author: REED, Justice. STEPHENSON, Justice,

text:
    OHIO CASUALTY INSURANCE COMPANY, Movant, v. James STANFIELD, Buckeye Union Casualty Company, Respondents.
    Supreme Court of Kentucky.
    March 20, 1979.
    James G. Osborne, O’Hara, Ruberg, Osborne & Taylor, Covington, David B. Sloan, O’Hara, Ruberg, Osborne & Taylor, Coving-ton, for movant.
    Kevin E. Quill, Newport, Kurt Phillips, Spalding, Grause, Robinson & Arnzen, Cov-ington, John L. Spalding, Spalding, Grause, Robinson & Arnzen, Covington, for respondents.
   REED, Justice.

I.

This case presents a question of first impression in this state. In 1970 we held in Meridian Mutual Insurance Co. v. Siddons, Ky., 451 S.W.2d 831, that “stacking” of uninsured motorist coverage by the named insured is permitted where there are separate policies for each vehicle insured and where the named insured has not rejected the coverage in writing. This view was confirmed in Allstate Insurance Co. v. Napier, Ky., 505 S.W.2d 169 (1974), and Siddons’ construction of KRS 304.20-020 was followed in Zurich Insurance Co. v. Hall, Ky., 516 S.W.2d 861 (1974).

The case before us involves a single policy covering numerous vehicles. An injured employee of the named insured seeks to “stack” or pyramid the uninsured motorist coverages on all vehicles on which his employer had procured insurance. The circuit court ruled that such stacking was permissible. The Court of Appeals affirmed. We respectfully disagree and accordingly reverse for the reasons later stated.

II.

James Stanfield, a Newport policeman, was seriously injured when an automobile driven by an uninsured motorist collided with his police motorcycle. Stanfield sued the uninsured motorist, Buckeye Union Insurance Company, the insurer of Stanfield’s two personal vehicles, and Ohio Casualty Insurance Company, the motor vehicle insurer of the City of Newport.

The single policy issued by Ohio Casualty is an automobile fleet plan covering 63 vehicles, including the motorcycle operated by Stanfield, owned by the City of Newport. The policy affords public liability and property damage protection to the City of Newport. As required by our statute (KRS 304.20-020), applicable to automobile liability policies, an uninsured motorist endorsement provided coverage in the face amount of $10,000 for each person and $20,000 for each accident for a premium of $300 for all covered vehicles under this endorsement. The Buckeye Union insurance policy provided uninsured motorist coverage in a single policy in the same limits for the two vehicles personally owned by Stanfield.

The circuit court held that Ohio Casualty’s policy extended uninsured motorist coverage in the amount of $630,000 as a result of the pyramiding or accumulating of the coverages and that Buckeye Union’s policy offered uninsured motorist coverage in the amount of $20,000 for the same reason.

The circuit court also held that Buckeye Union’s insurance policy was secondary to that of Ohio Casualty which was adjudged to be the primary coverage. The trial court also adjudged that all payments made under the uninsured motorist coverage were subrogated to workmen’s compensation payments, if any. As to the subrogation holding, and the holding that Ohio Casualty’s coverage was primary, there is no complaint and we will not address those holdings.

III.

A basis for permitting stacking of uninsured motorist coverage from several policies was first expressed by this court in Meridian Mutual Insurance Co. v. Siddons, supra. In Siddons we declared that KRS 304.682(1) (reenacted as KRS 304.20-020) required each automobile liability insurance policy to contain uninsured motorist coverage of $10,000 for each person and $20,000 for each accident unless rejected in writing by the named insured. In Meridian Mutual the insurer had issued two liability insurance policies to Siddons, the named insured in each policy. One policy covered his passenger automobile and the other covered his pickup truck. The automobile policy contained uninsured motorist coverage for which a separate premium was charged, but the pickup truck insurance policy did not mention uninsured motorist coverage nor was a premium charged. We held that since the statute plainly required each policy to contain uninsured motorist coverage of $10,000 and $20,000, the named insured could recover under each policy despite the fact that Siddons had paid only one premium.

Applying what it considered to be the principle of Siddons to the case before it, the Court of Appeals stated the issue for decision in the form of a question: “Is the distinction that the insured pays separate premiums for multiple vehicles under separate policies a distinction warranting a contrary result?” Responding to its own question, the Court of Appeals answered: “There is no reason to distinguish the single pqlicy/separate premium situation from the separate policy/separate premium situation.” It appears to us, however, that this rationale is incomplete because it neglects the significant element of the type of insured who is seeking to stack coverages. In the case under consideration an employee who did not pay the premium seeks to stack coverages contained in his employer’s insurance policy. Siddons presented a case where the named insured who had paid the premium charged sought to stack coverages.

IV.

We will first determine Stanfield’s right to stack coverages contained in his employer’s fleet policy, which is conceded to be the primary insurance. Secondly, we will determine his right to stack coverages under his own policy if his actual damages compared to satisfaction received from the primary insurance necessitates resort to the secondary coverage.

A.

Ohio Casualty urges that the number of insurance policies involved should not be completely determinative of stacking rights. We agree.

Ohio Casualty’s policy contained the following provision:

“Persons insured
Each of the following is an insured under this insurance to the extent set forth below:
(a) the named insured and any designated insured and, while residents of the same household, the spouse and relatives of either;
(b) any other person while occupying an insured highway vehicle;
and
(c) any person, with respect to damages he is entitled to recover because of bodily injury to which this insurance applies sustained by an insured under (a) or (b) above.”

These policy definitions create two classes of insureds. The first class is composed of the named insured, the insured who bought and paid for the protection and who has a statutory right to reject uninsured motorist coverage, and the members of his family residing in the same household. The protection afforded the first class is broad. Insureds of the first class are protected regardless of their location or activity from damages caused by injury inflicted by an uninsured motorist.

As to the second class of insureds, however, — “other person”- — it is clear that their protection is confined to damages from injury inflicted by an uninsured motorist while they are “occupying an insured highway vehicle.” See Sturdy v. Allied Mutual Insurance Co., 203 Kan. 783, 457 P.2d 34 (1969).

Although aided by a definite statutory definition of “insured”, which is not present in the Kentucky Insurance Code, we, nevertheless, consider the well reasoned opinion of the Virginia Supreme Court written by Justice Albertis Harrison in Cunningham v. Insurance Company of North America, 213 Va. 72, 189 S.E.2d 832 (1972) to be applicable to the case before us. The only relevant statutory mandate in Kentucky is KRS 304.20-020 which requires that no automobile or motor vehicle liability policy be delivered or issued without uninsured motorist coverage in limits of $10,000 and $20,000 “for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom.” (Emphasis supplied). It is not contended nor could we hold that the definitions of “insured” contained in Ohio Casualty’s policy violate the requirements of our statute. Therefore, the contractual policy definitions in the policy with which we are concerned coincide in legal effect with the contractual and statutory definitions considered in Cunningham, supra.

Cunningham presented the extent of liability to insureds of the second class. Maryland Casualty Company in a single liability policy issued to the Commonwealth of Virginia, Department of Highways, provided uninsured motorist coverage to 4,368 state-owned vehicles which were not specifically listed on the uninsured motorist endorsement but for which separate and equal premiums of $4.00 were paid on each. This policy stated the limitation of liability as $15,000 each person and $30,000 each accident as required by the statutory law of Virginia. Cunningham, an employee of the Department of Highways, was killed while riding in a car owned by the Department. This car was involved in an accident with another car owned by an uninsured motorist. Cunningham’s administratrix recovered a $40,000 judgment for his wrongful death against the uninsured motorist.

On the date of the accident, Insurance Company of North America had outstanding its liability policy issued to Cunningham with stated limits of liability for uninsured motorist coverage of $15,000 each person, $30,000 each accident, and which afforded uninsured motorist coverage on three automobiles owned by the decedent for which separate and equal premiums of $4.00 were paid.

The administratrix sought to recover her $40,000 judgment from INA and Maryland. The trial court held that each company was liable to the extent of $15,000 and entered judgments accordingly. The administratrix and INA appealed.

The Supreme Court of Virginia held that Maryland provided the primary coverage. It also held that if Maryland’s policy was sufficient to satisfy the judgment sued on, there would be no liability under the INA policy which provided only excess uninsured motorist coverage. Thus, the Court’s first inquiry was addressed to whether the Maryland coverages could be stacked so as to provide sufficient coverage to satisfy the Cunningham judgment.

The court rejected stacking of the Maryland coverage stating:

“In the instant case the named insured was the Commonwealth of Virginia, Department of Highways. To paraphrase what was said in [Insurance Company v. Perry, Adm’r, 204 Va. 833, 134 S.E.2d 418 (1964)], ‘the court cannot substitute the name of each of the many employees of the Virginia Department of Highways in place of that of the Department as the named insured, and thus stretch the coverage of the policy to include each such employee and all of the members of his or her household specified in the statute.’
It is conceded that Cunningham was ‘occupying’ a state vehicle covered by the Maryland policy when he was killed. He was not the named insured in the policy and therefore occupied the status of an insured of the second class, as defined by statute. As such he is entitled to the uninsured motorist coverage provided the specific vehicle he was using or in which he was riding as a passenger or guest. He cannot pyramid the uninsured motorist coverage on the 4,367 other highway vehicles.”

Id. 189 S.E.2d 835.

