author: HOGGE, Judge. GANT, Judge,

text:
    Linda Joyce ADKINS (now Boyd) and Charles E. Moore, Appellants, v. Samuel Porter ADKINS, Appellee.
    Court of Appeals of Kentucky.
    Opinion Rendered April 7, 1978.
    Ordered Published April 21, 1978.
    As Modified On Denial of Rehearing Nov. 17, 1978.
    Charles E. Moore, Owensboro, for appellants.
    Harold Wayne Newton, Hawesville, for appellee.
    Before GANT, HOGGE and WINTER-SHEIMER, JJ.
   HOGGE, Judge.

This is an appeal from an order granting a motion to modify a decree of divorce and judgment, thereby relieving the appellee of his obligation to make support payments to the appellant during the months of June, July, and August while the children are in his custody.

In 1970, the appellant and the appellee were granted a divorce. The decree granted custody of the parties’ two infant children to the appellant and incorporated a separation agreement which provided that the appellee would pay the sum of one hundred and fifty dollars ($150.00) per month to the appellant for the support and maintenance of said children. Thereafter, the decree was modified to grant to the father, appellee, visitation rights during the months of June, July, and August, during which period the children would live with him. The appellee ceased to pay support during the months the children were in his custody. The appellant brought an action for contempt, and following a lower court hearing, the appellee was allowed to make deductions from his obligation of support during those months he was in custody of the children. The Supreme Court subsequently reversed the order of the lower court and held that since the separation agreement had not been modified to reflect any change in the appellee’s support obligation, it was error for the lower court to allow such deductions.

Thereafter, the appellee petitioned the lower court to modify the decree so as to excuse him from his obligation to make support payments during the months when he had custody of the children. That motion was granted and this appeal follows.

First, the appellant urges that the “law of the case” rule operates to preclude any further consideration of the issue of support during the months the appellee has custody of the children. We do not agree. The issue in the first appeal was whether the lower court could excuse the appellee from complying with the terms of the decree. The Supreme Court held that it could not. The propriety of modifying the decree as it concerned the husband’s obligation of support was not before the court. This case presents an entirely different question from the one previously ruled upon and the “law of the case” rule is inapplicable.

Next, the appellant contends that it was error for the lower court to grant the motion to modify the decree without first conducting an evidentiary hearing and making appropriate findings.

KRS 403.250 states that there must be “a showing of changed circumstances” in order to modify a decree respecting support. No certain procedure for making this showing is set forth. Show has been defined as “[t]o demonstrate, to make apparent or clear, either to the eyes or to the understanding or to both, by display, by evidence, by illustration, or by other means.” Ballen-tine’s Law Dictionary (1969 ed.). The record of the proceedings between these parties reflected that the original divorce judgment had been modified so as to allow the father to have custody of the children for three months out of each year. This fact was brought to the attention of the appellant and the court during the hearing on the motion to modify, and it was made clear that this was the basis of the allegations of changed circumstances. It is a well-established principle that a court will take judicial notice of its own records in the case before it and of all matters patent on the face of such records, including all prior proceedings in the same case. Maynard v. Allen, 276 Ky. 485, 124 S.W.2d 765 (1939); 29 Am.Jur.2d Evidence § 57. Judicial notice of such facts takes the place of proof and is of equal force, 29 Am.Jur.2d Evidence § 14.

We hold that the burden of proof placed on the party seeking a modification of a divorce decree was met. What stronger showing could one make than show the court that it, by its own orders, had made a very substantial change in the time of actual custody of children by the parties, a twenty-five percent change. Certainly a change of this magnitude, as shown by the record, is more convincing than evidence. If there were facts mitigating against the granting of the motion, the appellant was free to bring them to the attention of the court at the hearing, and to indicate her desire to present evidence in rebuttal. She did not do so.

In Burnett v. Burnett, Ky., 516 S.W.2d 330 (1974), the court stated that the circuit court must make appropriate findings of evidentiary facts whenever the court grants a motion to modify a support agreement. Admittedly, there were very few evidentiary facts presented to the lower court, and the order of the circuit court made no recitation that this court can interpret as a finding of fact. This was error. However, the appellant made no request for such findings. CR 52.04 provides that no judgment shall be reversed for failure to make such findings unless the failure is brought to the court’s attention in the form of a written request or motion for said findings. Therefore, the appellant has not properly preserved this issue for review.

Next, the appellant contends that there has been no change of circumstances “so substantial and continuing” as to warrant a modification of the judgment. It was said in Wilhoit v. Wilhoit, Ky., 521 S.W.2d 512, 513 (1975) that “[t]he trial court is vested with broad discretion in matters of this kind, and this court will not interfere unless that discretion is abused.” This court is of the opinion that the modification of the original divorce judgment, so as to allow the father to have custody of the children for three months out of each year, is a changed condition so substantial and continuing as to make the terms of the original separation agreement unconscionable. We, therefore, cannot say that the trial court abused its discretion in so finding. A twenty-five percent change in time of custody of children is most substantial. This substantial change in time of custody renders the support payment unconscionable.

Last, the appellant contends that the court erred in failing to properly exercise its discretion in considering the appellant’s motion for attorney’s fees. Both parties concede that an award of an attorney’s fee is entirely within the discretion of the court. Wilhoit, id. However, the appellant points out that where the trial judge labors under the misconception that he lacks the authority to make such an award, it cannot be said that he exercised his discretion. See Malloy v. Malloy, Ky., 460 S.W.2d 15 (1970).

KRS 403.220 provides that the court “may order a party to pay a reasonable amount for the cost to the other party of maintaining or defending any proceeding under this chapter and for attorney’s fees . incurred prior to the commencement of the proceeding or after entry of judgment.” [Emphasis added.]

The following colloquy demonstrates that the judge did not recognize his discretionary authority.

MR. MOORE: Judge, what about my motion for attorney’s fee?
JUDGE MARTIN: The only way I know that you can collect an attorney’s fee is that the Court of Appeals has held where an attorney moves for and gets an additional allowance for child support. He is at that time in effect representing the children and is entitled to an attorney’s fee. That’s the only time I know of in a post-divorce hearing that an attorney is entitled to a fee. Do you know of any other times?
MR. MOORE: Well, it’s my understanding, Your Honor, that an attorney could be granted an attorney’s fee whenever he was defending a Motion for a woman where the Motion was to take part of the child support away from her.
JUDGE MARTIN: Well, the Court has held that, but only where he gets additional support for the child.

We, therefore, find it necessary to reverse this portion of the order. This reversal is not to be construed as indicating an opinion of this court, one way or the other, as to whether an attorney’s fee should be allowed. Upon remand, the circuit court should merely take into consideration the full range of authority conferred upon it by statute and reach a decision after taking into consideration all the pertinent factors.

The judgment is affirmed in part and reversed in part and remanded for further proceedings consistent with this opinion.

WINTERSHEIMER, J., concurs.

GANT, J., dissents.

GANT, Judge,

dissenting.

I must dissent from the majority opinion in this case. That opinion states that the appellee met his burden of showing “changed circumstances” by the fact that six years before his hearing on the petition to modify he was granted three months custody of these children. A change this long before the hearing is simply inadequate to meet this burden. Additionally, the majority opinion ignores the fact that the original decree gave him sixty days custody if appellant left the state, which she did, as well as any other custody at reasonable times and places. The modified agreement, in addition to being ancient, just did not give him any more custody than he previously had.

If we accept as sacred the records of the court, we find that one and a half years before the hearing on the petition to modify, the appellant proved that her needs had increased substantially, that she was unemployed, her children had entered school and that appellee’s earnings had increased by about 30%. The “records” of the court, in light of the previous decision of the appellate court, simply do not support the modification.

For these reasons, I respectfully dissent.


source: Caselaw Access Project

author: REYNOLDS, Judge.

license: Public Domain

text:
    TUBE TURNS DIVISION OF CHEMETRON, Appellant, v. Kenneth QUIGGINS and Workmen’s Compensation Board, Appellees.
    Court of Appeals of Kentucky.
    April 28, 1978.
    Discretionary Review Denied Jan. 9, 1979.

      Wesley G. Gatlin, Wm. P. Swain, Thomas H. Watson, Boehl, Stopher, Graves & Dein-doerfer, Louisville, for appellant.
    Robert M. Lindsay, Louisville, for appel-lees.
    Before MARTIN, C. J., and REYNOLDS and WILHOIT, JJ.
   REYNOLDS, Judge.

This is an appeal from an opinion and final order of Jefferson Circuit Court, affirming an award of the Workmen’s Compensation Board.

On June 21, 1976, the Board entered an award for the appellee, Kenneth Quiggins, permitting him a recovery of 17% occupational disability for a period of 425 weeks with medical expenses to be paid by the employer, not to exceed $3,500.

On June 22,1976, appellee filed a petition for reconsideration and therein set out two errors, one of which was the restriction of the employee’s payments to 425 weeks and, second, that there was no dollar amount for weekly benefits. Appellee specifically requested the following paragraph to be substituted in place and instead of paragraph 1 of the Board’s original opinion and award:

That the plaintiff, Kenneth Quiggins, shall recover of the defendant, Tube Turns, for 17% occupational disability, or the sum of $19.51 from December 16, 1974, so long as he is disabled, together with interest at the rate of 6% per annum on all past due and unpaid installments of any such compensation, and said defendant shall take credit upon this Award for any weekly compensation heretofore paid to the plaintiff.

