author: STERNBERG, Justice.

text:
    Everett AKERS et al., Appellants, v. FLOYD COUNTY FISCAL COURT et al., Appellees.
    Supreme Court of Kentucky.
    Sept. 16, 1977.

      J. K. Wells, Wells, Porter & Schmitt, Paintsville, for appellants.
    Jarvis Allen, James R. Allen, Prestons-burg, for appellees.
   STERNBERG, Justice.

The Fiscal Court of Floyd County, Kentucky, adopted a resolution which divided the county into multi-cable television districts. It proposes to sell a 15-year franchise in each district for the exclusive right and privilege of operating a cable television station therein. The pertinent portions of the resolution read as follows:

“IN RE: RESOLUTION OF THE FISCAL COURT OF FLOYD COUNTY, KENTUCKY, AUTHORIZING THE DIVISION OF FLOYD COUNTY INTO COMMUNITY TELEVISION AREAS AND AUTHORIZING THE ADVERTISEMENT FOR BIDS ON COMMUNITY CABLE TELEVISION AREA FRANCHISES.
WHEREAS, there exists numerous Cable Television Systems, in Floyd County operated by various persons, furnishing signals, to the citizens of the County for a fee and;
WHEREAS, the Cable Television Systems must have a Franchise to operate in the future under the rules and regulations of the Federal Communications Commission and;
WHEREAS, there must be some standards and regulations imposed on the Operators of Community Television Systems for the protection of the consumer, and the prevention of monopolies and;
WHEREAS, the Fiscal Court has the duty and obligation to protect the welfare and convenience of the citizens of the County and has the authority to issue Franchises for the operation of Cable Television Systems and;
WHEREAS, the Operators of existing Community Cable Systems have expended great sums in creating their systems and in furnishing Cable Service to their customers and such Operators are entitled to some protection.
Be it therefore resolved:
(1) That Floyd County be divided into areas for Franchise purposes and for the purpose of preventing a monopoly, and that said areas be so set as to cover the entire County, each area containing a system or systems all under the same Operator.
(2) That these areas be advertised for bids on an area basis and that exclusive Franchises be awarded to the highest and best bidder, such best bidder to be selected by the Fiscal Court, taking into consideration the ability financially and educationally to operate such system and the moral character and fitness of such bidder.
* * ⅜ * * *
(4) The Franchise will be granted for a period of fifteen (15) years and the successful bidder will be required to meet the requirements of the Federal Communications Commission.
(5) In order to prevent a monopoly no owner or operator of a Community Television System will be allowed to bid on an area in which a system is operating, other than the one in which he is presently operating, nor shall any person bid for same on his behalf or with the intent of permitting him to operate same. Should there be two (2) operators in the same area, then the first operator who has given continual service shall be preferred in awarding Franchise if he meets all other qualifications.
Should an area be advertised for bids and no bids be received from the present operator or other qualified persons, then same shall be readvertised and other operators be allowed to bid on such area.
(6) Should a person other than the operator of a system in an area, become the successful bidder, then such successful bidder must purchase the existing system at a price to be determined by an appraisal arrived at by three (3) appraisers, one appointed by the owner and one appointed by the successful bidder and one by the Fiscal Court.
(7) The successful bidder shall furnish at least three (3) channels including ABC, CBS, NBC and a Kentucky Station if permitted by the Federal Communications Commission rules and regulations, and shall have exclusive rights to construct, maintain and operate Television Cables Systems upon and over County Highways or other public property of the County.”

Prior to the division of the county into cable television districts, the appellants and appellees Herman Porter, Hubert Bart-ley, Bertha Cole, Fred Fraley, John Campbell, James E. Allen, Fred F. Bailey, Lowell Conley and Paul Gearheart each operated a cable television station in Floyd County, Kentucky. As laid out by the fiscal court, the districts are of such shapes and areas that the service of appellants would extend into more than one district. Appellants filed suit in the Floyd Circuit Court challenging the constitutionality of the resolution and they sought to enjoin the sale and issuance of the proposed franchises. The right of the fiscal court to adopt a resolution dividing the county into cable television districts is not challenged by any of the parties. Ky.Const. § 164; KRS 67.080; and City of Owensboro v. Top Vision Cable Co. of Ky., Ky., 487 S.W.2d 283 (1972).

As lifted from appellants’ brief, the issues are:

“1. May persons whose property rights will be invaded by enforcement of an unconstitutional ordinance, enjoin enforcement of the ordinance?
2. Is an ordinance constitutional if it, without police power justification, deprives a citizen of the right to earn a livelihood?
3. May police power be properly exer-cized to protect private enterprise against competition?
4. Is a classification in a franchising ordinance of those who can and those who cannot bid on the franchises, which excludes from bidding all cable operators in the county other than the one named in the ordinance, constitutionally permissible?
5. Is a provision of a CATV franchising ordinance which permits confiscation by the successful franchise bidder, of existing CATV cables in his franchise district at an arbitrated price, constitutional?”

May appellants enjoin the enforcement of an alleged unconstitutional resolution? CR 65.01 provides that injunctive relief may be granted under stated terms and conditions. In their complaint, appellants challenge the constitutionality of the resolution and further aver that they will suffer great and irreparable injury and have no adequate remedy at law. Pursuant to appellants’ motion, a restraining order was issued ex parte. In due time appellees filed a motion to dissolve the restraining order. Appellants responded with a motion for a temporary injunction. After a hearing on these and other motions by the Honorable Reed D. Anderson, Special Judge designate, a temporary injunction was issued. Upon consideration of the case in chief, the trial judge dissolved the temporary injunction and dismissed the action.

In 42 Am.Jur.2d, Injunctions, it is stated as follows:

“§ 186. Generally.
An important branch of the law of injunctions is that dealing with applications for injunctive relief against the enforcement of statutes, ordinances, and administrative orders. The restraining order in such cases is directed, in effect, not against the execution of the particular statute or ordinance, but against the acts of the officials, the statute or ordinance notwithstanding, and the state’s immunity from suit does not extend to such suits against public officers to enjoin them from threatened enforcement of invalid laws. However, in observance of the rule that courts will not, except under extraordinary circumstances, interfere with the duties of other departments of the government, equity will not ordinarily interfere with the action of public officers taken under statutory authorization. The power thus to arrest the hand of an officer as he is about to carry out the command of the legislature is to be exercised with a wisdom and discretion commensurate with its greatness; no trivial grounds will be sufficient to authorize the granting of such extraordinary relief.”
“§ 187. Unconstitutionality or invalidity of statute or order.
The usual ground for asking injunctive relief against the enforcement of statutes is their invalidity. But invalidity, of itself, is not sufficient to warrant the exercise by equity of its extraordinary injunc-tive power. In other words, the mere fact that a statute is alleged to be unconstitutional or invalid will not entitle a party to have its enforcement enjoined. Further circumstances must appear which bring the case under some recognized head of equity jurisdiction and present some actual or threatened and irreparable injury to complainant’s rights for which there is no adequate legal rem-ecly * * * ”

Injunctive processes of law are available to be invoked in an action challenging the constitutionality of a legislative act and of the carrying out or enforcement of its provisions. The appellants plead sufficient facts which, if sustained by the record, would entitle them to injunctive relief. Injunctive relief is ancillary to the main issue. The main issue is whether the resolution is constitutional. It goes without saying that a person who is injured or prejudiced by an unconstitutional law can complain of it. Kohler v. Benckart, Ky., 252 S.W.2d 854 (1952); Second Street Properties, Inc. v. Fiscal Court of Jefferson County, Ky., 445 S.W.2d 709 (1969). And if the resolution is unconstitutional, then, and in that event, the rights of the appellants may be protected by permanent injunction.

Appellants complain that the resolution will so restrict their operations that their income will be inadequate to finance their investment and furnish them a profit on their investment.

We accede to the proposition that the right to earn a livelihood by following the ordinary occupations of life is protected by the Fourteenth Amendment to the United States Constitution. However, nowhere is it suggested that there is a constitutional right or a statutory right which suggests that the ordinary occupations of life are not subject to reasonable regulations, nor is there any guarantee that the occupations will be financially profitable. The appellants have not been singled out or dealt with differently by the resolution than any other person coming within its provisions. We are not persuaded that the ordinance deprives the appellants of the right to earn a livelihood.

Further, appellants argue that the resolution is unconstitutional in that it is an exercise of police power to promote private industry. In support thereof, they charge that the fiscal court proposes to grant exclusive and monopolistic franchises which impinge on and completely fence in their cable television systems. If the districts in which the appellants operate are circumscribed by other districts, it is only by reason of the location, and there has been no challenge made to the manner in which the topographical location of the districts was made.

The rules and regulations of the Federal Communications Commission require all CATV Systems to have a franchise from the local authorities by 1977 before they can be qualified to remain in operation. It is imperative, therefore, for the continued operation of cable television that the companies be franchised. There is no showing made by the appellants that any cable operator in Floyd County, Kentucky, will be promoted or benefited in any manner different than himself.

This court will not inquire into the motives of the legislative body, but will only concern itself with the validity of the regulations. Section (2) of the resolution provides:

“That these areas be advertised for bids on an area basis and that exclusive Franchises be awarded to the highest and best bidder, such best bidder to be selected by the Fiscal Court, taking into consideration the ability financially and educationally to operate such system and the moral character and fitness of such bidder.”

To the extent that only the highest and best bidder in each district will be awarded a franchise for that district, this will be a monopoly in that operator and in each operator in each district. The fiscal court has determined that such a method of operation will be for the best interest of the community. Since this is a legislative matter on which the fiscal court is authorized to act, we are not convinced that its action was not conducive to the welfare of the citizens of Floyd County or was an exercise of its police power to promote private industry, even though some persons may have a financial gain and others a financial loss.