The court also pointed out that Cunningham did not buy the policy nor did he pay Maryland one premium or any multiple premiums. The court concluded its consideration of the stacking of the Maryland coverage with these observations:

“The purpose of uninsured motorist insurance is to provide compensation to the victim of the uninsured motorist. The named insured in a policy receives coverage, and a contract benefit, for which he has paid a consideration. He seeks indemnity based on the payment of that premium and where he has paid separate premiums he is entitled to the additional coverages. However, the argument and reasoning does not apply to a permissive user of a vehicle who pays no premium and does not receive the broader uninsured motorist coverage of a named insured.”

Id. 189 S.E.2d at 836.

The Supreme Court of Alabama in Lambert v. Liberty Mutual Insurance Co., 331 So.2d 260 (Ala.1976) reached the same result on the permissive user stacking issue and approved the reasoning of Cunningham. The court’s majority opinion authored by Justice Bloodworth rationalized the result by applying the principle of reasonable expectations espoused by Professor Keeton. R. Keeton, Basic Text on Insurance Law, sec. 6.3(a), at 351 (1971). The court first noted that by permitting the insured to stack his coverages it had, “simply honored the reasonable expectations of the ‘named insured’ that his payment of an additional premium will result in increased coverage for those falling within the definition of the ‘named insured,’ and where an expectation of this nature is in conflict with a limiting clause in the policy, the resulting ambiguity must be resolved in favor of the insured due to the nature of insurance contracts.” Lambert, supra, at 263. The majority opinion further observed that since an insured of the second class was not a party to the contract his expectations as to extent of his coverage does not result in contract ambiguity and are not sufficient to avoid the effect of the policy’s limiting clause. Id. at 264-65. The ruling is stated in lucid and concise language:

“Can it be seriously contended that Seaboard [the employer] expected that the $4.00 premium it paid for uninsured motorist coverage on each of its 1,699 vehicles would purchase coverage for all permissive occupants of its vehicles to the tune of $16,900,000? Clearly, such an expectation would not have been a reasonable one under the terms of the commercial fleet policy here in question. The status of Lambert (for purposes of uninsured motorist coverage) as an insured solely by virtue of his occupancy of the vehicle, is clearly distinguishable from the status of a named insured who is entitled to stack coverages by virtue of his personal payment of an additional premium for each vehicle insured under a multi-vehicle policy.” Id. at 265.

We therefore hold that Stanfield is confined to the limits of the Ohio Casualty policy applicable to the vehicle he was using. He is as to his employer’s policy an insured of the second class. He is precluded from stacking the coverages in his employer’s policy.

B.

The final issue is whether Stanfield may stack the coverages in the Buckeye Union policy. Buckeye argued on this appeal both in the Court of Appeals and before this Court that Stanfield should be able to stack the coverages of his employer’s Ohio Casualty policy, the primary coverage, and then stack the coverages in the Buckeye single policy if resort to this excess insurance of Buckeye was necessitated by the extent of loss. We, therefore, will dispose of the issue in brief fashion.

Stanfield bought and paid for the coverages written by Buckeye. He was the named insured. He was an insured of the first class as to this protection. As held specifically in Cunningham, supra, and Sturdy v. Allied Mutual Insurance Company, supra, and by necessary implication in Lambert, supra, Stanfield is entitled to stack the uninsured motorist coverages contained in his own Buckeye Union policy. This is consistent with the public policy of our statute requiring the provision of uninsured motorist coverage in each automobile liability policy. He paid separate premiums on separate vehicles. The principle of reasonable expectations supports his right to stack coverages under these facts.

“When we pay a double premium we expect double coverage. This is certainly not unreasonable but, to the contrary, is in accord with general principles of indemnity that amounts of premiums are based on amounts of liability. Defendant argues that what plaintiff is seeking amounts to pyramiding coverage but nothing is said about pyramiding the premiums which effectuate the coverages.” Sturdy, supra, 457 P.2d at 42.

The decision of the Court of Appeals and the judgment of the circuit court are reversed and the cause is remanded to the Campbell Circuit Court for further proceedings consistent with this opinion.

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

STEPHENSON, Justice,

dissenting.

I dissent from that portion of the majority opinion which permits “stacking.”

It is my view that the basic premise of permitting any “stacking” is not logical, nor is it in accord with what I consider to be the plain intent of the General Assembly as reflected in KRS 304.20-020. As I read the statute, the General Assembly intended that “each policy” contain the minimum protection of $10,000 for accidents involving uninsured motorists and did not contemplate our court indulging in intellectual gymnastics to justify increasing this minimum in the absence of a contract provision increasing this coverage by the payment of additional premiums.

The “stacking” authorized in the majority opinion is based on our holding in Siddons.

In Siddons there were two separate policies, and it was reasoned that the requirement of the statute that each policy provide for the uninsured motorist coverage justified “stacking.” Although only one premium was paid, the insurance company was entitled to collect two premiums. Thus the real basis of Siddons is recovery for each premium, and this rationale is carried over to the present case. The majority opinion is, in my view, a logical extension of Siddons. If the rationale of “stacking” is to be based on the number of premiums paid for multiple automobile ownership, then I cannot see any significant difference between separate policies on each automobile and all automobiles in one policy if the operative factor is the number of premiums. It seems to me that the premium charged in the insurance contract for each automobile is that there is increased exposure to liability. This, to me, is a more persuasive argument than the strained interpretation that each premium entitles the “named insured” to pyramid, in the event of an accident. The majority opinion found that it was necessary to prowl around in the statute and come up with the “named insured” principle to avoid “stacking” sixty-three times. I cannot believe the General Assembly intended more than the minimum coverage, $10,000 for each accident involving an individual, and did not contemplate that the fortuitous circumstance of ownership and coverage of multiple vehicles would result in more than the minimum coverage in the insurance contract.

For example, “A”, the head of a household and the “named insured,” owns five automobiles, all covered in one policy and premiums paid for the minimum on each automobile. Improbable though it may be, on a given day “A” and four members of his family are operating the five automobiles and all five are involved in serious accidents, each one with uninsured motorists. Following the reasoning of the majority opinion, the other four members of the family can each recover $10,000 for a total of $40,000. “A” is permitted to stack and recover $50,000 for a grand total of $90,000. Premiums were paid only for $50,000, and no premium was paid for the additional $40,000. How would this situation logically be applied to the “paid the premium” reasoning? It is obvious to me that the “paid the premium” reasoning is faulty in the first place.

I have read Professor Keeton’s principle of honoring reasonable expectations and fail to see how this treatise supports the reasoning in the Alabama opinion or the majority opinion. The principle is based on the premise that policy language will be construed as laymen would understand it. I am firmly convinced that the average layman would clearly understand that the payment of an uninsured motorist premium for each vehicle was reasonable and clearly understandable and such provisions were not contemplated by Professor Keeton in his treatise as being ambiguous and obscure.

Sturdy, relied upon the majority opinion, recites the “general principles of indemnity that amounts of premiums are based on amounts of liability” to justify “stacking.” I agree with this general principle; however, the example given above illustrates that this principle militates against the principle of “stacking.”

I would overrule Siddons, Allstate, and Zurich and deny “stacking” in all cases.

      . The trial court erroneously found that Ohio Casualty’s policy covered 73 vehicles rather than 63 vehicles which it described. As this was a patent mistake, we will assume for the purpose of this opinion that Ohio Casualty’s limit of liability was determined in the correct figure of $630,000.


source: Caselaw Access Project

author: STEPHENSON, Justice.

license: Public Domain

text:
    James Herbert PARRISH, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    April 10, 1979.
    Rehearing Denied July 3, 1979.

      Frank E. Haddad, Jr., Louisville, William E. Rueff, Jr., Morgantown, for appellant.
    Robert F. Stephens, Atty. Gen., Patrick B. Kimberlin, III, Asst. Atty. Gen., Frankfort, for appellee.
   STEPHENSON, Justice.

James Herbert Parrish was convicted of wilful murder, KRS 507.020, and sentenced to a term of imprisonment of twenty years in accordance with KRS 532.060. Parrish appeals; we affirm.

On the day of the incident, Parrish observed Billy Johnson, the victim, leaving a filling station near Parrish’s home. Parrish followed Johnson down the road. After Parrish blinked his lights at Johnson, both men stopped their vehicles, Johnson’s car several feet in front of Parrish’s pickup truck. A passerby saw Johnson standing near the cab of the pickup truck. The passerby stopped at a place of business a few hundred feet down the road and was informed by the proprietor that he had heard gunfire. Both men then proceeded back down the road where they found Johnson’s body lying near the front of the pickup truck. Parrish was standing nearby. When a deputy sheriff arrived on the scene, Parrish told him “I just shot him.” Another passerby stopped shortly after the shooting, and was told by Parrish when asked why he had shot Johnson, that Johnson was going to pull him out of his pickup truck and beat hell out of him. This witness saw no weapon on or near Johnson’s body. Another witness who stopped at the scene was told by Parrish that he had stopped Johnson to talk about “family affairs” and that Johnson threatened to pull him out of his pickup truck and give him a “whipping.”

Parrish testified that a man named Willis had stated to him that Johnson had told Willis he had been going with Parrish’s sister-in-law and wife. Parrish testified that several days later, on the day of the incident, he followed Johnson from the filling station and after stopping Johnson to talk with him, Johnson alighted from his car and came over to his pickup truck. Parrish testified that he repeated to Johnson what Willis had told him and that Johnson threatened to drag him out of the truck and “whip the hell” out of him. He testified that Johnson started coming at him through the door of the pickup truck with a knife in his hand. Parrish testified that he then shot and killed Johnson in self-defense. The knife, according to Parrish, was found in his pickup truck the following day.

