presented at the last restoration hearing in which the defendant was found insane almost a year after his motion of September 24, 1974 to dismiss for denial of a speedy trial was rejected. However, we are able to discern from the bill of exceptions and the entire record that the motion to dismiss for lack of a speedy trial was ruled on adversely to the defendant’s contention and that he was a year later found to be competent to stand trial.

We hold, inter alia, that the trial judge was in error in failing to grant the defendant’s motion to dismiss the indictment because the accused had been denied his right to a speedy trial for the reasons set out in Jackson v. Indiana, supra. In that case, as here, the trial court found that the accused over a period of years “lacked comprehension sufficient to make his defense” and ordered him, as was Cox in this case, committed to a state facility until such time as he could be certified sane and competent to stand trial.

Counsel argued that Jackson’s commitment under these circumstances amounted to a “life sentence” without his ever having been convicted of a crime, and that the commitment therefore deprived Jackson of his Fourteenth Amendment rights to due process and equal protection, and constituted cruel and unusual punishment under the Eighth Amendment made applicable to the States through the Fourteenth. The trial court denied the motion. On appeal the Supreme Court of Indiana affirmed, with one judge dissenting, 253 Ind. 487, 255 N.E.2d 515 (1970). Rehearing was denied with two judges dissenting. We granted certiorari, 401 U.S. 973, 91 S.Ct. 1203, 28 L.Ed.2d 322 (1971) . . . [W]e conclude that, on the record before us, Indiana cannot constitutionally commit the petitioner for an indefinite period simply on account of his incompetency to stand trial on the charges filed against him. Accordingly, we reverse. Jackson v. Indiana, supra, 406 U.S. at 720, 92 S.Ct. at 1849.

The State correctly points out that the proof in Jackson was to the effect that the defendant in that case would, in all likelihood, never become competent, whereas in the instant case the defendant was determined to be sane after some ten years of hospitalization for mental disease. We are impressed with the fact that for almost three times the period found to be sufficient for the restoration of sanity in Jackson, the defendant was consistently determined to be incompetent by jury verdict to stand trial. He was in this status at the time his Jackson, type motion to dismiss was overruled. We cannot escape the conclusion that under almost any conceivable circumstances ten years is such a delay between indictment and trial that to deny repeated requests for disposition of the case is violative of the Federal and State guarantees of speedy trial. 6th Amendment, U.S. Constitution and Article 1, § 9, Tennessee Constitution. Those matters delineated in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) to be considered in making this determination, i. e., the length of the delay, (2) the reason for the delay, (3) the defendant’s repeated assertion of the right, and (4) prejudice to the defendant, are all factors in this case.

The delay was perhaps the longest ever to come to the attention of this Court. The reason for the delay was because the State opposed both the request of the defendant to be tried and certifications by the staff of Central State Hospital to the effect that the defendant, while medicated, was sane. The State was successful for many years in convincing juries that the accused should not be tried. The prejudice is obvious. There was a strong likelihood that the defendant could have demonstrated that he was insane at the time the crime was committed if tried soon after being served with the indictment after the passage of the first two years when he was found to be sane by the examiners. Four juries did find him insane after he had been certified competent by the staff at Central State Hospital during the years involved. It is quite conceivable that these same juries would have found that the insanity predated the crime. Indeed, from the medical history found in the record, it is quite probable such a finding would have been made. Sane or not, the anxiety and mental anguish that must accompany the frustration of the right to assert a defense and the increasing difficulty to establish it after many years must be even more pronounced when one is forced to spend the intervening time in a madhouse for the criminally insane.

In reversing, we also sustain assignments alleging that the rights spelled out in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) were not adequately explained to and waived by the defendant before the investigating police obtained from him highly incriminating admissions. This is not surprising since the custodial investigation took place prior to the decision in that landmark case. However, the trial was post-Miranda whose safeguards were made applicable to all cases tried later. Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966).