Section (5) of the resolution provides:

“ * * * no owner or operator of a Community Television System will be allowed to bid on an area in which a system is operating, other than the one in which he is presently operating, nor shall any person bid for same on his behalf or with the intent of permitting him to operate same. Should there be two (2) operators in the same area, then the first operator who has given continual service shall be preferred in awarding Franchise if he meets all other qualifications.”

This section has, for its avowed purpose, the prevention of a monopoly, which is well and good. If it does so, it does so at the sacrifice of the specially trained and know-how of the persons best equipped to furnish cable television service, to wit: owners or operators of CATV Systems. It is not questioned that the fiscal court has the right to make reasonable classifications relating to cable television service. It must not, however, do so arbitrarily. Ky.Const. § 2. There must be some reasonable relationship between the regulation and the avowed purpose to be accomplished. Moreover, the resolution must tend toward the accomplishment or promotion of public safety, health, peace, good order, or morals. Schoo v. Rose, Ky., 270 S.W.2d 940 (1954).

In Stites v. Norton, 125 Ky. 672, 101 S.W. 1189 (1907), we considered a situation similar to the one which is now confronting us. The Board of Public Works of the City of Louisville, Kentucky, proposed to sell at public sale a franchise or privilege for the distribution and selling of electricity. A citizen and taxpayer of the City of Louisville brought an action seeking to enjoin the Board from carrying out its plan to advertise and sell a franchise. Primary attack was made on the section of the ordinance providing that “ * * * the board of public works shall not accept or consider any bid made directly or indirectly by the Louisville Lighting Company, or persons acting in the interest of said corporation.” The lower court adjudged that section of the ordinance valid. The Court of Appeals affirmed; and in doing so, said:

“ * * * Legislative bodies should be very careful in prohibiting persons or corporations from bidding at such sales; and, if it should be made to appear that bids were rejected by reason of any ulterior, sinister, fraudulent, or unlawful purpose or reason, the court should grant relief; but, when made to appear, as in this case, that the prohibition of a bid was made for the just and lawful purpose of enabling the council to secure to the citizens their rights under the Constitution, the court should uphold rather than condemn its action.”

In the case at bar there has been no showing made that the prohibition of a bid by appellants or other cable television operators was for the just or lawful purpose of enabling the fiscal court to secure to the citizens their rights under the Constitution. Rather, it is made to appear that there is no rational, legal reason for prohibiting the present owners or operators of cable television service from bidding on franchises in areas other than those in which they operate.

The appellants charge that Section (6) of the resolution provides for the taking of private property for public purposes without due process of law. Section (6) provides:

“Should a person other than the operator of a system in an area, become the successful bidder, then such successful bidder must purchase the existing system at a price to be determined by an appraisal arrived at by three (3) appraisers, one appointed by the owner and one appointed by the successful bidder and one by the Fiscal Court.”

In their brief the appellants state that, “The ordinance in this case provides for the arbitrary purchase by the successful bidder, of any existing CATV cable in his franchise area, at a price to be fixed by three appraisers, one appointed by the owner, one by the successful bidder and the third by the Fiscal Court.” The trial judge, in his conclusions of law, determined, “There is no requirement in Section (6) of the resolution that any operator sell his equipment, but if such operator chooses to sell to the successful bidder, then such bidder would have to purchase according to such Section before he could have a Franchise. There is no taking of private property for private use without due process and no denial of any vested rights of plaintiffs.”

Counsel for appellants places a different interpretation on this section than did the trial judge, and, as a matter of fact, than does this court. It is the duty of this court to construe legislative acts, which, daily, we do. The question before this court, and the only question to which we direct our attention insofar as Section (6) of the resolution is concerned, is whether the former owner is forced to sell his system to the successful bidder. To construe this section as making it obligatory on the former owner to sell could raise serious constitutional questions. We construe Section (6) to mean that the former owner may sell his system, but is not forced to do so, and that the new franchise owner must buy the system if the former owner desires to sell it. We find.there is no taking for any purpose, much less a taking of private property for a public purpose. As no objection is made from the standpoint of the successful bidder, who may be forced to purchase the system, we do not reach the question of whether that particular requirement is valid.

Appellees argue that the proper manner for challenging the resolution was by an appeal to the circuit court from the action of the fiscal court. It is unnecessary that we indulge ourselves with this issue. The record discloses that at no time did the appellees raise or argue this question in the circuit court. In Pittsburg & Midway Coal Mining Co. v. Rushing, Ky., 456 S.W.2d 816 (1969), we stated:

“Furthermore and perhaps a better answer to this question, it is noted that Pittsburg did not raise or discuss this question in the circuit court. The rule is firmly established that the trial court should first be given the opportunity to rule on questions before they are available for appellate review. It is only to avert a manifest injustice that this court will entertain an argument not first presented to the trial court.”

Since this issue was not presented to the circuit court, we cannot consider it on this appeal. Heucker v. Clifton, Ky., 500 S.W.2d 398 (1973).

The judgment is reversed insofar as it holds Section (5) of the resolution to be constitutional. In all other respects, the judgment is affirmed.


source: Caselaw Access Project

author: WILHOIT, Judge.

license: Public Domain

text:
    Robert L. RUDOLPH, Appellant, v. Nannie Mae RUDOLPH, Appellee.
    Court of Appeals of Kentucky.
    May 20, 1977.
    Supplemental Opinion Sept. 23, 1977.

      Joe A. Evans, III, Moore, Morrow & Frymire, Madisonville, for appellant.
    Lawrence T. Gordon, Franklin, Gordon & Hobgood, Madisonville, for appellee.
   OPINION AND ORDER

Before MARTIN, C. J., WILHOIT and WINTERSHEIMER, JJ.

WILHOIT, Judge.

Appellant Robert L. Rudolph filed a complaint in Hopkins Circuit Court praying that he be declared an heir at law of Robert Rudolph. The parties have stipulated that appellant Robert L. Rudolph is an illegitimate child of Robert Rudolph. Robert Rudolph died intestate on January 14, 1976, a resident of Chicago, Illinois. Appellee Nannie Mae Rudolph is the widow of Robert Rudolph. At the time of Robert Rudolph’s death he owned a one-half undivided interest in a house and lot in Madisonville, Kentucky; the other one-half undivided interest was owned by his widow, appellee Nannie Mae Rudolph. It is also stipulated that appellee Robert L. Rudolph’s mother is Rose Hayden Poindexter, and that she was never married to Robert Rudolph, that they never lived together, and that neither of them represented themselves to be husband and wife.

The birth certificate of appellant Robert L. Rudolph names Robert B. Rudoplh as his father and Rose Hayden as his mother. By affidavit, Rose Hayden Poindexter has stated that she is the mother of appellant and that he was born “the result of my relationship with Robert B. Rudolph” and that she and Robert B. Rudolph were never married. Rose Hayden Poindexter also stated that appellant lived with her until he was one or two years old, at which time he went to live with his father and his father’s parents, and that “(a)t all times Robert B. Rudolph recognized Robert as his son and expressed his love and affection for him. This relationship continued until the day Robert B. Rudolph died.” By affidavit, Clinton Smith stated that he had known both Robert B. Rudolph and Rose Hayden Poindexter for over 40 years and that during this time “Robert B. Rudolph often referred to Robert L. Rudolph as his only son and always acknowledged him to be his son.”

Appellee Nannie Mae Rudolph moved for summary judgment. The trial court, noting that the constitutionality of an act of the general assembly was brought in question, gave notice pursuant to CR 24.03 to the Attorney General. The Attorney General acknowledged receipt of notice and stated that he did not wish to be heard in the action “at this time.” The trial court granted Nannie Mae Rudolph’s motion for summary judgment. Robert Rudolph appeals.

This case involves the constitutionality of KRS 391.090, which provides:

(1) The estate of a bastard shall descend and be distributed in the same manner as that of a person born in lawful wedlock, except that the inheritance shall go to the mother and her kindred and not to the father and his kindred.
(2) A bastard shall inherit only from his mother and his mother’s kindred.
(3) If a man who has had a child by a woman afterward marries her, the child or its descendents, if recognized by him before or after marriage, shall be deemed legitimate. (Emphasis added).

Appellee argues that Pendleton v. Pendleton, Ky., 531 S.W.2d 507 (1976), is controlling here. That case considered the provisions of KRS 391.090 only from the perspective of the application of the fourteenth amendment to the United States Constitution. While very critical of the re-suit reached by the United States Supreme Court in Labine v. Vincent, 401 U.S. 532, 91 S.Ct. 1017, 28 L.Ed.2d 288 (1971), the Court in Pendleton properly concluded that it was bound by that decision as it interpreted the Federal Constitution. We believe, however, that aside from the provisions of the fourteenth amendment, KRS 391.090(2) violates Section 2 of the Constitution of the Commonwealth of Kentucky insofar as that statute would bar the appellant from inheriting from his father.

Section 2 of our constitution provides that “[ajbsolute and arbitrary power over the lives, liberty and property of freemen exists nowhere in a republic, not even in the largest majority.” In interpreting this section our highest court has held that “whatever is essentially unjust and unequal or exceeds the reasonable and legitimate interests of the people is arbitrary.” Sanitation District No. 1 v. City of Louisville, 308 Ky. 368, 213 S.W.2d 995 (1948). We find no legitimate interest of the people of Kentucky in prohibiting an illegitimate child, admitted by all concerned to be the child of his father, from inheriting from the father.

Statutes of other states, similar to our statute here, have been upheld on the basis that they further a state interest in promoting legitimate family life and strengthening family ties. The state does have a proper interest in promoting such ends, but we fail to see how KRS 391.090(2) can be justified on this basis. In the first place penalizing an infant appears to be a rather dubious and unreasonable method of discouraging his parents from certain conduct before he is even born. Secondly, the Legislature does not appear to have been motivated to preserve or strengthen legitimate family life in enacting this statute since it permits an illegitimate child to inherit from his mother and her kindred. It is unlikely that our lawmakers would intend to encourage the family ties of a father but not those of a mother.