First Parrish complains of inflammatory and prejudicial remarks during closing argument. The Commonwealth’s attorney told the jury that a nephew of Parrish could have placed the knife in the pickup truck. From the evidence it appears that the nephew and the deceased worked at the same meat packing company, and the same type knife (boning knife) found in the pickup truck was issued to the employees. In view of the circumstances of the finding of the knife the day following the incident, we are of the opinion that the remarks of the Commonwealth’s attorney were reasonable inferences from the evidence which the jury might consider if it so wished. Hunt v. Commonwealth, Ky., 466 S.W.2d 957 (1971).

The remark to the jury that the defense was objecting for the reason that the remarks were “hurting" is an impropriety; however, the trial court directed counsel to get on with the case. In our view the impropriety did not unfairly prejudice Parrish, nor do we consider that any of these remarks so inflamed the jury as to deny Parrish a fair trial.

The next assignment of error is that the trial court permitted the deputy sheriff, who first arrived on the scene, to relate his conversation with Parrish that “he made the statement that he did it and his reasons, that he would rather not tell.” The trial court had previously ruled that this testimony was admissible with a caution to the Commonwealth not to make any comments.

Parrish argues that permitting this testimony into evidence is a breach of the rule laid down by the U.S. Supreme Court against commenting on a defendant’s Fifth Amendment right to remain silent. Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). The simple answer to Parrish’s argument is that he did not remain silent. He was not in police custody and made various statements to bystanders and to the deputy sheriff. In view of the entire testimony of the deputy sheriff, we are of the opinion there was not a violation of the Doyle rule. Parrish did not stand mute; nor did he claim his Fifth Amendment privilege; neither was there an accusation at the time. In short, he responded to a natural question of “What happened?” posed by a deputy sheriff who arrived on the scene. His reasons for his act were given to other bystanders, and these reasons were consistent with his defense at trial.

Parrish testified that he was aware of the deceased’s reputation for being a person of violent character. He then attempted to testify as to specific incidents of violence. The trial court declined to admit this testimony and Parrish argues error.

The rule in this jurisdiction is that once the defendant has adduced some evidence that he acted in self-defense, “Proof of the violent and dangerous character of deceased can only be made by evidence of his general reputation in the community for such character, and not by evidence of specific acts or general bad conduct, or of isolated facts, which are not connected with the homicide.” Roberson’s New Criminal Law and Procedure, Second Edition, § 489, p. 657. See also Amos v. Commonwealth, Ky., 516 S.W.2d 836 (1974), and McGill v. Commonwealth, Ky., 365 S.W.2d 470 (1963).

Parrish argues that he was entitled to a change of venue for the reason of pre-trial publicity. However, our review of the record shows that, at the hearing on the motion, conflicting testimony was introduced, and there is no suggestion that the trial court abused its discretion in denying the change of venue.

Last Parrish argues that KRS 533.-060 is unconstitutional. The trial court refused to consider probation for Parrish in accordance with KRS 533.060(1), which provides:

“When a person has been convicted of an offense or has entered a plea of guilty to an offense classified as a Class A, B, or C felony and the commission of such offense involved the use of a weapon from which a shot or projectile may be discharged that is readily capable of producing death or other serious physical injury, such person shall not be eligible for probation, shock probation or conditional discharge.”

We are of the opinion that the mandatory provisions of KRS 533.060 do not inflict cruel and unusual punishment, nor do these provisions deny Parrish equal protection of the law.

It is the province of the General Assembly to fix punishment for a violation of the criminal statutes. By analogy, if a sentence of life imprisonment without benefit of parole is constitutional, as was decided in Green v. Commonwealth, Ky., 556 S.W.2d 684 (1977), then we fail to see the cruel and inhuman argument of Parrish on the lesser penalty here. We are of the further opinion that the General Assembly by imposing the restriction of no probation for an offense involving a firearm, as here, makes a reasonable classification of weapons used in the commission of crimes. Firearms are inherently more dangerous to human life than other weapons, and the General Assembly has expressed a public policy in the terms of KRS 533.060 which does not violate either the Constitution of the United States or the Constitution of Kentucky.

The judgment is affirmed.

All concur.


author: LUKOWSKY, Justice.

text:
    Chester Edward VAN DYKE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    April 10, 1979.
    Rehearing Denied July 3, 1979.

      Terrence R. Fitzgerald, Deputy Public Defender, Daniel T. Goyette, Jefferson Dist. Public Defender, Louisville, for appellant.
    Robert F. Stephens, Atty. Gen., Patrick B. Kimberlin, III, Asst. Atty. Gen., Frankfort, for appellee.
   LUKOWSKY, Justice.

Van Dyke was convicted of one count of burglary in the first-degree, KRS 511.020, two counts of rape in the first-degree, KRS 510.040, and one count of sodomy in the first-degree, KRS 510.070. He was sentenced to ten (10) years’ imprisonment on each count. These sentences are to be served consecutively except that the rape sentences are to be served concurrently with each other. He appeals. We affirm.

A few minutes after seven o’clock on the morning of February 14, 1978, Van Dyke embarked on a course of conduct designed to gratify his sexual desires through the use of force and violence. Within a period of approximately fifteen minutes he:

1. Broke down the doors and entered the apartment in which Mrs. Lyles and her four-year-old son lived.

2. Struck Mrs. Lyles in the face, shoved her to the floor of the bedroom, threw her on the bed and threatened to kill her and her son in the event she did not comply with his sexual demands.

3. Engaged in sexual intercourse with Mrs. Lyles on the floor for three to five minutes.

4. Engaged in deviate sexual intercourse (fellatio) with her for approximately two minutes.

5. Engaged in sexual intercourse with her on the bed for four to five minutes.

At this point the police arrived and took him into custody.

Van Dyke contends that the two convictions of rape and the conviction of sodomy should be merged into a single conviction of rape because all of the offenses occurred during ■ one continuous sexual assault against the same victim. We do not agree.

The evidence clearly discloses that Van Dyke committed three distinct offenses —rape, sodomy and a second rape when he penetrated Mrs. Lyles’ vagina to accomplish the first act of intercourse, penetrated her mouth to accomplish the act of sodomy, and thereafter penetrated her vagina to accomplish the second act of intercourse. The legislature intended to punish each separate act of rape or sodomy. The fact that the acts occurred in a brief period of time with the same victim and in a continuum of force does not protect Van Dyke from prosecution and conviction of each separate offense. E. g., Lee v. State, Tex.Cr.App., 505 S.W.2d 816, 818 (1974); Peoples v. Iverson, 26 Cal.App.3d 598, 601-02, 102 Cal.Rptr. 913, 915-16 (1972); State v. Hill, 104 Ariz. 238, 450 P.2d 696, 697-98 (1969). See also People v. Perez, 23 Cal.3d 545, 153 Cal.Rptr. 40, 591 P.2d 63 (1979). See generally Note, Criminal Law—Rape—Multiple Offenses Severally Punishable, 44 Tenn.L.Rev. 388 (1977).

Van Dyke also contends that the prosecutor was erroneously permitted to argue to the jury, over his objection, that every rape is in and of itself a “physical injury.” We agree.

“Physical injury” is a term of art. KRS 500.080(13) defines it to mean “substantial physical pain or any impairment of physical condition.” The “forcible compulsion” attendant to first-degree rape may or may not result in “physical injury.” The question of whether it does in a particular case is answered from the facts proved in that case. “Forcible compulsion” may consist of physical force or threats that do not cause substantial physical pain or an impairment of physical condition. KRS 510.-010(2). The same question arises as to each act of sexual intercourse. The trial court erred when it overruled Van Dyke’s objection to this argument.

However, RCr 9.24 admonishes us to disregard errors which do not affect the substantial rights of the accused. The evidence is overwhelming that Mrs. Lyles was punched and thrown about. She suffered a facial bruise and scratches on the thighs. “Physical injury” is as apparent, despite the darkness created by the improper argument, as a statue at night when illuminated by a spotlight. It is beyond a reasonable doubt that the trial court’s error did not contribute to Van Dyke’s conviction.

The judgment is affirmed.

All concur.

      . Stated as an equation, sexual intercourse plus forcible compulsion equal first-degree rape. KRS 510.040(l)(a). “Physical injury” is not an essential element of rape. Consequently, the included offense situation condemned in Sherley v. Commonwealth, Ky., 558 S.W.2d 615 (1977), is not present here.


text:
    William L. BUTTS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    April 10, 1979.
    Rehearing Denied July 3, 1979.

      Martha A. Lawfer, John Tim McCall, Louisville, for appellant.
    Robert F. Stephens, Atty. Gen., Martin Glazer, Asst. Atty. Gen., Frankfort, for ap-pellee.
   LUKOWSKY, Justice.

Butts was convicted of four counts of theft by deception, KRS 514.040, one count of theft of services, KRS 514.060, six counts of theft by failure to make required disposition of property, KRS 514.070, and two counts of theft of labor, KRS 514.090. He was sentenced to a total of twenty years’ imprisonment. He appeals. We reverse the conviction for theft of services and affirm the convictions on the other twelve counts.

Butts controlled and was general manager of Sentry Electronics, Inc. The corporation was in the business of selling home security systems. The business was started in 1976 and folded in September, 1977, because of financial difficulties. During its lifetime Sentry failed to return money due customers, and failed to pay its bills and the salaries of its employees.

Butts contends, among other things, that the trial court erred in denying his motions for directed verdicts of acquittal of all the charges of which he was convicted. His other allegations of error are so patently without merit that we need not discuss them.

KRS 514.060(l)(a) provides in pertinent part:

“A person is guilty of theft of services when: (a) He intentionally obtains services by deception ... to avoid payment for services which he knows are available only for compensation . ..” (Emphasis added).

