text:
    Wayne R. ANGLIAN, Appellant-Petitioner, v. Dewey SOWDERS, Superintendent, Kentucky State Reformatory, Appellee-Respondent.
    Court of Appeals of Kentucky.
    Feb. 24, 1978.
    Discretionary Review Denied June 27, 1978.

      Wayne R. Anglian, pro se.
    Jack Emory Farley, Public Defender, David E. Norat, Asst. Public Defender, Frankfort, for amicus curiae.
    Robert F. Stephens, Atty. Gen., Patrick B. Kimberlin, III, Asst. Atty. Gen., Frankfort, for appellee-respondent.
    Before HOWERTON, WILHOIT and WINTERSHEIMER, JJ.
   WILHOIT, Judge.

This appeal is from an order of the Old-ham Circuit Court dismissing the petition of Wayne R. Anglian for a writ of habeas corpus. The circuit court found no merit in the appellant-petitioner’s claim that he was being detained in the Kentucky State Reformatory in violation of the United States Constitution. Nor do we.

In June, 1970, the appellant-petitioner was released on parole from the state reformatory where he had been confined upon his conviction of two charges of robbery. On January 18, 1976, while still on parole, he pleaded guilty and a judgment of conviction was entered in federal court on a charge of illegal possession of a firearm. On February 20, 1976, he was placed in a federal institution in Missouri to begin service of a 2-year sentence.

On February 11, 1976, the Kentucky Parole Board issued a parole violator warrant for the arrest of the appellant-petitioner. This warrant was forwarded to the federal institution as a detainer. Appellant-petitioner requested the Kentucky Parole Board to hold an immediate parole revocation hearing even though he was not yet in the custody of the Kentucky authorities. No revocation hearing was held until June, 1977, shortly after he had been released from federal custody and returned to Kentucky. At the hearing he was found to have violated the conditions of his parole and was again committed to the state reformatory.

The appellant-petitioner and the amicus curiae contend that the failure of the Kentucky Parole Board to afford appellant-petitioner a prompt revocation hearing upon the lodging of the parole violator warrant with the federal authorities deprived him of constitutionally protected “liberty interests,” contrary to the holding in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972).

The first liberty interest of which he claims to have been deprived is an opportunity to have served his federal and state sentences concurrently. Accepting for the sake of argument that an opportunity to serve sentences concurrently involves a constitutionally protected liberty interest, the action of the parole board did nothing to deprive the appellant-petitioner of such an opportunity since he had none. If the parole board had chosen to hold an immediate hearing and had revoked parole, then under KRS 439.430(3) appellant-petitioner would have still been deemed a “fugitive from justice” until he could be taken into custody under the parole violation warrant and it was not possible to take him into custody under that warrant so long as he remained within the custody of the federal authorities.

We do not agree with the argument that once appellant-petitioner was returned to Kentucky the parole board was helpless to grant, in effect, a concurrent sentence by choosing not to revoke his parole. It is argued that by its regulations the parole board may consider only mitigating factors surrounding the actual commission of the federal crime in determining whether or not to revoke appellant-petitioner’s parole. We do not read the pertinent regulation, 501 KAR 1:010 § 11(2), to be so restrictive. That regulation provides that once the board determines a violation has occurred it then considers “the mitigating circumstances surrounding the violation.” When the parole violation which has occurred is the commission of a crime resulting in conviction and imprisonment by another jurisdiction for a period of time, it is clear that this incarceration and the consequent rehabilitation, if any, of the violator is a mitigating circumstance surrounding the violation which might and perhaps should be considered by the parole board in determining whether to recommit him as a parole violat- or.

The next liberty interest of which there is a claim of deprivation by delay in holding the revocation hearing is the ability to present mitigating evidence on behalf of the appellant-petitioner. There is, however, no showing whatsoever of any mitigating evidence which was lost to this, petitioner by the delay. This claim is without merit.

Finally, appellant-petitioner claims that the detainer deprived him of participation in certain rehabilitative programs in the federal institution. Again he has made no showing of any rehabilitation program he was forbidden to take part in solely because of the detainer. Even if the withholding of such programs because of a detainer can be considered deprivation of a liberty interest, we believe such a circumstance would have addressed itself to the reasonableness of the federal prison regulations in a situation such as this rather than to the necessity that the Kentucky Parole Board hold an immediate revocation hearing.

We believe the judgment of the trial court was correct and find nothing in this case contrary to the principles set forth in Moody v. Daggett, 429 U.S. 78, 97 S.Ct. 274, 50 L.Ed.2d 236 (1976).

The judgment of the trial court is affirmed.

All concur..

      . See also KRS 533.060(2), effective June 19, 1976.


source: Caselaw Access Project

author: REYNOLDS, Judge.

license: Public Domain

text:
    Holland RICHARD, Administrator of the Estate of Beverly Richard, Deceased, Appellant, v. ADAIR HOSPITAL FOUNDATION CORPORATION, Appellee.
    Court of Appeals of Kentucky.
    Feb. 24, 1978.
    Rehearing Denied April 14, 1978.
    Discretionary Review Denied June 27, 1978.

      Robert L. Dowell, Greensburg, William A. Miller, Louisville, for appellant.
    Earl Huddleston, Columbia, Joe B. Campbell, Campbell & Crandall, Bowling Green, for appellee.
    Before HOWERTON, REYNOLDS and LESTER, JJ.
   REYNOLDS, Judge.

The father, as administrator of his deceased infant’s estate, appeals from Adair Circuit Court’s summary judgment which dismissed action for wrongful death.

Appellant alleged that on March 14, 1973 the appellee, Adair Hospital Foundation Corporation, negligently denied on two occasions emergency room admission to his infant child who thereafter died on March 15, 1973. The issue raised upon this appeal is the correctness of the summary judgment.