It is also noted that the judge’s charge on the issue of insanity was not complete in that he failed to charge that before the jury could find beyond a reasonable doubt that the defendant was sane at the time the crime was committed they must determine whether or not he was laboring under such a disease of the mind so “as not to know the nature and the quality of the act he was doing.” That is an integral part of the test laid down more than a century ago in M’Naughten’s Case 10 Clark & F 200, 8 Eng. 718 (1843) which, at the present time, is the rule that must be applied in Tennessee. See Edwards v. State, 540 S.W.2d 641 (Tenn.1976) and Spurlock v. State, 212 Tenn. 132, 368 S.W.2d 299 (1963). M’Naughten has been widely criticized and even abandoned in many jurisdictions. It isn’t much, but it is all we have to guide us in Tennessee, and it should be completely charged. It was not in this case.

We recognize that our decision leaves unresolved a major problem, the dilemma touched on at the outset that confronted the State when faced with the prospect of the holding in Jackson being applied to the defendant. This problem is akin to that discussed by Justice Henry, Justice Fones concurring, in the dissent in Edwards, supra:

There is a glaring deficiency in Tennessee statutory law as it relates to the disposition of criminal defendants found not guilty by reason of insanity. All will agree that [such] a criminal defendant, acquitted by a jury, should not be released to return to society, and, I think all will agree that confinement in a penal institution is inappropriate restraint for the mentally ill. Our law gives the jury no alternative. Either it sends a mentally ill defendant to the penitentiary or it releases him upon society. Given this choice societal instincts of preservation demand confinement in the penitentiary.
The Law Revision Commission came to grips with this problem. § 40-2321, of its proposed criminal code, provides that in certain designated cases (including homicide), if a defendant is found guilty by reason of insanity:
[T]he Court shall order him to be committed to the custody of the Commissioner of Mental Health to be placed in an appropriate institution for custody, care and treatment.
The Commission’s comment under this proposed section reads, in pertinent part, as follows:
Tennessee is now the only state not having statutory procedures for the treatment of criminal defendants acquitted on the defense of insanity. The resulting uncertainty as to the disposition of the incompetent offender has resulted in an unreasonable resistence to the proper use of the insanity defense in this state. (Emphasis supplied).
This proposed Code provision now pends before the Legislature. The adoption of some procedure for public disposition in such cases is a matter of urgent public concern. Tennessee desperately needs some mechanism for providing the public with protection and simultaneously insuring that the unfortunate victims of mental disease are dealt with in a humane manner. Their restoration to useful and productive citizenship is a matter of compelling state interest.

We feel safe in saying that, even though contained in a dissenting opinion, the above observations are universally approved by all concerned with the administration of criminal justice in Tennessee. The following commentary by Justice Henry was obviously not completely acceptable to the majority in Edwards under the facts of that case but well illustrates the necessity for remedial attention to the serious problem:

Trial and appellate judges and jurors labor under the difficulty arising from the State’s failure to act in this area of vital public concern. Twelve jurors and nine judges have now considered George Edward’s case. I am persuaded that if they had a choice each of these twenty-one Tennesseans would say without a moment’s hesitation that he should be placed in a mental institution for care and treatment. I believe all would agree that sending him to the penitentiary would be inhumane. Time was when the lame, the halt, the physical misfits and the mentally diseased were thrown over a cliff because they were a threat to the security of the group. George Edwards is such an outcast. We are throwing him over the cliff because there is a void in our law.

For even more compelling and additional reasons other than those dealt with in Edwards, we are impelled to the legal conclusion that the defendant should, and must, be released from all criminal restraint.

Accordingly, the judgement is reversed, and the prosecution is dismissed.

RUSSELL, Panel P. J., and DAUGH-TREY, J., concur.


author: DWYER, Judge.

text:
    Willis Michael DANIELS, Jr., Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Dec. 30, 1976.
    Certiorari Denied by Supreme Court April 4, 1977.
    Robert T. McGowan, Nashyille, for appellant.
    Brooks McLemore, Atty. Gen., Robert E. Kendrick, Deputy Atty. Gen., E. E. Edwards, III, Asst. Dist. Atty. Gen., Nashville, for appellee.
   OPINION

DWYER, Judge.

Willis Michael Daniels, Jr., appeals his jury conviction of robbery by use of a deadly weapon, T.C.A. 39-3901, and assessed punishment of confinement for fifteen years in the State Penitentiary. From the judgment imposed on that verdict this appeal has been seasonably perfected.