Butts was convicted of intentionally obtaining Tipton’s services by deception so as to avoid payment.

Tipton worked as a telephone solicitor for Sentry from March, 1977, until early June when she quit because of illness. She was fully paid for her services during this period. In late June, after she had recovered, she was rehired by Butts for Sentry. She worked for a shade over two weeks before she quit for a second time. Her reasons for quitting were changes in the terms of her employment. She was never paid for her last two weeks of work. Butts maintains he intended to pay her, but could not because Sentry had run out of funds.

The real issue presented is whether it can be inferred from this evidence that Butts had no intention to pay Tipton for her services at the time he rehired her. We think not.

KRS 514.040(3) provides:

“Deception as to a person’s intention to perform a promise shall not be inferred from the fact alone that he did not subsequently perform the promise.” (Emphasis added).

In Commonwealth v. Miller, Ky., 575 S.W.2d 467 (1978), we held that KRS 514.-040(3) is a standard to be applied by a trial judge in determining whether there is sufficient evidence to warrant submission of the deception issue to the jury in theft by deception cases. The only real distinction between theft by deception under KRS 514.-040 and theft of services by means of deception under KRS 514.060 is that in the former case property is obtained and in the latter case services are obtained. Consequently, there is no reason why this same standard should not be applied in a theft of services by deception case.

The evidence at trial neither directly establishes nor permits the inference that Butts had the necessary intent to deceive Tipton and thereby obtain her services “for free” at the time he rehired her. Rather the record merely shows that Butts promised to pay Tipton for her services and failed to do so because of financial difficulties. He certainly breached his promise to pay but without more the remedy for such a breach is a civil suit not a criminal prosecution. Brickey, Kentucky Criminal Law Sec. 14.03(3)(a) at 153 (1974). The trial court should have granted Butts’ motion for a directed verdict of acquittal of this count.

KRS 514.070 provides:

“(1) A person is guilty of theft by failure to make required disposition of property received when:
(a) He obtains property upon agreement or subject to a known legal obligation to make specified payment or other disposition whether from such property or its proceeds or from his own property to be reserved in equivalent amount; and
(b) He intentionally deals with the property as his own and fails to make the required payment or disposition.”

Butts contends that his motions for directed verdicts of acquittal on these charges should have been granted because there was no evidence that he dealt with customers’ property, which Sentry held under an obligation to repay, as his own. Rather, he maintains that he obtained the property as Sentry’s agent and that he disposed of the property for the benefit of Sentry and not himself. We do not agree with this contention.

An agent of a corporation is liable for crimes he commits for the benefit of or in the name of a corporation “to the same extent as if the conduct were performed in his own name or behalf.” KRS 502.060 (Emphasis added). The purpose of this section of the Penal Code is to prevent an individual from hiding behind a corporation to avoid criminal liability for his conduct. KRS 502.060 Commentary (1971). The evidence is uncontradicted that Sentry intentionally dealt with customers’ property as its own. Butts was the agent of Sentry who executed these illegal conversions. By operation of statute Butts is responsible for converting the property.

Butts was not entitled to a directed verdict of acquittal on the theft by deception and theft of labor counts. There is more than adequate evidence in the record to establish each element of these offenses.

The judgment is reversed on the theft of services count and the cause is remanded to the trial court with directions to dismiss this count. In all other respects the judgment is affirmed.

All concur.

      . The maximum sentence which can be imposed by law for these multiple offenses. KRS 532.110(l)(c); KRS 532.080(6)(b).

      . She would have been required to work out of her home instead of Sentry’s offices and would have been paid on a commission basis instead of an hourly rate.

      .If Butts had issued a cold check for this claim he would have exposed himself to potential prosecution for theft of labor. KRS 514.090.


author: STERNBERG, Justice. CLAYTON, Justice,

text:
    HOLLOWAY & SON CONSTRUCTION COMPANY, INC., Movant, v. MATTINGLY BRIDGE COMPANY, INC., Respondent.
    Supreme Court of Kentucky.
    May 1, 1979.
    Rehearing Denied July 3, 1979.
    Leon Seidman, Louisville, Amos H. Eblen, Eblen, Milner, Rosenbaum & Wilson, Lexington, E. Gaines Davis, Jr., Frankfort, for movant.
    William A. Young, Frankfort, for respondent.
   STERNBERG, Justice.

This litigation grew out of a contract for highway construction. For convenience, we will refer to Holloway & Son Construction Company, Inc., as “Holloway,” to Mattingly Bridge Company, Inc., as “Mattingly,” and to the Commonwealth of Kentucky, Department of Transportation, Bureau of Highways, as “Department.”

In January, 1971, Holloway entered into a contract with the Department for the construction of an 8-mile section of the Bowling Green-Somerset Parkway. On February 9, 1971, Holloway entered into two contracts with Mattingly for the bridge and concrete structures. The two contracts will be referred to as “Contract A” and “Contract B.” Contract A is a “place only” contract and Contract B is what is known as a “place and furnish” contract. In other words, under the terms and provisions of Contract A, Holloway agreed to furnish the materials and Mattingly was obligated to place them, while under Contract B Mat-tingly was obligated to furnish and place the materials. Both contracts contained the provision: “This subcontract is entered into subject to the approval of the Kentucky Department of Highways.” As between the parties, however, this provision was a farce. They both knew and agreed at the time of the execution of the two contracts that only Contract A would be submitted to the Department for approval and that they would actually operate under the conditions of Contract B. Contract A was submitted to and approved by the Department; Contract B was not submitted to nor approved by the Department. For all practical purposes, the contracts are identical as to the items of construction. They differ greatly, however, in the manner in which they were to be performed. For example, under Contract B, page 3a, there is an item, No. 8.0, dealing with “Furnishing 12 BP 53 Steel Piles,” while under Contract A there is no such item. Item Numbers 3, 4, 10, 11, 14, 15, 16 and 17 of Contract B differ from the corresponding numbered items in Contract A. Furthermore, under Contract B, Item Number 15(2), page 5, provides, “The contractor will pay for all materials at the prices negotiated by the subcontractor and deduct same in full from payments due subcontractor.” The corresponding numbered item in Contract A provides, “The Contractor will furnish ready mix concrete for item numbers 3 and 4, precase prestressed concrete beam type 3 for item number 10, high strength handrail for item number 11, steel reinforcement for item number 14, and structural steel for item numbers 15, 16, and 17.”

Shortly after the date of the approval of Contract A, Mattingly commenced to work, and the project was completed in the late summer or early fall for 1972. On or about May 19, 1972, Mattingly filed a mechanic’s and materialman’s lien against Holloway in the office of the County Court Clerk of Franklin County, Kentucky. KRS 376.195. On June 2, 1972, Mattingly filed an amended statement of lien, and again on August 9, 1972, filed a second amended statement of lien. The original statement of lien charged that Holloway was indebted to Mattingly “. . . for labor and materials furnished by the claimant-lienor (Mat-tingly) at the instance and request of the debtor-lienee (Holloway) for the prosecution of work required of the debtor-lienee under its contract . . . . In addition, it is anticipated that the claimant-lienor will furnish and deliver to the debtor-lienee further labor and materials for incorporation into the above referenced projects . . .” Each of the amendments likewise charged that Mattingly performed work and furnished materials in the performance of the said contract.

On June 16, 1972, Mattingly filed suit in the Franklin Circuit Court, in which Holloway and the Department were named defendants. The complaint charged that Mat-tingly furnished labor and materials to Holloway, which labor and materials were used in the performance of the contract. In its complaint Mattingly sought to recover from Holloway for “labor and materials” furnished by Mattingly to Holloway. By an amended complaint Mattingly charged that he continued to furnish labor and materials to Holloway for use on the subject project. Holloway filed an answer, counterclaim and cross-complaint. It was a general traverse of the indebtedness claimed by Mattingly, other than for a retainer which was being properly held by Holloway. By counterclaim, Holloway sought to recover compensatory and punitive damages from Mattingly for the wrongful filing of the lien statement and the amendments thereto. Holloway also, sought to recover from Mattingly for liquidated damages assessed against Holloway by the Department for the delay in the completion of the project. In the cross-complaint Holloway charged that an actual controversy existed regarding what funds were due Holloway from the Department, to which the lien of Mattingly attached. Holloway charged that the Department refused to release to it monies rightfully belonging to it which are not subject to the Mattingly lien. It requested that the Department be directed to pay to it the amount of such monies being held by the Department over and above any claim of Mattingly’s.

The case was tried to the court. On July 3, 1974, the trial judge filed a “Memo Opinion” and on July 11,1974, filed “Findings of Fact, Conclusions of Law and Judgment.” The trial court held that the rights of the parties were fixed by the terms and conditions of Contract A; that Holloway acquiesced in and waived the failure of Mat-tingly to execute a performance bond called for by the subcontract; that Mattingly should not recover interest on any retain-age; that there is no evidence to support Holloway’s claim against Mattingly for liquidated damages by reason of delay in the performance of the contract; that Mattingly performed and completed all work required of it under the terms and conditions of its subcontract; that Holloway’s claim against Mattingly for damages by reason of the filing of the lien statement was not supported by law or evidence; and that Mattingly should recover of Holloway the sum of $198,110.06. The judgment of the Franklin Circuit Court was affirmed on appeal. Review was granted on June 27, 1978.

The question for primary inquiry is whether the parties intended to operate under, and be bound by, the terms and conditions of Contract A or Contract B. The trial court refused to recognize Contract B and limited the inquisition and the determination as to the rights of the parties pursuant to Contract A. With respect to Contract B, the Court of Appeals said: “We think contract 'B’, relied upon by appellant, has a tendency to be injurious to the public and against the public good and is therefore not enforceable.” In other words, the Court of Appeals held that Contract B was against public policy and not enforceable. It also held that Contract B was in violation of KRS 176.100.