The limited proof in the record consists of the parents’ depositions and that, of Dr. W. H. Bryant. Briefly, the parents testified that on the morning of the fourteenth the child was sick, refused to eat and was crying. The first trip was made to appellee hospital around 1 p. m. where the parties stopped their vehicle at the emergency room door. The mother and baby remained in the vehicle while the appellant entered upon the premises and informed a nurse as to the baby’s sick condition. According to appellant’s testimony, the appellee’s nurse refused to examine the infant or call a doctor. Thereafter appellant was unsuccessful in locating a doctor at any of their offices. The parties returned around 3 or 3:30 p. m. and again parked at the appel-lee’s emergency room door. Appellant reentered the hospital and advised the same nurse that the baby was worse. The nurse went to the parked vehicle, felt the baby’s head and said there was no emergency. The parents’ testimony would indicate that the baby was breathing harshly and screaming. The infant was not admitted to the hospital. Later the child was transported to a Glasgow hospital emergency room where she was admitted at 12:35 a. m. on March 15. Dr. Bryant’s brief medical deposition reflects that upon his initial examination at the Glasgow hospital the 6-month old child was in critical condition. The diagnosis was bronchial pneumonia and emergency medical procedures were undertaken. The child died within five hours. There is no medical testimony to apprise the court of the child’s condition when admission was sought at appellee hospital. The testimony of Dr. Bryant was to the effect that with any type of infection the sooner it is treated the better .chance you have of effecting a cure, and that the child’s chances of recovery would have been substantially greater and better had she been treated at 1 p. m. or 3:30 p. m. on March 14. At this stage the trial court determined that there was no genuine issue as to any material facts insofar as the element of causation had not been established. We disagree. In Ruvio v. North Broward Hospital, 186 So.2d 45 (Fla.1966), it was held that decedent’s wife had failed to establish that any action or inaction on the part of the hospital was the proximate cause of the death of her husband, and a verdict was directed in favor of the hospital. In that case, however, the medical testimony was to the effect that the delay in admission to the hospital would not have made any difference as to the demise of plaintiff’s decedent. In this case, the sole medical testimony was to the effect that the child’s chance of recovery would have been substantially better had treatment been rendered when the child was presented to the Adair County Hospital. Neither are Walden v. Jones, Ky., 439 S.W.2d 571 (1969) or Jarboe v. Harting, Ky., 397 S.W.2d 775 (1965) dispositive of the case on appeal. In Walden, supra, a verdict was directed in a medical malpractice action for physicians at the conclusion of the plaintiff’s evidence. There, evidence of proximate causation between any negligence of the physicians and plaintiff’s paralysis was insufficient to raise jury issues since the only medical testimony supporting the plaintiff’s position as to proximate cause was to the effect that the plaintiff might have had a chance but probably would not have recovered even if there had been no negligence. There was no such testimony in the case at bar. In Jarboe, supra, a directed verdict in a medical malpractice case was affirmed in part and reversed in part. There, evidence of culpable negligence in making an erroneous diagnosis of a uterine tumor instead of pregnancy was sufficient to make a submissible ease for the jury on a claim for injuries attributable to an unneeded operation. But the evidence was insufficient to take to the jury on whether the operation was the proximate cause of the patient’s miscarriage 22 days later because there was no medical testimony that the operation probably did cause the miscarriage, nor was there any evidence of any signs or symptoms of impending abortion between the time of the operation and the occurring miscarriage. Walden, supra, and Jarboe, supra, are distinguished from this case.

In Barcia v. Society of New York Hospital, 39 Misc.2d 526, 241 N.Y.S.2d 373 (1963), the New York Supreme Court was faced with an analogous case. An admitting physician turned away a two-year-old child suffering from pneumonia. The child died the next day from the delay of treatment. Considering testimony that time is of the essence in the treatment of pneumonia, the court refused to accept defendant’s expert’s testimony, that even if there had been no delay the child would have died, as a matter of law and rejected such a contention as a matter of fact.

Hill v. Ohio County, Ky., 468 S.W.2d 306 (1970), does not support summary judgment in this case. Hill, id., involved a clear non-emergency situation where a county hospital denied obstetrical care to a pregnant woman. She was dead on arrival at Owens-boro Hospital. In a non-emergency situation there is no duty on the part of a county hospital to admit or treat a patient in the absence of an order from her physician. Courts, though, have carved from the general no-duty-to-admit rule a view that where a hospital refuses care in an emergency situation, liability may be predicated upon such refusal. See Annot., 35 A.L.R.3d 841 (1971) and cases cited therein. In cases involving pneumonia, courts have recognized that liability could properly be predicated upon the refusal to admit a patient because of the emergency situation involved. See Wilmington General Hospital v. Manlove, 54 Del. 15, 174 A.2d 135 (1961) and Barcia, supra.

We feel that the proper disposition of this case is dependent upon the determination of whether appellee was negligent in twice refusing hospital admission to the infant, based upon the child’s condition when admission was requested, when an unmistakable emergency situation may have existed. This presents an issue of fact for a jury. In Hill, supra, the court has quoted from Man-love, supra, at 141 as follows:

In the circumstances we think the case should go back for further proceedings. We should add, however, that if plaintiff cannot adduce evidence showing some incompetency of the nurse, or some breach of duty or some negligence, his case must fall. Like the learned judge below, we sympathize with the parents in their loss of a child; but this natural feeling does not permit us to find liability in the absence of satisfactory evidence.

The distinction drawn in Walden, supra, and Jarboe, supra, that the causal connection between accident and injury must be shown by medical testimony that causation is probable and not merely possible, is a matter of degree. Given the medical testimony in this case, that it could safely be said that this child’s chances of recovery would have been substantially greater and better had she been treated earlier, a summary judgment was premature.

The judgment is reversed.

All concur.


author: VANCE, Judge:

text:
    Lula BARNETT et al., Appellants, v. COMMONWEALTH of Kentucky et al., Appellees.
    Court of Appeals of Kentucky.
    March 3, 1978.
    Discretionary Review Denied June 27, 1978.
    Retta Davis Tusia, Louisville, for appellants.
    Michael A. Hendricks and Ewing Hardy, Louisville, for appellees.
    Before HAYES, VANCE and WINTER-SHEIMER, JJ.
   VANCE, Judge:

The question is whether an individual purchaser of real property at a tax lien foreclosure sale pursuant to KRS 134.490 takes the property free of any right of redemption by the owner.