Appellant’s assignments of error summarized are these: (1) the court erred in allowing certain items, which were seized by the police without a search warrant and which belonged to codefendants not on trial, to be used as evidence against the defendant; (2) the court erred in allowing certain items, to wit, money orders and food stamps, to be admitted in evidence, although no proper foundation had been laid to connect them with defendant.

We will succinctly narrate the evidence we have found from reviewing this record.

At approximately 9:30 a.m. on March 5, 1973, the A&P Food Store at Ninth and Buchanan Streets in Nashville, Tennessee, was robbed by three black males, one of whom was armed with a pistol. One thousand six hundred eighty-six dollars and forty-one cents worth of cash and food stamp coupons and a large number of American Express money orders were taken.

An employee of the post office next door to the A&P observed the three holdup men leaving the scene and gave a description of their car and its license plate number to the policemen responding to the robbery complaint.

This vehicle was observed later that day parked at the nearby Eldorado Motel by a patrolling officer who then requested assistance. While the robbery investigation was in progress at this location, two suspects were observed running from the building and were subsequently apprehended. During this time the motel room of these two men was searched in an effort to locate the third robber. The following items discovered in that room were admitted into evidence at the trial: (1) a pistol; (2) eight books of money orders; and (3) eight books of change coupons for food stamps. The money orders were identified as the ones taken in the robbery and the food stamp coupons were identified as the type used by A&P stores and taken in the robbery.

The automobile was processed for fingerprints and the appellant’s thumb print was found on the left rear door glass of this car.

The appellant was arrested the next day at another location. He did not testify and offered no proof.

The appellant complains that the search of the motel room and seizure without a warrant of the above mentioned physical evidence was illegal and therefore the fruits of the search were inadmissible. However, the record is devoid of any claim by the appellant of a possessory interest in the room upon which to base his objection to its search.

As stated in Allen v. State, 161 Tenn. 71, at page 73, 29 S.W.2d 247 (1930):

“The constitutional provision forbidding the government and its officers to invade private property inures to the protection of the person in possession. . . .It does not extend to third persons.”

The appellant has no standing to contest the validity of the search. Miller v. State, Tenn., 520 S.W.2d 729, 733 (1975). These assignments are overruled.

Appellant also assigns as error the admission of the money orders and food stamps alleging that no proper foundation had been laid to connect them with the defendant. Although this assignment is unbriefed, we have considered it and find it to be meritless.

Prior to the introduction of these items, the appellant had been identified by an eyewitness victim as the one who had held a gun on the store employees and had taken money from a cash register, the money orders and food stamp coupons had been identified as being those taken in the robbery by the bookkeeper victim, and the getaway car had been traced to the motel where the evidence was collected. We find no error in the trial court allowing this evidence to be presented to the jury. The assignment is overruled.

The judgment of the trial court is affirmed.

WALKER, P. J., and TATUM, J., concur.


author: PER CURIAM. JONES, Justice

text:
    BOARD OF EDUCATION OF JEFFERSON COUNTY, Kentucky, Petitioner, v. S. Rush NICHOLSON, Judge, Jefferson Circuit Court, etc., Respondent.
    Supreme Court of Kentucky.
    Nov. 12, 1976.
    E. Preston Young, Louisville, for petitioner.
    David L. Armstrong, Commonwealth’s Atty., Henry A. Triplett, Louisville, for respondent.
   PER CURIAM.

The Commonwealth’s Attorney for the Thirtieth Judicial District of Kentucky filed a motion with the Honorable S. Rush Nicholson, one of the judges of the Jefferson Circuit Court, Criminal Division, requesting that he empanel a special grand jury to consider “ * * * matters of alleged financial irregularities in the operation of the Jefferson County School Board.” On October 20, 1976, Judge Nicholson entered an order “ * * * that a Special Grand Jury for November, 1976 will be impaneled, pursuant to KRS 29.205, to consider matters of alleged financial irregularities in the operation of the Jefferson County School Board.” Petitioner seeks to prohibit Judge Nicholson from empaneling a special grand jury and from carrying out his order of October 20, 1976.