On June 23, 1976, appellee filed an amendment to the petition for reconsideration which re-emphasized the argument of the original petition for reconsideration and renewed, word for word, the correction sought and, additionally, sought the deletion of the limitation upon medical expenses.

On July 12, 1976, the Board entered an order sustaining every issue raised by the appellee and corrected the award in the exact manner as requested by the appellee.

On July 22, 1976, appellee filed a second petition for reconsideration for the reason that the employee had been awarded weekly benefits of $19.51 and was entitled by virtue of Apache Coal Company v. Fuller, Ky., 541 S.W.2d 933 (decided June 11, 1976; rehearing denied November 12,1976), to the amount of $28.00 weekly benefits. Thereafter on August 9, 1976, the Board entered an order which “passed” the motion “at this time”, to be reconsidered after the Apache case became final.

Thereafter on March 2, 1977, appellee filed a motion for a ruling upon his second petition for reconsideration, and the Board on March 22, 1977, sustained appellee’s second petition for reconsideration and amended its award of June 21, 1976, increasing the weekly benefits to the sum of $28.00.

The question before the court in this case is whether an aggrieved party may file a second petition for reconsideration more than 14 days after the date of the first award but within a period of 14 days from the entry of the Board’s corrective order and award. As cited by the parties, Commonwealth v. Robertson, Ky., 447 S.W.2d 857 (1969), affirms that an award, order or decision of the full Board becomes final immediately upon its entry but that a petition for reconsideration destroys the finality of the award. However, the scope of the limitation on the Board’s right of review was not presented in that case. Beth-Elkhorn Corporation v. Nash, Ky., 470 S.W.2d 329 (1971). The exact issue relating to K.R.S. 342.281 and the filing, by the same party, of a second petition for reconsideration has not been determined by our courts. While not controlling, the case of Washington v. Clover Fork Coal Co., 269 Ky. 604, 108 S.W.2d 502 (1937), considered an analogous question relating to such procedure as then controlled by a statute (since repealed) relating to a second Board review which was denied. It is evident that the petition for reconsideration not only must be filed within 14 days from the date of the award of the full Board but that it shall clearly set out the errors relied upon and that the Board shall be limited in such review to the correction of errors patently appearing upon the face of the award. Herein, following the entry of the original award, appellee timely filed a petition for reconsideration and a timely amendment which set out the errors relied upon.

We hold K.R.S. 342.281 to mean that any party may file a petition for reconsideration within 14 days from the date of the award which, in this case, was June 21, 1976. Within 14 days, appellee, by his petition and amendment, set out all errors relied upon, and the Board, limited in its review, corrected all errors relied upon by the appellee and patently appearing upon the face of the award. Neither the statute nor the Board’s regulations extend the time or provide for the filing of a petition for reconsideration more than 14 days after the date of the award, which means the original order, award or decision and the date of its entry. We do not construe the statute as permitting a party to file a petition for reconsideration or, in effect, a second petition for reconsideration more than 14 days from the date of the original award, except where the subsequent order contained an error not present in the original award and, therefore, could not have been raised by the first petition for reconsideration. Messamore v. Peabody Coal Co., Ky.App., 569 S.W.2d 693. The statutory limitation is clear. The apparent justification is that if parties adversely affected could continue to ask for reconsideration, a final determination could be unduly delayed, and there would never be an end to workmen’s compensation litigation. To hold otherwise would be to provide a series of procedural traps and delays. Johnson v. Eastern Coal Corporation, Ky., 401 S.W.2d 230 (1966). Additionally, the mere fact that a new appellate decision, that may be prospectively favorable to the appellee, has appeared is not enough to permit the filing of a second petition for reconsideration after the right to file the petition for reconsideration has been lost. Appellee’s remedy was not by K.R.S. 342.281.

The judgment is reversed with directions to remand to the Workmen’s Compensation Board for the entry of its order of July 12, 1976.

All concur.


author: HAYES, Judge.

text:
    Charles Edward THOMAS, Appellant, v. COMMONWEALTH of Kentucky, Appellee (two cases).
    Court of Appeals of Kentucky.
    June 2, 1978.
    Discretionary Review Denied Jan. 9, 1979.

      Jack Emory Farley, Public Defender, Commonwealth of Kentucky, Kevin Michael McNally, Asst. Public Defender, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., Rodney V. Tapp, Asst. Atty. Gen., Frankfort, for appellee.
    Before MARTIN, C. J., and HAYES and WINTERSHEIMER, JJ.
   HAYES, Judge.

Appellant, Charles Edward Thomas, appeals from his conviction in the Madison Circuit Court of terroristic threatening and from an order of that court overruling his motion for a new trial based on newly discovered evidence.

Appellant was living in Richmond, Kentucky, when his estranged wife, Gladys Thomas, returned from Chicago, Illinois, on June 26, 1976, in order to attempt a reconciliation of their marriage.

On July 15, 1976, Mrs. Thomas swore out a complaint against appellant alleging that on the previous day he threatened to kill her. Appellant was convicted in the Richmond Police Court of terroristic threatening in violation of KRS 508.080 and was sentenced to twelve (12) months in the county jail on September 21, 1976.

Appellant appealed this conviction and a trial de novo was held in the Madison Circuit Court on June 28, 1977.

The case for the Commonwealth was based solely on the testimony of Gladys Thomas. Mrs. Thomas on direct examination stated that on the Friday before she went to swear out the warrant that she was in her front yard cutting weeds with a butcher knife when appellant came out of the house, hit her across the back with his hand, laughed and ran into a barber shop next door. Appellant then came back laughing and hit her across the back with a belt and then ran into a liquor store about three doors down from the house. Appellant continued to aggravate Mrs. Thomas until she asked him to go and get her a coke.

Mrs. Thomas then testified thusly:

. So, we went about an hour, an hour and a half after my mom left and he came in and said, “I told you to get ready to go,” and I said, “I’m not going,” and he grabbed me by the hair of the head and threw me against the refrigerator and said, “you are going or I will kill you and prove self-defense. This is one time everything is on my side. So, just get dressed and let’s go somewhere and show everybody what a happy family we are.”

Next, Mrs. Thomas gave testimony concerning the circumstances surrounding the threat which is the basis for the charge against appellant:

. So, on Wednesday, he came in and he said, “I will come home. I'm coming home.” I said, “you can’t. You absolutely cannot. I went and applied for welfare,” and he said, “I have to tell the man, Mr. Clark, that I’m here or I’ll be in trouble.” One thing led to another and he jumped up in the middle of the floor and said, “you and Brenda have got me against the wall. You’re going to get me in trouble. I will cut both your heads off before I go back.” Those are almost the exact words. And I looked around and the little girl was standing right in the screen door .

On cross-examination, Mrs. Thomas testified that this threat was made in the late afternoon and that on the next morning, on July 15, 1976, she went and got a warrant.

Appellant’s evidence consisted of the testimony of five (5) witnesses. Two witnesses, Paul Rucker and Cecil Ballard, testified about the backslapping incident which appeared to them to be just horseplay. Neither witness knew on which date this incident took place.

Dewey Allen and Linda Ross both testified that appellant had supper at the Ross home on the evening of July 14, 1976.

Mrs. Ross testified that appellant arrived at her home between 6:00 to 6:30 p. m. that evening and left between 9:00 to 9:30 p. m. Dewey Allen testified that on July 14,1976, between 4:00 and 5:00 p. m., he met appellant at Bluegrass Liquors and that he and appellant went to the home of Linda Ross for supper. Allen and appellant left Mrs. Ross’s home about 9:00 p. m. and went back to Bluegrass Liquors and stayed there together until 10:30 or 11:00 p. m. Another witness, Carol Richards, substantiated the testimony of Dewey Allen and Linda Ross.

Mrs. Thomas also gave further testimony to the effect that the threat was made before 4:00 p. m.

A verdict of guilty was returned by the jury, which fixed appellant’s punishment at imprisonment for six (6) months.

Subsequently, appellant filed a pro se motion for a new trial on the grounds of newly discovered evidence which consisted of three (3) “unsworn affidavits”. Two (2) of these affidavits were given by Paul Rucker and Cecil Ballard, who were witnesses at the previous trial. These affidavits merely indicated that the backslapping incident occurred on or about July 9,1976, and not on July 14, 1976.

A third affidavit was given by Irene McWhorter, Mrs. Thomas’s mother, which merely again placed the time of the backslapping incident to have occurred around 2:30 p. m. on July 9, 1976.

The trial court overruled appellant’s pro se motion on September 22, 1977, thusly:

. The defendant having filed, pro se, a Motion Seeking a New Trial Based Upon Newly Discovered Evidence, said evidence being based principally upon the unsworn statements of Paul Rucker and Cecil Ballard, each of whom testified on defendant’s behalf on the trial of this matter, and further based upon the un-sworn statement of Irene McWhorter, which specifically states that she has no knowledge of the events and acts that resulted in defendant’s conviction, and the Court being sufficiently advised, orders that said motion be and the same hereby is OVERRULED. . . .

Appellant in his direct appeal makes three (3) allegations of error: First, the evidence introduced at trial is insufficient to support his conviction. Second, that appellant’s conviction has been based solely on highly inflammatory and irrelevant testimony, thus denying him a fair trial. Third, appellant has been denied due process of law in violation of the Kentucky and United States Constitutions because KRS 508.-080(l)(a) is unconstitutionally vague and overbroad.

Appellant’s first contention that it was clearly unreasonable for the jury to find the defendant guilty is clearly unfounded. In the case at bar, the jury, acting as the trier of fact, believed Mrs. Thomas’s story. The additional witnesses added little if anything to the case for the defense. We cannot say that their verdict was not based on substantial evidence.