The Commissioner of Revenue acquired a certificate of delinquency as a result of the purchase of delinquent tax claims assessed against appellants’ property. KRS 134.-450(2). Such certificates may be satisfied through foreclosure proceedings. KRS 134.490(2). The Commissioner of Revenue instituted foreclosure proceedings against appellants to satisfy the certificate of delinquency and a judicial sale of the property was ordered. H. R. Schroerlucke was the highest bidder at the sale and paid the bid price to the Master Commissioner.

Before confirmation of the Master Commissioner’s report of sale, the owner moved for leave to redeem the property. The motion was denied and the Master Commissioner was ordered to execute a deed to the purchaser.

KRS 134.490(3) provides:

Where property is sold pursuant to a judgment of foreclosure, it shall not be appraised as in other foreclosure proceedings and there shall be no right of redemption except as provided in KRS 134.-510. . . .

KRS 134.510(3) provides:

Any real property acquired by the state, county and taxing districts pursuant to KRS 134.490 may be redeemed at any time before the commissioner gives a deed to a purchaser, by paying to the county clerk the amount due at the time the property was acquired, plus subsequent costs and interest at the rate of six percent per annum. (1966 c. 239, § 139, Eff. 6-16-66)

KRS 134.510(3) applies only to property acquired by the state, county and taxing districts at a sale pursuant to KRS 134.490. By its terms, it does not apply when the purchaser is an individual. Because KRS 134.490(3) provides that no right of redemption shall exist except as provided in KRS 134.510, it necessarily follows that an owner has no right of redemption whatever if someone other than the state and its taxing units becomes the purchaser at the sale.

We find no ambiguity in the language of the statute. The commissioner referred to in KRS 134.510(3) is the Commissioner of Revenue and not the Master Commissioner. This is manifest from the definition section of the statute which specifies that “commissioner” means the Commissioner of Revenue. It is also evident from the immediately preceding section of the statute which deals with sales of property acquired by the state by the Commissioner of Revenue.

In Interstate Bond v. Hood, 290 Ky. 850, 162 S.W.2d 770 (1942) it was said:

But it is a well recognized rule that proceedings for the sale of land for taxes must closely conform to the statutory requirements and that those terms must be strictly construed against the purchaser and in favor of the owner. The judicial treatment of tax sales is uniformly rigid. Ordinarily the delinquent tax and the amount for which the purchase is made is relatively very small. By making reimbursement and giving the purchaser ample compensation by way of interest and penalties, he is more than made whole and the property is saved to the owner.

The result reached here is exceedingly harsh. It is not an expression of this Court as to what we would like the law to be, but what it is. It is the unquestioned right of the general assembly to deny or limit redemption of property sold at judicial sales. Harsh as it may seem, with respect to tax sales, the general assembly has stated in unambiguous language that no right of redemption shall exist unless the property is acquired at the sale by the state, county, and taxing districts and then only so long as the Commissioner of Revenue has not sold the property to another purchaser and given a deed therefor.

In the absence of ambiguity, we must determine the intention of the legislature from the words of the statute and what the statute says is clear.

Appellants contend that a bidder at a judicial sale acquires no right in the property until confirmation of the sale and that the successful bidder here has no standing to defend the sale. The successful bidder, however, has always had standing to file exceptions to the sale. His standing was confirmed in Kentucky Farm Bureau Mutual Insurance Co. v. Conley, Ky., 498 S.W.2d 122 (1973).

We also note that appellants’ motion to redeem the property was not accompanied by a tender of payment of the amount of the tax lien plus costs of sale, so far as is shown by this record.

The judgment is affirmed.

All concur.


author: LESTER, Judge.

text:
    James R. YOCOM, Commissioner of Labor and Custodian of the Special Fund, Appellant, v. Hershel YATES, Childers Coal Company and Workmen’s Compensation Board, Appellees.
    Court of Appeals of Kentucky.
    March 3, 1978.
    Discretionary Review Denied June 27, 1978.
    Cyril E. Shadowen, Asst. Counsel, Dept, of Labor, Louisville, Kenneth E. Hollis, Gen. Counsel, Dept, of Labor, Frankfort, for appellant.
    W. W. Burchett, Burchett, Burchett & Burchett, Prestonsburg, for Hershel Yates.
    William G. Francis, Francis, Kazee & Francis, Prestonsburg, for Childers Coal Co.
    Before HOWERTON, LESTER and REYNOLDS, JJ.
   LESTER, Judge.

This is a workmen’s compensation case in which the Special Fund appeals from a judgment sustaining a final order of the Workmen’s Compensation Board awarding claimant total and permanent benefits as a result of pneumoconiosis/silicosis.

Appellant, Hershel Yates, is a thirty-one year old coal miner who has been engaged as such all of his industrial life. He has a sixth grade education and his dependents consist of his wife and five young children. On July 28, 1976, Yates filed his application for adjustment of claim alleging that he had become affected with the dust inhalation disease during July of 1974. The Special Fund was made a party in the original application.

During August or September, 1974, Yates obtained employment as a school bus driver from which he earned a gross monthly sum of $233.00 as compared to $200.00 per week in the mines.

Only the Special Fund appealed to either the circuit or this court.

The Special Fund contends that it was error to award appellee permanent and total disability when the evidence showed that he “maintained a full-time job as a bus driver” (emphasis added). The appellant relies on Young v. Marsillett, Ky., 473 S.W.2d 128 (1971) and in so doing says:

In that case the Court of Appeals held that an award of total disability was not justified where the Claimant was working full-time at other employment at a salary exceeding the maximum amount he had earned as a coal miner.

A review of the transcript indicates that Yates drives a school bus 2V2 hours per day or a total of I2V2 hours per week. We are told that the appellee would be unable to perform this task . . if I wasn’t sitting.” We believe it beyond reason to compare this employment with that of 40 hours per week as a coal shooter. The job which Yates describes is not a full-time job. KRS 342.140.