According to the affidavits filed herein, the regularly empaneled grand jury for the month of November, 1976, will not have the time to make a full and complete investigation into the financial operations of the Jefferson County Board of Education as well as carrying out its usual and ordinary duties. It appears that such an investigation will be an undertaking of great proportions which may require the full and undivided attention of a grand jury for a prolonged period of time. The Commonwealth’s Attorney has not alleged, and the record does not reflect, that any criminal activity has been carried on by the Board or by any of its members, representatives, or employees. The Commonwealth’s Attorney has not alleged, and the record does not reflect, that any investigation of the financial affairs of the Board will disclose' any criminal activity on the part of the Board, its members, representatives, or employees.

In Schroering v. Kunzman, Ky., 518 S.W.2d 338 (1975), this court pointed out that KRS 29.205 and KRS 29.245(2) regulate the empaneling and session of grand juries in Jefferson County. KRS 29.205, in dealing with empaneling a grand jury in Jefferson County, refers to “a grand jury.” KRS 29.245(2), in dealing with sessions of the grand jury, says “the grand jury may remain in session.”

The statutes neither specifically permit nor specifically prohibit multiple grand juries serving at the same time in the same county. This does not mean, however, that since the statutes do not specifically provide for more than one grand jury, two grand juries may never be utilized to serve in the same county simultaneously. It is within the inherent power of the courts to provide for an efficient and effective system of judicial administration, a part of which is to provide proper procedural methods including, but by no means limited to, the proper and prompt dispatch of the business of the grand jury.

The proper disposition of this case, however, requires an answer to two questions. Since the final disposition of this action and the opinion of this court will deal with the power of a circuit judge generally to empanel a grand jury in addition to the regularly empaneled one, we do not limit our discussion and opinion to a judge of the Jefferson Circuit Court, Criminal Division, but the opinion will be for the guidance of all circuit judges within this Commonwealth.

I. May more than one grand jury be empaneled in the same county to function simultaneously?

In Beach v. Lady, Ky., 262 S.W.2d 837 (1953), this court, in a four to three opinion, held that a circuit judge had no power to empanel a grand jury other than at a time when the court was in session. The dissenting opinion reasoned to the contrary. The dissent in Beach leads this court to the answer to our first query. Therein it is written:

“Our Constitution divides our government into its three branches, the legislative, executive and judicial, and provides that ‘each of them (shall) be confined to a separate body of magistracy’. Ky .Constitution, § 27. And it further provides that neither of these departments of government ‘shall exercise any power properly belonging to either of the others, except in the instances hereinafter expressly directed or permitted.’ Ky.Constitution, § 28. The courts of this state are all created by the Constitution, § 135, and the circuit courts are the courts of general trial jurisdiction, § 126. Even the essential structure of our grand juries is recognized in the Constitution, § 248. ******
Within the twilight zone between the legislative and judicial branches of the government, the Legislature, in keeping with the powers implicitly and expressly delegated to it in the Constitution, §§ 125 through 138, has enacted legislation covering the jurisdiction of circuit courts, appeals from circuit courts, terms of such courts, compensation for circuit judges, creation of court districts, provisions for special judges and the appointment of additional judges, and the qualification and selection of juries and grand juries. All of this legislation is designed to standardize practices and to organize and facilitate the functioning of the judicial system. For us to ascribe an intention to the Legislature to cross over into the historic judicial field, to fetter the courts so they cannot function in an emergency in their historic judicial field, impliedly raises the question of the constitutionality of such legislation. If we construe legislation which says when and how grand juries must be called to mean that they may be called at no other time, we step out of that twilight zone between the branches of government and penetrate to the very heart of the inherent and historic power of the court and of the judge as a conservator of the peace. ⅜ * ⅜: JJ

We conclude that under proper conditions a circuit judge may, in addition to the regularly empaneled grand jury, empanel an additional grand jury to function concurrently.

II. Under what conditions may an additional grand jury be utilized?

The second issue necessitates a determination of the conditions which must exist before an additional grand jury may be empaneled.

