text:
    William H. HATCHER and William C. Hatcher, Appellants, v. Joe WEATHERALL and Frances Weatherall, Appellees.
    No. 8421.
    Court of Civil Appeals of Texas, Texarkana.
    May 17, 1977.

      Linda S. Aland, Strother, Davis, Stanton & Levy, Dallas, for appellants.
    Kenneth Vaughan, Garland, for appel-lees.
   RAY, Justice.

This is a suit on a note. Joe Weatherall and wife, Frances Weatherall, appellees (plaintiffs), brought suit against William H. Hatcher and William C. Hatcher, appellants (defendants), to recover the balance due on one installment promissory note in the principal sum of $10,000.00. It was alleged by appellees that this particular note was part of the consideration to be paid by appellants for the purchase of Garland Dairy Queen No. 1. Trial was to a jury resulting in a verdict favorable to appellees. Judgment was entered by the trial court for appellees in the sum of $6,468.12. Appellants have perfected their appeal and submit five points of error for our consideration.

William H. Hatcher and William C. Hatcher, father and son, entered into a sales contract with the Weatheralls to purchase the Garland Dairy Queen. The consideration specified in the contract is as follows:

“1. That WEATHERALL for and in consideration of the sum of FIFTEEN THOUSAND AND NO/100 DOLLARS ($15,000.00) does hereby bargain, sell, transfer, assign, set over and deliver unto HATCHER all of their right, title and interest in and to all of the assets, good will, income and other property of every kind and nature whatsoever located in the premises known as ‘Garland Dairy Queen No. 1,’ 501 S. Garland Avenue, Garland, Texas, including but not limited to those items attached hereto marked Exhibit ‘A’ and made a part hereof as if copied fully herein.
2. That the aforementioned sum of FIFTEEN THOUSAND AND NO/100 DOLLARS ($15,000.00) shall be paid by HATCHER to WEATHERALL as follows:
a. Five Thousand and No/100 dollars ($5,000.00) Cash.
b. The assumption and agreement to pay one certain promissory note dated January 1,1969, payable to the order of BILLY D. CREEL made by JOE WEATHERALL and FRANCES WEATHERALL in the original principal amount of $10,553.99, which note is payable in equal monthly installments of $250.00 each and bearing interest at the rate of four percent (4%) per an-num, interest payable annually as it accrues, each payment due on the 1st of each and every month, which note has a principal balance of $4,729.62 as of March 12, 1971.
c. The making and delivery by HATCHER to WEATHERALL of one Installment Note in the amount of $10,000.00 bearing interest at the rate of five percent (5%) per annum amortized over the period of the note and payable in equal monthly payments of $260.04 each for forty-two (42) months, each payment due on the 15th day of each and every month, the first such payment beginning on the 15th' day of May, 1971, and payable each and' every month thereafter until the principal and interest on said note has been paid in full.”

On April 15, 1971, the day after the contract was executed, the Hatchers took the first step towards compliance by delivering a check for $5,000.00 to the Weatheralls in accordance with Section 2a of the contract. Pursuant to Section 2c of the contract an installment note for $10,000.00 was executed. Subsequently payments were made on both the installment note and the Creel Note referred to in Section 2b of the contract. The Hatchers paid out a sum of $4,888.03 to extinguish the Creel Note. Appellants made some twenty-two payments of $260.04 on the installment note, but refused to tender any further payments. Thereafter, the Weatheralls brought suit for the balance due on the $10,000.00 installment note.

The Hatchers defended claiming their obligations under the installment note and the sales contract had been satisfied in full. The Hatchers urged that they contracted to pay only $15,000.00 for the Dairy Queen and that this sum had been surpassed by the total of their $5,000.00 down payment, $4,888.03 payment on the Creel Note, and installment payments on the $10,000.00 note. The Hatchers filed a cross-action for the recovery of amounts paid in excess of $15,000.00. Alternatively, the Hatchers urged that ambiguity in the contract of sale is the result of a mutual mistake which should be resolved in their favor.

The following special issues were submitted to the jury:

“SPECIAL ISSUE NO. 1
Do you find from a preponderance of the evidence that on the 14th day of April, 1971, the defendants, William H. Hatcher and William C. Hatcher, agreed to pay the plaintiffs, Joe Weatherall and Frances Weatherall, for the purchase of the Dairy Queen in question:
a. The sum of $5,000.00 cash
b. The assumption and agreement to pay one certain note dated January 1, 1969 payable to the order of Billy D. Creel with a principal balance of $4729.62
c. One installment note in the sum of $10,000.00 bearing 5% interest payment beginning on the 15th day of May, 1969 Let the form of your answer be ‘They did agree’ or ‘They did not agree.’ Answer: They did agree
“SPECIAL ISSUE NO. 2
What sum of money, if any, do you find from a preponderance of the evidence that the defendant Hatcher has paid to Weatherall on the $10,000.00 note dated April 14, 1971?
Answer in dollars and cents, if any.
Answer: $5720.88”

In arriving at the judgment to be entered, the trial court determined the amount still owed on the note to be $4,979.65, plus interest in the amount of $1,488.47 from the date of default to the date of judgment, a total of $6,468.12. It was then ordered that this amount should bear interest at the rate of 10% per annum from the date of judgment.

Appellants’ first point of error complained of a clerical error contained in Special Issue No. 1. The installment note for the sum of $10,000.00 was incorrectly identified in the special issue as having been executed “on the 15th day of May, 1969,” rather than on the 15th day of May, 1971. Appellants correctly assert there is no evidence that any such note was executed in 1969. The appellants did not, however, complain of this error in their motion for new trial nor was there an exception to the court’s charge. A ground of error not distinctly set forth in the motion for new trial in cases where a motion for new trial is required, shall be considered as waived. Tex.R.Civ.P. 374; Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887 (1960). The appellants’ first point of error was not properly preserved and is therefore considered waived.

Appellants’ second and third points of error complain that the finding of the jury in response to Special Issue No. 1 is contrary to the evidence because “the evidence conclusively showed that appellants agreed to pay a total consideration of only $15,-000.00 in connection with the agreement of April 14, 1971,” and not to pay the total of the items enumerated in the contract in excess of $15,000.00.

Appellants testified, as did an employee and relative of the appellants, that the Weatheralls were asking $15,000.00 for the property. The sales contract twice states the consideration to be paid as $15,000.00, but the contract also states that such amount will be paid by a cash down payment of $5,000.00 and installment note of $10,000.00 and the assumption of a promissory note having a balance of $4,729.62. It is manifest from the face of the contract that the sum of the parts exceeds the whole by the amount to be paid on assumption of the Creel Note. The jury found that the appellants had indeed agreed to fulfill each of the three specific obligations.

It was the duty of the trial court to construe the contract and if possible, to harmonize apparently 'contradictory portions of instruments so that the contract as a whole could be given effect. 13 Tex. Jur.2d, Contracts, Sec. 142; 17A C.J.S. Contracts § 617; Hennigan v. Chargers Football Co., 431 F.2d 308, 314-315 (5th Cir. 1970); City of Plnehurst v. Spooner Addition Water Co., 432 S.W.2d 515, 518-519 (Tex.1968).

The general rule is that special provisions in a contract control general provisions which relate to the same thing. 17 Am.Jur.2d, Contracts, Sec. 270. The appellants’ commitments to perform three specific obligations are, under the facts of this case, held to control the contract rather than the general obligations.

Appellants have not established as a matter of law that they only agreed to pay a total consideration of $15,000.00 in connection with the agreement of April 14, 1971. The total consideration to be paid was a fact issue which the court properly submitted to the jury. The jury determined that appellants had agreed to pay $15,-000.00 plus the Creel Note. The evidence supports the jury’s verdict. Appellants’ points of error two and three are overruled.

In point of error number four appellants state that the trial court entered an incorrect amount as the balance of the principal due on the $10,000.00 note because there is no evidence to support the recovery of $4,979.65. Appellee, Joe Weatherall, testified that appellants had made twenty-two payments of $260.04 each on the note. Mathematical calculation of the balance due after twenty-two payments reveals that the trial court entered the proper amount. Appellants’ fourth point of error is overruled.

Appellants’ fifth point of error complains of the action of the trial court in ordering that interest accrue at the rate of 10% per annum from the date of judgment on damages awarded because the award itself included interest. The appellants contend that an award of compound interest is fundamental error.

The area of law concerning interest on interest in judgments has repeatedly been categorized as unclear. The genesis of the problem appears to be McDaniel v. Miller, 317 S.W.2d 546 (Tex.Civ.App. Waco 1958, no writ). There, without citation of authorities, an award of interest on an item of interest obtained through judgment was held to constitute fundamental error. This holding was followed in Socony Mobil Oil Company v. Brooklyn Union Gas Company, 299 F.2d 692 (5th Cir. 1962), and in Gasperson v. Madill National Bank, 455 S.W.2d 381 (Tex.Civ.App. Fort Worth 1970, writ ref’d n. r. e.).

The weight of authority appears to be contrary to McDaniel v. Miller, supra. A judgment for principal and interest may bear interest. 33 Tex.Jur.2d, Interest, Sec. 10. McDaniel was specifically rejected in Ligon v. E. F. Hutton & Company, 428 S.W.2d 434 (Tex.Civ.App. Dallas 1968, writ ref’d n. r. e.), and in Lanpar Company v. Stanfield, 451 S.W.2d 254 (Tex.Civ.App. Dallas 1970, no writ).

The Texas appellate courts have long approved the usual practice of our trial courts rendering judgment for the principal and interest then due and having this new combined amount bear interest from the date of judgment. Miner v. Paris Exchange Bank, 53 Tex. 559 (1880); International & G. N. R. Co. v. Dimmitt County Pasture Co., 5 Tex.Civ.App. 186, 23 S.W. 754, 756 (1893, no writ). There appears to have never been any requirement that the judgment provide separately that the amount attributable to principal would draw interest while the accumulated interest on the principal would not draw interest. Frazier v. Campbell, 5 Tex. 275 (1849). No such requirement has been imposed by statute. Judgments bear interest from the date of judgment without reference to their composite parts. Tex.Rev.Civ.Stat.Ann. art. 5069-1.05 (Supp.1976).