We find it difficult to follow appellant’s reasoning when it urges that Young, supra, is controlling here, for unlike that case Yates is earning approximately one-fourth the salary as a bus driver compared to mining, while in Young, supra, the earnings subsequent to the injury exceeded those gained prior to the filing of the claim. For that matter, Justice Osborne speaking in Young mentioned “[wjhereas, in the case of the victim of pneumoconiosis/silicosis, the disease is progressive.” Appellant’s authority is of no assistance to its position.

The Special Fund does not attack the board’s finding of total disability from the standpoint of the medical evidence, but only upon the ground of the claimant’s ability to perform part-time work. Neither of the defendants below availed themselves of the opportunity to show that.any regular employment was available to appellee. On the other hand, Yates related his work history (solely mining); his education (six grades plus two months into the seventh); his inability to return to the mines; and the necessity of providing for his family.

KRS 342.620(9), defining disability, directs us to take into consideration such factors as the type of work the injured employee is customarily able to do in the area where he lives and it is common knowledge that the only industry of any import generally providing an ample wage in Floyd County is coal mining. This, Hershel Yates is unable to do. What he can perform is a part-time sedentary job driving a school bus a couple of hours per day. We cannot perceive how the work that appellee does lessens his disability to labor in the coal industry.

We believe the applicable principles for a case such as this are found in 2 Larson’s Workmen's Compensation Law § 57.51 (1976) to the effect:

“Total disability” in compensation law is not to be interpreted literally as utter and abject helplessness. Evidence that claimant has been able to earn occasional wages or perform certain kinds of gainful work does not necessarily rule out a finding of total disability nor require that it be reduced to partial. The task is to phrase a rule delimiting the amount and character of work a man can be able to do without forfeiting his totally disabled status. The rule followed by most modern courts has been well summarized by Justice Matson of the Minnesota Supreme Court in the following language:
“An employee who is so injured that he can perform no services other than those which are so limited in quality, dependability, or quantity that a reasonably stable market for them does not exist, may well be classified as totally disabled.” (Lee v. Minneapolis St. Ry., 230 Minn. 315, 41 N.W.2d 433, 436 (1950))

The foregoing is often referred to as the “odd-lot” doctrine first denominated as such by Judge Moulton in Cardiff Corp. v. Hall, [1911] 1 K.B. 1009 and restated in American Jurisprudence by Judge Cardozo in Jordan v. Decorative Co., 230 N.Y. 522, 130 N.E. 634 (1921).

In the ease at bar, the appellee was found to be totally and permanently disabled. He did not return to regular employment. In such cases as Couliette v. International Harvester Co., Ky., 545 S.W.2d 936 (1976); Yocom v. Keene, Ky., 512 S.W.2d 27 (1974) and Winn Dixie Louisville, Inc. v. Watson, Ky., 473 S.W.2d 148 (1971) there was a return to regular employment (total disability) or a situation involving partial disability. Because of these distinctions, we think they have no application here.

The enactment of KRS 342.620(9) did not modify the principles of Osborne v. Johnson, Ky., 432 S.W.2d 800 (1968), see Couliette, supra, and Osborne stands for the proposition that the board and courts should look to the impairment of the injured workmen’s ability to do some gainful work in the future or, putting it another way, his overall earning capacity as viewed in terms of future prospects. This is the guidepost in spite of the fact that the usual work may be continued. In the litigation at bar, not only are the wages decreased but also the job is part-time. The condition is permanent and total and will progressively deteriorate. Young, supra. We are not prepared to tax the appellee for his efforts to sustain his family.

We are aware that the board made no specific finding that Yates was incapable of performing any kind of regular employment but in this respect, we are governed by Caudill v. Maloney’s Discount Stores, Ky., 560 S.W.2d 15, 24 Ky.L.Summ. 16 (1977) wherein Justice Reed stated:

As in Tackett v. Sizemore Mining Company, Ky., 560 S.W.2d 17 (this day decided), we conclude that Caudill’s own testimony, education, work experience and physical condition, together with the medical evidence introduced by her, established an evidentiary foundation sufficient to support, but not to compel, a finding by the Board that she was incapable of performing any kind of work of regular employment and, therefore, was totally disabled under the Osborne v. Johnson formula.

The judgment of the Floyd Circuit Court is affirmed.

All concur.


author: PARK, Judge.

text:
    Charles Lee HEBERT, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    March 17, 1978.
    Discretionary Review Denied June 27, 1978.

      Terrence R. Fitzgerald, Deputy Public Defender, Louisville, for appellant.
    Robert F. Stephens, Atty. Gen., Miles H. Franklin, Asst. Atty. Gen., Frankfort, for appellee.
    Before COOPER, HOWARD and PARK, JJ.
   PARK, Judge.

The appellant, Charles Lee Hebert, and his co-defendant, George Edward Jones, were both convicted by a jury on an indictment for first degree robbery. (KRS 515.-020). Hebert and Jones were charged with robbing the Clarksdale Grocery on July 23, 1976, by threatening the owner, Tom Gurtz, with physical force while armed with pistols. Based upon the jury verdict, the Jefferson Circuit Court entered judgment sentencing Hebert to nineteen years imprisonment. On this appeal, Hebert raises numerous allegations of error. At oral argument, reliance was placed upon two issues: (1) whether the trial court erred in refusing to suppress evidence of Gurtz’s identification of Hebert because of a confrontation at the police station following Hebert’s arrest which was allegedly illegal; and (2) whether the trial court erred in refusing to permit Hebert to introduce evidence intended to show bias and hostility on the part of the arresting officer.

I

Hebert contends that his arrest without a warrant was not based upon probable cause and that his subsequent identification at the police station by the store owner, Gurtz, should have been suppressed as the product of his illegal arrest. Hebert relies upon the decisions in Jones v. Commonwealth, Ky. App., 556 S.W.2d 918 (1977); Iles v. Commonwealth, Ky., 476 S.W.2d 170 (1972); and Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969).