In 38 Am.Jur.2d, Grand Jury, § 9, it is written:

“ * * * when it is made to appear that a system of crime exists among public officers, that there are criminal conspiracies respecting public business, safety, or health, or that other criminal acts which affect these functions or are of a widespread nature exist, the judge may properly order an investigation. It has been said, however, that a court has no power to set in motion a grand jury investigation unless it has reasonable cause to believe that such an investigation will disclose some criminal misconduct which is within its jurisdiction to punish. The court must have knowledge or definite information from trustworthy sources that criminal acts forming a system of criminal violations of the law have been committed, and at least one or more cognate offenses should exist on which to base a general investigation. No such inquiry may be set in motion on the chance or speculation that some crime may be discovered. Charges of misconduct in office made in a district attorney’s petition for the convening of a grand jury to investigate such charges are too vague, indefinite, and uncertain to warrant the granting of the petition where there is no allegation of the time when and the place where the alleged violations of the law were committed, or that any one violation was committed within the jurisdiction of the court. But sufficient ground to warrant a grand jury investigation of the conduct of public officers is afforded by a petition which charges a conspiracy to cheat and defraud the state, to extort money and levy blackmail, and to engage in corrupt solicitation, misfeasance, and malfeasance in office, at a time within the statutory period of limitations and at places within the jurisdiction of the court, alleging overt acts as a part of the system of related crimes which it is necessary for the grand jury to investigate.” (Emphasis added)

It is apparent from the record that no charge has been made that the Board of Education of Jefferson County, Kentucky, has violated any penal law, nor has any charge been made that any member of the Jefferson County Board of Education has committed a crime or violated any penal law of this Commonwealth. The only allegation that appears in the record relative to the need for an additional grand jury is that the Commonwealth’s Attorney has learned that there are “ * * ⅜ alleged financial irregularities in the operation of the Jefferson County School Board.”

Although a motion and supporting affidavit requesting the empaneling of a special grand jury need not set forth in detail evidence on which the Commonwealth’s Attorney may rely, there must be at least an allegation of conduct which would constitute reasonable cause to believe that a grand jury investigation will disclose criminal activity within the court’s jurisdiction to punish. An allegation of “financial irregularities” is not a charge of criminal misconduct. In re Investigation by Dauphin County Grand Jury, 1938, 332 Pa. 289, 2 A.2d 783,120 A.L.R. 414. In addition, the papers must make it apparent, as here, that the regular grand jury is, for reasons beyond its control, unable to adequately function. The material presented here will not justify the empaneling of a grand jury to serve in addition to the regular one.

Petitioner’s petition for an order of prohibition is granted. The respondent is prohibited from empaneling the grand jury sought on the basis of the present showing.

Full Court sitting.

All concur, except JONES, J., who dissents in part in a separate opinion.

JONES, Justice

(dissenting).

I concur with that portion of the majority opinion which states:

“We conclude that under proper conditions a circuit judge may, in addition to the regularly empaneled grand jury, empanel an additional grand jury to function concurrently.”

I feel that I must register my dissent to the result reached by the majority.

It is my view that the showing of the need for an additional grand jury by the Commonwealth’s Attorney made it incumbent upon the circuit judge to empanel an additional grand jury. The record reveals that the average number of cases presented to the respective monthly grand juries of Jefferson County for 1976 have ranged from three hundred to four hundred and fifty presentments.

The majority’s view that “alleged financial irregularities in the operation of the Jefferson County School Board” is insufficient to authorize the circuit judge to empanel an additional grand jury. The majority’s position is that an allegation of “criminal conduct” are the magic words constituting the key that opens the door to an investigation. In my view, that premise is based on quicksand and subject to be mired forever in a quagmire of misunderstanding concerning the word, “irregularities.”

I am persuaded that a complaint of alleged “financial irregularities” is a charge of criminal conduct. The New Century Dictionary defines irregularities as “not conformed or conforming to rules of justice or morality . . . ” A distinguished American poet, more than a hundred years ago, expressed his views on the matter as follows:

“Now that to steal by law is grown an art And ‘slightly irregular dilutes the shame of what had once a somewhat blunter name.”