Logically, there appears to be no good reason why a judgment containing principal and interest should not draw interest on the combined amount. When a delinquent note is reduced to judgment, the debtor is ordinarily found to owe the principal which he borrowed plus the interest for the use of the money so borrowed which is the total amount owed to the lender. It is the enlarged debt of the debtor. Thereafter, the delinquent note bears no further interest once the judgment has been obtained. The lender may still be without the use of his principal if the judgment is not immediately paid, and therefore the lender is entitled to interest on the judgment which includes the principal and interest owed by the debtor before judgment. This seems only right since, if the debtor had paid the principal and interest on the debt when due, the lender would have had that combined amount to lend to someone else so that he could have drawn new interest on the combined principal and interest paid by the debtor. There is no good reason for the lender to be penalized when he has to go to court to get a judgment on a delinquent note. We therefore hold that the appellees are entitled to interest on their judgment which included both principal and interest. Appellants’ fifth point of error is overruled.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: CLAYTON, Justice.

license: Public Domain

text:
    Suzanne JETT, Appellant, v. John DOE and Kentucky Farm Bureau Mutual Insurance Company, Appellees.
    Supreme Court of Kentucky.
    April 22, 1977.

      Bernard S. Ritchie, Jr., Schaefer & Air-hart, Louisville, for appellant.
    Thomas E. Harris, Lexington, for appel-lee Kentucky Farm Bureau Mut. Ins. Co.
   CLAYTON, Justice.

Appellant, Suzanne Jett, was a named insured of the appellee, Kentucky Farm Bureau Mutual Insurance Company, and among other automobile liability insurance coverages was afforded uninsured motorist protection by an endorsement attached to her policy. Included within the term “uninsured motorist” was an unidentified driver of a hit-and-run automobile, which was defined by the policy as “. an automobile which causes bodily injury to an insured arising out of physical contact of such automobile with the insured or with the automobile which the insured is occupying at the time of the accident . . so that before there could be insurance coverage for damages involving a hit-and-run vehicle under the policy’s uninsured motorist endorsement, there must have actually been a “hit”. This is a standard form provision found in automobile liability policies nationwide whose purpose has been stated by the various state and federal courts addressing it to be one of protecting the insurer from fraudulent claims arising in cases where the insured’s injuries are the result of his own negligence, without the intervention of any other vehicle, although it is alleged that the accident was caused by an unidentified vehicle which immediately fled the scene. Annot,, 25 A.L.R.3d 1299, 1302 (1969).

On the morning of April 3, 1973, appellant was traveling west on Old Frankfort Pike in Woodford County, Kentucky, when an approaching automobile traveling at a high rate of speed in her lane of traffic forced her to swerve from the roadway. By so doing, she succeeded in avoiding contact with the oncoming car but was caused to lose control of her own vehicle, crashing into a number of roadside trees and striking an auto driven by Mary Kay Keeton. The vehicle appellant evaded did not stop at the scene and has since remained unidentified. Appellant sustained injuries to her face, head and body as a result of the mishap and brought suit for $27,500 claimed in damages, naming her insurer and the unknown motorist, John Doe, as defendants. Farm Bureau subsequently moved to dismiss the complaint as to it for failure to state a cause of action, claiming that since the unknown defendant did not come into contact with appellant’s car, the policy’s uninsured motorist provisions did not apply. In her response to this motion, appellant conceded that there had been no physical contact between her car and that of the unknown defendant, filing affidavits to that effect sworn by herself and by the occurrence witness. She argued, however, that the “physical contact” requirement is an unreasonable restriction and is inapplicable where, as here, the accident is witnessed by an impartial observer who attests that it resulted from the actions of an unidentified vehicle. The court below treated the motion to dismiss as a motion for summary judgment, ruling in favor of Farm Bureau. This appeal results from that judgment, requiring that we determine whether an insurance company can contractually restrict those portions of its uninsured motorist coverage defining a “hit-and-run” vehicle to situations in which there is physical contact between the insured or the vehicle he is occupying and the unidentified “hit- and-run” automobile. We answer this question in the affirmative.

Although dictum in Ogden v. Employers Fire Insurance Company, Ky., 503 S.W.2d 727 (1973), may suggest to the con trary, we have not previously squarely faced the issue presented here. For this reason, we have sought guidance from the case authority of other jurisdictions, only to find these decisions to be of minimal assistance due to the wording of the Kentucky uninsured motorist statute, KRS 304.20-020. An examination of that statute reveals that although insurers are required by it to provide uninsured motorist coverage, there is no requirement that coverage against loss caused by hit-and-run vehicles be afforded. Moreover, the statute recognizes by its language “subject to the terms and conditions of such coverage” contained in subsection (2), that insurers may insert restrictions in their policies’ provisions defining what is an “uninsured motor vehicle”. The matter herein is thus a purely contractual issue between the insurer and its insured which we cannot disturb. By issuing an automobile liability policy providing for uninsured motorist coverage in hit- and-run cases, even though such coverage be subject to the restriction under consideration here, the insurer is providing coverage greater than that required by KRS 304.20-020. The insurer, in affording this additional coverage, has the right to require whatever conditions precedent to such protection as it sees fit, and once such a condition is clearly expressed in the policy and agreed upon by the parties, the courts must give it full force and effect and abstain from making a new or different contract under the guise of interpretation at the instance of a disappointed party. Mullins v. National Casualty Company, 273 Ky. 686, 117 S.W.2d 928 (1938). In bringing a claim under the hit-and-run provision here, it was incumbent upon the insured to bring herself within its requirements. This the appellant admits she has not done. We therefore must conclude there to have been no error in the circuit court’s judgment denying coverage.

The judgment is affirmed.

All concur.


text:
    Greta JACOBS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    April 22, 1977.

      Dale B. Mitchell, Somerset, for appellant.
    Robert F. Stephens, Atty. Gen., Robert William Hensley, Asst. Atty. Gen., Frankfort, for appellee.
   CLAYTON, Justice.

This appeal results from a conviction for possession of a controlled substance. The evidence developed at trial indicates that several officers of the Pulaski County sheriff’s office went to the residence of appellant, Greta Jacobs, to execute a search warrant and there found appellant and two other individuals, Don Todd and Robert Turner. The search of the premises resulted in the discovery of two vials of a liquid, later analyzed as phenmetrazine, which were found in plain view in a bathroom. Needles, syringes and various other articles were also seized, the majority of which items were found in places indicating them to have been hidden. Appellant emphatically denied that any of these items belonged to her and attempted to connect them to Turner, who it was shown had frequently stayed overnight at her home.

Appellant was subsequently convicted by the Pulaski Circuit Court of the offense of possession of phenmetrazine, a Schedule II nonnarcotic controlled substance under KRS 218A.070(3)(c). Three arguments are presented for the reversal of this conviction.

Appellant’s first argument stems from the wording of KRS 218A.070, which she argues controls only those drugs which are shown not to have been removed from the schedule of controlled substances at the time of the alleged offense, and also only that quantity of phenmetrazine which is shown to hold a potential for abuse associated with a stimulant effect on the central nervous system, so that in the failure of the Commonwealth to prove the drug had not been so rescheduled and that appellant possessed such a quantity, she was entitled to a directed verdict of acquittal. Applying this same line of reasoning, appellant further contends the jury should have been instructed that before they could find her guilty of possession of a controlled substance as designated by the statute, they were required to find she possessed such a quantity as specified above and to further find that phenmetrazine had not been rescheduled at the time the offense was alleged to have been committed. After having carefully considered the statute in question, we do not so construe its language and must disagree with appellant’s contentions. The troublesome section, KRS 218A.070, reads in part as follows:

“Unless otherwise rescheduled by regulation of the [state board of health] the controlled substances listed in this section are included in schedule II:

“(3) Any material, compound, mixture, or preparation which contains any quantity of the following substances having a potential for abuse associated with a stimulant effect on the central nervous system:

“(c) Phenmetrazine and its salts;

As we read this language, the phrase “having a potential for abuse associated with a stimulant effect on the central nervous system” modifies “substances” rather than “quantity.” As such, the language referred to is a phrase of description rather than, as appellant suggests, of limitation. The quantity of the drug possessed is therefore irrelevant under the statute, so that evidence of possession of any amount of the controlled substance is sufficient to withstand a motion for a directed verdict of acquittal. In regard to appellant’s contention that the Commonwealth was required to prove the drug had not been rescheduled at the time of the alleged offense, we are of the opinion that since an enactment of the legislature is presumed valid and effective unless clearly shown otherwise, Commonwealth v. Robinson, 192 Ky. 374, 233 S.W. 791 (1921), it was incumbent on the defendant to raise the issue by introducing evidence indicating the drug had been rescheduled; and in her failure to do so we conclude her not entitled to the directed verdict of acquittal. Having so reached these conclusions, we similarly conclude there to have been no error in the court’s instructions to the jury.

Appellant alleges as her second assignment of error that the trial court erred in refusing to allow a defense witness, James Roysden, to testify because, although subject to the rule of separation of witnesses invoked by defense counsel pursuant to RCr 9.48, Roysden had been present in the courtroom for a short time during the trial. RCr 9.48 provides as follows:

“If either a defendant or the commonwealth requests it, the judge may exclude from the hearing or trial any witness of the adverse party not at the time under examination, so that he may not hear the testimony of the other witnesses. This provision shall not apply to the parties to the proceeding.”

The purpose of this rule is, obviously, to prevent a prospective witness from adjusting his testimony to conform to that which he hears during the interrogation of other witnesses. We have uniformly construed it as giving to the trial judge broad discretion in the matter of permitting or refusing to permit the testimony of a witness who has violated the rule of separation, and have refused to intervene in such matters except in cases where that discretion is found to have been abused. Stone v. Commonwealth, Ky., 418 S.W.2d 646 (1967); Moore v. Commonwealth, Ky., 323 S.W.2d 577 (1959). Strict compliance with the rule is not mandatory, Sanders v. Drane, Ky., 432 S.W.2d 54 (1968), and, taking a practical approach to the problem presented here, we do not feel the purpose sought to be achieved by RCr 9.48 required the exclusion of Roysden’s testimony. The record in the present case indicates Roysden was in the Pulaski County jail at the beginning of the proceedings and explains his presence in the courtroom as being due to the jailer, while Roysden was still in his custody, for some reason directing him to sit in the courtroom audience. The record further shows counsel for the defendant was unaware of Roys-den’s appearance at the proceedings because he was seated facing the bench, his back to the audience, preoccupied with the testimony of a witness for the Commonwealth. The testimony Roysden sought to give was placed in the record by avowal and indicated Turner had admitted to Roysden that the controlled substance which- appellant was charged with possessing did not belong to her, but to Turner. Clearly, this testimony was crucial to appellant’s defense, and given the circumstances under which the rule of separation of witnesses was violated, we consider the trial court to have committed substantial error to the prejudice of the appellant in its refusing to permit Roysden to testify.