Shortly after the robbery, Detective Stephen Thompson of the Louisville Police Department received an anonymous phone call, apparently from an elderly woman. The caller told Detective Thompson that she had witnessed the escape of the robbers from the Clarksdale Grocery, and she gave a description of the getaway car including its license number. Detective Thompson received a second anonymous phone call, probably from the initial informant. The second call indicated that the getaway car could be found at the corner of Hancock and Liberty Streets which was in the general neighborhood of the Clarksdale Grocery. The caller also indicated that Hebert had been driving the car and that the owner of the car was William “Gunny” Ewing.

In the meantime, Gurtz and his employee, Joe Bailey, both gave descriptions of the robbers to the investigating officer, John Fey. Gurtz and Bailey described one of the robbers as being dressed in a striped shirt, cut-off blue jeans, red sneakers and red and white striped socks. Based upon his investigation, Officer Fey prepared a robbery report which was seen by Detective Thompson.

Detective Thompson and another officer then went to the Place-to-Play Tavern on Hancock Street where they located the alleged getaway car. The officers also found Hebert inside the Place-to-Play Tavern wearing a striped shirt, cut-off blue jeans, red tennis shoes, and red and white striped socks. Hebert’s clothing conformed precisely to the description given by Gurtz and Bailey. Having viewed a full length photograph of Hebert taken shortly after his arrest, we can say that Hebert’s attire was unique and unmistakable. A police officer finding Hebert dressed precisely as described by Gurtz and Bailey would clearly have had probable cause to arrest Hebert for the robbery. Mears v. Commonwealth, Ky., 499 S.W.2d 75, 77 (1973).

Unfortunately, the record of the suppression hearing does not establish the basis upon which Detective Thompson arrested Hebert. The record establishes that Thompson was in possession of Officer Fey’s report, but the record does not indicate that this report contains the description of Hebert given by Gurtz and Bailey. The Commonwealth’s Attorney suggested that the arrest was based in part upon Fey’s report. The suppression hearing itself was rather chaotic. Hebert’s trial counsel combined examination of Thompson with argument to and with the court. The suggestion was made that the arrest was illegal because Detective Thompson had testified at a preliminary hearing that he had gone to the Place-to-Play Tavern in response to the telephone tips. On his own, Detective Thompson offered to help clear up the controversy. However, at this point the trial court overruled the motion to suppress without hearing any further evidence. We do not know whether the trial court concluded that the telephone tips gave Detective Thompson probable cause to arrest, whether the trial court accepted the Commonwealth’s representation that Thompson relied upon Fey’s report, or whether the trial court concluded that the legality of the arrest was immaterial. If it were essential to determine the legality of the arrest, we would remand the case to the trial court for a further evidentiary hearing and findings of fact by the trial court. Lee v. Commonwealth, Ky.App., 547 S.W.2d 792, 794 (1977). Under RCr 9.78, effective January 1, 1978, such findings are clearly required following an evidentiary hearing on a motion to suppress the fruits of a search.

Notwithstanding the inadequacy of the record relating to the lawfulness of Hebert’s arrest, we conclude that remand for further proceedings on this issue is not required. Assuming for purposes of argument that the arrest was illegal because based only upon the two anonymous telephone tips, it does not follow that evidence of Gurtz’s identification of Hebert at the police station was inadmissible at trial.

The identification of Hebert by Gurtz occurred under unusual circumstances. Shortly after he was taken to the police station, Hebert was escorted to another floor so that he might purchase a pack of cigarettes. The confrontation occurred as Hebert was returning to the interrogation room. He stepped off an elevator into the lobby just as Gurtz entered the police station. Gurtz, Detective Hubbard, and Detective Thompson testified that Gurtz made a spontaneous identification of Hebert as one of the robbers as soon as he spotted Hebert. Detective Thompson also testified that Hebert then lunged at Gurtz shouting obscenities. In Hebert’s own words, the encounter occurred in the following manner:

Okay. Can you tell the jury what you said to Mr. Gurtz?
A. • I walked up to him. I said, “Wait a minute, man.” I tapped the officer on the shoulder and said, “Wait a minute.” I said, “Here’s the man right here,” you know. But this Mr. Gurtz he wouldn’t— he was holding his head down like this. He had a patch on his head, a bandage or something, and he was holding his head down. So I said, “Man, will you tell these people that you know me, you know, but not personally,” but before I could finish he yelled out, “You’re damn right I know you. You’re the one that hit me in my head with a pistol.”
A. . Well, after he, you know, said that I was the one that hit him in the head with the pistol, well, that messed me up, you know, because I had not robbed nobody. So, I tried to grab him. I said “Wait a minute, man.” You know, I was trying to explain myself a little better than what I was doing. And then Steve Thompson’s partner, he pushed me back. He said, “No, just come on, come on,” you know.

The confrontation between Gurtz and Hebert was completely spontaneous and unplanned.

During the trial itself, Gurtz again identified Hebert as one of the two robbers. Thus, we must determine the admissibility of both the in-court identification and the out-of-court identification of Hebert at the police station.

Gurtz’s in-court identification of the accused was clearly admissible. Gurtz had ample opportunity to observe Hebert during the robbery. Gurtz actually recognized Hebert as a customer in the grocery store, although Gurtz did not know Hebert by name. There is nothing in the record to indicate that the in-court identification was the “fruit” of an illegal arrest. It would be unthinkable to hold that Gurtz was forever precluded from identifying Hebert merely because he had complied with the request of the police to come to the station and had there identified Hebert spontaneously in the lobby. Payne v. United States, 111 U.S.App.D.C. 94, 98, 294 F.2d 723, 727 (1961).

In Jones v. Commonwealth, supra, the witness had made an out-of-court identification of the witness based upon a photograph taken of the accused following an illegal arrest. In that case, the photograph, which was itself the “fruit” of the illegal arrest, was impermissibly suggestive. The photograph of the accused bore a date which was the day following the robbery and contained the legend “ROB.” This court held that a hearing was required to determine whether the witness’s in-court identification was tainted. Jones, id., 556 S.W.2d at 921. However, in this case, there was nothing suggestive about the circumstances surrounding Gurtz’s identification of Hebert in the lobby of the police station. No hearing was required. Summitt v. Commonwealth, Ky., 550 S.W.2d 548, 550 (1977).