This court feels that the evidence presented by the Commonwealth established the offense of terroristic threatening and that it was proper for the trial court to submit the case to the jury. Smith v. Commonwealth, Ky., 263 S.W.2d 929 (1954).

Second, appellant argues that he was substantially prejudiced by certain irrelevant and highly inflammatory portions of Mrs. Thomas’s testimony.

Appellant cites several examples. When asked why she came back from Chicago, Mrs. Thomas replied, “I thought that anything would be better than staying here and putting up with him and he did touch my child in a sexual way and he even tried to . .

Appellant’s trial counsel objected to this statement immediately and the trial court properly admonished the jury.

When asked if she had testified about the alleged threat at some other hearing, Mrs. Thomas replied that she gave testimony at appellant’s parole revocation hearing. Whereupon appellant’s trial counsel objected and the jury was once again properly admonished by the trial court.

Mrs. Thomas also gave testimony which stated that while she lived in Chicago, appellant lived with another woman and that this woman was pregnant with his child. Further that this same woman had taken a warrant out against him and finally that appellant’s threat caused Mrs. Thomas’s daughter so much distress that, “she stayed up all night, having nightmares about him cutting my throat and drinking the blood ..” These statements made by Mrs. Thomas were never objected to by appellant’s trial counsel.

Appellant argues and cites several cases including Acres v. Commonwealth, Ky., 259 S.W.2d 38 (1953), for the authority that testimony on collateral matters which is introduced solely for the purpose of smearing the character of the defendant or for the purpose of showing other offenses constitutes reversible error.

This is certainly true; but the conviction in Acres v. Commonwealth, supra was reversed because the trial court let the prejudicial testimony in and failed to admonish the jury to disregard it.

In this case, the trial court admonished the jury to disregard every statement made by Mrs. Thomas that appellant’s trial counsel objected to. The trial counsel did not ask for a mistrial. As to those statements which were not objected to, we cannot consider them because they have not been preserved for appellate review.

It almost seems ironic for appellant to raise a cry against this prejudicial testimony on appeal when appellant’s own trial counsel stated in his closing argument that the appellant, “is not on trial for being on parole.”

In any case, appellant has failed to show that any of these alleged inflammatory statements were so prejudicial as to constitute “palpable error” so as to deny appellant’s right to a fair trial. Salisbury v. Commonwealth, Ky.App., 556 S.W.2d 922 (1977).

Third, appellant attacks his conviction under KRS 508.080(l)(a) by alleging that this statute is unconstitutionally vague and overbroad. Appellant states that this defect can be cured by narrowing the application of this statute by this court on appellate review.

KRS 508.080 provides thusly:

. (1) A person is guilty of terror-istic threatening when:
(a) He threatens to commit any crime likely to result in death or serious physical injury to another person or likely to result in substantial property damage to another person; or
(b) He intentionally makes false statements for the purpose of causing evacuation of a building, place of assembly, or facility of public transportation.
(c) Terroristic threatening is a Class A misdemeanor. (Enact. Acts 1974, ch. 405, §72.)

Appellant further attacks KRS 508.-080(l)(a) in his brief as follows:

. There is no specific requirement that the defendant’s “threat” be serious or intended to be serious. Therefore, the statute can be applied to any statement threatening bodily harm regardless of whether the defendant was speaking in jest or even in anger but without any intent to actually convey a serious threat.
The facts as defined above clearly demonstrate that the present case is not the type of conduct the legislature intended to denounce in KRS 508.080(l)(a). If it was, this Court will be flooded with “ter-roristic threatening” cases arising out of marital disputes. Indeed, it will be an effective weapon in the hands of any vindictive spouse. Therefore, this Court has an obligation to narrow the application of the statute to serious threats intended to convey a real apprehension of imminent attack. .
In the present case, the jury was not required to believe that appellant was serious. In the context outlined above, this is an extremely important question.

KRS 508.080(l)(a) is identical to § 925(l)(a) of the Kentucky Penal Code, Final Draft (LRC 1971). The commentary to this section states in part:

The first part of this section provides penal sanctions for threats of a more serious nature than those covered by the offense of menacing. Two differences between the offenses should be specifically noted: (i) Menacing requires a threat of only “physical injury” while terroristic threatening requires a threat of death or “serious physical injury”; and (ii) menacing requires that the victim be placed in reasonable apprehension of immediate injury while terroristic threatening has no requirement of apprehension by the victim. For the latter offense, the victim need not even know of the threat. Examples of the types of conduct contemplated for this section are threats to commit murder, aggravated assault, and arson. . . . (Emphasis added).

KRS 508.080(l)(a) is also taken from § 211.3 of the Model Penal Code (10 U.L. A.), p. 539 entitled “Terroristic Threats.” This section provides:

A person is guilty of a felony of the third degree if he threatens to commit any crime of violence with purpose to terrorize another or to cause evacuation of a building, place of assembly, or facility of public transportation, or otherwise to cause serious public inconvenience, or in reckless disregard of the risk of causing such terror or inconvenience.

The drafter’s comments following this section of the Model Penal Code further explain the application of this section.

. In drafting legislation penalizing threats, we would not wish to authorize grave sanctions against the kind of verbal threat which expresses transitory anger rather than settled purpose to carry out the threat or to terrorize the other person. The requirement, in some current statutes, that the threat be in writing is probably designed to draw this line between serious and trivial threats. But it seems clear that some threats are serious and meant to be taken so even though not made in writing. For example, persistent telephone threats or even a single verbal threat might be made in such terms or circumstances as to support the inference that the actor intended to terrorize or coerce. . . . (Model Penal Code § 211.3, Comment) (Tent. Draft No. 11, (1960).
. Where, as in the present section, the object is to prevent serious alarm for personal safety, such as may arise from letters or anonymous telephone calls threatening death, kidnapping or bombing, the class of threats can be narrowly defined, and the gravity of the offense can be related both to the seriousness of the threat and the disturbing character of the psychological result intended or risked by the actor. Moreover, in the ease of terroristic threats there is no occasion to exempt from criminal liability on the ground of the actor’s possibly benign ultimate purpose, as is appropriate in connection with the offense of coercion. Model Penal Code § 211.3, Comment (Prop. Off. Draft, 1962) (emphasis added).

The constitutionality of statutes similar to KRS 508.080(l)(a) has been attacked in a number of other jurisdictions. In all of these cases the statutes passed constitutional muster despite arguments identical to those made by appellant herein.

In Masson v. Slaton, 320 P.Supp. 669 (N.D.Ga.1970), a Georgia terroristic threatening statute was attacked on the grounds that it proscribed constitutionally protected conduct when it made illegal bare statements without an overt act or attempt to carry out said threat.

This statute Ga.Code Ann. § 26-1307 reads in part:

(a) A person commits a terroristic threat when he threatens to commit any crime of violence, or to burn or damage property, with the purpose of terrorizing another, or of causing the evacuation of a building, place of assembly, or facility of public transportation, or otherwise causing serious public inconvenience, or in reckless disregard of the risk of causing such terror or inconvenience.

The District Court upheld the constitutionality of the statute as follows:

. Plaintiff herein contends that the statute proscribes constitutionally protected conduct when it makes illegal bare statements without an overt act or attempt to carry out said threat. This allegation, however, completely ignores the line of cases following Justice Holmes oft-cited “fire” analogy in Schenck v. United States, 249 U.S. 47, 39 S.Ct. 247, 63 L.Ed. 470 (1919), wherein it was asserted that statements alone can be without First Amendment protection. The right to free speech is not an unlimited right. It entitles an individual to advocate certain ideas regardless of their popularity, but it does not extend to the threatening of terror, inciting of riots, or placing another’s life or property in danger. . . .

In State v. Gunzelman, 210 Kan. 481, 502 P.2d 705, 58 A.L.R.3d 522 (1972), the Supreme Court of Kansas upheld the constitutionality of a statute which was drawn from § 211.3 of the Model Penal Code. This statute reads as follows:

A terroristic threat is any threat to commit violence communicated with intent to terrorize another, or to cause the evacuation of any building, place of assembly or facility of transportation, or in wanton disregard of the risk of causing such terror or evacuation. . A terroristic threat is a class E felony. (K.S.A.1971 Supp. 21-3419).

The Supreme Court of Kansas then upheld this statute thusly:

. Under the constitutional attack lodged by the appellant, he contends the statute was enacted to proscribe threats in connection with campus unrest, fire and bomb threats to public buildings and threats which arise from mob violence. He argues the statute is vague, indefinite and uncertain if it is extended to terroristic threats to person or property of an individual as it does not advise the ordinary citizen of the required nature of the proscribed threats. .
A criminal statute which either forbids or requires an act in vague terms that men of common intelligence must guess at its meaning and differ as to its application lacks the first essential of due process of law. A statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties. ... In creating an offense which was not a crime at common law the legislature must make the statute sufficiently certain to show what was intended to be prohibited and punished, otherwise it will be void for uncertainty. But reasonable certainty is all that is required, and liberal effect is always to be given to the legislative intent in view of the evil to be corrected.
These rules have been recognized and applied in our more recent cases. See Tri-State Hotel Co. v. Londerholm, 195 Kan. 748, at page 765, 408 P.2d 877, where it was said the test to determine whether a criminal statute is void by reason of being vague and ambiguous is — does the language convey a sufficient definite warning as to the proscribed conduct when measured by common understanding and practice? If the statute does it is not void for vagueness. .