Since the error discussed above renders it necessary to reverse this case for a new trial, we feel compelled to advise by this opinion that we consider the conduct and closing argument of the Commonwealth’s Attorney to have been highly improper and the sentence imposed by the trial court to be in error. The transcript of evidence is replete with objectionable statements and the injection of false issues by the prosecutor and several of the Commonwealth’s witnesses, and it is plainly evident from this record that the prosecutor was attempting to induce the jury to believe the worst of the appellant by making her appear to be involved in the trafficking of a controlled substance. The means employed in this effort included introducing into evidence the drug paraphernalia seized during the search, displaying it prominently on the lip of the jury box, and repeatedly making reference to these articles during the presentation of evidence and in the closing argument, in which the prosecutor reminded the jury of its “obligation ... to the citizenry to keep this poison out of their system”, asked them to “send a loud message, and never fear that what you do here will be heard . . . to the boundaries of this county and beyond”, and indicated that a “young person on this stuff will live a living death.” We soundly condemned this variety of prosecutorial misconduct in Coates v. Commonwealth, Ky., 469 S.W.2d 346 (1971), when we indicated that such action deprived the appellant therein of the fair jury trial to which he was entitled. Similarly, in Harness v. Commonwealth, Ky., 475 S.W.2d 485 (1971), we instructed that although a Commonwealth’s Attorney is allowed reasonable latitude in argument to persuade jurors the matter should not be dealt with lightly, he may not so inflame the jury that it solely out of passion and prejudice will be led to return a verdict of guilty. In the instant case, although the court sustained several of the objections made by defense counsel and admonished the jury concerning the prosecutor’s actions, we view the total effect of this unnecessary conduct to be such that the trial court’s attempted corrections were insufficient to cure the damage done.

We must further point out that since there is no indication that appellant had been previously convicted of any offense under the Controlled Substances Act, KRS Chapter 218A, the penalty imposed by the trial court cannot stand. That penalty, of one year’s confinement in the county jail and a fine of $500, is the maximum punishment designated for subsequent offenders of the controlled substances statutes by KRS 218A.990(6)(g). The proper penalty here is designated by KRS 218A.990(6)(a):

“(a) Any person found guilty of possession of any controlled substance pursuant to this subsection shall for a first offense, be ordered to a facility designated by the Commissioner of the Department of Mental Health where a program of treatment and rehabilitation not to exceed one year in duration shall be prescribed. . . ”

The judgment of conviction is therefore reversed for a new trial in compliance with this opinion.

All concur.


author: PALMORE, Justice.

text:
    Drexell DAVIS, Secretary of State and Bremer Ehrler, Jefferson County Court Clerk, Appellants, v. Robert E. DELAHANTY, Richard J. Fitzgerald, and William E. McAnulty, Jr., Appellees.
    Supreme Court of Kentucky.
    May 9, 1977.
    Robert F. Stephens, Atty. Gen., George M. Geoghegan, III, Asst. Atty. Gen., Frankfort, J. Bruce Miller, County Atty., Jefferson County, Jack R. Underwood, Jr., James T. Carey, Asst. County Attys., Louisville, for appellants.
    Thomas L. Hogan, Louisville, for appel-lees.

      William T. Warner, Louisville, for amicus curiae Louisville Bar Assn.
   PALMORE, Justice.

Section 117 of the Kentucky Constitution, a part of the 1975 Judicial Amendment, provides that all judges in the judicial system “shall be elected from their respective districts or circuits on a nonpartisan basis as provided by law.” Pursuant to that section the 1976 General Assembly enacted KRS Chapter 118A covering the election of judges. Ch. 54, Acts of 1976, effective March 10, 1976. KRS 118A.060 and 118A.070 provide a primary-election process by which the number of candidates for each judicial office whose names shall be printed on the ballots for the general election is reduced to not more than two, as follows:

“118A.060. Petition for nomination — Order of names on ballot — Secretary of state’s duties — Ballot labels — Certificates of nomination. — (1) Except as provided in KRS 118A.100 and 118A.110, no person’s name shall appear on a ballot label or special ballot for an office of the Court of Justice without first having been nominated as provided in this section.

(2) Each candidate for nomination shall file a petition for nomination with the secretary of state not less than fifty-five (55) days before the day fixed by law for holding the primary election.

******

(7) The names of the candidates shall be placed on the voting machine in a separate column or line headed or preceded by the words ‘Judicial Ballot.’ Above the names of candidates for nomination shall be printed the words ‘Vote for one,’ or ‘Vote for one in each division,’ as appropriate. The office, numbered division thereof if divisions exist, and the candidates therefor shall be clearly labeled. No party designation or emblem of any kind, nor any sign indicating any candidate’s political belief or party affiliation, shall be used on voting machines or special ballots.

(8) The two (2) candidates receiving the highest number of votes for nomination for justice or judge of a district or circuit, or numbered division thereof if divisions exist, shall be nominated. Certificates of nomination shall be issued as provided in KRS 118A.190.

(9)If it appears after expiration of the time for filing petitions for nomination that there are not more than two (2) candidates who have filed the necessary petitions for a place on the ballot in the regular election, the secretary of state shall immediately issue and file in his office certificates of nomination, and send copies to the candidates.”

“118A.070. Eligibility of voters— In a primary election for an office of the Court of Justice, all registered voters, regardless of party affiliation or lack thereof, shall be allowed to vote for candidates for nomination to the office of justice or judge.”

In accordance with Const. Sec. 113, also a part of the 1975 Judicial Amendment, the General Assembly at a special session held in December of 1976 provided for 23 numbered divisions of the district court in the Thirtieth Judicial District, comprising Jefferson County. Ch. 28, sec. 8, Kentucky Acts of the Extraordinary Session of 1976. There are 82 candidates for these 23 offices.

The appellees, Robert E. Delahanty, Richard J. Fitzgerald, and William E. McAnulty, Jr., all of whom are candidates for the office of District Judge in Jefferson County, brought this action in the Jefferson Circuit Court to enjoin the County Clerk and the Secretary of State from taking any action toward having the names of District-Judge candidates submitted to the primary-election process required by these statutes. They contend, and the trial court agreed, that KRS 118A.060 is unconstitutional and invalid.

In brief, the appellees say that by definition a “primary election” is partisan in nature, hence if KRS 118A.060 does in fact provide for such an election it violates Const. Sec. 117 because it is not nonpartisan, but if on the other hand the process does not constitute a “primary election,” then it is an “election,” and would violate Const. Sec. 148, which provides that not more than “one election each year shall be held in this State,” etc. They contend also that by restricting the number of candidates whose names may appear on the November ballot the statute runs afoul of Const. Sec. 6, which provides that all elections shall be free and equal.

The Louisville Bar Association, appearing as a micas curiae, takes a neutral position but suggests that a federal constitutional question may be involved.

In addition to the theories we have mentioned, the trial court was of the further opinion that a truly nonpartisan selection is not possible in the setting of a partisan primary election.

Taking this last point first, we can appreciate the concern expressed by the distinguished trial judge in that a purely nonpartisan nominating procedure is required to take place amid the jostling bustle of party primaries. Nevertheless, it occurs to us that if this rationale were extended to its logical conclusion, neither would it be possible to hold a nonpartisan election as a part of the general election in November, at which the atmosphere and trappings of partisan politics are even more prevalent but certainly unavoidable.

Counsel for the appellees, acknowledging the absence of any precedent on all fours with their theory, suggests that logic is the answer. Frankly, it strikes us that to knock this statute down would require not logic, but sheer whimsy.

Primary elections having originated in party politics, it is not surprising that they have often been so defined. Dictionaries, however, do not lead in the development of language — they follow, just as judge-made law should follow rather than initiate currents in the stream of human attitudes and conduct. It does not make good sense to say that because the term “primary election” has been generally associated with and descriptive of party politics there cannot be a primary election without partisanship. In short, the mere choice of words in calling this process a primary election does not deprive it of the nonpartisan character enjoined by Const. Sec. 117. Nor does the fact that it is held at the same time and place as the party primaries.

With respect to the inhibition of Const. Sec. 148 against more than one election in each year, “That section . has no reference to primary elections, but applies only to general elections.” Montgomery v. Chelf, 118 Ky. 766, 26 K.L.R. 638, 82 S.W. 388, 390 (1904); Morgan v. Goode, 151 Ky. 284, 152 S.W. 584, 587 (1912). It is a part of the election process but of itself cannot be an “election,” because it does not culminate in any candidate’s election to office. It is no more than a necessary and reasonable procedure for determining which candidates have the requisite support to justify having their names printed on the ballot for the general election. It does not, as counsel for the appellees contends, eliminate any candidates. It simply eliminates them from the quest to have their names printed on the ballot. They may still seek election, and indeed may be elected, by write-in vote.

“The right to thus vote and be voted for is a constitutional right, but the privilege of having one’s name printed on the ballot as a candidate for a particular office is necessarily limited to those who comply with the requirements prescribed by the Legislature, having for their object the ascertainment of the will of the electorate within the limits of practicability. . . . As we have indicated before, neither Section 6 of the Constitution nor any other provision therein contained confers any right upon a candidate or a voter to have the candidate’s name printed upon the official ballot.” Asher v. Arnett, 280 Ky. 347, 132 S.W.2d 772, 775, 776 (1939).

We have considered the opinions of the United States Supreme Court cited by the bar association and mentioned in the opinion of the trial court. None of them, we think, militates against the validity of KRS 118A.060 in terms of the First, Fifth or Fourteenth Amendments of the United States Constitution. Certainly there is no such discrimination as that which appeared in Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968), and if by limiting the names permitted to be printed on the ballot in the general election the process of a primary election were held to be a denial of access to the general election ballot, the whole system and structure through which officeholders both state and federal have always been elected would fall to the ground in one vast cloud of dust. We cannot foretell such a catastrophe from anything the highest court of the country has said.

The judgment is reversed with direction that the complaint be dismissed.

REED, C. J., and CLAYTON, JONES, PALMORE, STEPHENSON and STERN-BERG, JJ., sitting.