Nothing suggests that Gurtz’s recollection of the robbery was in any way tainted by the fact that Hebert’s arrest might have been illegal. Crews v. United States, D.C.App., 369 A.2d 1063, 1072 (1977). See also United States ex rel. Pella v. Reid, 527 F.2d 380 (2d Cir. 1975). This case is clearly distinguishable on its facts from the decision in United States v. Edmons, 432 F.2d 577 (2d Cir. 1970). In that case, in-court identifications were suppressed when the defendants had first been identified following illegal arrests. Members of the FBI conducted a neighborhood dragnet operation for the purpose of bringing into headquarters as many young black males as possible. The arrests were flagrantly illegal and were made for the precise purpose of securing identifications which could not otherwise be obtained. Unlike the situation in the Edmons case in which the identity of the defendants was completely unknown, the investigation in this case had focused on Hebert whose identity was known. There is nothing in this record to indicate egregious police misconduct. We hold that Gurtz’s in-court identification was admissible.

Turning to the out-of-court identification of Hebert at the police station, we note that the confrontation between Gurtz and Hebert occurred within hours of the robbery. Gurtz’s memory was fresh, and there was nothing in the circumstances surrounding the identification that was calculated to suggest that Gurtz should identify Hebert on the basis of some fancied recognition. The identification was spontaneous and unexpected. As a matter of Kentucky eviden-tiary law, evidence of the identification at the police station was admissible to corroborate Gurtz’s in-court identification of Hebert. Brown v. Commonwealth, Ky.App., 564 S.W.2d 24 (this day decided).

Evidence of the police station identification should be suppressed only if it were the “fruit” of an illegal arrest. That question should be determined by applying the rule enunciated in Wong Sun v. United States, 371 U.S. 471 at 487-88, 83 S.Ct. 407 at 417, 9 L.Ed.2d 441 (1963):

We need not hold that all evidence is “fruit of the poisonous tree” simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is “whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” Maguire, Evidence of Guilt, 221 (1959).

We conclude that Gurtz’s identification of Hebert in the lobby of the police station was not the result of any police “exploitation” of an illegal arrest.

In United States v. Young, 512 F.2d 321 (4th Cir. 1975), the defendant was arrested a short time after a robbery. When he arrived at the police station, the defendant was immediately identified as one of the robbers by the victim who was at the station. Assuming that the arrest was illegal, the court held that the victim’s identification of the defendant at the police station was not the “fruit” of the arrest. In holding that there was insufficient proximate connection between the arrest and the identification, the court stated:

It is purely happenstance that Bernstein was taken to the police station rather than to the roadblock where he could have identified Young prior to arrest. Once the suspected culprits were known, Bernstein could just as well viewed them as they left their homes the next day. . We hold that an unlawful arrest does not per se make inadmissible positive identification testimony that is otherwise competent.

Id. at 323. If anything, the unplanned meeting in the lobby of the police station was to Hebert’s benefit. There was a complete absence of any suggestiveness which might have been present had the police taken Gurtz to the Place-to-Play Tavern to view Hebert before the arrest.

In Commonwealth v. Garvin, 448 Pa. 258, 293 A.2d 33 (1972), the Supreme Court of Pennsylvania held that evidence of an out-of-court identification should not be suppressed solely on the theory that it was the fruit of an illegal arrest. The court stated:

No law abiding society could tolerate a presumption that but for the illegal arrest the suspect would never have been required to face his accusers. Thus, we conclude that the only effect of the illegal arrest was to hasten the inevitable confrontation and not to influence its outcome.
. We cannot assume that but for the illegal arrest the appellant would have remained at large indefinitely. In either case it is clear that the illegality contributed neither to the knowledge of the witnesses nor to the accuracies] of their identifications.

293 A.2d at 37-38. Likewise, Hebert’s arrest did not contribute to Gurtz’s knowledge, nor to the accuracy of his identification.

In State v. Lynch, Mo.App., 528 S.W.2d 454 (1975), the defendant claimed that the trial court erred in admitting evidence of a pretrial identification by the victim, Mrs. Daugherty. In holding that the identification was not the product of an unlawful detention, the court stated:

[T]he identification testimony was admissible, because the identification by Mrs. Daugherty was not causally connected with the arrest but rather with the robbery itself, and because the identification testimony emanated from a source independent of the arrest, i. e., her recollections and. observations at the time of the robbery. Mrs. Daugherty testified that the appellant was in visual proximity with her for at least fifteen minutes under conditions which she described as well-lighted. The defendant stood face-to-face with Mrs. Daugherty on several occasions close enough to take money from her brassiere and close enough to strike her on the head several times with a pistol. Mr. Daugherty was able to give the police a detailed description of her assailant and was positive about her identification. Under these circumstances, it is clear that her identification testimony had an origin and a basis independent of either the arrest or the lineup and was, therefore, admissible.

Id. at 459-60. In the present case, Gurtz had given a detailed description of the robber which fitted Hebert exactly. Although not knowing Hebert’s name, Gurtz knew him by sight as a prior customer of the grocery store. Gurtz had ample opportunity to observe Hebert during the robbery itself.

This case is clearly distinguishable on its facts from the decision of this court in Jones v. Commonwealth, supra. In the Jones case, the police did exploit the illegal arrest by taking the defendant’s photograph which was used as a basis for the identification of the defendant by the victim of the robbery. Unlike the unplanned and spontaneous identification in this case, the photograph taken following the illegal arrest in the Jones case was itself imper-missibly suggestive. This court held that the photograph and evidence of the out-of-court identification should have been suppressed as the “fruits” of the illegal arrest. In the present case, Gurtz’s identification of Hebert in the lobby of the police station had a basis completely independent of Hebert’s arrest. The trial court did not err in admitting evidence of the confrontation between Gurtz and Hebert.

II

During the trial, Hebert sought to impeach Detective Thompson by showing bias and hostility. When Hebert sought to testify that Detective Thompson had arrested him and his co-defendant, Jones, on a previous robbery charge, both the Commonwealth and Jones’s trial counsel objected. The trial court sustained the objection and prohibited Hebert’s trial counsel from further inquiry into the prior arrest. By way of avowal, Hebert’s trial counsel stated that Hebert would testify that the charges were dismissed on the initiative of the Commonwealth because of insufficient evidence and that Detective Thompson had promised to “get them for something else.” Hebert contends that the action of the trial court deprived him of his sixth amendment right of confrontation. We disagree.