The Court then concluded that the few other jurisdictions which have dealt with “terroristic threat” statutes have had no trouble in finding the common meaning of the term “terroristic threat”. Further, that given the ordinary definitions for the words “threat” and “terrorize”, such words could be sufficiently understood by men of common intelligence so as to survive any challenge for vagueness and uncertainty. Finally, the wording of the statute appeared sufficient to proscribe threats directed generally against one or more persons and regardless of the purpose which the terrorist had in mind. See also Lanthrip v. State, 235 Ga. 10, 218 S.E.2d 771 (1975), and State v. Schweppe, 306 Minn. 395, 237 N.W.2d 609 (1975).

First, after reviewing KRS 508.-080(l)(a) in light of the foregoing cases and authorities, this court believes that KRS 508.080(l)(a) is not unconstitutionally vague and overbroad since the conduct proscribed, “threatenpng] to commit a crime likely to result in death or serious physical injury” is not protected under either the Kentucky or United States Constitutions. Further, the language of the statute is sufficiently explicit to put the average citizen on notice as to the nature of the conduct so proscribed.

This court is aware of the recent decision in U. S. v. Sturgill, 563 F.2d 307 (6th Cir. 1977), which invalidated KRS 525.070(l)(b) on the basis that it was unconstitutionally overbroad. KRS 525.070(l)(b) provides: “A person is guilty of harassment when with intent to harass, annoy or alarm another person he: . . . (b) In a public place, makes an offensively coarse utterance, gesture or display, or addresses abusive language to any person present.”

In Sturgill, the court, citing Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972), held that in order for a statute, which punishes spoken words only, to withstand an attack on its constitutionality; it must be first authoritatively interpreted by the state courts as not interfering with speech protected by the First Amendment.

This case can be distinguished from Stur-gill, in that the language so proscribed under KRS 508.080(l)(a) is clearly without constitutional protection under the First Amendment.

Second, appellant’s assertion that the statute is defective because it does not require the defendant’s threat to be serious or that it does not require an intent to actually convey a serious threat is ludicrous.

This court feels that the following interpretation of the Maine “terroristic threatening” statute by the Supreme Judicial Court of Maine in State v. Lizotte, Me., 256 A.2d 439 (1969), can be applied to appellant’s contentions in the case at bar.

When the unlawful threat is knowingly and wilfully made, the offense is complete, so that the existence of an intention to carry out the threat, or a subsequent abandonment of the bad intent with which the threat was made, is immaterial. Although idle talk or jesting will not constitute the crime, the accused cannot be regarded as having used his language only as a joke because of the fact that he may have had no intention to carry out his threat. The motive which prompts the utterance of a threat is immaterial. To bring a case within the statute no evil purpose or malice is requisite other than an intention to give utter-anee to words which to the accused’s knowledge were in the form of, and would be naturally understood by the hearers, as being a threat. .

Certainly, KRS 508.080(l)(a) does not apply in the case of idle talk or jesting. The defendant’s intent to commit the crime of “terroristic threatening” can be plainly inferred from the defendant’s own words and the circumstances surrounding them. All the statute requires is that the defendant threaten “to commit any crime likely to result in death or serious physical injury to another person or likely to result in substantial property damage to another person”.

In this case, the jury as the trier of fact, believed the testimony of Mrs. Thomas. They believed that appellant had threatened to cut her head off and that the threat was not made in jest. The intent to commit the offense was implied from appellant’s own words. Therefore, the statute was complied with in all respects.

In addition, appellant argues that the “threats” allegedly made by him were at most conditional in nature and that these words did not reveal a present intention to do Mrs. Thomas bodily injury. We cannot agree.

A statement of an intention to inflict harm on another, conditioned upon a future happening would tend to generate fear in direct proportion to the likelihood that the condition would be fulfilled. However, the mere fact that the harm is made upon a condition, such as appellant herein getting into trouble with his probation officer, does not prevent it from being anything less than a real threat under KRS 508.080(1)(a). Postell v. United States, D.C., 282 A.2d 551 (1971).

Third, KRS 508.080(l)(a) does not require, as contended by appellant, that the victim be placed in reasonable apprehension of immediate injury. This was shown clearly in the commentary to § 925 of the Kentucky Penal Code, Final Draft (LRC 1971). Instead, KRS 508.050(1) establishes the offense of “menacing” and requires that the victim be placed “in reasonable apprehension of imminent physical injury.”

Finally, this court does not believe that the unsworn statements of Paul Ruck-er, Cecil Ballard and Irene McWhorter, could in any conceivable way be considered as newly discovered evidence.

Therefore, appellant’s conviction under KRS 508.080(l)(a) is affirmed and we further find that appellant’s motion for a new trial under CR 60.02(2) was properly overruled.

All concur.


author: HOWARD, Judge.

text:
    CERTAIN-TEED PRODUCTS CORPORATION and Travelers Insurance Company, Appellants, v. Freddie MITCHELL, James R. Yocom, Commission of Labor and Custodian of the Special Fund and Workmen’s Compensation Board, Appellees.
    Court of Appeals of Kentucky.
    June 16, 1978.
    Discretionary Review Denied Jan. 9, 1979.

      Boyd F. Taylor, Hamm, Taylor, Milby & Farmer, London, for appellants.
    Stephen C. Cawood, Pineville, for appel-lee, Freddie Mitchell; Cawood Smith, Smith & Carter, Harlan, of counsel.
    John Riehl, Jr., Ronald C. Bakus, Dept, of Labor, Louisville, Kenneth E. Hollis, Gen. Counsel, Dept, of Labor, Frankfort, for James R. Yocom, Commissioner of Labor and Custodian of the Special Fund.
    Before GANT, HOWARD and HOWER-TON, JJ.
   HOWARD, Judge.

This is an appeal from the Laurel Circuit Court which affirmed the Opinion and Award of the Workmen’s Compensation Board finding the claimant, Freddie Mitchell (hereinafter referred to as Mitchell), to be permanently and totally occupationally disabled as the result of the disease aplastic anemia, secondary to exposure to some toxic agent. The Board found that Mitchell was exposed to the hazards of the disease while in the employment of Certain-Teed Products Corporation (hereinafter referred to a Certain-Teed). The Board apportioned sixty percent (60%) of the award against Certain-Teed and forty percent (40%) against the Special Fund.

Certain-Teed and the Special Fund argue that there was insufficient evidence to sustain the Board’s finding that the disease Mitchell suffers from is work-related.

In one respect, this is a case of first impression in this Commonwealth as this particular disease has not appeared in any occupational disease claim before.

Mitchell started working as a maintenance man for Certain-Teed in March of 1974. Certain-Teed is a manufacturer of sound-deadening insulation for automobiles. As part of the process, fiberglass materials are treated with certain chemicals and baked in ovens. As a result of his job, Mitchell testified that he came into contact with these chemicals, some containing benzene, used at the plant. He testified that the powdery chemicals covered parts of the machinery he had to repair, and that he bathed every night to remove dust which settled on his body. Mitchell’s prior work experience included employment at gas stations, where he had pumped gas and come into contact with other hydrocarbons.

Mitchell was given a pre-employment physical, including a chest x-ray, by the Certain-Teed company doctor, and was cleared for work. About a week after he started working, Mitchell cut the tip of his finger. This injury was treated by the company doctor, and Mitchell lost no time off from his job as a result thereof. Approximately four months after he started working, Mitchell cut his elbow on the threads of a machine he was repairing. The elbow became severely infected, and he was referred by the company doctor to the University of Kentucky Medical Center. Mitchell was treated there by several doctors, including Dr. John J. Hutton, Jr., a hematologist, who diagnosed him as having aplastic anemia.

Aplastic anemia is a very rare disease, afflicting about one (1) in three hundred thousand (300,000) people. It is a disease affecting the bone marrow which produces the cells in the blood. The bone marrow contains fewer cells than normal; likewise, the blood cell count is lower than normal. The lower blood cell count (red cell, white cell, and platelet count) results in a reduced resistance to disease and infection, and reduced coagulation with cuts, therefore resulting in freer bleeding. A person is also less energetic. There is no cure; however drugs can be used in an attempt to raise the bone marrow count. The overall mortality rate in adults who contract this disease is sixty-five to seventy-five percent (65-75%) and the median survival time is about three (3) months.

The drugs used on Mitchell did not significantly increase his bone marrow count. He developed pneumonia and thereafter an abscess in his lungs. Part of one lung was removed.

The Board, in its Opinion and Award, quoted this statement made by Dr. Hutton:

It was my opinion, based upon my reading and my experience with patients with the disease, that the type of history Mr. Mitchell had is typical of the sort of history that is accepted as causative with reasonable medical certainty.

Certain-Teed argues that, in most diagnosed cases of aplastic anemia, the cause is ideopathic (unknown). The company also argues that even when it was shown that the patient had been exposed to a toxic agent, it was not established that such toxic agents were the cause of the disease, but instead merely associated with the patient’s past history. Certain-Teed argues that there are too many assumptions in the above-quoted statement, and therefore there is not substantial evidence to support the Opinion and Award of the Board.

Dr. Hutton’s testimony is likewise to the effect that the cause of aplastic anemia in certain individuals is ideopathic. However, there is a much more frequent occurrence of the disease in people with industrial exposure to certain toxic agents, including benzene. The doctor stated that it is difficult to pinpoint specific agents; however, toxic exposure, when found, is assumed to be the first probable cause.