All concur.


author: STERNBERG, Justice.

text:
    Ruth HARLOW, widow of Carl Harlow, Deceased, et al., Appellants, v. Clarence HARLOW et al., Appellees. Ruth HARLOW, widow of Carl Harlow, Deceased, Appellant, v. Clarence HARLOW et al., Appellees.
    Supreme Court of Kentucky.
    May 20, 1977.

      Cordell H. Martin, Hindman, for appellant.
    Harry M. Caudill, Whitesburg, John M. Stephens, Pikeville, for appellees.
   STERNBERG, Justice.

Ruth Harlow, widow of Carl Harlow, in her individual capacity and in her administrative capacity, attacks the validity of Carl’s last will and testament and also seeks to set aside a settlement of claim that she made with Clarence Harlow, her brother-in-law, on the grounds that it was induced by duress, fraud and deceit.

Carl Harlow died testate on July 22,1968, a resident of Letcher County, Kentucky. Carl and Clarence were partners in the “Harlow Motor Company.” In 1955 each of them executed a will which contained a reciprocal provision relating to the disposition of the business upon the death of either of them. It was provided thereby that the survivor shall have all of the interest of the other upon the payment of $85,000 to the estate of the deceased brother.

On August 7, 1968, Ruth filed an application in the Letcher County Court to be appointed as the administratrix of her deceased husband’s estate. On the same date she was duly appointed and duly qualified. Thereafter, but on the same date, Carl’s will was discovered, and on the same date it was presented to the Letcher County Court for probate. It was duly probated and Ruth was appointed executrix thereof. She duly qualified and her bond in the sum of $120,000 was approved. Appraisers of the estate were duly appointed. To their report, Ruth, as executrix, filed exceptions, which were later overruled.

On September 23, 1968, Ruth, acting in her individual capacity and in her capacity as executrix of Carl’s will, executed a receipt and release of all claims, demands and rights of action against Clarence Harlow and the property of every character owned by the Harlow Motor Company. In consideration therefor Clarence paid Ruth the sum of $87,000 and surrendered to her certain other personal items owned by Carl at the time of his demise, which were kept by Carl at the Harlow Motor Company.

On September 14, 1971, Ruth, acting in her individual capacity and as administra-trix of Carl’s estate, filed motions to set aside the order of the Letcher County Court dated August 7, 1968, probating Carl’s will or, in the alternative, to allow her to file a renunciation as authorized by KRS 392.080. On February 23, 1972, the motions were heard by a special judge of the Letcher County Court. A transcript of the evidence is duly filed in the record. On April 30, 1973, the special judge entered an order overruling both motions.

On May 1, 1973, a statement of appeal from the April 30, 1973, order of the Letch-er County Court was filed by Ruth, as widow of Carl, in the Letcher Circuit Court (Civil Action Number 4771). On the same date, as Carl’s widow and administratrix of his estate, Ruth filed an original action in the Letcher Circuit Court against Clarence Harlow and others, in which she attacked the September 23, 1968, settlement (Civil Action Number 4772). She charged, among other allegations, that the “receipt and release of claim” dated September 23, 1968, was procured from her under duress, fraud and deceit. The allegations of the complaint were generally traversed and by affirmative pleading it is charged that the substance of the action is, in effect, to renounce the will of Carl Harlow and that Ruth had not complied with the provisions of KRS 392.080 in doing so. These two actions were consolidated on the trial court’s own motion. In Action Number 4771 the trial judge sustained a motion to dismiss and in Action Number 4772 he sustained a motion for a summary judgment. Thereupon, both cases were dismissed.

Action Number 4771 is the attack on the probate of Carl’s will. In considering the propriety of the court’s action in sustaining the motion to dismiss, we must bear in mind that such motion will not be granted unless it appears that the plaintiff will not be entitled to relief under any state of facts which would be proven in support of the claim. Ingram v. Ingram, Ky., 283 S.W.2d 210 (1955).

“Since the dominion of an owner over his property ends at his death, the law must provide for the devolution of that property. If the owner has chosen to dispose of it by will, the property must pass according to the terms of the will; if there is no will, the law alone, through the rules of descent and distribution, accomplishes the transfer and designates the persons who are to take.”

23 Am.Jur.2d, Descent and Distribution, § 1, p. 749.

In Kentucky, upon a person’s death, we have provided for the devolution of property either by testate succession (KRS Ch. 394) or by intestate succession (KRS Chs. 391, 392). In Eckert v. Givan, 298 Ky. 621, 183 S.W.2d 809 (1944), this court said:

“Ella Hiller qualified as the executrix under the will of her deceased husband. She had the right of electing either to take under the will or of renouncing the will and taking under the law of descent and distribution.”

In the case at bar the facts pertaining to this aspect of the case are not in dispute. The will was probated August 7, 1968. The record reflects that actually two renunciations were filed. One renunciation was certified by the Clerk of the Letcher County Court (erroneously designated as Clerk of the Letcher Circuit Court) to have been acknowledged by Ruth and filed on the_day of August, 1972 (sic). A notation at the top of the document indicates that it may have been filed September 13, 1972. The other renunciation was certified by the Clerk of the Letcher County Court to have been acknowledged by Ruth on October 2,1972, and filed on September 29,1972, which was three days prior to its acknowledgment. Regardless of whether the renunciation was executed or filed in August, September or October, 1972, the filing was more than twelve months after the probate of the will. As a matter of fact, the filing of the renunciation in any event was at least four years after the probate of Carl’s will. KRS 392.080 deals with the renunciation of a will by a surviving spouse. To paraphrase the statute, we find that Ruth would have had to file her renunciation by August 7, 1969. This, she did not do.

This court has held that if a widow fails to renounce the will of her husband making provision for her, she must take the estate given by the will. Moise v. Moise’s Ex’r, 302 Ky. 843, 196 S.W.2d 607 (1946); Huhlien v. Huhlien, 87 Ky. 247, 8 S.W. 260 (1888); Smith et ux. v. Bone etc., 70 Ky. 367, 7 Bush 367 (1870); Chenault v. Scott, 23 Ky.Law Rep. 1974, 66 S.W. 759 (1902). Furthermore, in Mercer v. Smith, 32 Ky. 1003, 107 S.W. 1196 (1908), we held that a widow may not appeal from the order probating her husband’s will. If she does not approve of its provisions, under the express terms of Ky.St.1903, § 1404 (now KRS 392.-080), she may renounce them and take under the law; that being an exclusive remedy by which she can obtain her legal rights as her husband’s widow.

If Ruth were permitted., to proceed with her will contest (No. 4771) and succeed in having the will set aside and held for naught, she would then share in Carl’s estate as if he had died intestate. To accomplish the same result, all she had to do was to file a renunciation of his will and she would have received her share as if he had made no will. The difficulty in which Ruth finds herself in the instant case is that she waited over four years to file a renunciation. This is of her own doing, and she will have to make the best of it. The trial judge properly dismissed the action.

We next turn our attention to the action in which Ruth challenges the September 23, 1968, settlement with Clarence Harlow (No. 4772). The trial judge sustained a motion for summary judgment.

The complaint was filed by Ruth as widow of Carl and as administratrix of his estate. The defendants therein are Clarence Harlow, Harlow Motor Company, Harlow Motor Company, Inc., Universal C.I.T. Corporation, Ford Motor Company, First Security Bank, Bank of Neon, Bill Harlow and Kenneth Harlow. The complaint charged that the “receipt and release of claim” was procured from her under duress, fraud and deceit. The allegations of the complaint are duly put in issue by Clarence’s answer. The ten-page complaint sets out with particularity the circumstances constituting fraud and the relationship of each of the codefendants to the subject matter of the action. None of the code-fendants are charged with the commission of the fraud, duress or deceit. This charge is directed at Clarence Harlow alone. Bill Harlow and Kenneth Harlow are the sons of Ruth and Carl, and they are made parties so that the action could be fully and finally disposed of. All of the other defendants are made parties by reason of the fact that they may have certain information and records which Ruth contends she may need in the establishment of her claim. The mere fact that a party may possess information which is pertinent to the action does not justify inclusion as a party to the action. No right to any relief has been sought against any person other than Clarence Harlow, Harlow Motor Company and Harlow Motor Company, Inc. All information and records legally pertinent to the issue can be properly secured by the taking of depositions.

A record may reflect grave doubt that a claimant may prosecute his action to a successful conclusion, but he should be permitted at least to try. He should not be compelled to try his action on a motion for summary judgment. The true purpose of a summary judgment is to terminate litigation when, as a matter of law, it appears that it would be impossible for the respondent to produce evidence at trial warranting a judgment in his favor against the movant. Roberson v. Lampton, Ky., 516 S.W.2d 838 (1974). Such is not the case here. The trial judge erroneously sustained defendant’s motion for a summary judgment insofar as it dismissed Ruth’s action against Clarence Harlow, Harlow Motor Company, Harlow Motor Company, Inc., and her two sons, Bill and Kenneth Harlow. Insofar as the court dismissed the action against Universal C.I.T. Corporation, Ford Motor Company, First Security Bank and Bank of Neon, it acted properly.

The judgment is affirmed insofar as it dismissed the attempted appeal from the order probating the will of Carl Harlow (No. 4771) and reversed insofar as it dismissed Ruth’s attack upon the September 23, 1968, settlement (No. 4772).

All concur.


author: JONES, Justice.

text:
    BANK OF SHELBYVILLE, Shelbyville, Ky., et al., Appellants, v. PEOPLES BANK OF BAGDAD, Bagdad, Ky., et al., Appellees.
    Supreme Court of Kentucky.
    May 20, 1977.
    Joseph J. Leary, William M. Johnson, Frankfort, for appellants.
    William A. Young, G. Lee Langston, Frankfort, for appellees.
    Edward F. Prichard, Jr., Frankfort, Larry C. Allen, C. R. Luker, Jr., London, ami-cus curiae.
   JONES, Justice.

This is an appeal from an order of the Franklin Circuit Court which affirmed an order of the Commissioner of Banking and Securities granting Peoples Bank of Bag-dad a license for a branch bank under the provisions of KRS 287.180(2).

Citizens Union Bank of Shelbyville, Kentucky and the Bank of Shelbyville prosecute this appeal.

Citizens Union Bank and Bank of Shelby-ville contend that the trial court erred grievously in holding the order of the Commissioner “neither arbitrary, capricious nor unreasonable. . . . ” They take the position that the trial court was in serious error when he rejected their contention that the doctrine of res judicata applies to quasi judicial acts of the Commissioner of Banking and Securities. The Shelbyville banks also contend that the record fails to demonstrate that the “public convenience and advantage” would be served by the granting of a branch banking license to the Peoples Bank of Bagdad. They contend also that they were denied a due process hearing before the Commissioner.