First, on cross-examination, Detective Thompson was not interrogated regarding the prior arrest and conversation with Hebert. Since no foundation had been laid for Hebert’s testimony concerning prior statements showing bias and hostility on the part of Detective Thompson, the testimony was properly excluded. Sebastian v. Commonwealth, Ky., 436 S.W.2d 66 (1969); Horner v. Commonwealth, 19 Ky.L.Rep. 710, 41 S.W. 561 (1897); Stokes v. Huddleston, 227 Ky. 613, 13 S.W.2d 784 (1929); McCormick on Evidence § 40 at 81 (2d Ed.1972); 3a Wigmore on Evidence § 953 (Cbadbourn rev.1970).

Second, the objection was not properly preserved by avowal. RCr 9.52 provides that an avowal must be made in the manner provided in the Civil Rules. Under CR 43.10, the witness must offer the testimony which will constitute the avowal. The examining attorney is not permitted to state the substance of the witness’s proposed testimony. Clay, Ky.Practice, Civil Rule 43.10, Comment 2 (3d Ed.1974). We also note that Jones’s trial counsel was objecting to the testimony because Detective Thompson was prepared to testify that the prior robbery charge had been dismissed only because the witnesses were afraid to testify against Hebert and Jones.

Under the circumstances, the trial court did not commit prejudicial error in sustaining the objections to Hebert’s efforts to impeach Detective Thompson.

Ill

The court has considered the other issues raised in Hebert’s appellate brief, but which were not pressed at oral argument. We find each of the other issues to be without merit. Rather than extend this opinion further, we state our reasons for rejecting the other arguments in a supplemental opinion.

The judgment of the circuit court is affirmed.

All concur.


author: MARTIN, Chief Judge.

text:
    Ronald L. KEEFE, Appellant, v. O. K. PRECISION TOOL & DIE COMPANY and Workmen’s Compensation Board, Appellees.
    Court of Appeals of Kentucky.
    March 31, 1978.
    Discretionary Review Denied June 27, 1978.

      Charles A. Taylor, Taylor & Elam, Lexington, for appellant.
    Lionel A. Hawse, Landrum, Patterson & Dickey, Lexington, for appellees.
    Before MARTIN, C. J., and REYNOLDS and WILHOIT, JJ.
   MARTIN, Chief Judge.

The appellant suffered a compensable injury at his job. A claim was filed and an award was made to him by the Workmen’s Compensation Board. No appeal was taken. When Apache Coal Co. v. Fuller, Ky., 541 S.W.2d 933 (1976), was decided, he filed a motion before the Workmen’s Compensation Board seeking to reopen his award. Appellant argues that the computation of his award was based on the law as it was interpreted by the Board prior to the decision in Apache and he, therefore, was denied the substantially increased benefits that would flow to him if the award were now reopened and a recomputation were made under the holding in Apache. The effect of Apache was that for the period beginning January 1,1973, until the statute was amended effective January 1, 1977, there was a minimum amount that must be awarded in any workmen’s compensation claim where the Board found the claimant to have a partial permanent disability as the result of a work related injury.

The Board denied appellant’s motion to reopen and this determination was upheld by the Fayette Circuit Court. We agree that the Board was correct in denying the motion to reopen. The principle of res judi-cata limits the application of Apache to the period from the date it was decided until January 1, 1977, the effective date of the amendment to KRS 342.730(l)(b).

At the time of his injury on February 1, 1975, Ronald L. Keefe, the appellant, was operating a metal working machine in the shop of his employer, O.K. Precision Tool and Die Company, in Lexington. Keefe, who is righthanded, sustained a laceration in the joint of his left index finger when a metal burr caused his hand to slip under the cutting blade of the machine. He was treated immediately at the emergency room of Good Samaritan Hospital and released. Six months later he was evaluated by Dr. Brooks Morgan, the only physician to testify in his case. At that time, he had no complaints of pain, had full motion throughout his hands and fingers except in the last joint on his left index finger and was given an “arbitrary” 2% functional impairment rating. Throughout this period he had continued his regular employment. On July 18, Keefe filed an application for adjustment of his claim with the Workmen’s Compensation Board. On April 5, 1976, the Board entered its opinion and award, finding Keefe to have a 3% occupational disability and awarding him $1.78 per week permanent compensation. The employer filed a petition to reconsider the award on the ground that the award should have been limited to the scheduled benefits provision of the Workmen’s Compensation Act. This motion was overruled on April 19. Neither the employee nor the employer appealed, and the award became final on May 9. The question we must resolve on this appeal is how final that award was. Appellant argues that the Board was mistaken as to the law in setting such a small award. Applying the computation in Apache, appellant alleges that he is entitled to $29.00 per week in permanent compensation payable for the remainder of his life.

A basic part of our legal system is the doctrine of finality of judgments or awards. Once the claims or rights of a litigant have been determined, the matter should end. We have an extensive appeal procedure which allows, as a matter of right, the review of any judgment. When that judgment then becomes final, it should remain final unless there was fraud, mistake or a very persuasive reason why the judgment should be disturbed. In a workmen’s compensation case, the award will become final unless a request to reconsider the award is filed within 14 days, or an appeal is taken to circuit court within 20 days. KRS 342.281, 342.285. When an award does become final as provided in the statutes, it has the same finality as a court judgment. In the present case we are faced with a basic legal conflict. Determination of this conflict depends upon which of two lines of reasoning we follow. The first is to allow any award or judgment to be reopened or recomputed if there is a mistake of law or fact. The alternative is to follow the line of cases adopting the doctrine of res judicata.

The workmen’s compensation statutes have allowed some relief from the finality of judgments, just as Civil Rule 60.02 has allowed relief to any civil litigant. KRS 342.125 provides:

(1) Upon its own motion or upon the application of any party interested and a showing of change of conditions, mistake or fraud or newly discovered evidence, the board may at any time review any award or order, ending, diminishing or increasing the compensation previously awarded .