The rarity with which the disease occurs results from the fact that some people with the same or similar amount of exposure will develop the disease, whereas others will not. Dr. Hutton also assumed, for a variety of medical reasons, that Mitchell did not have the disease when he went to work for Certain-Teed. Dr. Hutton’s opinion, within reasonable medical certainty, was that Mitchell’s exposure to a toxic agent while working for Certain-Teed caused the development of the disease aplastic anemia.

The testimony of Walter E. Davis, M.D., who examined Mitchell at the request of Certain-Teed, was to the effect that Mitchell was not suffering from aplastic anemia at that time. Dr. Davis’ diagnosis was a bone marrow abnormality with peripheral manifestations of anemia and granulocy-topenia. His testimony was that Mitchell’s condition was compatible with recovering aplastic anemia, chemical or drug injury to the marrow, radiation injury of the marrow or pre-leukemia.

Dr. Davis also testified that the exact cause of aplastic anemia is unknown; however approximately one-fourth of the patients in which the disease is found have in their history an exposure to a drug or chemical which, in the past, has been associated with the development of aplastic anemia in higher numbers than those who develop the disease without similar exposure.

Certain-Teed argues that it was not shown conclusively that any exposure leading to the development of the disease occurred while Mitchell was working for it. Certain-Teed states that not only are most cases diagnosed as having an ideopathic cause, but also that Mitchell had come into contact with benzene and other hydrocarbons when he worked at gas stations, some four (4) years prior to his affliction with the disease. Dr. Davis testified that it is possible that an exposure to a toxin at a service station four years prior thereto could possibly be related to the development of aplastic anemia.

However, Dr. Hutton’s testimony was that the major percentage of patients with toxic exposure will develop the disease within a period of eight months, and generally the closer the time of development of the disease within that time frame, to the exposure, the more likely that exposure is the cause.

Larson’s Workmen’s Compensation Law, Volume 1-A, Section 41.70 contains a summary of the continuing expansion of occupational diseases held to be covered under applicable Workmen’s Compensation Statutes.

And in Princess Manufacturing Company v. Jarrell, Ky., 465 S.W.2d 45, 48 (1971), the court holds that a claimant could prove that he is suffering from an occupational disease by a showing of a direct causal relationship between work conditions and a particular disease contracted by a single individual, therefore not requiring a showing that there is something about the occupation which would tend to cause the disease in all employees. The claimant, Jarrell, was held to be occupationally disabled after she suffered urticarial hives as the result of her allergic reaction to fabrics used in the manufacture of garments by her employer.

The rarity of the disease aplastic anemia, and any peculiarity of Mitchell in contracting the disease, as compared to other workers, would not bar his claim if the disease can be shown to be work-related.

We feel that the Board’s finding that Mitchell was permanently and occupationally disabled, as the result of an occupational disease contracted while in the employ of Certain-Teed, is supported by substantial evidence of probative value and same will not be disturbed. CR 52.01.

There was little medical testimony as to apportionment; however, the concept of an occupational disease caused by exposure to a toxic agent is new to this Commonwealth and to the Board. Based on the medical proof presented, we do not feel that the Board erred in apportioning the liability for the award between Certain-Teed and the Special Fund on a 60/40 basis.

The judgment of the trial court is affirmed.

ALL CONCUR.


author: PARK, Judge.

text:
    George CALDWELL, Appellant, v. James R. YOCOM, Commissioner of Labor and Custodian of the Special Fund, Cumberland Valley Coal Company and Workmen’s Compensation Board, Appellees.
    Court of Appeals of Kentucky.
    June 23, 1978.
    As Modified July 14, 1978.
    Discretionary Review Denied Jan. 9, 1979.

      John E. Anderson, Barbourville, for appellant.
    Steven M. O’Brien, III, Lexington, Cyril E. Shadowen, Louisville, for appellees.
    Before HAYES, PARK and WHITE, JJ.
   PARK, Judge.

The sole issue raised by this appeal is whether George Caldwell, a workmen’s compensation claimant, failed to give timely notice of his claim for disability to his employer as required by 342.316(2)(a). That statute provides in part:

[Njotice of claim shall be given to the employer as soon as practicable after the employe first experiences a distinct manifestation of an occupational disease in the form of symptoms reasonably sufficient to apprise him that he has contracted such disease, or a diagnosis of such disease is first communicated to him, whichever shall first occur.

The circuit court affirmed the order of the Workmen’s Compensation Board dismissing Caldwell’s claim because of his failure to give the notice required by the statute.

The arguments of the various parties can best be understood by reference to the following chronology of Caldwell’s work/health history extracted from the record before the board:

1959-1970 Self-employed with Caldwell Coal Company digging, hauling and selling “house coal.”
late 1969 or 1970 Applied for federal Black Lung benefits (denied).
1970 Entered employ of Cumberland Coal, a strip mining company, driving a road grader.
c. 1972 Duties changed to those of a “flunkie” (hauling supplies, servicing equipment, night watchman).
c. 1972 Noticed shortness of breath.
1973 Reapplied for Black Lung benefits; diagnosed by Dr. Boyce Jones as stage 1/lq (1971ILO classification) pneumoconiosis, and by Dr. Harold Bushey as stage l/2q pneu-moconiosis.
July 16,1975 Awarded Black Lung benefits.
August 8,1975 Left Cumberland’s employ.
September 8,1975 Notified employer of disability.
September 22,1975 Caldwell filed claim.

In dismissing Caldwell’s claim for disability resulting from an occupational disease, the board concluded that Caldwell failed to give notice “as soon as possible after his having a diagnosis of the disease communicated to him.” The basis for this conclusion is not clear. The findings of fact are only a recapitulation of Caldwell’s work/health history. They contain no finding designating the time when Caldwell first had a duty to inform his employer of his claim of occupational disease. The board indicated only that it believed Caldwell had been advised of his condition, first, by Dr. Smith Howard “at [the] time” of the initial Black Lung application “in 1970 or 1971,” and again by Drs. Bushey and Jones on October 3, 1973. There is no finding specifying the time Caldwell became disabled.

Although KRS 342.316(2)(a) speaks in terms of a claimant’s awareness that he has contracted an occupational disease, the obligation to give notice to the employer does not arise until the employee is in fact disabled. Mary Helen Coal Corp. v. Chitwood, Ky., 351 S.W.2d 167 (1961); Stephens Elkhorn Coal Corp. v. Tibbs, Ky., 374 S.W.2d 504 (1963). As a corollary to that rule, the continuation of the workman in full time employment by the same employer creates a conclusive presumption of nondisability. Yocom v. Karst, Ky., 528 S.W.2d 697 (1975). Once there is a cessation of employment, the presumption of nondisability disappears. At that point in time, the question becomes whether circumstances exist from which the workman realizes or reasonably should realize that his capacity to work is impaired by reason of the disease. Blue Diamond Coal Co. v. Stepp, Ky., 445 S.W.2d 866, 868 (1969).

Caldwell argues on appeal that the evidence presented to the board establishes as a matter of law that he remained nondisa-bled until he left the employ of Cumberland Valley Coal Company on August 8, 1975. He relies on the line of cases beginning with Mary Helen Coal Corp. v. Chitwood, supra. The employer would distinguish the Chitwood line of cases on the ground that there was a cessation of employment in 1970 when Caldwell made application for federal Black Lung benefits. Accordingly, there would be no presumption of nondisa-bility while Caldwell was employed by Cumberland Valley Coal Company. Because Caldwell was aware of the diagnosis of pneumoconiosis no later than 1973, the employer asserts that the board did not err in holding that his notice of claim was untimely. We disagree.

Because Caldwell was unemployed for a period of time in 1970, there was no presumption of nondisability at the time he commenced work for Cumberland Valley Coal Company. However, he was continuously employed by Cumberland Valley Coal Company for five years. During that period of time, he suffered further exposure to the hazards of pneumoconiosis. We conclude that there was a new presumption of nondisability which continued until Caldwell quit work on August 8,1975. Because Caldwell gave notice of disability to his employer on September 8, 1975, the notice was timely. Peabody Coal Co. v. Guthrie, Ky., 351 S.W.2d 168 (1961); Blue Diamond Coal Co. v. Blair, Ky., 445 S.W.2d 869 (1969).

Cumberland Valley Coal Company makes a persuasive argument that Caldwell was suffering from pneumoconiosis at the time it first employed him. The employer further argues that it is unfair to impose liability for compensation on it when Caldwell should have known he had the disease when first employed by Cumberland Valley. This argument ignores the fact that the legislature imposed the liability for compensation on the last employer in whose employment the workman was exposed to the hazards of the occupational disease. KRS 342.316(l)(a). The employer can protect itself by obtaining a comprehensive history of prior employment and health before determining to employ a workman. If a false history is given to obtain employment, the workman is barred from asserting his claim for disability from occupational disease. Blanton v. Workmen’s Compensation Board, Ky., 531 S.W.2d 518 (1975); KRS 342.316(9).

The employer and the Special Fund also assert that this court should apply the notice statute [KRS 342.316(2)(a)] literally. However, we are not free to ignore the line of cases construing that statute beginning with Chitwood and continuing through Karst. SCR 1.030(8)(a).

We do not reach the merits of Caldwell’s claim, and we express no opinion respecting Cumberland Valley’s nonliability for any partial disability from pneumoconiosis which may have preexisted Caldwell’s employment by Cumberland Valley. See Yocom v. Karst, supra, 528 S.W.2d at 700-01.

For the foregoing reasons, the judgment of the circuit court is reversed with directions to enter a new judgment directing the board to hear Caldwell’s claim on the merits.