The more likely purpose of this statute, and one found to be the purpose of similar statutes in other states, is to provide for the stability of land titles and the prompt and definitive determination of the ownership of property left by a decedent. Labine, supra. In a case in which there is no question of the parentage of a claimant, a statute which intends to provide for the prompt and definitive determination of the ownership of property left by a decedent should have no application. The effect of applying a statute such as ours to that situation denies a claimant inheritance not because his parentage is questionable but simply because he was born out of wedlock. This is the situation here. This appellant in effect has been denied the right to inherit from his father solely because he was born out of wedlock. Such a result is essentially unjust and cannot be grounded in any legitimate interest of the people of Kentucky.

Under our statute a claim of illegitimate filiation, no matter how false, may be made against the estate of a female, while a similar claim, no matter how meritorious, is prohibited from being made against the estate of a male. This is indeed a curious, and we believe unreasonable, method of providing for prompt and definitive determination of title to property. We are well aware that normally it is less difficult to prove a maternal than a paternal relationship, but we are equally aware that in our modern society such is often not the case. In any event, the problem of proof seems more reasonably to address itself to evidentiary standards than to the outright barring of claims. The Legislature is certainly free to enact reasonable legislation to guard against false claims and to require that any claim be made within a period of time which will provide for prompt determination of title to property.

We recognize that this decision reaches a different result from that reached in former decisions of our courts. Those decisions did not consider KRS 391.090 and its predecessors in light of Section 2 of our constitution. The effect of these decisions, however, has been to establish a rule of property and courts must exercise great caution in ruling contrary to prior cases settling rules of property. Hanks v. McDanell, 307 Ky. 243, 210 S.W.2d 784, 17 A.L.R.2d 1 (1948). A strong case can be made that this decision should be given prospective effect only. That question has neither been briefed nor argued by the parties. Pursuant to RAP 1.242, the parties are hereby ordered within 20 days to submit to the Court further briefing on the question of whether this decision should be given only prospective application.

Supplemental Opinion

The Court has considered the briefs of the parties and of the amicus curiae on the issue of the propsective or retroactive application of the rule previously announced by us in this case (Opinion rendered May 20,1977) concerning the right of an illegitimate child to inherit from his father. We are of the opinion that this rule should apply to this case and the judgment of the trial court should be reversed.

Inasmuch as the case of Pendleton v. Pendleton, Ky., 531 S.W.2d 507 (1976), is presently pending before the Kentucky Supreme Court on remand from the United States Supreme Court and the question of the application of the similar rule in Trimble v. Gordon, 430 U.S. 763, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977) will no doubt be considered by Kentucky’s highest court, we refrain from going farther than is necessary to decide this particular case.

The judgment of the trial court is reversed and the case is remanded for further proceedings.

All concur.

      . Since this opinion was written the United States Supreme Court has handed down its decision in Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977) which appears to support on federal constitutional grounds the result we reached here.


author: PARK, Judge.

text:
    The KROGER COMPANY, Appellant, v. The DEPARTMENT OF REVENUE, Commonwealth of Kentucky, et al., Appellees.
    Court of Appeals of Kentucky.
    May 20, 1977.
    Rehearing Denied July 8, 1977.
    Discretionary Review Denied Oct. 24,1977.
    Glenn McDonald, Turner & McDonald, Louisville, for appellees.
    Carl Arthur Henlein, Brooks Alexander, Middleton, Reutlinger & Baird, Louisville, for appellant.
    Before GANT, LESTER and PARK, JJ.
   PARK, Judge.

This appeal involves the right of the appellant, The Kroger Company, to deduct certain taxes paid the State of Indiana in computing its 1967 Kentucky Corporation Income Tax Liability. The case reaches this court after rulings adverse to The Kroger Company by the Department of Revenue, the Kentucky Board of Tax Appeals, and the Franklin Circuit Court.

The Kroger Company is a multi-state corporation engaged in the operation of supermarkets and drugstores. The computation of the Kentucky income tax liability of a multi-state corporation is a three step procedure. First, the corporation must compute its “gross income.” Next, the corporation determine its “net income.” Last, the corporation computes its “taxable net income.” It is only at the third stage when the corporation is calculating “taxable net income” that the corporation’s business income is allocated and apportioned to this state under the provisions of KRS 141.-120 utilizing the average of a property factor, a payroll factor and a sales factor. Thus, if a tax paid another state is deductible in computing “net income,” the amount of the corporation’s business income which can be allocated to Kentucky as “taxable net income” will be reduced.

In the present case, The Kroger Company attempted to compute its net income by taking a deduction for taxes in the amount of $1,119,951.00 paid to the State of Indiana. The Department of Revenue asserts that, under KRS 141.010(13)(a), the Indiana tax cannot be taken as a deduction in determining net income because the Indiana tax is “a state tax which is computed, in whole or in part, by reference to gross or net income”. On the other hand, The Kroger Company asserts that the Indiana tax is deductible because it is computed by reference to gross receipts rather than gross or net income.

The Department of Revenue relies upon the fact that the tax in question was originally enacted as the “Gross Income Tax Act of 1933” and that the Indiana Supreme Court has consistently held the tax to be an income tax. Miles v. Department of Treasury, 209 Ind. 172, 199 N.E. 372, 97 A.L.R. 1474, 101 A.L.R. 1359 (1935), appeal dismissed 298 U.S. 640, 56 S.Ct. 750, 80 L.Ed. 1372 (1936). However, the name by which a tax is described in the statutes is without significance. The character of any tax must be determined by its operation and effect, rather than its label. City of Louisville v. Sebree, 308 Ky. 420, 429, 214 S.W.2d 248, 253 (1948).

Under Section 901 of the Internal Revenue Code (26 U.S.C. § 901), a federal tax credit is allowed for the amount of “income tax” paid to a foreign country. In determining whether a foreign tax is an “income tax” within the meaning of Section 901 of the Internal Revenue Code, the federal courts have consistently held that the issue must be decided by reference to federal laws and court decisions, rather than the law of the foreign country. Bank of America National Trust and Savings Association v. United States, 459 F.2d 513, 198 Ct.Cl. 263 (1972); Allstate Insurance Company v. United States, 419 F.2d 409, 190 Ct.Cl. 19 (1969). Similarly, whether the Indiana Gross Income Tax is calculated by reference to “gross or net income” must be determined by Kentucky law rather than Indiana law. The doctrine of comity does not dictate that Indiana’s characterization of its gross income tax controls the construction to be given to Kentucky Income Tax statutes.

Under KRS 141.010(12), “gross income” has the same meaning as “gross income” as defined in Section 61 of the Internal Revenue Code (26 U.S.C. § 61) with certain adjustments. Further reference is made to federal law by KRS 141.050(1) which provides:

“Except to the extent required by differences between this chapter and its application and the federal income tax law and its application, the administrative and judicial interpretations of the federal income tax law, computations of gross income and deductions therefrom, accounting methods, and accounting procedures, for purposes of this chapter shall be as nearly as practicable identical with those required for federal income tax purposes.” (emphasis added)

In determining whether the Indiana tax is computed with reference to “gross or net income,” consideration must be given to those terms under the Federal Internal Revenue Code.

Section 61 of the Internal Revenue Code provides in part:

“. . . gross income means all income from whatever source derived, including (but not limited to) the following items:
* * * * * *
(2) gross income derived from business;
(3) gains derived from dealings in property; * * * ” (emphasis added)

In the regulations promulgated by the Treasury Department, gross income is further defined as follows:

“In a manufacturing, merchandising or mining business, ‘gross income’ means total sales, less the cost of goods sold, plus any income from investments and from incidental or outside operations or sources. * * * The cost of goods sold should be determined in accordance with the method of accounting consistently used by the taxpayer.” Treas.Reg. § 1.61.-3(a) (1957).

Respecting the sale of property, gross income under the Internal Revenue Code means gain, not gross receipts. For a merchant, that gain is computed by deducting the cost of goods sold from total sales.

This interpretation of the term “gross income” antedates the adoption of the sixteenth amendment. In construing the Corporation Excise Tax Act of 1909, the Supreme Court in Doyle v. Mitchell Bros. Co., 247 U.S. 179, 38 S.Ct. 467, 62 L.Ed. 1054 (1918), held that “gross income” was not the equivalent of “gross receipts.” The Supreme Court equated the term “income” with gain. If a capital asset were sold at less than cost, it would produce loss rather than income. The Supreme Court referred to the regulations promulgated pursuant to the act in 1910 which provided that “gross income” was the difference between the price received for goods sold and the cost of goods purchased during the year, with appropriate adjustments for any beginning and ending inventories. This interpretation of the term “income” was reaffirmed in interpreting the federal income tax laws following the adoption of the sixteenth amendment. See Eisner v. Macomber, 252 U.S. 189, 40 S.Ct. 189, 64 L.Ed. 521 (1920); Merchants’ Loan and Trust Co. v. Smietanka, 255 U.S. 509, 41 S.Ct. 386, 65 L.Ed. 751 (1921). Under the provision of Section 61(a)(3) of the Internal Revenue Code of 1954, (26 U.S.C. § 61), only “gains” derived from dealings in property fall within the definition of “gross income.”

As used in the Indiana tax statute the term “gross income” has a meaning totally unrelated to the concept of gain. The Indiana statute in question provides the following definition:

“The term ‘gross income,’ * * * means the gross receipts of the taxpayer received from trades, businesses, or commerce, including * * * the gross receipts received from the sale, transfer, or exchange of property, tangible or intangible, real or personal * * * without any deductions on account of * * * the cost of the property sold * * *.” Ind.Code § 6-2-l-l(m), formerly § 64-2601(m) of Burns Indiana Statutes.