In order to place these issues in proper perspective it is necessary to relate some of the background of the events that led to this controversy.

Peoples Bank of Bagdad first made application to the Kentucky Department of Banking and Securities for authority to establish a branch bank in Shelby County on February 10, 1971. At that time the location of the proposed bank was approximately 2,000 ft. west of the city limits of Shelby-ville.

On December 6, 1971, the then Commissioner (without a hearing) granted a branch bank license to Peoples Bank of Bagdad. The Shelbyville banks filed an action in the Franklin Cicruit Court in which they sought an evidentiary due process hearing. They also sought an injunction to restrain Peoples Bank of Bagdad from maintaining the branch bank and to require the Commissioner to set aside the authority issued by him on December 6, 1971. On April 13, 1972, the Franklin Circuit Court in a memo opinion directed that the order of the Commissioner was void for arbitrariness. The opinion also directed the Commissioner to entertain the application upon due notice and opportunity for hearing.

On July 10,1972, another commissioner of banking and securities conducted a hearing.

On August 22, 1972, the then Commissioner entered findings of fact, conclusions of law and denied the application.

The findings of fact and conclusions of law purporting to support the order denying the application of the Peoples Bank were entered on August 22, 1972. Following the findings of fact the Commissioner arrived at certain conclusions of law. The only relevant conclusion was that in ascertaining whether the public convenience and advantage would be prompted by approval of the application of the Peoples Bank the Commissioner was “not limited to inquiring solely into the question of whether the additional facilities would supply physical convenience to the public but may view and consider such factors as the effect such a branch would have upon the banking entities operating in the community.” It is apparent that the Commissioner was of the opinion that in determining whether opening a branch bank would be granted or withheld he was entitled to weigh and consider the effect that the competition the facility would have upon existing banking institutions. That certainly is not the test. In a case before this court many years ago the banking commissioner had denied an application for a new bank charter primarily upon the ground that the new bank would have an adverse effect upon existing banking institutions in the same community. These reasons were set forth in his letter of denial. In reversing, this court said,

“It is not within the province of the banking commissioner to ascertain whether two banking institutions will prosper in a given town, nor whether the establishment of a new bank will prove detrimental to the one already there, but his discretion must be exercised only within the limits prescribed by the statute. . . . The statute does not contemplate the suppression of competing banks by the withholding of the approval of the commissioner to articles of incorporation merely upon the ground that the business may not prove profitable, or may be a detriment to a bank already established in a given community. . It has been and is the policy of this state to encourage the establishment of banks and other corporations even in competition to one another because out of a wholesome rivalry the general public derives a benefit. If the construction the commissioner places upon this statute can be maintained every established banking institution in the Commonwealth could defeat the organization of a second bank in its community for similar reasons, because it might well be argued in every such case that the establishment of a new institution would take away part of the business of the old bank, and to that extent weaken it and reduce the profits arising from its established business. It may be said that one bank in any town or city is sufficient, because the whole population can there be served. This would likewise apply to every mercantile establishment as well as mills and other indus-trials, because a monopoly is always profitable to the holder of the exclusive privilege.” Speer v. Dossey, 177 Ky. 761, 198 S.W. 19 (1917).

On December 12, 1972, after that order had become final, Peoples Bank of Bagdad filed a motion and notice (supported by affidavits) seeking “a new hearing” upon the application. That motion was overruled and the order of the Commissioner denying the application was entered on December 29, 1972.

On March 31, 1973, the Peoples Bank of Bagdad filed a new application. That application was for authority to establish a branch bank on the opposite side of U.S. Highway # 60 approximately ⅛ mile east of the first proposed location and in a shopping center that had been constructed since the date of the first application and hearing.

It is true, as the banks of Shelbyville contend, that this court has held that res judicata has some application to administrative proceedings under certain circumstances. That is not so where significant change of conditions or circumstances occur between two successive administrative hearings. Dink and Childers v. Palmer-Ball, Ky., 479 S.W.2d 897 (1972).

The evidence presented in behalf of Peoples Bank of Bagdad reflected that substantial changes had taken place in and near where it sought authority to establish a branch bank since the earlier hearing. In very thorough and detailed findings of fact, the hearing officer listed the changed conditions, and the evidence in support of granting Peoples Bank of Bagdad authority to operate a branch bank. That branch bank would be located in the Village Plaza Shopping Center located at the corner of a proposed county road and U.S. Highway # 60. The evidence also revealed that numerous developments and improvements within the area would benefit substantially by the convenience and advantage of a new branch bank in the area.

This court finds no merit in the contention of the Shelbyville banks that they were denied procedural due process. Nor have they' shown any prejudice by the later appearance of the “hearing officer” as one of the attorneys representing the Commissioner of Banking. The cases cited by the Shelbyville banks in support of that contention have no application to the facts in this case. In those cases, the same person was acting in a dual capacity, as advocate, or prosecutor and decision maker at the time and during the course of the hearing. Such was not the case here.

There is overwhelming evidence to sustain the action of the banking commissioner in granting Peoples Bank of Bagdad authority to establish a branch bank in Shelbyville. See Commercial Bank of West Liberty v. Hall, Ky., 500 S.W.2d 77 (1973). Therefore, the judgment of the trial court sustaining the factual findings of the Banking Commissioner is correct.

The judgment is affirmed.

All concur.


text:
    COMMONWEALTH of Kentucky by and on relation of John McD. ROSS, Commissioner of Revenue, Appellant, v. LEE’S FORD DOCK, INC. and the Kentucky Board of Tax Appeals, Appellees.
    Supreme Court of Kentucky.
    May 20, 1977.

      William S. Riley, Asst. Atty. Gen., William P. Sturm, Atty., Legal Staff, Dept, of Revenue, Frankfort, for appellant.
    John G. Prather, Somerset, for appellee Lee’s Ford Dock, Inc.
   PALMORE, Justice.

The question here is whether sales or use taxes are collectible on gasoline sold for the operation of motor boats. The Kentucky Board of Tax Appeals and the Franklin Circuit Court held that they are not. This court concurs.

KRS 138.220 levies an excise tax (now 9% per gallon) on all gasoline received in this state. It is to be paid by the dealer, who of course includes it in his price to the consumer. Section 230 of the Kentucky Constitution requires that all “money derived from excise or license taxation relating to gasoline and other motor fuels” be devoted exclusively to certain enumerated purposes, which include “statutory refunds and adjustments.”

KRS 138.341 authorizes a 95% refund of the gasoline tax to the purchaser of gasoline used to operate aircraft. KRS 138.344 authorizes a 90% refund to the purchaser of gasoline used in the operation of tractors or stationary engines for agricultural purposes. These refunds are applied for and collected by the consumer.

KRS 138.445 authorizes a 90% refund of the gasoline tax to any person who buys and uses gasoline for the operation of motor boats. Pursuant to Regulation MB-2 of the Department of Revenue this refund is collected by the retail gasoline dealer, who in turn is required to reflect it in his price to the consumer.

Sales and use taxes are covered by KRS Ch. 139. They are levied at the rate of 5% of the sales price of the goods or services sold or used (KRS 139.200, 139.310) and are required to be collected by the retail seller and remitted to the state (KRS 139.210, 139.340). The retailer’s accountability is measured at 5% of his “gross receipts.” KRS 139.200, 139.260.

KRS 139.050 sets forth a detailed definition of “gross receipts,” which excludes the following:

“Sales of gasoline and special fuels subjected to tax under KRS Chapter 138.” KRS 139.050(3)(e).

As distinguished from the sales tax, the “use tax” imposed by KRS 139.310 appears mainly to be a dragnet to catch transactions that have escaped the sales tax, as in the instance of untaxed purchases in or from other states. Cf. annotations, 129 A.L.R. 223, 153 A.L.R. 609. KRS 139.330 makes the purchaser directly accountable to the state, but KRS 139.340 provides that if the sale is made by a retailer in this state he must collect the tax.

This brings us to KRS 139.500, which provides as follows:

“(1) The storage, use or other consumption in this state of property, the gross receipts from the sale of which are required to be in the measure of the tax levied under KRS 139.200 is not subject to the use tax.

“(2) The storage, use, or other consumption in this state of gasoline or special fuels on which the tax under KRS Chapter 138 has been paid and which is not subject to refund under KRS 138.341,138.344, 279.200, or 279.530 shall not be subject to the use tax.” (Emphasis added.)

It will be noted that KRS 138.445, which authorizes a 90% refund of the tax paid on gasoline bought or used for the operation of motor boats, is not included among the refund statutes enumerated in KRS 139.-500(2). That is the principal basis for the contention, thus far upheld in this case, that gasoline sold as fuel for motor boats is not subject to the use tax. The revenue department, however, takes the position that gasoline sold for the operation of aircraft, farm tractors, and motor boats alike is essentially free of gasoline taxes under KRS Ch. 138, and that except for the percentage difference between the amount of gasoline tax paid and the amount refunded (which difference it attributes to the administrative expense of processing the refunds), it is subject to the use tax.

We do not doubt that the tax treatment of gasoline sold for non-highway use, whether it be for aircraft, farm tractors, or motor boats, ought to be the same. Often, however, and this is particularly so with respect to statutory law, there is a demonstrable difference between what ought to be and what is. The sales and use tax law, of which KRS 139.500 is a part, carried an emergency clause and became effective upon approval of the Governor on February 5, 1960. What is now KRS 138.445, providing a 90%- refund of taxes paid on gasoline sold as fuel for motor boats, was introduced as Senate Bill 157 on February 15, I960, and became law without the Governor’s signature on March 31, 1960. This time sequence explains why KRS 138.445 was not included among the refund statutes enumerated in KRS 139.500(2), but there is no explanation of why the omission has not been rectified at some time during the many sessions of the General Assembly that have been held since 1960. We can assume only that for reasons beyond the scope of our inquiry the legislature has not seen fit to do it, and what the revenue department is attempting here is simply to do what the legislature has failed to do. That cannot be permitted.