All concur.


author: MARTIN, Chief Judge.

text:
    Warren ELSWICK, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    July 21, 1978.
    Discretionary Review Denied Jan. 9, 1979.

      Max M. Smith, Frankfort, W. Sidney Trivette, Pikeville, for appellant.
    John Paul Runyon, Commonwealth Atty., Pikeville, Robert F. Stephens, Atty. Gen., Barbara Barnstable Edelman, Asst. Atty. Gen., Frankfort, for appellee.
    Before MARTIN, C. J., and HAYES and WINTERSHEIMER, JJ.
   MARTIN, Chief Judge.

Warren Els wick was convicted in the Pike Circuit Court of promoting prostitution in the second degree. He was sentenced to the penitentiary for a term of four years. Elswick’s arrest was an event of substantial proportion, and was widely reported in the local newspapers and on radio stations. At trial the Commonwealth proved that the appellant had started his operation as a small massage parlor near the outskirts of town. As his business expanded, he moved to the center of Pikeville in a facility known as the Hopkins Building. The adult activity center located in Room 303 of this building was the hub of the prostitution activities. The evidence established that the advertised massages were merely a cover-up for a fairly sophisticated prostitution operation. Witnesses hid in closets and behind doors to listen to conversations between the various people involved in order to establish the proof which led to appellant’s indictment. On appeal appellant has not challenged the proof of the offense but has raised the issues discussed below.

The appellant’s first argument is that the trial court committed prejudicial error in denying his application for a change of venue under KRS 452.220(2). The applicable section of that statute provides as follows:

(2) If the application is made by the defendant, it shall be made by petition in writing, verified by the defendant, and by the filing of the affidavits of at least two (2) other credible persons, not kin to or of counsel for the defendant, stating that they are acquainted with the state of public opinion in the county objected to, and that they verily believe the statements of the petition for the change of venue are true. The Commonwealth’s attorney or, in his absence from the county, the county attorney shall be given reasonable notice, in writing, of the application. If objections to all the adjoining counties are made and sustained, the change shall be made to the nearest county to which there is no valid objection, preference being given to counties of the same judicial circuit.

Appellant’s application, which alleged that he could not receive a fair trial in Pike County because of pretrial publicity and hostile public feeling toward him, was supported by several affidavits. Prior to the beginning of the trial, the circuit court conducted a detailed hearing on appellant’s motion for a change of venue. The publisher and advertising manager of the local newspaper testified on appellant’s behalf. In opposition to the motion, the Commonwealth presented the testimony of an assistant trial commissioner, and was prepared to produce several other witnesses, when the circuit court overruled the motion.

There are a number of cases under KRS 452.220 interpreting the procedure to be followed when a motion for change of venue is filed. As a general rule, the motion addresses itself to the discretion of the trial court and will be subject to review only for an abuse of this discretion. Hurley v. Commonwealth, Ky., 451 S.W.2d 838 (1970). The standard by which this discretion is reviewed is rather imprecise. The question is largely one of fact and is, therefore, peculiarly within the province of the trial court. In Kentucky we have not been faced with the question of whether a denial of a motion for a change of venue under KRS 452.220 is, by itself, grounds for reversal of a conviction. In other jurisdictions the courts have held that the denial of the motion will not support a reversal of the conviction where the record establishes that the defendant received a fair trial, and there was no difficulty in obtaining an impartial jury. Wilder v. People, 86 Colo. 35, 278 P. 594 (1929); State v. Gilbert, 8 Idaho 346, 69 P. 62 (1902), and State v. Herold, 68 Wash. 654, 123 P. 1076 (1912).

We believe that the trial court found correctly that the affidavits supporting appellant’s application for change of venue contained insufficient evidence to sustain the motion. The affiants stated that they agreed with appellant’s allegations, but they gave no relevant evidence supporting that position. When appellant renewed his motion prior to trial, the trial court followed a procedure similar to that approved in Grissom v. Commonwealth, Ky., 468 S.W.2d 263 (1971). After the hearing on the motion, a number of questions during the voir dire of the jury were directed to the issues of fairness and preconceived opinion of guilt. In effect, the trial court continued to inquire as to the possibility of a change of venue. When the examination of the jurors was completed, the court correctly concluded that those selected would try appellant impartially and fairly. We are of the opinion that a change of venue should be granted only in those cases where the trial court reaches a conclusion, based on the affidavits and the evidence presented at a pretrial hearing, that it is relatively impossible to impanel a jury that has not preconceived an opinion as to appellant’s guilt because of pretrial publicity.

Appellant’s second ground for reversal is that he was denied the right to confront a witness against him, because the trial court would not allow him to question one of his prostitutes, Phyllis Angie Adkins, concerning her patrons. Ms. Adkins was the Commonwealth’s first witness. On cross-examination when appellant’s counsel attempted to question her about her clients, the trial court temporarily sustained the prosecutor’s objection. On the following day in chambers the trial court allowed appellant’s counsel to ask the question. Ms. Adkins then named several clients.

We have no doubt that appellant solicited the names of patrons to test the veracity of Ms. Adkins’s testimony. However, the evidence which the Commonwealth subsequently presented sufficiently established the case against appellant, and he was not prejudiced by his inability to inquire as to Ms. Adkins’s clients at the beginning of the trial. We believe that the inflammatory nature of such evidence far outweighed its probative value and the trial court did not abuse its discretion in excluding the evidence at that particular point of the trial.

Appellant next argues that the trial court committed prejudicial error when it failed to instruct the jury that the testimony of investigators Barton and Frazier of the Kentucky State Police needed to be corroborated because they were patrons as described by KRS 529.060(1). This argument is frivolous because appellant was not charged with prostitution within the purview of KRS 529.060(1).

Appellant’s final ground for reversal is that the closing argument of the Commonwealth’s attorney contained inflammatory and improper remarks to the jury, asserted his personal opinion as to appellant’s credibility and guilt, and misled the jury by his comments on the instructions. Appellant argues that the following remarks were inflammatory:

May it please the Court, Mr. Trivette, gentlemen of the jury.
As Mr. Trivette said, most of the time we have the opportunity of saying ladies and gentlemen of the jury, but I think you observed what went on when you were being selected as jurors, all the women got kicked off.
and
Who goes out and gets these go-go dancers; a fellow like that one sitting right over there,
and
Now, Mr. Trivette said I was trying to take him away from his family and from his produce business. The only reason I’m trying to take him away from that is to get him out of your community, let him go somewhere else for a while and see if it will teach him one of two things; stay out of Pike County, or run your massage parlors somewhere else.

Elswick cites the following prosecutorial remarks as prejudicial personal opinion:

I don’t think any of you gentlemen can be convinced that you’re going to check in a motel, pay a fellow $150.00 after 11:00 o’clock, and lay there and let some girl rub on you all night. I just don’t think you’re going to buy that kind of stuff. If you do, let me tell you what I can sell you, I can sell either one of your children a package of heroin and write on it, sugar. (T.R. p. 359)
and
I’d like to be on the jury for a while, I’d give him five (5) years and look in the books and see if there was any way I could give him ten (10). (T.R. p. 364)

Furthermore, the prosecutor stated in his closing argument that Anita Moriarty’s testimony in regard to appellant’s attempt to procure her for prostitution was all the corroboration Ms. Adkins’s testimony needed to convict appellant. Elswick contends that this was a prejudicial misstatement of the law.

The most recent standard that has been set for closing arguments was stated in Lynem v. Commonwealth, Ky., 565 S.W.2d 141 (1978), in which the following argument was approved as not inflammatory:

MR. FAMULARO: Punishment is for punishment’s sake. Punishment and sentence in a penitentiary is more than that. It’s to say to the man that did it: Don’t do it again. But more than that, it’s to say to all of these people in our community that are out there picking locks and rob and steal and make money easy and saying: I don’t have to work for it. It’s saying to those — your sentence here today is saying to those: Don’t do it; we won’t tolerate it. We’re going to make this place a safe place, and we’re going to stomp out people that rob at gunpoint.
And this crime deserves more than the minimum punishment, Ladies and Gentlemen, for the simple reason that there is not a more potentially dangerous crime than that of armed robbery. If somebody moved the wrong way or if some innocent walked in and spoofed them, it wouldn’t be a robbery here before you; it would be a murder. And for that potential danger, it deserves the maximum.
I ask that you find this man guilty and impose the maximum of 20 years, and by that, attempt to stop this in our community. Thank you.

In the present case we are guided by the decision in Donnelly v. DeChristoforo, 416 U.S. 637, 646, 94 S.Ct. 1868, 1873, 40 L.Ed.2d 431 (1974), that states:

Isolated passages of a prosecutor’s argument, billed in advance to the jury as a matter of opinion not of evidence, do not reach the same proportions. Such arguments, like all closing arguments of counsel, are seldom carefully constructed in toto before the event; improvisation frequently results in syntax left imperfect and meaning less than crystal clear. While these general observations in no way justify prosecutorial misconduct, they do suggest that a court should not lightly infer that a prosecutor intends an ambiguous remark to have its most damaging meaning or that a jury, sitting through lengthy exhortation, will draw that meaning from the plethora of less damaging interpretations.