The Commonwealth’s Attorney had complaints from citizens about the irregularities of the Jefferson County Board of Education. He had complaints from three elected state representatives. He had reports from newspaper articles concerning the “irregularities.” Pray tell, what other information did he require? Certainly, he was not required to “show his hand.” However, he had both the duty and the obligation to request the convening of an additional grand jury. Those who had complained were entitled to tell a grand jury the nature and the extent of their knowledge of the irregularities.

I am of the opinion that a judge of a circuit court charged with criminal jurisdiction has the inherent power to call a grand jury at any time he thinks, in good faith, that the situation requires him to do it. If the judge had the same information as did the Commonwealth’s Attorney, he needed no motion nor affidavit in support of the motion to empanel an additional grand jury.

The circuit judge is required by rule of this court to charge the grand jury as follows:

“The court shall swear the grand jurors and charge them to inquire into every offense for which any person has been held to answer and for which an indictment or information has not been filed, or other offenses which come to their attention or of which any of them have knowledge. The court shall further instruct the grand jurors concerning inspections and reports which are required of them by law.” RCr 5.02.

Since time immemorial, this court has adhered to the principle that a writ of prohibition is an extraordinary remedy. Prohibition should be granted when the circuit judge acts without his jurisdiction or when he acts erroneously in his jurisdiction. In my view a judge should not be prohibited from fulfilling the duties required of him unless irreparable injury will result for which there is no adequate remedy. None of these conditions are present in this case.

In argument to this court, counsel for the Board of Education of Jefferson County stated that it “had nothing to hide” and that the board “welcomed an investigation.” Those noble expressions belie the board’s action to seek and secure a grant of prohibition.

In my view the granting of prohibition in this case is not conducive to the fair and efficient administration of justice. I would have denied prohibition. In my opinion the “proper conditions” existed for the circuit judge to empanel an additional grand jury. For the reasons enumerated, I dissent.

      . Lowell, James Russell, “Témpora Mutantur.


author: LESTER, Judge.

text:
    MAMMOTH CAVE PRODUCTION CREDIT ASSOCIATION, Appellant, v. L. D. GERALDS and his wife, Shirley Geralds, Appellees.
    Court of Appeals of Kentucky.
    March 4, 1977.
    Discretionary Review Denied June 8, 1977.

      H. Jefferson Herbert, Jr., Wilson, Herbert, Garmon & Sparks, Glasgow, for appellant.
    Frederick S. Meessen, Louisville, for the Federal Land Bank of Louisville, amicus curiae.
    Clay Hundley, Jr., Tompkinsville, for ap-pellee.
    Before HOGGE, LESTER and WHITE, JJ.
   LESTER, Judge.

On May 21, 1975 appellant, Mammoth Cave Production Credit Association filed its complaint against appellees L. D. Geralds, his wife Shirley Geralds and the Farmers Home Administration in order to obtain collection of two promissory notes made by the Geralds with Mammoth Cave PCA and secured by a real estate mortgage on property in Monroe County on one parcel of which the FHA held a prior unsatisfied mortgage. Mammoth Cave had inserted a clause in the notes and the mortgage that upon default the borrower agreed to pay expenses of collection and reasonable attorney fees. The Geraldses failed to appear and on September 24, 1975 the court entered judgment against them for the amount owed FHA and Mammoth Cave PCA including attorney fees for Mammoth Cave PCA to be allowed after the sale of the property. The judicial sale on October 18,1975 produced proceeds sufficient to pay FHA, Mammoth Cave PCA and attorney fees of Mammoth Cave PCA. Eleven days after the sale appellees entered their first appearance and moved that attorney fees be denied. On January 28, 1976 after consideration of the arguments of counsel the court entered an order which denied appellant attorney fees on the ground that the provision in the promissory note and mortgage calling for payment of attorney fees violated public policy. Mammoth Cave PCA appeals and the Federal Land Bank of Louisville files an amicus curiae brief in support of Mammoth Cave PCA’s position. We affirm.

Appellant concedes that the case law in Kentucky has uniformly held unenforceable as against public policy a provision in a promissory note and/or real estate mortgage that the debtor pay the attorney fee arising as a result of the debtor’s default, Cloud v. Hug, Ky., 281 S.W.2d 911 (1955), Miller Bros. Co. v. Blackburn Coal Co., 212 Ky. 447, 279 S.W. 618 (1926), Witherspoon v. Musselman, 77 Ky. (14 Bush) 214, 29 Am. Rep. 404 (1878), but it urges us to reverse the trial court’s ruling in accordance with these decisions on the ground that either the public policy has been changed by the legislature or it should be changed by this Court.