KRS 176.100 provides:

“No contractor shall deviate from the provisions, plans or specifications upon which a contract has been awarded without first having obtained written authority from the department to do so. If the contractor does deviate without such authority, neither the state of Kentucky, the department of highways, the department of finance nor the state treasurer shall pay or be liable for any work or material not fully provided for in the original contract.”

Holloway was not limited by the provisions of the primary contract as to the amount of work which could be subcontracted, so long as the work subcontracted amounted to less than 50% of the total contract costs.

In considering the legality of Contract B, we recognize the sacred right to contract without undue interference. Commonwealth v. L. G. Wasson Coal Mining Corp., Ky., 358 S.W.2d 347 (1962). There is no magic in contracts for highway construction. The statutes, rules and regulations of the Department must be construed with every effort being made toward not interfering with the individual’s right to contract, to the extent that justice will be afforded the parties. First of all, KRS 176.100 not only prohibits a primary contractor from deviating from his contract but goes further and provides a penalty for the deviation. The penalty so provided is that, “neither the state of Kentucky, the department of highways, the department of finance nor the state treasurer shall pay or be liable for any work or material not fully provided for in the original contract.” This

statute is for the benefit of the state and it has limited the penalty to a denial of liability. Other than that, no penalty is provided, and we will not create one by denying the parties the right to contract as between themselves. Kentucky Utilities Co. v. Carlisle Ice Co., 279 Ky. 585, 131 S.W.2d 499 (1939). The parties, knowingly and willingly, put themselves in the position of contracting by dual contracts, and we will leave them there. So much for KRS 176.-100.

We now turn our attention to whether Contract B is contrary to public policy. This court defined public policy as follows:

“. . . Public policy has been defined as being the equivalent to the policy of the law, and is a principle of law which holds that no one can lawfully do a thing which tends to be injurious to the public or is contrary to the public good. 32 Cyc. 1251. The good of the community, in certain cases, is relied upon to restrict the freedom of contracting. The public policy must be looked for in the Constitution and statutes and the decisions of the courts of last resort of a state, and where there is no legislative prohibition of a certain character of agreement before a court is authorized to declare it void, it must appear that such an agreement or contract has a tendency to injure the public or is against the public good, or is contrary to sound policy and good morals.” City of Princeton v. Princeton Electric Light and Power Co., 166 Ky. 730, 179 S.W. 1074, p. 1078 (1915).

We need to ask ourselves, in what way is Contract B contrary to public policy? Does Contract B have a tendency to be injurious to the public? Had Contract B been submitted to the Department for approval, it, together with other work which had been subcontracted, would have exceeded 50% of the cost price of the primary contract. The Department would have rejected it and Mattingly would not have received the contract. Holloway would have had to seek elsewhere for someone to do the work called for by Contract B at a lesser amount of money, or Holloway would have had to divide the work or do part of the work itself. In either event, this would have resulted in a loss to Mattingly of part of the work which it actually received under Contract B. Time was of the essence in the completion of the work, and the delay in the reletting of the contract or in reallocating the work that Mattingly could do would have taken valuable time. As it was, when the project was finally completed, there were over 13 days of unjustified delay, for which Holloway was charged by the Department at the rate of $750 per day. In any event, Mat-tingly knew at the time of the signing of the two contracts that the purpose for which they were executed was to permit Mattingly to have a greater share of the project work than would have been given to him under Contract A.

The primary contract was for a fixed amount of money. No assignment or arrangement between Holloway and Mattingly could increase the financial obligation of the Department under the primary contract. Gobel Mattingly, President of Mat-tingly Bridge Company, Inc., had been in the highway construction business for approximately 17 years and surely was not so naive when he signed both contracts as to believe that Contract B was just for show or, better, was not for show. The Department has not complained that more than 50% of the project costs had been subcontracted to Mattingly. How can Mattingly, having received the fruits of Contract B, now complain?

Next, we need to consider whether Mat-tingly operated under Contract A or Contract B. Holloway contends for Contract B; Mattingly argues for Contract A.

The- scope of the work covered by the two subcontracts is nearly identical. They differed only as we have heretofore pointed out. Let us remember that under Contract A Mattingly was only required to place the materials, not furnish them, while under Contract B Mattingly was not only obligated to furnish materials but to place them. With this increased obligation under Contract B, Mattingly received a relatively large increase in compensation. The action in the Franklin Circuit Court, regardless of what else it may be called, resolved itself into a suit for an accounting. Of course, to have an accounting, it was necessary for the trial judge to determine whether the parties operated under Contract A or Contract B. The trial judge gave effect to Contract A, while refusing to recognize Contract B in any respect. When more than one contract is executed simultaneously and the contracts contain conflicting provisions, the rights and liabilities of the parties are evidenced by their conduct, and parol evidence may be introduced to establish the intention of the parties. In Thompson v. Fairleigh, 300 Ky. 144, 187 S.W.2d 812 (1945), we said:

“. . . There is an old saying of an English judge: ‘Show me what the parties did under the contract and I will show you what the contract means.’ So it is, where the terms of a contract are unclear, the practical interpretation of the parties as manifested by their action under it is accepted as of considerable influence by the courts in construing those terms. . . . ”

The record reflects that, as specifically provided for under paragraph 15(2) of Contract B, Holloway paid for all materials purchased by Mattingly and, when Mattingly had ok’d the bills for payment, deducted the same in full from the payments due Mattingly. The evidence clearly demonstrates and, as a matter of fact, the opinion of the Court of Appeals recognizes, “that appellee’s complaint was apparently based upon a computation of the amount due it under Contract B. . . .” The parties pleaded the case under Contract B, and the trial court should have settled the accounting of the parties according to the terms and conditions of Contract B.

Holloway attempted to introduce into evidence the field notes made by O. L. Jones, construction superintendent on the project for Holloway. Jones was deceased at the time of the trial and, of course, could not testify as to the entries. The trial court refused to permit the introduction of the field notes since they could not be properly proven by the person who had made them and he would not be available for cross-examination. The evidence is replete with testimony from several witnesses, both for Holloway and Mattingly, relating to consultations and conferences with Jones affecting the project and the operation of the parties. The effect of the refusal to permit the field notes to be filed into evidence is to leave uncontradicted any and all testimony attributed to or in which Jones was charged with participating, especially in view of the charges and countercharges of the parties. The field notes may have had a direct effect on the disposition of the issues by the trial court. We believe that under the provisions of the shop-book rule, as well as the regular business-entries rule, the field notes should have been admitted in evidence. Kentucky Evidence Law Handbook, Robert G. Lawson, Chapter 8, Section 8.65.

Is the recovery of liquidated damages for delay in completion of a contract by a primary contractor against the subcontractor dependent upon the liability of the contractor for liquidated damages under the prime contract? This calls for a “yes” and a “no” answer. First of all, if the contractor has been held liable under the terms and provisions of the primary contract for liquidated damages for delay in completion of the whole project and the delay was occasioned by no fault of the subcontractor, then why in good conscience should the subcontractor be penalized for what is not his fault? On the other hand, if the delay was occasioned by the fault of the subcontractor, why should he not respond in damages to the degree that his fault bears to the whole of the penalty inflicted against the primary contractor? Also, we must bear in mind that the parties between themselves, by their subcontract, may fix a completion date different from that contained in the primary contract, in which event, as between the subcontractor and the primary contractor, the subcontract would fix the liability. The trial court found that any delay in the completion of the project was not occasioned by the fault of Mattingly, and it refused to assess any damage against Mattingly. The Court of Appeals affirmed that action.

In view of the fact that we have determined that the trial court and the Court of Appeals erroneously considered the facts as they related to Contract A and fixed liability accordingly, when the trial court should have fixed liability under Contract B, and in view of the fact that this court has found that the case should have been determined under Contract B, any liability between the parties in this respect should be considered under the terms of Contract B.

The decision of the Court of Appeals and the judgment of the Franklin Circuit Court are reversed. The case is remanded to the Franklin Circuit Court for a new trial in keeping with this opinion.

All concur, except CLAYTON, J., who dissents.

CLAYTON, Justice,

dissenting.

I agree with the Court of Appeals that “subcontracts submitted for approval by the Department of Highways should accurately reflect the agreement of the contracting parties and should accurately show the scope and extent of the subcontract . .” “The true agreement between a prime contractor and subcontractor will be submitted to the department for approval only if the courts refuse to enforce any secret agreement, the true terms of which have been misrepresented to the department.” I would affirm the decision of the Court of Appeals.


text:
    APEX CONTRACTING, INC., Movant, v. WILLIAM ROBINSON CONSTRUCTION CO., INC., Respondent.
    No. 78-SC-145-DG.
    Supreme Court of Kentucky.
    Rendered May 1, 1979.

      Gordon W. Moss, Hays & Moss, Lexington, for appellant.
    Larry C. Allen, London, for appellee.
   STERNBERG, Justice.