It is apparent from the record that there was overwhelming evidence to convict the appellant. Taken in its entirety the closing argument of the Commonwealth’s attorney does not warrant reversal of appellant’s conviction under the standard now being applied in Kentucky. Also, appellant’s argument that the prosecutor misstated the law has no merit. However, we are of the opinion that references such as those pointed out not only in this case but also in the Lynem case can certainly result in reversal in future cases. Drawing a reasonable inference from the facts proven is certainly one thing; however, inferring the potentiality of another crime is beyond the scope of closing argument. See Morris v. Commonwealth, Ky., 478 S.W.2d 721 (1972); Meyer v. Commonwealth, Ky., 472 S.W.2d 479 (1971), cert. denied, 406 U.S. 919, 92 S.Ct. 1771, 32 L.Ed.2d 118 (1972); Rigsby v. Commonwealth, Ky., 495 S.W,2d 795 (1973); and Ferguson v. Commonwealth, Ky., 512 S.W.2d 501 (1974).

The judgment of the Pike Circuit Court is affirmed.

All concur.


author: GANT, Judge.

text:
    Emery TOLSON, Appellant, v. PRATT BROTHERS COAL COMPANY, James R. Yocom, Commissioner of Labor of the Commonwealth of Kentucky and Custodian of the Special Fund, and Workmen’s Compensation Board of Kentucky, Appellees.
    Court of Appeals of Kentucky.
    Aug. 18, 1978.
    Discretionary Review Denied Jan. 9, 1979.

      Grayson Johnson, Hindman, for appellant.
    Richard Ward, Craft, Barrett, Haynes & Ward, Hazard, for appellee, Pratt Bros. Coal Co.
    Kenneth E. Hollis, Gen. Counsel, Dept, of Labor, Frankfort, John Riehl, Jr., Dept, of Labor, Louisville, for special fund.
    Before GANT, COOPER and HOGGE, JJ.
   GANT, Judge.

This is an appeal from a Letcher Circuit Court order reducing an award of the Workmen’s Compensation Board from $59.00 per week to $29.50 per week for 50% permanent partial disability resulting from pneumoconiosis. The only question before us is the proper method of computing the award.

Appellant Tolson is 43 years old, married, has seven children and on the date of last exposure, August 23, 1974, he was making an average weekly wage of $270.00 per week. Acting on a claim filed on February 9, 1976, the Workmen’s Compensation Board awarded Tolson $59.00 per week for 400 weeks based upon a finding of 50% permanent partial disability. Appellee Pratt Brothers Coal Company filed with the Board a Petition for Reconsideration which was overruled, and subsequently filed a Petition for Review with the Letcher Circuit Court. That court determined the computation of award made by the Board was incorrect and remanded the case for recom-putation. This appeal was taken from that judgment.

Appellees maintain that the proper method of computation is that used by the court below, i. e., to first apply KRS 342.070(5) (1970), taking 50% of 85% of the average weekly wage in the state during the year of disability, which is undisputed as being $139.49, yielding $59.00. Appellees would then have us apply the percentage of disability (50%) to this figure for a total payment of $29.50.

This is contrary to the holding in C. E. Pennington Co. v. Winburn, Ky., 537 S.W.2d 167 (1976). Although the court in Pennington was interpreting the 1972 statutes, KRS 342.730(l)(b) and KRS 342.740(1), the wording of the 1970 statutes controlling the present case is identical to the newer statutes with the exception of the percentages. We can find no logical basis for interpreting the former statute differently from the latter. Therefore, in computing permanent partial disability benefits, the formula to be used under KRS 342.110 (1970) is as follows: Take 66⅜% of the average weekly wage of the employee multiplied by the percentage of disability. This yields the figure of $90.00 per week in this case. Appellant’s average weekly wage was an undisputed $270.00 times 66⅜% times 50% equals $90.00. Then apply the limitations of KRS 342.070(5) that the maximum award may not exceed 85% of 50% of the average weekly wage in the state, or $59.00. Thus, the award must be $59.00.

The judgment of the lower court is therefore reversed with instructions to reinstate the award of the Workmen’s Compensation Board.

All concur.

      . Tolson’s last exposure was after January 1, 1973; therefore, the 1970 version is the applicable statute. Maggard v. International Harvester, Ky.App., 508 S.W.2d 777 (1974).


text:
    Robert DICKEY, Appellant-Movant, v. Rod W. BAGBY, Appellee-Respondent.
    Court of Appeals of Kentucky.
    Nov. 3, 1978.
    Paul J. Vesper, Covington, for appellant-movant.
    F. Bernie Beck, Fort Mitchell, William I. Bubenzer, Covington, for appellee-respon-dent.
    Before GANT, COOPER and HOWARD, JJ.
   OPINION AND ORDER

GANT, Judge.

This action was brought pursuant to KRS 118.176 to determine the eligibility of the appellee for candidacy to the office of Kenton County Board of Education. The sole issue presented is his qualification under KRS 160.180(l)(b), which states, in pertinent part:

1. No person shall be eligible to membership on a board of education:
(b) Unless he has been a citizen of Kentucky for at least three (3) years preceding his election .

Thus, the definition of the word “citizen” is thrust upon the Court in a case of first impression.

The facts of this case are undisputed. The appellee was born in Gallatin County, Kentucky, and moved with his family to Kenton County, Kentucky, a short time later. He graduated from high school there in Covington in 1954 and from Western Kentucky University in 1959. He was married in Kentucky and taught school in the Louisville area until he was accepted by the United States Secret Service in 1964. In 1965, appellee was assigned to the White House and lived in Maryland, being reassigned to the Louisville office in 1967. He was again assigned to the White House in 1974, moving to Fairfax, Virginia, where he purchased a house and paid taxes. However, the evidence from the appellee and his immediate superior discloses that this latter assignment was involuntary, that appellee at every opportunity sought transfer back to Kentucky, and that three times the ap-pellee declined promotions which would have caused him to leave Kentucky or preclude his return.

In July, 1976, appellee was assigned to the Cincinnati office, purchasing a house in Kenton County, Kentucky, filing for this office in 1978. The evidence further disclosed that the appellee returned from assignment in Washington, D.C., in order to write his will in Kentucky, had purchased a burial plot in Kentucky for himself and his family, and had always expressed a desire to be buried there.

Citizenship, domicile, and residence are three different things. This has been touched upon in the case of Wheeler v. Burgess, 263 Ky. 693, 93 S.W.2d 351 (1936). The distinctions become important in cases relating to taxes, attachments, jurisdiction, venue, probate, voter registration, etc. See cases cited in Wheeler, supra, and in Moore v. Tiller, Ky., 409 S.W.2d 813 (1966). In the case of Newcomb v. Newcomb, 108 Ky. 582, 57 S.W.2d (1900), the court held that a decedent was a resident of France, domiciled in Henderson, Kentucky, and a citizen of Great Britain. An interesting history of “citizen” may be found in the case of Amy (a woman of colour) v. Smith, 11 Ky.Rep. (1 Littell) 326 (1822), as it related to the rights of slaves and females.

KRS 2.010 sheds some light upon our problem. It provides a method of relinquishment of citizenship in this state but refers not to acquisition. Two elements become apparent, however, in reading this statute. First, that Kentucky has some desire to retain its connection with its natives and second, and most important, that one element of relinquishment is “depart[ure] out of this state with the intention, in good faith, to remain absent therefrom . ..”

The closest parallel is between the words citizen and domicile. The case of Delaware, L. & W. R. Co. v. Petrowsky, 250 F. 554 (CCA 2d Cir. 1918), sets this out when it states: “The term ‘citizen’ . is substantially synonymous with the term ‘domicile.’ ” While this case referred primarily to jurisdiction because of diversity of citizenship, we think that this is a fair statement of the law. If these terms are synonymous, which we hold, the law must be as set out in Wheeler v. Burgess, supra. To paraphrase the holding of that case, a person must be a citizen of some locale. He may have many residences but in the absence of showing an intention of abandoning his Kentucky citizenship, his state of origin, he will be deemed a Kentucky citizen for the purpose of qualifying for office in that state.

It is our opinion that the appellee was and is a “citizen” of this state as required in KRS 118.176. Born and raised here, his every act manifested his intent to remain a citizen of this state, not merely to return here. His temporary and involuntary absences from Kentucky did not serve to terminate his standing as a citizen.

KRS 118.176(3) states: “[In] any action or proceeding under this section the burden of proof as to the bona fides of a candidate shall be on the person challenging the bona fides of a candidate.” The case law herein cited is that the person asserting that a change has taken place has the burden of proof. The lower court felt that the appellant-movant had not met this burden. We agree. Accordingly, the motion to set aside the order of the lower court is DENIED.

All concur.


text:
    Trannie Alice ROOKS, Administratrix of the Estate of Arvin Rooks, Appellant, v. UNIVERSITY OF LOUISVILLE, Appellee.
    Court of Appeals of Kentucky.
    Dec. 1, 1978.

      Frank E. Haddad, Jr., James A. Grider, Louisville, for appellant.
    Robert F. Matthews, John H. Stites, III, Greenebaum, Doll, Matthews & Boone, Louisville, for appellee.
    Before GANT, HOWARD and HOWER-TON, JJ.
   GANT, Judge.

Appellant/plaintiff appeals from an order of summary judgment dismissing the University of Louisville as a defendant in her negligence suit. The dismissal was based on the position that as a “state institution” the University of Louisville was protected from the suit by sovereign immunity. The sole issue in this case revolves on the availability of such protection to the University of Louisville under Section 231 of the state constitution and KRS 44.070.