Under the Indiana statute, a merchant must pay a tax on the gross receipts from the sale of goods, even though the goods are sold at cost without any gain to the merchant. Walgreen Company v. Gross Income Tax Division, 225 Ind. 418, 75 N.E.2d 784, 1 A.L.R.2d 1014 (1947).

On its 1967 Indiana Corporation Income Tax Return, The Kroger Company was required to report its total retail sales of $225,264,876.79 without any deduction for the cost of goods sold. A tax was imposed at the rate of one half percent without regard to whether The Kroger Company had a gain or loss on its sales in the State of Indiana.

As applied to The Kroger Company’s retail sales in the State of Indiana, the Indiana tax is not calculated by reference to “gross or net income” as those terms are used in the Kentucky Income Tax Statutes. The Indiana tax is the functional equivalent of a sales tax which clearly would be deductible in arriving at net income as defined by KRS 141.010(13).

This court concludes that the circuit court erred in sustaining that portion of the order of the Kentucky Board of Tax Appeals which sustained the Department of Revenue’s disallowance of the Indiana tax calculated on the gross receipts from retail sales by The Kroger Company within the State of Indiana. The Kroger Company’s 1967 Indiana Corporation Income Tax Return also reveals that a tax was imposed upon amounts received by The Kroger Company in the form of commissions, fees, interest and dividends. These amounts would fall within the term “gross income” as used in Section 61 of the Internal Revenue Code. See Treas.Reg. 1.61-3(a), cited above. The Indiana tax imposed upon these incidental operations or sources was properly disallowed as a deduction under KRS 141.-010(13)(a) because as to these items the tax was computed by reference to “gross income.”

The judgment of the circuit court is reversed, and the case is remanded to the circuit court with directions to enter a judgment in conformity with this opinion.

All concur.

      . KRS 141.010(12)
      “ ‘Gross income,’ in the case of corporations, means ‘gross income’ as defined in section 61 of the Internal Revenue Code . . .

      . KRS 141.010(13)
      “ ‘Net income,’ in the case of corporations, means ‘gross income’ as defined in subsection (12) of this section minus all the deductions from gross income allowed corporations by chapter 1 of the Internal Revenue Code, except the following:

        (a) Any deduction for a state tax which is computed, in whole or in part, by reference to gross or net income and which is paid or accrued to any state of the United States, the District of Columbia, the commonwealth of Puerto Rico, any territory or possession of the United States, or to any foreign country or political subdivision thereof;”

      . KRS 141.010(14)(b)
      “ ‘Taxable net income,’ in the case of corporations having property or payroll both within and without this state means ‘net income’ as defined in subsection (13) of this section and as allocated and apportioned under KRS 141.120;”


author: REYNOLDS, Judge.

text:
    John Charles GOLDFUSS, Jr., Appellant, v. John Charles GOLDFUSS and Mary Lee Goldfuss, Appellees.
    Court of Appeals of Kentucky.
    May 20, 1977.
    Discretionary Review Granted Oct. 4,1977.

      Gerald T. Ashcraft, Covington, for appellant.
    William I. Bubenzer, Covington, for ap-pellees.
    Before REYNOLDS, HOWERTON and HAYES, JJ.
   REYNOLDS, Judge.

Guardian ad litem for appellant, one year old infant, appeals to set aside judgment of adoption.

The appellees are the adopting parents, John Charles Goldfuss and his wife, Mary Lee Goldfuss; Department of Child Welfare, Commonwealth of Kentucky, and Catholic Social Service Bureau, Diocese of Covington, the agency to which the infant had been committed for placement for adoption by a previous order and judgment of Kenton Circuit Court.

The appellant has alleged that the court lacked jurisdiction and that the petition for adoption did not allege, as required by KRS 447.010(24), the mailing address of each petitioner. Appellant cites no authority as to what constitutes a mailing address. We find upon the face and within the caption of the petition for adoption the names of the petitioners, accompanied by a specific number, a specific street, a specific city, a specific state and a specific United States zip code mailing number. The Transcript of Evidence supports that the petitioner’s residence includes and is the same as their mailing address.

Error is alleged for failure to file orders of consent of termination of parental rights at the time of the filing of the petition for adoption. The appellant correctly points out that the documents terminating the parental rights were not filed with the adoption petition, and this issue was properly raised in the report of the guardian ad litem. However, an order terminating the parental rights and an order of judgment were entered and recorded in Kenton Circuit Court, and such order was duly entered and filed in this adoptive action prior to the judgment of adoption.

Appellant states that the infant’s natural father may be a necessary party to this action. All parties, during the penden-cy of this action, have determined by an examination of the adoptive records that the natural mother’s maternal rights have been terminated. Without contradiction the record contains a sworn affidavit of the father’s consent to adoption. In this instance we do not find that this action comes within the broad purview of Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972).

We foresee in this state the disconcerting reaction occasioned by Stanley v. Illinois, supra, and while the paramount criterion is “the thread that runs so true must always be the welfare and best interests of the child,” Phillips v. Horlander, Ky., 535 S.W.2d 72 (1975), it will follow that both supportive and legal measures to maintain this criterion will necessitate the termination of either a legitimate or putative father’s rights prior to the adoption of either a legitimate or illegitimate child.

In this appeal, and for the first time, the guardian ad litem raises the lack of notice of the hearing. A hearing on the petition was conducted in chambers on August 20, 1976. The guardian was not notified within the time required by KRS 199.-515. The Transcript of Evidence reveals that the guardian ad litem was present and participated in the hearing. No objection to the proceeding is recorded by the guardian, nor do we find any proceeding to vacate or modify the trial court’s order. Without a showing of any prejudice, we deem any lack of notice to have been waived.

The judgment of the lower court is affirmed, and the guardian is commended for his diligence and persistency which culminated in the perfecting of a valid judgment of adoption.

All concur.


author: MARTIN, Chief Judge.

text:
    Aaron Keith MOORE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    June 10, 1977.
    Discretionary Review Denied Oct. 24,1977.
    William M. Radigan, F. R. Radolovich, Asst. Public Defenders, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., Sam E. Isaacs, II, Asst. Atty. Gen., Frankfort, for appellee.
    Before MARTIN, C. J., and PARK and GANT, JJ.
   MARTIN, Chief Judge.

The defendant was convicted by a jury in the Fayette Circuit Court of assault with an automobile and sentenced to eight years imprisonment. On appeal he alleges that he was denied a fair trial because even though he refused to be represented by counsel his waiver was equivocal. He further asserts that one juror was improperly seated and that certain photographs were introduced to inflame the jury rather than to prove the case against him.

When the trial began, the following exchange took place at the bench:

THE COURT:
Mr. Moore, the Court will call the case of Commonwealth of Kentucky vs. Aaron Moore, . . . You have indicated previously that you did not desire an attorney to represent you from Legal Aid. I appointed Legal Aid for you some, quite some time ago and told you that that attorney would be available for use at trial if you wanted an attorney; if you wanted an attorney to represent you. I was informed and understood that you hired your own attorney quite some time ago. Have you been successful?
MR. MOORE:
I’m still being held in the Fayette County Jail.
THE COURT:
Do you desire the services of one of these attorneys?
MR. MOORE:
No, I do not.
THE COURT:
Mr. Jackson, being Director, I will ask that one of your attorneys, Mr. Towles, be assigned to this case to remain in the Courtroom and listen to all of the evidence and proceedings. Want him to sit at the table?
MR. MOORE:
I will not have anything to say myself. I don’t want him.

To clarify the record, Mr. Famularo, the Commonwealth’s Attorney, explained the trial had been continued once due to Moore’s request to retain his own attorney.

MR. FAMULARO:
This hearing was held on January 16, 1976 and he indicated he had not hired an attorney and Legal Aid was appointed to represent him some time after that. He indicated that he did not want Legal Aid to represent him and would retain his own attorney. He didn’t have means and wanted to retain his own attorney. . At that time Mr. Moore indicated he still wanted to retain an attorney if he in fact could do so.

Following the Appellant’s refusal of an attorney from Legal Aid, the Court again interrogated him:

THE COURT:
Mr. Moore, I would advise you as Judge of this Court that I feel it would be much better if you were advised by an attorney, represented by an attorney during the trial.
MR. MOORE:
I have no—
THE COURT:
Legal Aid can give you the best representation that you could get—
MR. MOORE:
I don’t choose to.

Following more comments by the attorney from Legal Aid and by the prosecutor, the Court advised Moore of the seriousness of the offense with which he had been indicted.

THE COURT:
What is the range of penalty?
MR. FAMULARO:
Ten to twenty.
THE COURT:
Mr. Moore, the range of penalty is from ten to twenty years.
MR. MOORE:
I am aware of that.
THE COURT:
Do you understand the seriousness of it? MR. MOORE:
Yes, sir.

The courts of Kentucky have long recognized the right to counsel may not be waived lightly. This right under the United States Constitution and our own Constitution is jealously guarded. As pointed out in Jenkins v. Commonwealth, Ky., 491 S.W.2d 636 at 638 (1973):

The right to counsel is a fundamental constitutional right. In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the United States Supreme Court defined waiver as an intentional relinquishment or abandonment of a known right or privilege. Courts should indulge every reasonable presumption against waiver . . . and they should not presume acquiescence in the loss of fundamental rights.
Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which shows, that an indigent accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver. Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962).

When a defendant refuses to participate in his trial, a tremendous burden is thrust upon the trial judge. How detailedly must he interrogate the defendant? The Supreme Court in Von Moltke v. Gillies, 332 U.S. 708, at 723, 724, 68 S.Ct. 316, at 323, 92 L.Ed. 309, suggested this answer:

To discharge this duty properly in light of the strong presumption against waiver of the constitutional right to counsel, a judge must investigate as long and as thoroughly as the circumstances of the case before him demand. The fact that an accused may tell him that he is informed of his right to counsel and desires to waive this right does not automatically end the judge’s responsibility. To be valid such waiver must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter. A judge can make certain that an accused’s professed waiver of counsel is understandingly and wisely made only from a penetrating and comprehensive examination of all the circumstances under which such a plea is tendered.