This appeal is the result of a breach of a highway construction contract. For convenience, the Apex Contracting, Inc., will be referred to as “Apex,” the William Robinson Construction Co., Inc., will be referred to as “Robinson,” and the Commonwealth of Kentucky, Department of Transportation, Bureau of Highways, will be referred to as “Department.” Pursuant to KRS, Chapter 176, the Department advertised for bids for the renovation of the Henderson By-Pass at Henderson, Kentucky. Apex was the successful bidder and was awarded the primary contract. Apex subcontracted a portion of the work to Robinson. Difficulties arose between the two companies, which resulted in Robinson being fired from the project and the completion of the subcontract being taken over by Apex. Apex filed a complaint in the Bourbon Circuit Court seeking to recover damages from Robinson for its failure to carry out the provisions of the Apex-Robinson subcontract. The trial court found that Apex was entitled to the relief sought in the complaint and entered judgment against Robinson in the sum of $60,436. The Kentucky Court of Appeals found that the subcontract was illegal and unenforceable, as being contrary to the public policy of this state. Thereupon, it reversed the judgment of the lower court, with directions that the trial court enter a new order dismissing the complaint. Review was sought by movant and was granted by this court on June 27, 1978.

The issues presented to this court are:

1. Is the contract between Apex and Robinson contrary to public policy and, hence, unenforceable?
2. May one party to a contract be declared in default for refusing to do what is not required by the terms of the contract?

In our consideration of the legality of the Apex-Robinson contract, we will recognize their sacred right to contract without undue interference. Commonwealth v. L. G. Was-son Coal Mining Corp., Ky., 358 S.W.2d 347 (1962). The project was jointly participated in by the federal and state bureaus of highway construction. One of the regulations common to both federal and state requirements limited the amount of work that the primary contractor could subcontract to less than 50% of the primary contract. This limitation was incorporated in the primary contract. The Apex-Robinson contract contained a provision incorporating the terms of the prime contract and the regulations of the federal and state bureaus for highway construction as parts thereof. In garnering information which it could use in preparing its bid for the prime contract, Apex conferred with and secured suggested prices from Robinson for the dirt, concrete, and pipe portions of the project. These suggestions were used by Apex as a basis for computing and arriving at its bid on the prime contract. Neither at the time that Apex submitted its bid for the prime contract nor at the time it was awarded the prime contract had Apex contracted with Robinson.

Before submitting the subcontract for approval, Apex learned that Robinson had not qualified with the Department for the full amount of its subcontract work and that when the bid price of Robinson was added to the bid price of another subcontractor the subcontract work would exceed 50% of the prime contract. With these obstacles facing it and in order to secure the approval of Robinson by the Department for a least a portion of the work and in order that the project proceed expeditiously, Apex removed two pages from the subcontract when it was submitted to the Department for approval. This eliminated excavation, borrow, and water portions of the subcontract and placed the contract in proper posture for approval. Prior to the Department’s approval, Robinson knew of the contract changes and knew the reasons for the changes. It concurred in the altered program and proceeded to perform the overrun work even prior to the approval of the altered contract by the Department. Had the contract been submitted to the Department for its approval as originally drawn, approval would have been denied. Apex then would have had to rebid the subcontract, which would have caused further delay. The prime contract is dated August 17, 1973, and the Apex-Robinson subcontract is dated September 28, 1973.

While awaiting the approval of Robinson by the Department, Apex put off commencing its work and permitted Robinson to start work by placing its personnel on the payroll of Apex. This did not result in any change in the bottom-dollar figure which Apex had contracted to pay to Robinson. The practice of a subcontractor in performing a portion of its work by placing its employees on the payroll of the general contractor is recognized in the industry. Although this practice is frowned on by the Department, nevertheless, it is permitted under terms and conditions designated by the Department. Money-wise, it did not increase the cost to the Department. It did, however, increase the overhead expenses of Apex by additional bookkeeping, such as preparing payroll checks, which entailed the computing and making of the usual and proper withholding deductions, making reports, and carrying Robinson’s employees on its list for purposes of workmen’s compensation. Robinson advised the Department’s engineers in the spring of 1974 that it was doing the overrun subcontract work by placing its employees on the payroll of Apex. The Department did not disallow Robinson’s continuing to work in this manner; however, it did demand that the Robinson equipment to be leased to Apex while doing its work as an employee of Apex. In this, Robinson procrastinated, and, as revealed by the record, the lease was never executed by Robinson.

It was understood that the whole project could not be completed before the winter of 1973-1974. In such cases the Department permits a grace period from December 1 to the following April 1. By the terms of its subcontract, Robinson was obligated to commence work within ten days after having been notified by Apex to do so. Robinson was required to prosecute the work with diligence so as, in the opinion of Apex, to permit completion of the whole project within the time prescribed by the prime contract, and it also provided that time was of the essence. Robinson was responsible for closing down the project for the winter of 1973-1974. This, it did to the satisfaction of the Department’s engineers only after making two trys at it. At that time Robinson was about five weeks behind schedule. Also, Robinson was several weeks slow in getting the project started again in the spring and was dilatory in proceeding with the work. The delay was to such an extent that Apex was in danger of liability for liquidated damages on the primary contract.

Although it was not raised by the parties, the Court of Appeals of Kentucky saw fit to discuss the method used by Apex in establishing the unit price on the subcontract as submitted to the Department for approval. The bid as submitted included a sum of money equal to 5% of the amount bid. This was to cover overhead expenditures. It did not reduce the amount of money due to Robinson, nor did it increase the financial obligation of the Department. The primary contract was for a fixed price, and the Department was obligated for a definite sum of money and no more. Apex was obligated to Robinson on its subcontract, which, by this procedure, was not reduced in one iota. The Court of Appeals deemed this practice to be a “kickback,” and held that this subcontract was contrary to public policy. This court defined public policy as follows:

“ * * * Public policy has been defined as being the equivalent to the policy of the law, and is a principle of law which holds that no one can lawfully do a thing which tends to be injurious to the public or is contrary to the public good. 32 Cyc. 1251. The good of the community, in certain cases, is relied upon to restrict the freedom of contracting. The public policy must be looked for in the Constitution and statutes and the decisions of the courts of last resort of a state, and where there is no legislative prohibition of a certain character of agreement before a court is authorized to declare it void, it must appear that such an agreement or contract has a tendency to injure the public or is against the public good, or is contrary to sound policy and good morals.” City of Princeton v. Princeton Electric Light and Power Co., 166 Ky. 730, 179 S.W. 1074, p. 1078 (1915).

We need to consider the relative position of the parties in carrying out the primary contract and the subcontract and the qualifications of the parties to do and perform the work for which they had contracted. In this appeal, a kickback would indicate that Apex was in some way taking advantage of Robinson. Apex did not receive a gratuity or inducement for the subcontract. There is nothing in the record to indicate that the parties dealt with each other in any manner but at arm’s length. We have been unable to find a hard and fast definition of a kickback. The expression has been given a variety of meanings. It could mean a forced return of part of one’s wages, or the granting of a gift or a gratuity as an inducement for the awarding of a contract, or the practice of permitting one party to charge the other for the privilege of being awarded a contract. The 5% inclusion was not made against Robinson; it merely permitted Apex to recover a part of its fixed-dollar prime contract bid to defray the overhead expenses.

Robinson is hard pushed to complain about a program to which it had agreed and in which it had participated. The record does not reflect that Apex cheated anyone. On the contrary, Apex went out of its way (1) to assist Robinson in qualifying with the Department as a subcontractor; (2) in permitting Robinson prior to qualifying to carry out part of its contract as an employee of Apex; (3) in overcoming the limitation on the amount of work that could be done by Robinson as a subcontractor; (4) in permitting Robinson to become five or six weeks behind schedule at the time the project was closed for the winter; (5) in countenancing Robinson in its efforts at closing the project for the winter and in its delay in beginning the project in April 1974 without a full crew of employees, and (6) in permitting slow progress irrespective of urgings from Apex and the Department’s engineers. Robinson knew that Apex was facing liquidated damages on its prime contract by reason of slow progress. In spite of this, Robinson refused to put a full crew to work or, as a matter of fact, to undertake the project expeditiously in the spring of 1974, unless it be paid more money than that for which it had contracted. Robinson was holding out for more money. Robinson knew that by refusing to sign the equipment lease, even after being admonished by the Department’s engineers, that it could not continue its contract by having its employees on the payroll of Apex. It knew that it had not constructed a guardrail; that it had permitted the whole project to become a safety hazard; that its delay was increasing the cost to Apex; and that, when dismissed from the job, it had done only 5% to 6% of the dirt work, whereas it should have completed 25% to 50% of the work.

Zeitz v. Foley, Ky., 264 S.W.2d 267 (1954), is a case in which a defense of illegality of contract was made. In considering such a defense, we said:

“If it clearly appears that a contract has as its direct object and purpose a violation of the Federal or state constitution, Federal or state statutes, some ordinance of a city or town, or some rule of the common law, courts will not lend their aid to its enforcement. However, contracts voluntarily made between competent persons are not to be set aside lightly. As the right of private contract is no small part of the liberty of the citizen, the usual and most important function of courts is to enforce and maintain contracts rather than to enable parties to escape their obligations on the pretext of public policy or illegality. If the legality of the contract can be sustained in whole or in part under any reasonable interpretation of its provisions, courts should not hesitate to decree enforcement.”

The Apex-Robinson contract awarded work to a subcontractor on the Henderson By-Pass. The objective of the prime contract was to remedy a highway hazard as expeditiously as possible, evidenced by the statement in the prime contract that time was of the essence. Robinson had failed to comply with its contract and Apex found it necessary to take over a portion of the work Robinson was supposed to do. Robinson cannot now escape its obligation on the pretense of public policy or illegality of contract.