The University of Louisville is a “state institution” by virtue of KRS 164.810 and as such is sufficiently protected from civil negligence suits by the cloak of sovereign immunity. The harshness of this protection to an injured party is mitigated to a great extent by the existence of the Kentucky Board of Claims, created in KRS 44.-070. This statute allows an injured party to recover up to $50,000 for injuries he may have sustained at the hands of a negligent state agency or state employee. Such recovery is the state’s recognition of the harshness of the sovereign immunity doctrine and is an attempt to relieve some of the injury to the plaintiff while not jeopardizing important state goals. The Board is a limited waiver of the state’s immunity from suit. It is the exclusive avenue of relief available to one injured by the “Commonwealth, any of its departments or agencies, or any of its officers, agents or employees while acting within the scope of their employment . . . ” KRS 44.-070(1). It should also be noted that, under KRS 44.160, if such an action is taken with the Board of Claims and “prosecuted to award or judgment,” the right of a claimant to sue the “Commonwealth, its departments or agencies, or its officers, agents or employees in any other forum,” is precluded.

The second contention raised by the appellant concerns the state’s ability to limit recovery of a party in this manner in view of certain Kentucky Constitutional requirements. These provide that the court shall be open to redress injuries done to every person (Section 14 of the Kentucky Constitution) and all laws contrary to the Bill of Rights shall be void (Section 26 of the Kentucky Constitution). To limit recovery to the Board of Claims, it is argued, limits the court’s availability and so is void as unconstitutional.

The section of the Constitution which authorizes the set-up of the Board of Claims is Section 231. It is this section which delegates to the General Assembly the power to decide “in what manner and in what court suit may be brought against the Commonwealth.” The apparent conflict in the terms of these constitutional sections has not gone unnoticed by parties who are confronted by dismissal of their negligence actions under the guise of sovereign immunity. In Wood v. Board of Education of Danville, Ky., 412 S.W.2d 877 (1967), the Supreme Court held:

The doctrine of sovereign immunity had acceptance in our system of jurisprudence before the adoption of our first Constitution. It was then embodied therein, and it must be recognized that whatever may have been intended by Sections 2, 14 and 26 of the Kentucky Constitution . it was not intended that those sections should in any way impinge on the right of the Commonwealth by its General Assembly under Section 231 to direct in what manner and in what court suit may be brought against it. Id. at 879.

It is a basic rule of construction that the Constitution be interpreted whenever possible so as to harmonize various provisions. The present case offers just such a construction opportunity, and so it would seem that sovereign immunity does not contradict other parts of the state Constitution.

The final contention that a suit against the University of Louisville is maintainable in Jefferson County Circuit Court evolves from the university’s use of the language “to sue and be sued” found in the Kentucky Nonprofit Corporation Act [KRS 273.161 through 273.390 at Section 273.-171(2)]. This Act was utilized by the university when it amended its charter in 1970 on entering the state university system. Even without the charter amendment which the University of Louisville used, it would still have been subject to the phrase, as the Act includes in its coverage any “ . . . nonstock, nonprofit corporation in existence on June 30, 1968 . . . ” KRS 273.387(1), regardless of amendment. To argue that such language allows suit against the University of Louisville is, however, to contradict several previous court holdings explicitly denying such an interpretation. Both Section 231 of the Constitution and cases interpreting it have limited to the General Assembly the right to waive immunity. It is impossible for the university to waive its immunity by any act or word. Although it might be implied that by requiring the University of Louisville to be covered by the Nonprofit Corporation Act the Legislature wished the included language to constitute a perpetual waiver of immunity, this too has been refuted. The argument was rejected in Wallace v. Laurel County Board of Education, 287 Ky. 454, 153 S.W.2d 915 (1941), where the wording appeared in the legislative acts creating the Board of Education. The court there held that no such perpetual waiver of immunity was intended by the Legislature.

The dismissal of the action against the University of Louisville was properly granted due to the existence of the protection of sovereign immunity which insulates the state and all its agencies from nonconsensual civil suits. If a cause of action exists it must be filed with the Board of Claims, and by complying with KRS 413.270 appellant may so file without being barred by any statute of limitations. Neither the language of the Kentucky Constitution concerning access to the courts nor the charter amendment reciting the “to sue or be sued” language lifts this ban.

The judgment of the lower court is affirmed.

All concur.


author: WINTERSHEIMER, Judge.

text:
    MIKE LITTLE GAS COMPANY, INC., Appellant, v. PUBLIC SERVICE COMMISSION of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Dec. 1, 1978.
    William S. Howard, Linda L. Green, Howard & Howard, Lexington, Richard E. Fitzpatrick, Lexington, for appellant.
    William M. Sawyer, Morris E. Burton, Frankfort, for appellee.
    Before HOGGE, VANCE and WINTER-SHEIMER, JJ.
   WINTERSHEIMER, Judge.

This appeal is from a summary judgment granted March 23,1978, allowing the appel-lee to amend a rate adjustment order issued September 1, 1977, by a later order of November 23, 1977.

On August 8, 1977, appellant filed an application with the appellee to put into effect a purchase gas adjustment increase in the cost of gas it supplies its customers, to become effective September 1, 1977, because a wholesale supplier had increased its price of gas to the appellant, effective the same date. On September 1, 1977, the ap-pellee issued an order approving a new rate structure. Upon receipt of the order, the president of the appellant company telephoned a research analyst for the appellee to inquire as to the contents of the order. On November 23, 1977, the appellee issued an amended order, indicating that a clerical error had occurred in its original order. Appellant unsuccessfully sought a rehearing of the appellee’s amended order and then appealed to the Franklin Circuit Court, which affirmed the action of the appellee and dismissed the complaint. This appeal followed.

Appellant sets out the following questions:

1) Did the trial court commit reversible error in granting summary judgment on the basis that the original order should be treated as final and thus should not be repealed with retroactive effect without notice and hearing?
2) Did the trial court commit reversible error in granting summary judgment because of the inequity to the appellant of the retroactive effect of the amended order?

This Court affirms the judgment of the trial court because an administrative agency, such as the Public Service Commission, has authority to correct clerical errors.

It is well settled that administrative agencies, as well as courts, have sufficient authority to correct obvious clerical errors in their orders, so long as the mistake is plainly shown in the record. Bell v. Hearne, 60 U.S. 252, 19 How. 252, 15 L.Ed. 614 (1857). This rule has been consistently applied by Kentucky courts. In Union Light, Heat & Power Co. v. PSC, Ky., 271 S.W.2d 361 (1954), the court said that an administrative agency has unquestioned authority to change its orders during the time it retains control over any question under submission to it, and has the power to correct its records by nunc pro tunc orders. The contention that the Union Light, supra, case has been overruled by Phelps v. Sallee, Ky., 529 S.W.2d 361 (1975) is incorrect. In Phelps, supra, the court quoted with approval from its previous holding in Union Light, supra. The Court in the Phelps, supra, decision only emphasized that the administrative agency’s power must have its origin in the statute. KRS 278.390 clearly provides that the appellee commission retains authority to modify its orders until they are suspended or vacated by a court of competent jurisdiction.

The appellant’s contention, that the ap-pellee commission’s action is a retroactive order effecting utility rates without notice and hearing, fails to recognize the nature of the appellee commission’s order. We believe it is a nunc pro tunc order. Here, the record is clear that a clerical error appeared in the original order and was appropriately corrected by a subsequent order. Such a procedure is available not only to courts, but to administrative agencies as well. Frankfort Natural Gas Co. v. Frankfort, 276 Ky. 199, 123 S.W.2d 270 (1938). The November order was not a new rate order requiring notice and hearing under KRS 278.270.

The corrected order did not impose undue hardship on the appellant. Appellant seeks to invoke equitable relief, claiming that a refund of a portion of the money already collected under the incorrect rate structure would work an undue burden on it.

An examination of the record indicates that the appellant was seeking to obtain permission of the Public Service Commission to pass through a wholesale gas increase to retail consumers. The appellant’s application to the appellee commission clearly recites the relief sought. Appellant specifically requested a rate of $3.5752 for two Mcf’s of natural gas. The initial order of the appellee commission granted a rate adjustment of $3.5752 per Mcf for the first two Mcf’s. Such an order gave the appellant more than he had originally requested in his application. Almost immediately upon receiving the original order, appellant contacted an employee of the appellee commission regarding the rate as stated in the order.

A member of the appellee’s engineering staff has no authority to approve or disapprove rates contained in formal commission orders. The rule is clear that a person dealing with public officials must take notice of the extent of the official’s authority to act under given circumstances. Dade Park Jockey Club v. Commonwealth, 253 Ky. 314, 69 S.W.2d 363 (1934). We cannot conclude that the appellant was justified in relying on the incorrect original order.

We do not believe that an administrative agency can be prevented from correcting a mistake on so-called equitable grounds because such agencies have the public interest as an inherent responsibility. NLRB v. Baltimore Transit Co., 140 F.2d 51 (4th Cir. 1941).

If the September 1, 1977 order had been permitted to stand, the appellant would have enjoyed a windfall profit at the expense of his local customers, because it would have received more than it originally requested and more than the increase to it from the wholesale supplier. It is difficult to understand how appellant could seek to invoke equity under such circumstances. It is equally difficult to appreciate the appellant’s contention that he will lose good will if he must refund money to his customers. Here, it appears that the refund could be credited to the consumers’ bills over a future period of time.

Here, the gas company would receive a higher rate than it requested because of a simple clerical mistake on the part of the agency. Therefore, it is the opinion of this Court that the appellee Public Service Commission has the authority to correct clerical errors in its orders, so long as the agency retains jurisdiction over the matter, and the mistake is clearly shown in the record. Equity cannot assist a natural gas supplier who would receive a windfall profit as a result of a clerical error.

Therefore, the judgment of the trial court is affirmed.

All concur.