In the present case Moore’s interrogation by the trial judge as quoted satisfied both the Jenkins v. Commonwealth, supra, and Von Moltke v. Gillies, supra, standards. Appellant’s waiver of counsel, therefore, meets the constitutional test.

Appellant advances as the next ground for reversal the failure of the trial judge to dismiss for cause one of the jurors. Moore was at this time conducting his own defense. The Commonwealth had accepted the jury. One juror during questioning by the Commonwealth Attorney said she was related by marriage to one of the Commonwealth’s proposed witnesses. Upon further questioning she said this would not in any way affect her judgment as a juror. No one inquired as to the degree of relationship •between the juror and the witness. Even though the trial judge advised Moore of his right to challenge jurors, he only nodded and used none of his jury strikes. This juror remained a member of the panel. Absent further proof, the relationship by marriage of a juror and a potential witness does not disqualify the juror for cause.

The crime with which the Appellant was charged involved recklessly driving his automobile onto the median of a four-lane road, striking his victim and dragging him several hundred feet under the car. The photographs introduced by the Commonwealth Attorney were taken shortly after police arrived at the scene. They included photographs of the car driven by the defendant and the clothing of the victim. The photographs are gruesome but were introduced as competent evidence to depict the scene of the crime and to show how the victim sustained his injuries. As held in Salisbury v. Commonwealth, Ky., 417 S.W.2d 244, 246 (1967):

The rule prohibiting the exhibition of inflammatory evidence to a jury does not preclude the revelation of the true facts surrounding the commission of a crime when these facts are relevant and necessary. Were the rule otherwise, the state would be precluded from proving the commission of a crime that is by nature heinous and repulsive. If evidence is otherwise competent, the fact that it is heinous or repulsive will not make it incompetent. Where the photographs revealed nothing more than the scene of the crime and the persons of the victims, they were not incompetent.

See also Moore v. Commonwealth, Ky., 489 S.W.2d 516 (1972); Napier v. Commonwealth, Ky., 426 S.W.2d 121 (1968); Smith v. Commonwealth, Ky., 402 S.W.2d 686 (1966), and Howard v. Commonwealth, Ky., 395 S.W.2d 355 (1965).

A careful review of the three hundred and eighty pages of the transcript and some thirty-eight exhibits would lead to only one conclusion. The defendant Aaron Moore received a fair and impartial trial and was afforded every right guaranteed to him under the Constitution of the United States and the Constitution of Kentucky.

The Judgment of the Circuit Court is affirmed.

All concur.


author: HAYES, Judge.

text:
    Debra Sue FERGUSON, Appellant, v. Guy C. CUNNINGHAM and Ashland Hospital Corporation, D/B/A King’s Daughters’ Hospital, Appellees.
    Court of Appeals of Kentucky.
    June 24, 1977.
    Discretionary Review Denied Oct. 24,1977.
    Stanley R. Hogg and Roger W. Hall, Creech & Hogg, Ashland, for appellant.
    Gray, Woods & Cooper, Ashland, Turley, Savage & Moore, Lexington, for appellee Dr. Guy W. Cunningham.
    W. H. Sewell, II, McKenzie, Woolery & Sewell, Ashland, for appellee Ashland Hospital Corp., D/B/A King’s Daughters’ Hospital.
    Before HAYES, HOWARD and WIN-TERSHEIMER, Judges.
   HAYES, Judge.

This is an appeal of a summary judgment entered in the Boyd Circuit Court. Appellant, Debra Sue Ferguson, contends that the trial court erred in its determination that her malpractice action was barred by the statute of limitations.

Appellant was born on March 3, 1954. Since her birth was premature, it was necessary that appellant be transferred to King’s Daughters’ Hospital for proper care. While at the hospital, appellant’s attending physician was the appellee, Dr. Guy Cunningham. Appellant was placed in an incubator to provide the correct environment for her development. Approximately three (3) months after her birth, it was discovered that appellant was blind. The cause of this blindness was determined to be too much oxygen which may have occurred during the time appellant spent in the incubator.

In her deposition, the appellant stated that she was aware of the cause of her blindness when she was fifteen (15) years old. She, however, did not know that she had been premature or that her blindness may have been the result of negligence. After her twenty-first (21st) birthday, appellant was informed by her father that there may have been some negligent activity connected with her blindness. Shortly, thereafter, appellant filed this action.

Since appellant had filed in 1975, some twenty-one (21) years after the alleged negligent activity, appellees filed motions for a summary judgment' on the ground that appellant’s claim was barred by the statute of limitations. The trial court granted this motion and held that appellant should have brought this claim within one (1) year of her eighteenth (18th) birthday since she knew the cause of her blindness when she was fifteen (15) or sixteen (16) years old.

The sole issue presented on appeal is whether or not appellant’s cause of action is barred by the statute of limitations. A determination of this issue involves an examination of KRS 413.140 and KRS 413.170. The pertinent sections of KRS 413.140 are set out as follows:

(1) The following actions shall be commenced within one (1) year after the cause of action accrued.
⅜ * ⅜ ⅜ ⅝!
(e) An action against a physician, surgeon, dentist or hospital licensed pursuant to KRS Chapter 216 for negligence or malpractice.
⅜ # ⅜: * * *
(2) In respect to the action referred to in paragraph (e) of subsection (1) of this section, the cause of action shall be deemed to accrue at the time the injury is discovered or in the exercise of reasonable care should have been discovered; Provided That such action shall be commenced within five (5) years from the date on which the alleged negligent act or omission is said to have occurred.

Since the activities which gave rise to this cause of action occurred while appellant was an infant, her cause of action was also subject to the provisions of KRS 413.170(1). This statute provides the following:

If a person entitled to bring any action mentioned in KRS 413.090 to 413.160, except for a penalty or forfeiture, was, at the time the cause of action accrued, an infant or of unsound mind, the action may be brought within the same number of years after the removal of the disability or death of that person, whichever happens first, allowed to a person without the disability to bring the action after the right accrued.

Appellant contends that KRS 413.140 and KRS 413.170 do not prevent her from bringing this action when she did. In order to reach such a conclusion, appellant uses a two step approach. First, appellant states that the five (5) year limitation set out in KRS 413.140(2) should be allowed to her after the removal of this disability, KRS 413.170(1). The second step involves the definition of the term “injury” as used in KRS 413.140(2). Appellant argues that “injury” means cause of action and that KRS 413.140(1) allows her one (1) year after the discovery of her cause of action within which to commence her action. Using such a definition, appellant believes that her cause of action did not accrue until she was twenty-one (21) years old and that this was within five (5) years of the removal of her disability.

Appellees argue that “injury” means harmful effect and that appellant was aware of her condition and the cause of that condition when she was fifteen (15) or sixteen (16) years old. According to appel-lees, it was at this point that her cause of action accrued. She was required, therefore, to bring her action within one (1) year after becoming eighteen (18) years old under their theory. This she did not do.

The definition of “injury” is not important; because, using either theory propounded by the parties, appellant’s cause of action was barred by the statute of limitations. If appellant first knew of her injury when she was fifteen (15) or sixteen (16), as appellees contend, then under KRS 413.-140(1) and KRS 413.170(1) she was required to bring this cause of action before her nineteenth (19th) birthday. Appellant’s reasoning also leads this court to the conclusion that her action was barred. In order for KRS 418.170(1) to apply, appellant’s cause of action must accrue during her infancy. Appellant, however, argues that her cause of action did not accrue until she was twenty-one (21) years old. Accepting this as true, KRS 413.170(1) did not apply to appellant. Her cause of action, therefore, was covered by KRS 413.140(1) and barred by that statute since it was commenced more than five (5) years after the negligent act.

The parties urge this court to consider another issue — the applicability of the doctrine of charitable immunity. Although well aware of the need for a determination of this issue, this court declines to address it at this time, since any decision would be advisory at best.

Judgment is affirmed.

All concur.


text:
    Fred BRADFORD, James Prichard d/b/a Prichard Mining Co., Appellants, v. Robert SAGRAVES and Drema Sagraves, his wife, Appellees.
    Court of Appeals of Kentucky.
    June 24, 1977.
    Discretionary Review Denied Oct. 24,1977.

      C. B. Creech, Stanley R. Hogg, Ashland, Ora F. Duval, Olive Hill, for appellants.
    George M. Hogg, Olive Hill, for appellees.
    Before GANT, HOWERTON and WIL-HOIT, JJ.
   WILHOIT, Judge.

On July 10,1976, the Carter Circuit Court entered judgment based on a jury verdict against appellants, James Prichard d/b/a Prichard Mining Company and Fred Bradford, both jointly and severally in the amount of $12,000.00. The jury found appellants to be jointly liable for damages to the home of appellees, Robert and Drema Sagraves. From that judgment these appeals are brought.

On July 26, 1975, Fred Bradford, having substantially completed the house which he had contracted to build for the Sagraves for $26,000.00, issued to them a written warranty that the house was free from defective materials and workmanship. The Sagraves had moved into the house on July 10, 1975. No damage or defect was apparent at that time.

On August 8 and 9,1975, James Prichard did some blasting at a mining site approximately 1,100 feet from the Sagraves house. On August 8, Robert Sagraves, who was at home, felt the ground shake and “was nearly shaken from his chair” as he sat in his residence watching television. After the blast he inspected the interior of his house and found cracks in the drywall. He then contacted Prichard and told him that the blasting was cracking his house to pieces. He was told there would be no more blasting; however, on the 9th of August Prich-ard blasted again. Both Mr. and Mrs. Sa-graves were at home on this occasion along with a third person. All three felt the ground where the house was located shake. They inspected the exterior of the house and found cracks in the basement wall, a cracked front sidewalk, and the brick veneer pulled away from the house in the front. Witnesses who lived up to three quarters of a mile from the blasting site also testified that the ground shook and a rock was blown through the roof of the home of one witness as a result of the blasting.