It is suggested in the brief for the revenue department that if it had chosen to construe “the motorboat gasoline situation as a use tax situation, there is no question that use tax would be assessable,” as if to say that whether a tax is a sales tax or a use tax depends on how the department wishes to construe it. It must disabuse itself of such notions. The character and incidence of taxes are legislative matters. Sales taxes are taxes on the seller. Use taxes are taxes on the consumer. Marcum v. City of Louisville Municipal Housing Com’n, Ky., 374 S.W.2d 865 (1964). That the economic burden of both falls on the consumer does not obscure the difference. Id., at 374 S.W.2d 868. By parity of reasoning, neither does it make any difference from which party the state chooses to collect. The applicability of a tax is not a matter of administrative manipulation.

When the property on which the tax is focussed is sold in this state it seems pointless to reach it through the use tax rather than the sales tax. Yet that appears to be exactly what the statutes do with regard to gasoline sold as aircraft or tractor fuel. KRS 139.050(3)(e) exempts from the definition of gross receipts, which otherwise are subject to the sales tax, all gasoline taxed under KRS Chapter 138. KRS 139.-500(2) then makes it clear that neither does the use tax apply to such gasoline that “is not subject to refund under KRS 138.341, 138.344,” etc. Surely this was an oblique method of drawing these specified categories of gasoline, through listing them as exceptions from an exemption, into the embrace of the use tax. That being the way it was done, however, unless and until gasoline for motor boats is added to the list of exceptions by legislative act the familiar maxim “inclusio unius est exclusio alterius” never had a better fit.

We cannot accede to the revenue department’s argument that a refundable tax under KRS Chapter 138 is not really a tax at all. By its very language, for all its shortcomings, KRS 139.500(2) specifically recognizes that it is. Our conclusion is that the revenue department is right in principle but, unfortunately, that this particular law is wrong in principle, and we are not at liberty to blink the law.

The judgment is affirmed.

All concur.

      . Ch. 5, Art. I, § 48, Acts of 1960.

      . Ch. 214, Acts of 1960.


text:
    Larry QUEEN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    May 20, 1977.
    Garis L. Pruitt, Ashland, for appellant.
    Robert F. Stephens, Atty. Gen., Patrick B. Kimberlin, III, Asst. Atty. Gen., Frankfort, for appellee.
   JONES, Justice.

Larry Queen appeals from a judgment sentencing him to 20 years’ imprisonment pursuant to a jury verdict finding him guilty of armed robbery. KRS 515.-020(l)(c). Queen claims error as grounds for reversal as follows: (1) there was no evidence that he used or threatened to use physical force with the intent of accomplishing a theft; (2) the trial court erred in refusing to admit the testimony of a co-in-dictee.

The evidence reveals that about 1 A.M. on Sunday, May 3, 1976, Queen went to the home of Ethel Lyons and her six children. The lights in the house were out except for the light projected by a television set. Ethel Lyons was sitting on a couch with a friend, Thomas Blevins. The children were all in bed. Queen pounded on the door. Ethel asked him to go away. Queen refused and continued to pound on the door. Blevins fired two shots from a .22 caliber pistol to scare Queen away. That did not deter Queen. He kicked in the door and entered the house.

Upon this entrance into Ethel’s house, Queen was wielding a knife. He chased Blevins from the house. After this event Queen attempted to get Ethel to go to the toilet. He threatened to strike her if she didn’t drink a beer. Ethel attempted to escape from the house but in the struggle her blouse was torn. She went to a neighbor’s house to call for help. A short time later, she was hiding behind a car parked near her house and she heard Queen admit finding the purse. She saw him walk out of the house with the purse, which contained $185.00. Carl Brown testified that Queen said, “I dumped the little sons of bitches out in the floor and found it (purse) under the mattress.” There was testimony by the Commonwealth that Queen admitted taking the purse.

The Commonwealth introduced letters from Queen to Carl Brown. Queen asked Brown to “change the story around” so that he didn’t see anything. The evidence also revealed that Queen and Brown attempted to pay Ethel the $185.00. Queen argues that there was not sufficient evidence in this case to support a jury finding of guilty on a first degree robbery charge. It is the Commonwealth’s position that Queen’s argument has no basis in either fact or law. It is the theory of the Commonwealth that when Queen wielded a knife forcing Ethel’s friend to leave the house, KRS 515.020(l)(c) requires that the person toward whom the use or threatened use is directed must be someone other than a participant in the crime, but he need not be the robbery victim. There is no doubt that Ethel Lyons was put in fear shortly before the taking of the purse. That fear caused her to leave her house and her children.

Ethel was asked on direct examination:
“Q. Did Larry Queen say anything to you about money?
“A. I know Larry Queen steals. I know that.
“Q. No, answer my question. Did he say anything to you about money?
“A. No.
“Q. Tell us what Larry Queen did.
“A. Well, he wanted me to go out to the toilet and I wouldn’t go. He wanted me to drink a beer and I wouldn’t. I knocked it out of his hand. He threatened to hit me twice. I had to do something so when I run he tore my blouse. Almost tore it off. So I run down to the neighbors. I didn’t know what he was after but I figured it was money.”

On cross-examination Ethel testified that when Queen was in her house he had a knife but didn’t threaten her. She also testified that when Queen was in her home he didn’t ask for money or make any demands for her to give him money.

The record reveals that at the close of the Commonwealth’s case, Queen made a motion for a directed verdict on the grounds that the Commonwealth had not proven the elements of the charge set out in the indictment. That motion was overruled.

Queen then testified. He admitted that when he was on Ethel’s porch a gun was fired three times. He thought Ethel was in danger. He looked through a crack in the wall and saw a man with a pistol. According to Queen, he was afraid the man had shot Ethel and he kicked the door in. The man ran out the back door. When Queen entered Ethel was half-naked and he and Ethel sat on the couch and he offered her a can of beer. Queen denied ever seeing Ethel’s purse. He also denied ever demanding anything from her.

At the close of all the evidence Queen again moved for a directed verdict. That motion was based on grounds that the Commonwealth failed to introduce testimony showing that he had used physical force or a dangerous or deadly weapon. That motion was likewise overruled and the trial court instructed the jury.

The jury was properly instructed as to both first degree robbery and second degree robbery. It was also instructed as to “dangerous instrument and reasonable doubt.” Queen makes no claim that the instructions were improper. Queen’s motion for a verdict of acquittal on the charge of first degree robbery at the close of the Commonwealth’s evidence, and a renewal of that motion at the conclusion of all of the evidence, was not the proper method of challenging the sufficiency of the evidence on that issue.

“When the evidence is insufficient to sustain the burden of proof on one or more, but less than all (emphasis added), of the issues presented by the case, the correct procedure is to object to the giving of instructions on those particular issues. . . ” J. Kimbrough v. Commonwealth, Ky., 525 S.W.2d 550 (Decided April 1, 1977). At the close of all the evidence and before the trial court instructed the jury, Queen should have objected to the giving of an instruction based on armed robbery in the first degree. This he failed to do.

The second alleged error asserted by Queen was the trial court’s refusal to admit certain testimony of Carl Melvin Brown, a co-indictee. Brown was asked by Queen's attorney, “And has the prosecutor told you that he would recommend dismissal of your case if you testified in this case?” The trial court sustained the Commonwealth Attorney’s objection to that question. At that point, Queen failed to request an avowal in order to place Brown’s testimony in the record for appeal purposes. RCr 9.52. Queen failed to tender the evidence. In this jurisdiction,

“. . . error cannot be predicated on rejection of evidence when no avowal is made which would disclose what answer would be given if the witness or witnesses were permitted to testify.” Baker v. Commonwealth, Ky., 482 S.W.2d 766, 769 (1972).

Thus, the contention presented by Queen in his second issue cannot now be made a basis for the reversal of his conviction.

The judgment is affirmed.

All concur.


text:
    Alton MILLER, Appellant, v. PADUCAH AIRPORT CORPORATION et al., Appellees.
    Supreme Court of Kentucky.
    May 20, 1977.

      G. D. Milliken, Jr., Milliken & Milliken, Bowling Green, for appellant.
    H. S. Melton, Jr., Melton & Rivers, W. David Denton, Samuel Carlick, Paducah, for appellees.
   STERNBERG, Justice.

By this action appellant challenges the legality of a lease by which the Paducah Airport Corporation operates Barkley Field. He seeks to have the court declare that its operation, control and management are jointly in the City of Paducah and McCracken County, Kentucky, and to adjudge him entitled to a lease of space in the terminal building for the operation of a car rental service on the same terms and conditions as the other car rental services then being operated.

Barkley Field, an airport serving Padu-cah and its environs, is operated by the Paducah Airport Corporation, a non-profit corporation, under a ten-year lease with the City of Paducah and the County of McCracken. Appellant contends he is the owner of three corporations; namely, Yellow Cab U-Drive-It Company, Inc., National Car Rental Systems, and Yellow Cab. He brings and prosecutes this action in his individual capacity and not as the owner of or in any representative capacity of either of the corporations. The complaint was originally filed with appellant and National Car Rental Systems as joint plaintiffs. On October 27, 1972, the trial court entered an order granting the motion of the National Car Rental Systems to withdraw as one of the plaintiffs. Thus, Alton Miller became the sole and only complainant.

Appellant orally discussed with the President of the Paducah Airport Corporation the possibility of securing a contract to operate a car rental service in the terminal building. On June 20,1972, a written application in the form of a letter from appellant’s attorney, on behalf of the Yellow Cab U-Drive-It Company, Inc., was made for space in the airport terminal building in which to operate a car rental service. The application was refused because the Airport Corporation determined that there were two such services already operating in the terminal building and that to permit another such service would economically interfere with the safe, proper and adequate operation of the then existing services and would endanger the safety of the persons utilizing the systems.

The trial court sustained appellees’ motion for summary judgment and dismissed the action. Thus, this appeal.

The appellant argues that, (1) he is the real party in interest in this litigation; (2) the Paducah Airport Corporation is without authority to operate the subject airport; (3) the lease under which the Paducah Airport Corporation operates the airport is illegal; and (4) the action of the Paducah Airport Corporation in refusing to grant appellant permission to operate a car rental service violates his constitutional right.

Is Appellant the Beal Party in Interest?