Robinson argues that it could not be deemed to be in default for refusing to do what it was not required to do. The Apex-Robinson contract provided that in the event Robinson did not prosecute the work with such diligence as to permit completion of the whole project within the time prescribed by the prime contract, Apex then was authorized to take over and complete the work. On June 10,1974, Apex declared Robinson in default. The notification is as follows:

“Dear Mr. Robinson:
Reference is made to the above subcontract which we entered into with you, dated September 28, 1973, for subcontracting work on the above project.
We have been informed on this date, by your attorney, Larry Allen, that you do not intend to proceed further with the subcontract. We have made every effort to assist you in fulfilling your obligations under this contract and have fully performed our part of this agreement.
Based upon your rejection of this contract, we are hereby formally notifying you that we have declared you to be in default under the terms of the contract as of this date. We are attempting to complete your work at our expense and if the final costs of the work exceed your original contract price then we will look to you to pay the difference to our company as damages.
Please contact me if you have any questions concerning this matter.
Sincerely,
Frank Whitney.”

This action by Apex in firing Robinson apparently was not predicated on the alleged failure of Robinson to execute the equipment rental lease, but on the manner in which the work was done and the progress with which Robinson carried out its contract. The record reveals sufficient grounds for Apex to fire Robinson as it did. The trial court did in fact conclude, “that Robinson breached its contract with Apex due to its defaults with respect to both delays and defective work.”

We do not meet the query of whether Apex could fire Robinson for refusing to do what is not required by the contract. As a matter of fact, we find that Robinson did not do the work required by the contract, much less that which was not required.

The decision of the Court of Appeals is reversed, and the judgment of the Bourbon Circuit Court is affirmed.

All concur, except CLAYTON, J., who dissents.

CLAYTON, Justice,

dissenting.

I dissent for the reasons stated in my dissent in Holloway & Son Construction Company, Inc. v. Mattingly Bridge Company, Inc., Ky., 581 S.W.2d 568, decided this day.


author: LESTER, Judge.

text:
    Donald C. WHALEN, Appellant, v. Gerry T. WHALEN, Appellee. Gerry T. WHALEN, Cross-Appellant, v. Donald C. WHALEN, Cross-Appellee.
    Court of Appeals of Kentucky.
    May 11, 1979.
    Clyde L. Stapleton, Trimble, Stapleton, Reaves & Slone, Lexington, for appellant and cross-appellee.
    Weldon Shouse, Shouse & Burrus, Lexington, for appellee and cross-appellant.
    Before COOPER, LESTER and WIL-HOIT, JJ.
   LESTER, Judge.

The parties to this action were married March 6, 1946, and had two children who were emancipated. Sometime prior to April 30,1976, the wife filed what was to be an uncontested petition for dissolution of marriage together with an agreed order and property settlement.

On the last mentioned date, the original case was set for hearing, but on April 26, 1976, the parties entered into a reconciliation agreement which resulted in the dismissal of the pending divorce action. The agreement contemplated a resumption of the marital relationship, but it also provided for a distribution of their property should the reconciliation fail.

Donald testified that part of his work involved the examination of legal documents, and he expressed a familiarity with them. He further stated that he was fully aware of the contents of the agreement and was under no disability during either the negotiations or at the time of execution. From April, 1976, until September, 1977, the parties continued the relationship, but appellant’s mistreatment of Gerry caused her to refile a complaint requesting enforcement of the 1976 agreement which, with certain modifications, the court did. Upon appeal, Donald urges that the contract fails as a separation agreement pursuant to KRS 403.180 since it was entered into attendant upon reconciliation rather than separation, and its provisions were never executed before reconciliation. Moreover, he argues that the document is contrary to public policy in that it fosters divorce actions or in the alternative, if it is valid, then its terms are unconscionable and it should be set aside. In a manner of speaking, it appears Donald’s position is that under existing statutes reconciliation agreements are not recognized. We disagree.

KRS 403.180 neither addresses itself to nor affects or prohibits reconciliation agreements. It is axiomatic in this jurisdiction that the law favors any steps parties may take to settle litigation, especially those which have the effect of reuniting a family. Appellant relies heavily upon King v. King, Ky., 274 S.W.2d 656 (1954), and Gordon v. Gordon, Ky., 335 S.W.2d 561 (1960), to support his position that once a reconciliation agreement has been executed resumption of the marital relationship nullifies the contract. We read those cases as also being authority to the contrary, for in Gordon, quoting from King, the court found that it should look to the intention of the parties to determine whether it was intended that the reconciliation should nullify the property settlement. See 27B C.J.S. Divorce § 301(4) at 417, 418. In domestic relation matters, reconciliation means to us that the parties resume cohabitation, and if appellant’s theory were correct, then we are unable to understand why the Supreme Court recognized such agreements four years after King when it stated in Clark v. Clark, Ky., 425 S.W.2d 745, 748 (1968):

We do not mean to intimate that all separation or property settlement or reconciliation agreements are unenforceable, . . (emphasis added)

In Clark, the document provided in unequivocal terms “the parties shall be divorced” and was interpreted as being contrary to public policy as facilitating the obtainment of a divorce. The consideration for that document was divorce. In the case at bar, the document provided that the agreement, with two exceptions, would become operative “in the event either should hereafter desire and seek a dissolution of their said marriage.” At the time of execution, Donald and Gerry were separated and actually living apart and were but four days away from a hearing of their dissolution case. The consideration was reconciliation which took place and was followed by dismissal of civil action No. 76-548 upon the docket of the court. As Professor Petrilli succinctly put it in his Kentucky Family Law § 19.18, p. 231 at 232 (1969), “[j]ust as the law allows a trial separation, it provides for a trial reconciliation. Thus, the parties being separated, may agree to reconcile on condition that if it does not work a separation agreement entered into at the time of reconciliation then becomes legally effective as to support and custody.” We see no reason why it should not be effective as to all matters provided for therein. These types of agreements should be closely scrutinized by the court for overreaching by either party, and in this appeal, the circuit court conducted an in-depth examination of the provisions and found no impropriety.

Insofar as the public policy contention is concerned, we do not believe that the legislature by its enactment of the Uniform Divorce Act or the courts of this jurisdiction have abandoned the sound reasoning of Hite v. Hite, 136 Ky. 529, 124 S.W. 815 (1910), based upon Woodruff v. Woodruff, 121 Ky. 784, 90 S.W. 266, 91 S.W. 265 (1906):

“[I]t simply secured to her something in consideration of her foregoing the rights she then had. * * * It (the law) favors the reconciliation of husband and wife. A contract for the re-establishment of a ruined home is one which equity is swift to approve. Whether the contract in question is contrary to public policy is not to be determined from one clause of it, but from the whole instrument. The contract as a whole does not tend to produce estrangement between husband and wife. The contract brought them together, and, taken as a whole, it is in aid of the marital relation, and is therefore not opposed to public policy, but in accord with it.” Thus its execution is sanctioned by the law, and it should be upheld, unless appellant’s contention that he was deceived in its execution is supported by the proof.

The foregoing finds support in the texts. See 24 Am.Jur.2d Divorce and Separation § 17 at p. 191.

Much is made of the fact that a provision of the agreement was never exe-. cuted in that the parties failed to sell their home and purchase another, but if any defect that failure to act might have been, the circuit court corrected it in its modification of the provision in its final judgment.

Donald says the contract is unconscionable. The trial judge said:

The provision with regard to the insurance trust has not changed in both contracts (meaning the contract filed with the first petition and the reconciliation agreement filed with the second) with the exception of the amount of coverage; I would enforce that. There has been a change in the amount of alimony. At one time in the original settlement contract the figure had been eight hundred; that figure had been changed to six hundred, initialed by the parties. In the contract entered into by the parties to reconcile the marriage, the amount was fixed at seven hundred per month until the death of either the first or second party or until the second party remarries. I will uphold the $700 alimony payment. The paragraph four of what I will describe as the reconciliation agreement, which permitted the respondent to keep as his own personal property, such automobile as he may have, boat and any and all other stocks, bonds or properties that he may own at the time of the dissolution, I will give effect to.
The thing that is causing me the most concern in the entire case is that provision of the reconciliation agreement which provides that the property at No. 1 Lansdowne Estates would be sold, that a condominium or townhouse would be purchased, and that after paying indebtedness, cost of sale, etcetera, if any monies were left over, that these monies would be divided between the parties. This part of the contract, of course, was never executed, apparently by a mutual agreement of the parties. I believe that it would be inequitable to require that the respondent convey to her, or that the Court order that he convey to her, his entire interest in this property. So it will be my ruling that the property at No. 1 Lansdowne Estates be sold, that after the expenses of sale and the payment of the mortgage indebtedness, that up to the sum of $60,-000 be used for the purpose of providing Mrs. Whalen another residence of her choice, which appeared to be the contemplation of the parties at the time the settlement agreement was entered into. While this Court would not have awarded an additional sum of $10,000 to be paid as alimony had no agreements been presented to this Court, I doubt that I can do anything about it except to enforce that part of the reconciliation agreement which provides that he would pay this sum since I believe Mr. Whalen to be sufficiently acquainted with contracts with business and financial affairs to realize what he was doing. I can appreciate the fact that he may have been anxious to have his wife back with him. He may have gone further than he should have in accomplishing this purpose, but I don’t think I can do a whole lot about it. The only thing left is the household goods and the furniture. Had the house at No. 1 Lansdowne Estates been sold, as contemplated by the reconciliation agreement, had the parties purchased a townhouse or condominium, it is quite conceivable that not all of the household goods and furnishings would have been required for the new residence; therefore, it is a part of this findings of fact and conclusions that he be awarded a sufficient amount of household goods to permit him to at least furnish a one-bedroom apartment.
Since the Court is awarding her, by this action, sufficient properties and alimony, she will be required to pay her own attorney’s fees.
Again, I can’t protect him from the consequences of his contract, and since the contract provided that she would have the car she was driving at the time of the dissolution, she may be awarded the automobile, and I’m going to give her the car and direct he pay the other debts.
The Court is of the opinion that in addition to the income shown on the tax returns, which have been filed of record, that Mr. Whalen is entitled to and does receive other benefits which have a value of several thousand dollars per year, such as insurance, entertainment expenses, which I have no doubt includes many, many personal items of expense, an automobile, which I have no doubt he uses not only for business but for personal use, and that while he has, according to the evidence an $18,000 per year draw that his income is substantially more than this and that the possibilities of income being substantially more than each of the years reported on the tax return, with the exception of the one year in which he earned $141,000, will be substantially greater than that average sum.