Evidence was introduced that the concrete footer poured for the Sagraves’ house had been poured partially on rock and partially on fill dirt. There was testimony that this was not good workmanlike practice. In the opinion of a bricklayer who had worked on the house, the reason the brick veneer was pulling away from the house was that the porch, which was laid on fill dirt, was slipping or moving. The contract specifications under which the house was built required the footer to be laid on undisturbed dirt.

Two expert witnesses testified on behalf of Prichard. Both agreed that the blasting on August 8 and 9 did not cause the damage to the Sagraves’ house, but rather the settling of the earth under the footer and sidewalk was principally to blame.

The court instructed the jury that it could find against either of appellants if it believed that the injury to the house was caused by either of them or that if it believed the injury was caused by neither then the verdict should be for them. The court also instructed as follows:

III. If you believe from the evidence that the damage if any done to plaintiffs’ home was the direct and proximate result of both the defendants, James Prichard, d/b/a Prichard Mining Company blasting operation, and the defendant’s, Fred Bradford, breach of builder’s warranty, then you will find for the plaintiffs as to both defendants, such damages as you believe from the evidence will be reasonably necessary to remedy the defects and damage, but in no event to exceed the difference between the fair market value of the home with the defects and the fair market value of the home without said defects, your whole finding not to exceed $12,000.00.

I

Appellant Bradford argues that the judgment of the trial court should be set aside on two grounds.

First, according to Bradford, the court should have dismissed the appellees’ complaint since it improperly joined him and Prichard as defendants, contrary to the provisions of CR 20.01. No motion was made by either of appellants to dismiss the complaint for misjoinder of defendants. Indeed, the granting of such a motion would have been contrary to CR 21 which states unequivocally that “[mjisjoinder of parties is not ground for dismissal of an action”. The proper procedure would have been to move the court to sever the claim and permit the parties to proceed as in the case of separate actions. Marr v. Falk City Stone Co., Ky., 353 S.W.2d 390 (1962). No such request was made by either party defendant and any objection to the joinder of the defendants was thus waived. McCormack v. Cole, 265 Ky. 482, 97 S.W.2d 33 (1936); Bingham v. Davis, Ky., 444 S.W.2d 123 (1969).

Bradford next argues that Instruction III, to which he objected, was improper since there was no evidence of a joint transaction or occurrence and no common question of law or fact present in this case. The evidence presented, however, pointed to independent acts of both of the appellants which a jury reasonably could, and in this instance did, believe produced a single injury. “The rule is now well settled in this state that while several may be guilty of several and distinct negligent acts, yet, if their concurrent effect is to produce an estimable injury, they are all liable therefor.” Probst v. Hinesley, 133 Ky. 64, 117 S.W. 389 (1909). We do not believe Instruction III was erroneous.

II

Appellant Prichard contends that since the only evidence that blasting may have caused or contributed to the damage done to appellees’ house is the lay testimony concerning vibrations felt from the blasting, there was insufficient evidence of blasting as a cause so as to require submission of the question of his liability to the jury. He argues that under the authority of Security Fire & Indemnity Co. v. Hughes, Ky., 383 S.W.2d 113 (1964), the appellees must prove that this damage arose within a time period consistent with the blasting having been the cause, that they must show that sufficient stimuli were present during the blasting to cause the damage, and that other potential causes of the damage must be eliminated by affirmative proof. Here, Prichard says appellees have shown “temporal consistency” and that blasting could have been the cause of their damage if it had been of sufficient size, but since it is obvious that blasting was not the only potential cause present during the time period in which the damage arose it cannot be inferred that the blasts were of sufficient size and nature to have caused the damage. Prichard asserts that in such circumstances expert testimony is necessary to establish this and none was introduced by appellees.

In the Hughes case there was evidence of damage to the house which first occurred during the three months that blasting operations took place and which was first noticed after the blasting began. Lay witnesses testified as to the vibrations they experienced from the blasting and its effects. An architect testified that the blasting could not have caused the damage and he was partly corroborated by a carpenter. There was evidence that the house had previously been damaged by a flood but that this damage had been repaired. The court ruled that there was sufficient evidence of causality to submit the question to a jury.

While we readily agree that there was insufficient evidence to support a verdict that the blasting done by Prichard was the sole cause of the damage here, we believe there was sufficient evidence to raise a reasonable inference that his blasting was a contributing cause and this is precisely what the jury found.

Appellant Prichard next objects that it was error for the court to instruct on joint and concurrent liability in a case such as this since there was no evidence from which to choose one cause of the damage here over another and the effect of such an instruction is to require the jury to choose both potential causes as the cause. The giving of such an instruction here, he argues, is contrary to the rule laid down in Cox v. Cooper, Ky., 510 S.W.2d 530 (1974). The instruction condemned in Cox, an automobile negligence case, however, required the jury to find against either or both of the tortfeasors. The Court said there that the effect of such an instruction was to shift the burden of proof from the plaintiff to the defendants. It stated that even though it is uncontroverted that the negligence of one or the other, or both, of two purported tortfeasors caused a particular injury, the jury must believe from the evidence that each such tortfeasor in particular was negligent in order to hold that particular individual liable.

The instruction given in this case required the jury to believe that the damage done to appellees’ home was “the direct and proximate result” of the activities of both defendants in order to return a verdict against them jointly. Unlike the situation in Cox, the jury was not instructed that it must find against one or the other or both of the defendants. Here the jury was required to believe that the activities of each particular defendant joined to cause the injury in order to hold them jointly liable. We do not believe the instruction here was contrary to the principal set forth in Cox v. Cooper, supra. Nor do we believe that the instruction had the effect of requiring a verdict against both defendants except, of course, if the jury believed both defendants had caused the injury.

Finally, appellant Prichard argues that the jury should have been instructed that he is not responsible for damage suffered by one who impedes his enjoyment of his leasehold estate. In this ease Prichard had leased the property on which his blasting took place from Elmer Sagraves for the purpose of mining coal. Prichard offered proof that the tract of land on which appel-lees’ home was subsequently built was contained in the tract he had leased and that the house was built with full knowledge that he was mining and blasting within the bounds of his lease.

Without deciding its legal efficacy, we believe that this theory advanced by Prich-ard would constitute the basis for either an affirmative defense under CR 8.03 or a compulsory counterclaim under CR 13.01. No motion was made by him at any time to amend his pleadings to assert such defense or counterclaim. We do not believe the issue was tried by express or implied consent under CR 15.02 since this issue was never submitted to the jury.

The judgment of the trial court is affirmed.

All concur.


author: WINTERSHEIMER, Judge.

text:
    James Randall DURHAM, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    July 1, 1977.
    Discretionary Review Denied Oct. 24,1977.
    David E. Murrell, Deputy Public Defender, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., William H. Mohr, Asst. Atty. Gen., Frankfort, for appellee.
    Before HAYES, HOWARD and WIN-TERSHEIMER, JJ.
   WINTERSHEIMER, Judge.

Appellant was convicted of armed robbery on February 2,1976, by a jury and was sentenced to ten years in prison. The victim identified the appellant within two hours after the robbery as a man who was driving a white 1974 Grand Prix automobile which stopped him on 1-75 near London, Kentucky, and robbed him at gunpoint of $46.00. The victim identified the appellant’s automobile. When the appellant came out of his apartment with the police he was able to positively identify his assailant when a hat was placed on his head, even though the appellant had shaved off his moustache.

This Court affirms the judgment of the trial court and the jury verdict.

The issues presented are:

1) Whether the trial court committed reversible error in refusing to suppress identification evidence because the police interfered with the privacy of the appellant prior to the identification of the appellant by the victim.
2) Whether the show-up identification procedure was so suggestive that it violated the due process clause of the Fourteenth Amendment of the Federal Constitution.

The appellant was not subjected to any unconstitutional arrest, detention or other invasion of his privacy in violation of the Fourth Amendment of the Federal Constitution. The trial court did not commit any reversible error in refusing to suppress the identification evidence in this instance. The appellant’s attack on the identification evidence was not properly preserved for appellate review. The record is completely devoid of any reference by trial counsel to the appellant being required to leave his apartment as part of an unlawful detention. The record does not convince this Court that there is any manifest injustice which would require this Court to look beyond such lack of preservation. However, a review of the total record indicates that there was no significant restraint of liberty which is a requirement of any arrest. The defendant was not deprived of his freedom in any significant way. The appellant testified in his own defense and stated that he voluntarily emerged from his apartment and approached the officers. It is clear that there can be no detention when a person is conscious of no restraint. The record reveals that the appellant shaved off his moustache between the time the police first approached his apartment and the time he came down to the car to confront the victim. The appellant gambled on that confrontation and lost.

The show-up identification was not so impermissibly suggestive as to create a substantial likelihood of mistaken identification, and therefore the appellant’s rights to due process under the Fourteenth Amendment of the Federal Constitution were not violated. This record indicates that the identification of the appellant was not so unreliable as to render it constitutionally improper or ineffective. The United States Supreme Court has indicated that the identification procedure must be reliable. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). The victim gave a complete and accurate description of his assailant. Although the robbery occurred at night, he had a close physical encounter with the appellant and the headlights from the appellant’s car illuminated the scene of the robbery. The victim maintained a high degree of certainty throughout the identification investigation. When shown various photos by the police he correctly identified the first photo presented to him as the appellant’s brother. His reliability was further documented by his reluctance to pick the appellant out of a group photo of twenty to thirty students in a high school annual. The victim again exercised caution before making any statement when actually confronting his assailant since the appellant had shaved off his moustache and was not wearing a hat. When the hat was placed on the appellant’s head he was able to positively identify his assailant. The entire proceeding was completed within two hours of the robbery. Under all the circumstances, the instant show-up identification was not so suggestive as to violate his constitutional rights.