Basically and fundamentally speaking, every action must be prosecuted in the name of the real party in interest. CR 17.01. The trial court found that the Yellow Cab U-Drive-It Company, Inc., not Alton Miller, was the real party in interest and that Alton Miller, individually, could not maintain this action against the defendants. Appellant argues that he individually, not the corporation, applied for a permit to operate the car rental service. Further, he strenuously contends that the only efficacy of the testimony relating to Yellow Cab U-Drive-It Company, Inc., is to support his position that he has at hand and available facilities with which he can properly carry on and operate a car rental service if he is awarded such a contract. Appellant claims ownership of all of the stock in Yellow Cab U-Drive-It Company, Inc. However, he owned only 40% and the controlling shares were owned by his wife and two sons. Counsel for appellant advises that at this time Alton Miller has actually purchased all of the stock formerly held by his wife and sons and that he is now the sole owner of all of the shares of stock in Yellow Cab U-Drive-It Company, Inc. If so, what he has is an entity, separate, apart and distinct from himself. 18 C.J.S. Corporations § 4; Gregory v. Bryan-Hunt Company, 295 Ky. 345, 174 S.W.2d 510 (1943).

It is not trivial nor supertechnical to inquire into the status of Alton Miller and the Yellow Cab U-Drive-It Company, Inc., of which he is President. A difference with a definite distinction does exist. For example: A corporation operates within a prescribed parameter; the appellant is not so circumscribed. A corporation can exist in perpetuity; man is here but for a few years, he is cut down and exists no more. We need not elaborate on other shortcomings or other virtues of a corporate entity. They have been discussed for years. Suffice it is to say that the Yellow Cab U-Drive-It Company, Inc., is a separate and distinct entity from appellant. The question is whether appellant, Alton Miller, had such a substantial interest as to authorize him to maintain the action.

In appellant’s brief it is written:
“When this action was filed, Alton Miller individually owned the franchise of the National Car Rental Systems. Subsequently, the franchise was assigned to Yellow Cab U-Drive-It, Inc., a corporation which was owned in its entirety by Alton Miller and his wife and sons. ******
“The Paducah Airport Corporation had previously entered into a contract with Yellow Cab You-Drive-It, Inc. permitting Yellow Cab You-Drive-It, Inc. to have a telephone but no floor space for an office in the terminal building.”

On July 15, 1971, the Yellow Cab U-Drive-It Company, Inc., entered into a contract with the Paducah Airport Corporation for the privilege of operating a motor vehicle rental service at Barkley Field by the use of a sign and a telephone. Appellant’s deposition was taken on March 26, 1973, in which the following dialogue occurred:

“Q55. You were making your request on behalf of your corporation Yellow Cab U-Drive-It Co. Inc. Is that correct?
A. Yes.
******
Q147. You stated in this affidavit that the named defendants are discriminating against Alton Miller. Are they discriminating against Alton Miller or are they discriminating against Yellow Cab U-Drive-It Co. Inc.?
A. Alton Miller owns all the stock of Yellow Cab U-Drive-It Co.
Q148. How are they discriminating against Alton Miller?
A. By not letting me put my rental agency in there at the airport.
Q149. By not letting Yellow Cab U-Drive-It put it in?
A. That’s right.
Q150. That being the corporation in which you own all the stock?
A. Right.
Q151. Alton Miller has no contractual relationship with Paducah Airport Corporation?
A. No contract.”

If the action of the Paducah Airport Corporation caused injury to anyone, it was to the applicant Yellow Cab U-Drive-It Company, Inc., who is not a party to these proceedings. The trial court weighed the evidence and concluded that the real party in interest was not Alton Miller, but was, in truth and in fact, the Yellow Cab U-Drive-It Company, Inc. We concur.

In Wenk v. Ruby, Ky., 412 S.W.2d 247 (1967), this court held that, under CR 17.01, since Ruby and Singer were not the real parties in interest they did not have any right to file a claim for the corporation. It would seem logical therefore that Alton Miller, not being the real party in interest, has no right to maintain this action. The real-party-in-interest doctrine is salutary in that it protects a defendant from again being harassed for the same cause.

In Stuart v. Richardson, Ky., 407 S.W.2d 716 (1966), we held that the real party in interest is one who is entitled to the benefits of the action upon the successful termination thereof. In the event of a successful termination of this litigation, it is not Alton Miller who would succeed, but it is the Yellow Cab U-Drive-It Company, Inc., that would reap the benefits.

Since appellant is not the real party in interest, he has no right to maintain this action. Having thus determined, it will not be necessary for this court to pass on any of the other issues raised on this appeal.

The judgment is affirmed.

All concur.


author: LUKOWSKY, Justice.

text:
    Herman MAGGARD, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    May 20, 1977.
    Jack Emory Farley, Public Defender, William M. Radigan, Asst. Public Defender, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., James M. Ringo, Deedra Benthall-Nietzel, Asst. At-tys. Gen., Frankfort, for appellee.
   LUKOWSKY, Justice.

Maggard was indicted on November 14, 1975 for the offense of rape in the first degree. KRS 510.040(1). He was arraigned on November 17, 1975. He entered a plea of not guilty and his case was assigned for trial on March 16, 1976. At arraignment he was represented by Denver Adams who advised the court that Maggard would be represented at trial by Gary Crab-tree. Both Adams and Crabtree are private counsel selected by Maggard.

On March 15, 1976 Maggard appeared in court without counsel and informed the court that he did not have counsel and had not retained Crabtree. The court immediately appointed the Public Defender, Edmund Collett, to represent Maggard and reassigned the case for trial on March 17, 1976. At the time of appointment Collett was engaged in the trial of another case before the court, Commonwealth v. Carlton Trice. The trial of the Trice case consumed all of March 15 and did not end until sometime on March 16.

When Maggard’s case was called for trial on March 17 Collett sought a continuance of the case on the ground that he had had insufficient time to prepare for trial. This motion was denied and the case proceeded to trial. Maggard was convicted and sentenced to twenty years imprisonment. He appeals.

In Taylor v. Commonwealth, Ky., 545 S.W.2d 76 (1976), this court expressed the unanimous opinion that defense counsel in a rape case is entitled to more than one day in which to prepare for trial and a majority of the court went on to hold that under the circumstances of Taylor the failure of the trial court to meet that standard constituted harmless error. In Taylor counsel was appointed on December 3 and the trial began on December 5. There was nothing in the record to show the commitments and activities of appointed counsel between the 3rd and the 5th. In this case the record discloses that Collett was engaged in trial on March 15 and 16. In Taylor medical and scientific evidence pointed strongly to guilt. In this case there is no medical or scientific evidence and th" case resolves itself primarily into a swearing match between the victim and the accused.

No human being possessing the dedication and zeal required of an advocate could possibly engage in the trial of one criminal case and prepare for the trial of another. Collett’s attention and energy were concentrated on the defense of Trice on March 15 and 16. There was no way he could keep faith with Trice and still prepare for the defense of Maggard on the 17th. In effect, the schedule for Collett prescribed by the trial court was such as to effectively deprive Collett of any time to prepare for the trial of Maggard.

When we consider that defense counsel in Taylor apparently had some time for preparation, that the conviction of Taylor was supported by medical and scientific evidence, and that neither factor is present in the case of Maggard, we are convinced that there is no rational foundation for the application of the doctrine of harmless error.

The trial court abused its discretion when it denied Maggard’s request for a continuance. Because a new trial is required it is unnecessary that we comment upon the other assignments of error at length. However, we direct the attention of counsel and the trial court to Lawson, Kentucky Evidence Law Handbook, Secs. 6.00, 6.05 (1976), and point out that there is no reason in this case to instruct on sexual contact.

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

All concur.


text:
    UNITED MINE WORKERS OF AMERICA, etc., et al., Appellants, v. EASTOVER MINING COMPANY, Appellee.
    Supreme Court of Kentucky.
    May 20, 1977.

      Joseph A. Yablonski, Gen. Counsel, Harrison Combs, Senior Counsel, United Mine Workers of America, Washington, D. C., Grant F. Knuckles, Pineville, for appellants.
    Karl Forester, Forester & Forester, Harlan, Ky., for appellee.
   LUKOWSKY, Justice.

This is an appeal from a judgment of the Harlan Circuit Court which held the United Mine Workers of America to be in contempt of court and assessed a fine of $20,000.00 as punishment.

U.M.W. contends:

1. The contempt conviction must be reversed because the union was denied its right to trial by jury; and

2. The contempt conviction must be reversed because the contempt findings by the trial judge are not supported by substantial evidence. We shall discuss these contentions in inverse order.

In July of 1973 a strike was called at the Eastover Mining Company after collective bargaining between U.M.W. and Eastover had reached impasse. Because of disruptions on the picket line, Eastover sought and obtained a temporary injunction limiting U.M.W. to no more than three pickets at each of the two entrances to the mine. On September 28, 1973 Eastover filed a motion for a rule requiring U.M.W. to show cause why it should not be found to be in contempt of court. There had been a demonstration at the mine the day before in which forty to fifty men, women and children had participated. Several similar but smaller demonstrations occurred during the following week.

The only evidence that connected U.M.W. to these demonstrations was that some of the participants carried signs printed for U.M.W.; that employees of U.M.W. were present at the demonstrations; and that people known by U.M.W. to have violated the temporary injunction continued to receive strike benefits from U.M.W. after the demonstrations. U.M.W. denied any participation in or encouragement of these demonstrations. It presented evidence that it supplied signs only for picketing as permitted by the court and for an earlier demonstration at the offices of the Harlan County Coal Operators’ Association located several miles from the mine, and that its employees present on the scenes consistently advised the rank and file to comply with the temporary injunction and in no way encouraged its violation.

It is an axiom of labor management relations that international unions cannot always control the actions of their locals much less the actions of their rank and file. Consequently, unions may only be held responsible for the authorized or ratified actions of their officers and agents. The complaining parties must prove not only that irresponsible or violent acts by individual workers (or by agents provacat-eur) occurred but also that in some way the union acting through its officers or agents initiated or encouraged or aided and abetted or ratified the prohibited conduct. See Blue Diamond Goal Co. v. United Mine Workers of America, C.A.6th, 436 F.2d 551 (1970), cert. den., 402 U.S. 930, 91 S.Ct. 1525, 28 L.Ed.2d 863 (1971).

The rule is that an adjudication of contempt is improper where there is no material evidence to connect the alleged contemnor with the acts charged and he denies any connection, although there are circumstances affording reasonable grounds for suspecting his participation. 17 Am. Jur.2d, Contempt, Sec. 99. Whorton v. Gaspard, 240 Ark. 325, 399 S.W.2d 680 (1966).