Appellant cites K.R.S. 355.3-106, 355.9-504(l)(a) and 287.215 as impliedly approving the attorney fee provision before us now, but nothing in the language of those statutes would compel such a far reaching result. K.R.S. 355.3-106 refers only to the requirements an instrument must meet in order to contain a sum certain for negotiability purposes. The Court in C. I. T. Corporation v. Studebaker Sales of Kentucky, 251 Ky. 349, 356, 65 S.W.2d 84, 87 (1933) responded to the argument that the comparable section on certainty 3720 b-2 of the Negotiable Instruments Act validated stipulations for attorney’s fees in notes by stating,

(i)t will be perceived that no attempt is made in that language ... to enact or prescribe that a stipulation for attorney’s fees could legally be made; but only that if one was contained in the note it would not render the sum agreed to be paid uncertain so as to destroy the negotiability of the instrument.

But appellant takes the position that because the language in K.R.S. 355.3-106 now reads “attorney’s fee not exceeding fifteen per cent (15%) of the amount owing or five hundred dollars ($500), whichever is smaller” instead of just “attorney fees” as in 3720 b-2 that the legislature wished a different outcome in relation to attorney fee provisions. We are not willing to place a meaning on this limitation other than the obvious one that an attorney’s fee higher than the restriction would make the instrument indefinite enough so as not to consist of a sum certain. K.R.S. 355.9-504 deals with a secured party’s right to dispose of collateral after default and does allow for the application of the proceeds from the sale of the collateral to “the reasonable expenses of retaking, holding, preparing for sale, selling and the like and, to the extent provided for in the agreement and not prohibited by law, the reasonable attorneys’ fees and legal expenses incurred by the secured party . . . .” K.R.S. 355.9— 504(l)(a). However, this section only applies to personalty used as collateral not real property as in this case and we decline to decide what the phrase “not prohibited by law” would mean in light of the case law, in the abstract. Appellant directs our attention to K.R.S. 287.215(3) as his strongest source of legislative policy. K.R.S. 287.-215 sets out in detail the circumstances and conditions under which a bank or trust company can collect in advance the charge on an installment loan. Section (3) of this statute permits a small delinquency charge on each installment more than ten days in arrears, and “attorney’s fees not exceeding fifteen percent (15%) of the unpaid balance.” Our reading of the statute as a whole conveys to us that the legislature in narrowly drafting it meant to confine its scope to a particular type of loan. Appellant’s reliance on the equal protection clause of the United States Constitution has no merit since it does not really suggest that a bank or trust company would be able to do what appellant wants to do. The short answer to appellant’s claim of legislative sanction is that the General Assembly has had before it the long line of Kentucky decisions holding provisions of the type in question invalid and if it wished to vary this well settled rule it would have doné so specifically not obliquely.

In addition appellant calls on this Court to overturn the controlling case law and establish a new approach consistent with appellant’s impression of modern economic thought. In the absence of specific legislative direction we must refuse appellant’s request. The Supreme Court of the United States in Alyeska Pipeline Service v. Wilderness Society, 421 U.S. 240, 247, 95 S.Ct. 1612,1616, 44 L.Ed.2d 141 (1975) considered a related problem and came to a similar conclusion when it stated that,

(i)n the United States, the prevailing litigant is ordinarily not entitled to collect a reasonable attorneys’ fee from the loser. We are asked to fashion a far reaching exception to this “American rule”; but having considered its origin and development, we are convinced that it would be inappropriate for the Judiciary, without legislative guidance, to reallocate the burdens of litigation in the manner and to the extent urged by respondents

Justice Lukowsky cited the above principle contained in Alyeska, supra, with approval in Shepherd v. Johnson, Ky., 535 S.W.2d 238, 240 (1976). Policies so firmly entrenched as the one before us will not and cannot be pushed aside by this Court.

All concur.