Therefore, the judgment of the trial court and the jury verdict is affirmed.

All concur.


author: LESTER, Judge.

text:
    John CHRISTIAN and Johnny Pace, Appellants, v. Jerry Sue JOHNSON and Donald Johnson, V. T. C. Lines, Incorporated, and Billy G. Williams, Sheriff of Harlan County, Kentucky, Appellees.
    Court of Appeals of Kentucky.
    July 1, 1977.
    Discretionary Review Denied Oct. 24,1977.
    G. E. Reams, Harlan, for appellants.
    James S. Greene, Jr., Harlan, for appel-lees Jerry Sue Johnson and Donald Johnson.
    Wix Unthank, Harlan, for appellee V. T. C. Lines, Inc.
    No counsel of record, for appellee Billy G. Williams, Sheriff.

      Before COOPER, LESTER and WHITE, JJ.
   LESTER, Judge.

This appeal involves the construction of a deed.

Some years prior to April 9, 1975, V.T.C. Lines, Inc., a Kentucky corporation, acquired as grantor two parcels of real property. On the aforesaid date, appellees, Jerry Sue Johnson and Donald Johnson, recovered a verdict against V.T.C. Lines in the amount of $62,180.00 in Civil Action No. 1321 upon the docket of the Harlan Circuit Court. That judgment was appealed to this court where it is now pending. On the day prior to the rendering of the judgment in No. 1321, namely, April 8, 1975, appellant, John Christian, accepted a deed for the two tracts which contained the following language:

THIS DEED OF CONVEYANCE, made and entered into this 8th day of April, 1975, between LOGAN MIDDLETON, President of the V.T.C. Lines Incorporated, Harlan, Harlan County, Kentucky, party of the first part, and JOHN CHRISTIAN, Evarts, Harlan County, Kentucky, party of the second part.

The signatory portion of the document in its entirety appears thusly:

/s/ Logan Middleton Logan Middleton, President V.T.C. Lines, Incorporated

The only other reference to the corporate entity is contained in the attestation clause:

Subscribed, sworn to and acknowledged before me by Logan Middleton, President, V.T.C. Lines Incorporated, to be his own free act and deed, and the act and deed of said corporation on this the 8th day of April, 1975.
/s/ Marv Alice Hutbank Notary Public
My Commission Expires: 2/27/79

The deed was recorded June 20, 1975.

On June 12, 1975, John Christian and his wife conveyed an undivided one-half interest in the realty to appellant, Johnny Pace, and this deed was also recorded on June 20, 1975. In the source of title portion of this last mentioned deed, we note the following language:

“. . . and being the same land conveyed to the first parties by Logan Middleton by deed bearing date of April 8, 1975, . .

On October 20, 1976, appellees herein, Jerry Sue Johnson and Donald Johnson, caused executions to issue in case No. 1321 on the subject real estate and the sheriff levied on the same day. John Christian requested permission of the trial court to intervene in that action but was denied which resulted in the present litigation by Christian and Pace against the Johnsons, the Sheriff and V.T.C. Lines, Incorporated wherein the court below was requested to discharge the issuance and levy of the executions, enjoin the sheriff from selling the land, quiet title against all claims of the Johnsons and discharge the lis pendens. The Johnsons filed answer and by way of counterclaim, asked a determination that the deed from Middleton to Christian did not convey any interest of V.T.C. Lines and that their executions be declared a lien upon the land. Upon motions of all parties for judgment on the pleadings, the Harlan Circuit Court dismissed the complaint and upon the counterclaim found that the April 8, 1975, deed did not in fact convey any interest of V.T.C. Lines and that the executions levied in Civil Action No. 1321 created a valid lien upon the described real estate and ordered the sheriff to proceed with the sale. From that order (Civil Action No. 4257), this appeal is prosecuted.

There are no issues of fraud involved.

Conveyances by a corporation are in all essential matters the same as those made by a private grantor. Regardless of the form of the signature, the body must show that it is the act of the corporation. This done, it is sufficient if it is signed by the proper officer or officers, with or without the name of the office held by the signer. However, it is customary for corporate deeds to be signed in the name of the corporation, written, printed, or typed, by one or more officers, per their personal signatures. III American Law of Property § 12.76 at 344 (1952). A corporate deed must show execution in the corporate name per one or more officers or signatures of the officers along with appropriate recitals in the instrument that it is being executed by them on behalf of the corporation : not execution by its stockholders, directors, nor even by its officers as grantors. The corporate name may be abbreviated so long as certainty of identity is preserved. IV American Law of Property § 18.48 at 737 (1952). In order to pass the title of the corporation, the conveyance must appear to be the act of the corporation, 19 C.J.S. Corporations § 1099 at 658 (1940). The name and seal of its agent standing alone will not suffice. 19 Am.Jur.2d Corporations § 1258 at 666 (1965). This jurisdiction subscribes to the foregoing principles for it was held in Whitaker v. Langdon, 302 Ky. 666, 195 S.W.2d 285 (1946) that “(i)t is fundamentally necessary that a conveyance shall use the specific names of its grantors in the body of the instrument in order to pass valid title out of such grantors.” We perceive no distinction between individual persons as grantors or corporate grantors.

From the exhibits contained in the record, two facts cannot be disputed, namely, that the title to the land was held by the corporate entity, V.T.C. Lines, and the deed of April 8,1975, did not contain the name of V.T.C. Lines as a grantor. The words appearing after Logan Middleton’s name “President of the V.T.C. Lines, Incorporated” do not make the company a grantor. They do nothing more than identify Mr. Middleton. Moreover, we do not believe that the attestation clause saves appellants’ cause for the only effect of such a certificate is to enable the deed to be recorded. United States Trust Company v. Frakes, 282 Ky. 683, 139 S.W.2d 759 (1940).

Appellants urge that a conveyance by an individual in his own name may be upheld as his conveyance and may be effective to convey the corporate property if he is placed in a position by the corporation where he can dispose of its property. We reject this contention since there is nothing in the record to indicate what Logan Middleton’s powers were within and with relation to the corporation and, furthermore, the argument is contrary to the law of this Commonwealth.

For the reasons stated herein, the judgment of the Harlan Circuit Court is affirmed.

All concur.


author: HOWERTON, Judge.

text:
    Ronald J. GOLDEN, Appellant, v. ANACONDA WIRE & CABLE COMPANY, the Travelers Insurance Company, Workmen’s Compensation Board of Kentucky and James R. Yocom, Commissioner of Labor and Custodian of the Special Fund, Appellees.
    Court of Appeals of Kentucky.
    July 15, 1977.
    Discretionary Review Denied Oct. 24,1977.

      Joseph Davis, Louisville, for appellant.
    S. Lloyd Cardwell, Gemma M. Harding, Dept, of Labor, Louisville, Kenneth E. Hollis, Gen. Counsel, Dept, of Labor, Frankfort, for appellees.
    Before HOWERTON, REYNOLDS and WILHOIT, JJ.
   HOWERTON, Judge.

The central issue on this appeal is whether or not the circuit court committed error in reversing the finding of the Workmen’s Compensation Board that the appellant had a 50% permanent partial disability. Several other issues are presented by the appellant, the appellee employer, and the Special Fund; but, since we affirm the trial court, the remaining questions are moot.

Golden began working for Anaconda Wire & Cable Co. on August 28, 1971. In February 1972, Golden began working in a department where strong chemical fumes were present. Approximately six months later, the appellant developed a persistent cough and experienced a shortness of breath. He periodically missed work and received treatment for his condition and allergy. On December 17, 1973, he was transferred to the area where he originally worked and which had fewer noxious fumes. He finally quit his employment on June 21,1974. Golden’s compensation claim was filed July 2, 1974.

The Board awarded the appellant medical expenses, total temporary disability and 50% permanent partial disability, and directed that the employer pay 25% and the Special Fund pay 75% of the award for permanent disability. The circuit court found that there was no substantial evidence to support the finding of any permanent partial disability and struck that portion of the award.

Before addressing the specific question of error, it would be beneficial to summarize briefly the duty of courts and the scope of their judicial review in a workmen’s compensation case.

The statutory scope of judicial review in the circuit court is set forth in KRS 342.-285(3), as follows:

(3) No new or additional evidence may be introduced in the circuit court except as to the fraud or misconduct of some person engaged in the administration of this chapter and affecting the order, ruling or award, but the court shall otherwise hear the cause upon the record as certified by the board and shall dispose of the cause in summary manner. The court shall not substitute its judgment for that of the board as to the weight of evidence on questions of fact, its review being limited to determining whether or not:
(d) The order, decision, or award is clearly erroneous on the basis of the reliable, probative, and material evidence contained in the whole record

The portion quoted pertains to facts only and not to interpretations of the law. The provision relates to the required quality and sufficiency of the evidence to support an award. The court is prohibited from substituting its judgment for that of the Board as to the weight of the evidence on questions of fact, which is basically the same rule that applies to the findings of a jury in a civil case. Lee v. International Harvester Company, Ky., 373 S.W.2d 418 (1963). Jury cases require “more than a scintilla” of evidence and workmen’s compensation cases are governed by the “substantial evidence” rule to determine whether or not a finding is “clearly erroneous”. In comparing the two evidentiary rules, the court provided in Blankenship v. Lloyd Blankenship Coal Co., Ky., 463 S.W.2d 62, at p. 64 (1971):

. The test of whether evidence is “substantial” is “whether taken alone or in the light of all the evidence it has sufficient probative value to induce conviction in the minds of reasonable men.” (Citing, Wadkins’ Adm’x v. C & O Ry. Co., Ky., 298 S.W.2d 7 (1957)).