The continued payment of strike benefits to union members who participated in the violation of the temporary injunction in no way establishes U.M.W. ratification of the demonstrations. The obvious purpose of the payment of strike benefits is to provide at least a minimum level of subsistence for workers’ dependents, not to ratify or reward the commission of unlawful acts. The presence and activities of U.M.W. employees at the scenes were not unexplained or shown to encourage or aid and abet the violation of the temporary injunction. On the contrary, these people urged compliance with the order of court. The presence of the signs at the demonstrations does not establish initiation or facilitation of the violation of the temporary injunction. East-over offered no proof of improper distribution as opposed to improper use of the signs.

All in all, taken individually or collectively, these three factors raise at most a spee-ter of suspicion, and do not rise to the dignity of substantial evidence of U.M.W. participation in the prohibited conduct. The findings of the trial judge to the contrary are clearly erroneous.

This view of the case makes it unnecessary for us to discuss the first assignment of error and determine the import of Muniz v. Hoffman, 422 U.S. 454, 95 S.Ct. 2178, 45 L.Ed.2d 319 (1975) on Miller v. Vettiner, Ky., 481 S.W.2d 32 (1972) and its progeny.

The judgment is reversed and the cause is remanded with directions to dismiss the charge of contempt.

All concur.

      . For example 29 U.S.C. Sec. 106 provides in part “ . . .no association or organization participating in a labor dispute, shall be held responsible or liable in any court of the United States for the unlawful acts of individual offl-cers, members, or agents, except upon clear proof of actual participation in or actual authorization of such acts, or of ratification of such acts after actual knowledge thereof.”


author: HOWARD, Judge.

text:
    NATIONAL HEARING AID SOCIETY and Anthony Dirocco, Appellants, v. COMMONWEALTH of Kentucky ex rel. Ed W. HANCOCK, Attorney General, Appellees.
    Court of Appeals of Kentucky.
    March 4, 1977.
    Rehearing Denied June 3,1977.

      Larry M. Greathouse, Frankfort, for appellant.
    Robert V. Bullock, Asst. Deputy Atty. Gen., Div. of Consumer Protection, Frankfort, for appellee.
    Before HOWARD, REYNOLDS, and VANCE, JJ.
   HOWARD, Judge.

This case was originally brought by the appellee, Commonwealth of Kentucky, in Jefferson Circuit Court, alleging that the appellants, National Hearing Aid Society and Anthony Dirocco, had violated Ky.Rev. Stat. Ch. 367 (hereinafter cited as KRS) of the Consumer Protection Act, by the use of false, misleading and deceptive practices. The trial court judge granted a summary judgment in favor of the appellee stating that the appellants had as a matter of law violated the Consumer Protection Act because it certified people as “certified hearing aid audiologists” who had not conformed with the requirements of KRS 334A.030 to be an audiologist. The trial court enjoined the appellants from directly or indirectly attempting to confer upon a person within the Commonwealth any certificate, title, or other material which purports to grant the right or privilege of using the title “certified hearing aid audiologist.”

The National Hearing Aid Society, hereinafter NHAS, is a private trade organization incorporated in Illinois. It is not licensed to do business in the Commonwealth of Kentucky. NHAS certifies hearing aid dealers to use the mark “certified hearing aid audiologist” which it has registered with the U.S. Patent Office. In order to join, a person must pay a yearly membership fee plus meet the following requirements:

(1) Two NHAS members and a physician in the community must endorse the applicant.
(2) The applicant must send extensive information and material demonstrating that he conforms to the ethical standards of NHAS.
(3) The applicant must take a written examination prepared by and graded by NHAS. Under certain circumstances, this examination may be taken in Kentucky.

Appellants argue that it was improper for the trial court to grant summary judgment because it lacked both personal and subject matter jurisdiction over them. We find that the appellants were doing sufficient business within the Commonwealth of Kentucky to grant the trial court personal jurisdiction over them under KRS 454.210, the Kentucky Long Arm Statute. The fact that “certified hearing aid audiologist” is a registered trademark under the Lanham Trademark Act, 15 U.S.C. §§ 1051-1127 (1946), does not preclude the Jefferson Circuit Court from having subject matter jurisdiction over NHAS.

There is no dispute under KRS Ch. 367 that the trial court could enjoin individual hearing aid dealers from using the term “certified hearing aid audiologist.” The question is: Do the prohibitions set forth by KRS Ch. 367 encompass the acts done by NHAS? We find that they do. NHAS was engaged in a scheme of certifying people as a “certified hearing aid audiologist.” From this scheme, they benefited financially by offering a home study course, administering the certifying examination and requiring yearly dues. They knew, or should have known, that consumers would be deceived by the use of the term “certified hearing aid audiologist” which did not meet the standards and requirements set forth by KRS 334A.030.

We find that the trial court acted properly when it granted the appellee’s summary judgment.

The judgment is affirmed.

HOWARD and REYNOLDS, JJ., concurring.

VANCE, J., concurring in result only.


author: HOWERTON, Judge:

text:
    David Paul ADAMS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    March 18, 1977.
    Rehearing Denied June 3,1977.

      David E. Murrell, Deputy Public Defender, Frankfort, for appellant.
    Mark F. Armstrong, Asst. Atty. Gen., Frankfort, for appellee.
    Before HOWERTON, GANT and HOGGE, JJ.
   HOWERTON, Judge:

This is an appeal from an Order of the Fayette Circuit Court overruling Appellant’s 11.42 motion for a belated appeal. The essential facts are as follows:

David Paul Adams was found guilty of second-degree assault by a jury in the Fa-yette Circuit Court, and a penalty of five years imprisonment was fixed. The trial court conducted a sentencing hearing on December 1, 1975. At the hearing, the court complied with RCr 11.02, and informed the Appellant that he had a right to appeal with the assistance of counsel; that if he were financially unable to afford an appeal, a record would be prepared at public expense, and counsel would be appointed to represent him; that the appeal must be taken within ten (10) days of the date of judgment; and that the clerk of the court would prepare and file a Notice of Appeal in his behalf within that time if he so requested.

Appellant was represented by a public defender during the trial and sentencing proceedings. The trial was concluded on November 6, 1975. Immediately after the trial Appellant told his counsel that he wanted an appeal. Between the time of the trial and the formal sentencing, the trial counsel conferred with the Appellant in jail, and with Appellant’s family and girlfriend on numerous occasions before and after sentencing. The counsel informed Appellant and the others of the right to an appeal and the procedure for an appeal, but that he would not institute or perfect an appeal because he found it to be completely groundless and frivolous.

Appellant took no action to appeal the conviction and made no request of the court or the court clerk, as he was instructed he might do. He was duly transported to prison and on April 20,1976 filed his motion for a belated appeal. An evidentiary hearing was conducted in the Fayette Circuit Court on April 30, 1976 with Appellant being present and represented by another public defender.

The Appellant alleged that he had been denied equal protection of the law and the right to effective counsel when his public defender trial attorney refused to file a Notice of Appeal when he advised his counsel that he wanted to appeal. The Appellant’s trial counsel testified at the hearing, but the Appellant offered no additional proof except to file a copy of Title 504 of the Kentucky Administrative Regulations relating to the Office of Public Defender. Appellant’s failure to testify left all other proof uncontested and it left unanswered the question of whether or not the Appellant understood his rights and the information which was given to him.

504 KAR 1:010(1) provides:
In all felony convictions where the defending attorney is operating under any public defender plan authorized by KRS Chapter 31, the client shall be entitled to have the defending attorney take an appeal on his behalf to the Kentucky Court of Appeals unless the client makes a statement in writing to the court and to the defending attorney that he desires not to have an appeal and that he understands that if he wishes to have an appeal he could have one free of charge.

Clearly, the trial counsel failed to follow the rules of the public defender office, but this court is concerned with justice and what is required by the United States and Kentucky Constitutions and statutes to constitute equal protection of the laws and effective counsel. The regulations and procedures adopted by the Public Defender Office may indicate desirable practice, but they are not binding on this court in deciding this controversy.

The Appellant relies on Hammershoy v. Commonwealth, Ky., 398 S.W.2d 883 (1966) and Anders v. California, 386 U.S. 738, 87 S.Ct. 1396,18 L.Ed.2d 493 (1967) for the proposition that Appellant’s trial counsel (emphasis ours) had a duty to take an appeal, and that failure to do so denied Appellant the right to effective counsel. We will wait for another case or another court to resolve all of the issues and problems arising from that proposal, however, because we conclude that the real issue on the appeal is as stated by the Appellee. The Appellee stated the question on appeal as follows:

Is the indigent defendant deprived of equal protection of the law and his right to counsel when his appointed trial counsel refuses to take an appeal and the indigent defendant makes no effort to have a timely Notice of Appeal filed despite the fact that he is aware of his right and the procedure to have a timely Notice of Appeal filed for him by the Clerk of the Circuit Court?

The cases cited by the Appellant do not hold that a criminal defendant may sit idly by without taking any steps whatsoever after he has been informed of his rights regarding an appeal. Appellant was never foreclosed from an appeal or from the assistance of counsel because of his poverty. He was advised of his rights by the court and by his counsel. He had the opportunity to inform the court of his desire or to request the clerk to prepare and file a Notice of Appeal. He failed to do either. Appellant has since been granted a hearing with new counsel, and he has again sat idly by without so much as attempting to deny that he understood any of the information given to him or to explain why he did nothing. The record echoes with Appellant’s silence, and we must conclude that he has waived his right to an appeal. The trial court, at the evidentiary hearing, concluded that he had waived his right, and there is ample evidence to support it.

In Trowel v. Commonwealth, Ky., 473 S.W.2d 134 (1971) the Supreme Court of Kentucky held that when a defendant represented by a retained counsel is informed of his right to appeal, how to exercise that right, and that his counsel is not going to assist him on appeal, he is precluded from post-conviction relief on the ground that he had ineffective counsel. To apply a different rule which would require no affirmative action by an indigent defendant after an 11.02 instruction by a court would give the indigent defendant not only equal protection, but superior protection because of his poverty, which is not required.

Justice is not denied by requiring an indigent defendant to bestir himself to some extent to protect his rights and remedies. It is not a denial of equal protection of the law because of his poverty. Effective counsel has a duty to protect his client’s rights, but this can be accomplished prior to the commencement of the appeal by informing the client as to how to proceed. Appellant was advised by both his counsel and the court and he did nothing. He has waived his right to an appeal.

For the reasons stated herein, the judgment of the circuit court overruling Appellant’s Motion for a Belated Appeal is affirmed.

All concur.