We agree with the circuit court and must remind appellant that in the event we did not so agree and remanded this case for further consideration, the court could consider the element of fault in determining how much maintenance should be awarded, Chapman v. Chapman, Ky., 498 S.W.2d 134, 138 (1973), and based upon the record herein that might be to his disadvantage.

Donald filed in the record what he denominated a list of “Total Marital Debts” of $97,350.00 and then argues that he is saddled with $77,850.00 worth of liabilities. At no place in the transcript are we advised just what the “Total Marital Debts” are, for we believe appellant was less than candid with the court when he testified:

Q. You have had income, as you have testified to the extent of $18,000.00 a year for 1977?

A. That was my salary for 1977, yes, sir. The income tax return for 1977, filed subsequently to the giving of the evidence, reflected that Whalen had an income of $106,-304.00 for 1977. For that matter, his income from 1973 through 1976 ranged from $38,700.25 to $141,919.06. We note that Donald is vice-president of Whalen Erecting Company of Kentucky, Inc., which is a steel erecting and manufacturer’s agent firm, employing approximately three hundred people. It is a closely held corporation owned by appellant’s family. Appellee is a fifty-one-year-old housewife with but a high school education who has never worked and whose opportunities to obtain gainful employment are limited by her physical condition.

Appellant’s remaining contention concerning a jury trial is without merit. KRS 403.010.

Upon cross-appeal, Gerry, in essence, asks the court to take into consideration her former husband’s inheritance from his mother and based thereon increase the sums she is to receive under the agreement. We believe that she is adequately and equitably provided for by the terms of the agreement and the court’s judgment based thereon. However, in the event that we might have agreed with appellant and found the contract violative of public policy then upon remand for a new trial and division of property the circuit court could have properly considered the prospects of Donald’s future inheritance. Compare, Walden v. Walden, Ky., 486 S.W.2d 57 (1972).

The judgment is affirmed on appeal and cross-appeal.

All concur.


author: HAYES, Judge.

text:
    Marion Louise FROST, Appellant, v. William H. FROST, Appellee.
    Court of Appeals of Kentucky.
    May 11, 1979.
    C. B. Creech, Creech, Hogg & Howell, Ashland, for appellant.
    Charles M. Daniels, County Atty., Green-up, for appellee.
    Before GANT, HAYES and HOWARD, JJ.
   HAYES, Judge.

Marion and William Frost were married thirty-five years. At the time of dissolution of their marriage their ages were respectively, fifty-two and fifty-three. During most of the marriage, William had been a railway employee. Marion had occasionally worked as a science teacher, but could obtain only emergency certificates as she does not have the credits in education which the state requires for teacher certification.

Upon dissolution, Marion was awarded, in addition to four years of maintenance, various items worth several thousand dollars, three years of use of the family home and one-half the equity to be derived from the sale of the home at the end of that period.

She now appeals from the division of property. Her main allegation of error is that in view of the fact that the tangible marital estate was relatively small and that William’s pension and annuity rights had been accrued entirely during the marriage, that she should have been awarded some interest in those future rights.

This court.would willingly accept her contention that William’s future retirement benefits should be treated as marital property, but we are prevented from doing so by a recent decision by the United States Supreme Court.

Because William is a railroad employee, his pension and annuity plan is governed by the Railroad Retirement Act of 1937, 45 U.S.C. § 228a et seq. Section 228e of the Act provides that a former spouse has no direct entitlement to benefits if the marriage has been terminated before benefits begin. Section 231m provides that:

Notwithstanding any other law of the United States, or of any State, territory, or the District of Columbia, no annuity or supplemental annuity shall be assignable or be subject to any tax or to garnishment, attachment, or other legal process under any circumstances whatsoever, nor shall the payment thereof be anticipated: Provided, however, That the provisions of this section shall not operate to exclude the amount of any supplemental annuity paid to an individual under section 2(b) of this Act [45 USCS § 231a(b)] from income taxable pursuant to the Federal income tax provisions of the Internal Revenue Code of 1954. [Citations omitted].

A majority of the United States Supreme Court in Hisquierdo v. Hisquierdo, - U.S. -, 99 S.Ct. 802, 59 L.Ed.2d 1 (1979) have now held that this exemption from process extends to division and assignment of benefits under state dissolution of marriage schemes. (The court made clear that while a pensioner’s rights cannot be directly assigned, it is permissible to make awards of maintenance and child support which take account of those funds as constituting all or part of the obligor’s ability to pay.) This interpretation of the Railroad Retirement Act is, of course, binding upon us. The Supremacy Clause of the United States Constitution dictates that the provision of the Railroad Retirement Act must prevail over any conflicting provisions of Kentucky law. Thus we must hold that the trial court did not err in its refusal to consider William’s future benefits, but we caution readers of this decision that the result was dictated by the atypical circumstance of coverage by the Railroad Retirement Act.

Marion also contends that the trial court’s limitation of her maintenance award to four years at $450.00 per month constitutes an abuse of discretion.

Kentucky has established the following statutory guidelines for trial courts in determining the appropriateness, amount, and duration of maintenance:

403.200. Maintenance — Court may grant order for either spouse. — (1) In a proceeding for dissolution of marriage or legal separation, or a proceeding for maintenance following dissolution of a marriage by a court which lacked personal jurisdiction over the absent spouse, the court may grant a maintenance order for either spouse only if it finds that the spouse seeking maintenance:
(a) Lacks sufficient property, including marital property apportioned to him, to provide for his reasonable needs; and
(b)Is unable to support himself through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home.
(2) The maintenance order shall be in such amounts and for such periods of time as the court deems just, and after considering all relevant factors including:
(a) The financial resources of the party seeking maintenance, including marital property apportioned to him, and his ability to meet his needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that party as custodian;
(b) The time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment;
(c) The standard of living established during the marriage;
(d) The duration of the marriage;
(e) The age, and the physical and emotional condition of the spouse seeking maintenance; and
(f) The ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance. (Enaet.Acts 1972, ch. 182, § 10.)

The trial court obviously found that Marion Frost’s financial condition was such that she met the threshold requirements of section (1), and would in all likelihood continue to meet them for four years. The question now before us is whether the court abused its discretion in failing to award permanent maintenance.

We will assume, for purposes of this discussion, that at the time the temporary award of maintenance is due to expire, Marion Frost will have obtained a teacher’s certificate — that is the course of action which William appears to be vigorously urging upon her. At that time Marion may well be able to find regular and fairly well-paid employment. (Given her age and the notorious difficulty, in many parts of the country at least, of finding full-time regular employment as a teacher, our assumptions might be overly optimistic.) In any event, even according to the rosiest scenario that we can devise, Marion will have only an absolute maximum of ten (assuming employment at age 55 and retirement at age 65) to fifteen (assuming retirement at age 70) years in the work force. Retirement benefits accrued in such a short time simply cannot, under any retirement scheme that we know of, be of such magnitude as to help significantly in paying living expenses.

Because William was covered by the Railroad Retirement Act, the couple made no contributions to the Social Security retirement system; thus Marion can look forward to no benefits accrued during the marriage.

One-half of the equity in the couple’s home should represent a substantial lump sum, but it will be subject to capital gains tax and will not be of such magnitude as to be capable of producing enough to live on in retirement years.

KRS 403.200(2) supra, directs trial courts, in deciding the amount and duration of a maintenance award, to consider all relevant factors, specifically including the ability of the party seeking maintenance to meet his needs independently, the duration of the marriage, and the age of the party seeking maintenance.

We do not believe that the trial court could have fully considered those factors and still have awarded only relatively short-term temporary maintenance. It is abundantly clear that even if Marion can become temporarily economically independent, she must relapse into dependency within a relatively few years.

We would add that we cannot approve, as a general proposition, the practice of granting maintenance for a set term of years. Such an approach may be valid when the party receiving maintenance will clearly be self-sufficient at the end of that period, but not before. Moreover, the unpredictability of the job market and of individual occupational progress make such results impossible to insure, and an absolutely limited grant of temporary maintenance does not allow either party to reopen and show changed or unexpected circumstances.

We recognize that it would be at least as great an evil to encourage the granting of permanent or indefinite maintenance in every instance, and have no intention of encouraging such a result.

In instances where one party is not, at the time of dissolution, self-supporting, it is proper for the trial court to take evidence as to that person’s prospects for becoming economically independent, and also as to how long it is likely to be before such prospects are realized. Where it appears that a maintenance award should be of limited duration, it would be much better policy for the trial court to treat any fixed time span arrived at as a mere presumption of a reasonable period for the achievement of economic independence, which may be overcome upon a showing by either party. Nothing we have said shall be construed as removing from the party receiving maintenance the duty of making every effort to become self-supporting.

Thus we reverse and remand on the issue of duration of maintenance. We direct the trial court to consider realistically Marion’s lack of ability to provide for herself after retirement age and to arrive at a maintenance order which fully reflects that circumstance.

All concur.