The court provided further in Wadkins’ Adm’x, supra, at p. 9:

It is possible that initially sufficient evidence at the close of the plaintiffs case may lose every vestige of its persuasive character in the light of the defendant’s evidence. Thus, what was once more than a scintilla may, upon ultimate analysis, be no longer that sufficient quantum of proof required to present a true issue of fact to the jury.

The Board, as a fact finder, like a jury, is supreme within its own area to pass upon the weight of the evidence when substantial evidence is before it, but the court is the final authority as to what constitutes “substantial evidence” as it applies the judicial test of quality, sufficiency and fitness of the evidence as a whole “to induce conviction in the minds of reasonable men.”

Courts have a duty to make the ultimate decision as to whether the Board’s findings are supported by “substantial evidence”. The test to be applied is well stated in the opinion in Smyzer v. B. F. Goodrich Chemical Company, Ky., 474 S.W.2d 367, pp. 368-369 (1971):

. Although the circuit court held that the board’s findings had no support in the record and were clearly erroneous “on the basis of the reliable, probative and material evidence contained in the whole record,” we think the issue is better stated by the simple inquiry: “Were the findings of fact made by the board supported by substantial evidence?”
Although a court cannot substitute its evaluation of the weight and credibility of the evidence for that of the Workmen’s Compensation Board, nevertheless, the findings of fact of the board when it decides in favor of the claimant must be supported by substantial evidence. Substantial evidence means evidence of substance and relevant consequence having the fitness to induce conviction in the minds of reasonable men. See O’Nan v. Ecklar Moore Express, Inc., Ky., 339 S.W.2d 466.

We have reviewed the evidence as a whole and conclude that the trial court made the correct interpretation of the evidence when it determined:

The court finds that the only reasonable inferences from the evidence as a whole are:
(A) Golden had certain basic allergies.
(B) The allergies made Golden more sensitive and unable to tolerate certain fumes in the employer’s plant.
(C) Respondent, Golden, is entitled to compensation for two separate periods of temporary total disability, as found by the Board.
(D) He has no increased permanent impairment for other work.

The evidence pertaining to claimant’s medical condition and disability was obtained from the testimony of three doctors. Dr. White testified, “Yes, to a degree, although it’s very questionable in my mind whether he would be disabled at all if he were in a place of employment where he did not have to breathe irritants.” Dr. Anderson testified:

While his industrial exposure appears to have caused some irritation of his upper airways, it has not caused any permanent impairment and certainly his industrial exposure did not cause the allergy to the materials that Dr. White has determined he is allergic to, and for which he is receiving treatment. So that, at the present time, Mr. Golden has no permanent impairment and the only disability he would have would be for working back in the same environment in which he worked for Anaconda. This would be contraindicated. He has no disability or difficulty working in other situations as is well demonstrated by the fact he is now working.

Dr. Davis indicated that he believed Golden had some permanent damage to his bronchial tree by having had repeated respiratory infections for a period of time, but he gave no information as to a degree of permanent impairment or its effect on his disability.

The only evidence in the record pertaining to a 50% permanent partial disability was presented by Dr. White, and the evidence was obviously not for a functional rating at all. The testimony was a non-medical opinion as to probable employment opportunities. Dr. White testified as follows:

The 50% figure is based upon my feeling that this sensitivity, there again for lack of a better word, to irritants, limits him in what he can do. He, obviously, is a man with limited education. (Board record, p. 150)
It would appear to me that he is most likely to find employment in industry, with my knowledge of industry in the Louisville area, his chances of finding a job where he will not be exposed to the irritants is rather limited, and the 50% figure is one that I arbitrarily arrived at, considering all of these factors. (Emphasis added.) (Board record, p. 151)

It should be noted that this is an allergic reaction case. Such conditions are now recognized as compensable occupational diseases in Kentucky, but they are distinguishable in several respects from injury or other type occupational disease cases. The burden of proof of a permanent impairment is greater, and as was stated in Princess Manufacturing Co. v. Jarrell, Ky., 465 S.W.2d 45, at p. 49 (1971):

Since the employment opportunities of a claimant disabled by a particular allergic reaction may not be limited, except as to one particular job, we feel that such a claimant has a greater burden to affirmatively establish a resulting impairment of capacity to engage in other work generally than one claiming disability from injury-

The trial judge was obviously aware of his scope of judicial review as well as his duty to make a review of the evidence and he properly concluded, as follows:

3. (b) Inasmuch as the respondent, Golden, has no increased impairment for other work, the petitioners, including the Special Fund are not liable to him for compensation for any permanent partial disability at all. Such a finding is contrary to and not supported by the evidence. The Opinion and Award of the Compensation Board as to such finding is clearly erroneous in this respect on the basis of the reliable, material and probative evidence. KRS 342.285(3)(d).

The judgment of the trial court is affirmed.

All concur.


author: HOWARD, Judge:

text:
    Donald RISINGER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    July 15, 1977.
    Discretionary Review Denied Oct. 24, 1977.

      Jack Emory Farley, Public Defender, Com. of Ky., Frankfort, Rodney McDaniel, Asst. Public Defender, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., Com. of Ky., Frankfort, for appellee.
    Before HAYES, HOWARD and WIN-TERSHEIMER, JJ.
   HOWARD, Judge:

The defendant-appellant was convicted of robbery in the first degree as prescribed by KRS 515.020 and sentenced to a term of fifteen years in the penitentiary. From this judgment the defendant-appellant appeals.

The defendant-appellant and his girlfriend, Nancy Michaels, spent the evening of June 14, 1976, at the trailer home of Deborah and Michael Tuttle located at Spindletop Trailer Park in Scott County, Kentucky. On the following morning, the Tuttles and defendant-appellant discussed robbing the Idle Hour Pharmacy and other pharmacies in Lexington. These parties left the trailer at approximately 7:30 A.M. and drove to Lexington where they dropped Miss Michaels off at her home. They also stopped at Mrs. Tuttle’s father’s home and acquired a pistol to use in the robbery. When they returned to the car, Mrs. Tuttle drove and her husband, Mike, sat with her in the front seat while the defendant-appellant lay down in the back seat of his car. They then proceeded to drive by at least one, if not two drugstores in Lexington to determine which one would be the easiest to rob.

They then proceeded on to the Idle Hour Pharmacy in Lexington where Mrs. Tuttle inspected the premises and then drove the car to a nearby barbershop where no one would see the car. Mike Tuttle and the defendant-appellant got out of the car and proceeded on to the pharmacy. While the defendant-appellant remained outside as a lookout, Mike Tuttle went inside the Pharmacy and proceeded to the prescription counter where he confronted the attendant with a pistol and demanded drugs. After this was done, Tuttle left the store with a brown paper sack with numerous pills, barbiturates and other drugs and was joined by the defendant-appellant and the two of them ran to the car where Mrs. Tuttle was waiting and fled the scene. The drugs were subsequently divided at the trailer and the defendant-appellant received one-third of these drugs.

The Tuttles pled guilty to a lesser offense, but the defendant-appellant herein went to trial after a plea of “not guilty”.

The defendant-appellant has urged upon this court several matters which he considers were prejudicial errors committed by the trial court. The first of these involve the evidence of a prior conviction for the offense of armed robbery. The defendant-appellant contends that he was substantially prejudiced and did not receive a fair trial. However, this court observes that the trial judge conducted a hearing prior to the admission of the evidence of a previous conviction pursuant to the landmark decision of Cotton v. Commonwealth, Ky., 454 S.W.2d 698 (1970). It is apparent that the trial court permitted the introduction of evidence of a previous conviction for impeachment purposes only and in view of the Cotton case, supra, there was no prejudicial error.

Next, the defendant-appellant complains that the trial court permitted the prosecutor to comment on the prior conviction. However, the prosecutor limited his remarks in reference to the prior conviction to the question of whether or not such conviction tended to lessen the defendant-appellant’s credibility. Therefore, we cannot find any prejudicial error in the Commonwealth’s argument.

The defendant-appellant urges that he was entitled to an instruction on criminal facilitation as defined in KRS 506.080. However, there is no evidence in the record that would indicate that the appellant permitted the Tuttles to use his car in order that they might rob the Idle Hour Pharmacy in Lexington, Kentucky. There is no evidence to establish criminal facilitation on the part of the defendant-appellant in this case. The facts indicate that the jury had to choose between the Commonwealth’s theory of the case which was that the defendant-appellant was guilty of first degree robbery and the defendant-appellant’s theory of the case which was a denial of having anything at all to do with the robbery. Since there were no facts tending to show a violation of the criminal facilitation statute, the trial judge was correct in refusing to instruct on this theory of the case.

The court discussed the sentence with the defendant-appellant and his counsel after the jury verdict was returned. The trial judge was very careful to advise the defendant-appellant and his attorney that the defendant-appellant was entitled to a pre-sentence report and to the procedures as outlined in KRS 532.050 and KRS 533.010. The trial court specifically inquired of the defendant-appellant as to whether he understood that he had a right to a sentencing hearing and that the trial court would consider various matters contained in a pre-sentence report in fixing the penalty and deciding if probation was indicated. The record is clear that the trial court reviewed orally with the defendant-appellant the latter’s criminal record and in so doing, in effect, conducted a pre-sentence hearing even though a pre-sentence report, as such, had never been ordered or considered.

In view of the fact that the trial court took great pains to discuss these matters with the defendant-appellant and his attorney, and they both indicated to the trial court that they did not want any further delays in sentencing, it is the opinion of the court that any further proceedings as set out in KRS 532.050 and KRS 533.010 were waived. This case is distinguishable from Brewer v. Commonwealth, Ky., 550 S.W.2d 474 (1977), in that the record in this case shows that the defendant-appellant specifically waived the sentencing procedures contained in the foregoing statutes.

The judgment is affirmed.

All concur.