The only difference between CR 60.02 and this statute is the Board’s authority to change its final award based upon a “change of condition” of the claimant. This provision conforms with the social policy behind workmen’s compensation legislation, but is not applicable in the present case. The only basis available for reconsideration of the award in this case is whether the Board’s final award constituted a “mistake” of law.

As dicta in Stearns Coal & Lumber Co. v. Vanover, 262 Ky. 808, 91 S.W.2d 518 (1936), the court stated a mistake of law, as well as a mistake of fact, would authorize the Board to reopen a claim unless the case had been reviewed on appeal, even though earlier decisions held to the contrary. See Southern Mining Co. v. Collins, 222 Ky. 388, 300 S.W. 896 (1927), and Ashland Iron & Mining Co. v. McDaniels Dependents, 202 Ky. 19, 258 S.W. 943 (1924). However, the authority to reopen an award for a mistake is not without limit. In Wells v. Fox Ridge Mining Co., Ky., 243 S.W.2d 676 (1951), the court held that a “mistake” either of law or fact must be based upon ignorance or misapprehension. It was further held that a mistake of counsel in failing to produce available evidence does not constitute a “mistake” within the meaning of KRS 342.-125. That section of the statutes authorizes the reopening of a case for the purpose of taking additional proof. The court goes on to state, at 677:

. In the case of Stearns Coal & Lumber Co. v. Vanover, 262 Ky. 808, 91 S.W.2d 518, it was held that the statute authorizing the board to change its order because of “mistake” included mistakes of law as well as fact, but mistake, regardless of whether it is of law or fact, must be founded upon ignorance before relief may be granted on account of it.

In Preston v. Elm Hill Meats, Inc., Ky., 483 S.W.2d 136 (1972), the court held the “mistake” of a minor in settling his workmen’s compensation claim for loss of an arm under the scheduled benefits section rather than for disability to the body as a whole was not a “mistake” within the meaning of KRS 342.125. Nor was it a mistake sufficient to reopen the award when he failed to claim a 15% penalty, as provided by law, for his employer’s violation of the Child Labor Act. In Young v. Charles Trivette Coal Co., Ky., 459 S.W.2d 776 (1970), the court, overruling earlier decisions to the contrary, held that the employee’s “mistake” as to his future condition of employability, when he settled his case for permanent partial disability benefits rather than permanent total disability benefits, did not constitute a ground for reopening the award.

In Beth-Elkhorn Corporation v. McFall, Ky., 415 S.W.2d 857 (1967), the Board entered an award against the Special Fund for disability income benefits and assessed medical expenses against the Special Fund. Under the statutes and existing case law, even where there was an award against the Special Fund, medical expenses were to be paid by the current employer of the claimant. No appeal was taken and the award became final. Thereafter, the employee filed a motion to correct the award seeking to have the employer reimburse him for his medical expenses. The motion was sustained by the Board. In reversing the Board, the court conceded the original award was in error, but held the only remedy was to appeal the original award, and since no appeal was taken, the matter was barred by the doctrine of res judicata. In the present case we are faced with a similar situation.

The doctrine of res judicata was well stated in Parker v. White, 223 Ky. 561, 563, 4 S.W.2d 380, 381 (1928):

Res judicata is a rule of law pervading every system of civilized jurisprudence, grounded upon public policy, in the interest of society, that there should be an end of litigation, and upon reasonable necessity which impels protection of the individual from the vexation of repeated suits. “The doctrine applies and treats the final determination of the action as speaking the infallible truth as to the rights of the parties as to the entire subject of the controversy, and such controversy and every part of it must stand irrevocably closed by such determination. The sum and substance of the whole doctrine is that a matter once judicially decided is finally decided.”

The court went on to state, “The prior judgment settles all matters in issue as well as all matters that properly could have been presented therein.”

In the present case we must assume the computation question now raised by appellant could have been raised before the Board when his award was computed. The statute under which Apache was decided was in effect at that time. No appeal was taken, so this issue would be barred under the doctrine of res judicata if that doctrine is available in workmen’s compensation cases, The doctrine has been applied in the past in Happy Coal Co. v. Hartbarger, 251 Ky. 779, 65 S.W.2d 977 (1933), and followed in Hysteam Coal Corp. v. Ingram, 283 Ky. 411, 141 S.W.2d 570 (1940). In reversing an award granted on a motion to reopen the award, and dismissing the claim, the court stated in Hysteam Coal, supra, 283 Ky. at 415, 141 S.W.2d at 572:

The doctrine of res judicata applies to rulings of a Workmen’s Compensation Board the same as it does to decisions of the court, (citations omitted). In the Hartbarger case it was pointed out that if a motion to reopen were resisted and there was a decision denying the motion on its merits, such decision would be given the same effect as if the motion had been sustained and a retrial ordered; otherwise, one seeking compensation before the Board would never be precluded and could continue to file innumerable motions for a rehearing of the case . . .

The court then went on to state at 283 Ky. 416, 141 S.W.2d 572:

It is just as essential that there be an end to litigation in cases arising under the Workmen’s Compensation Act as in other cases.
There runs through the decisions of all courts a motif that litigation cannot be interminable, and that it must not be prolonged unduly by one procedure when the statutes provide another procedure which protects the rights of litigants just as effectively, and directs the route which will lead to a quicker end of the controversy.

We believe that this line of cases establishes that a doctrine of finality has been adopted in workmen’s compensation cases. The award of the Board once final may only be reopened upon a showing that the Board misapplied the law as it was when the award was made. Subsequent interpretations of the law will not warrant the reopening of awards made final under the doctrine of res judicata.

In the decision in Apache Coal Co. v. Fuller, supra, the court stated it was faced with conflicting statutory provisions. The court in reaching its decision determined that the legislature had enacted two alternative benefit computation plans. The conflict was resolved by granting the maximum possible benefits to the claimant. The court held that where the Board determined that a claimant was permanently partially disabled, he was entitled to a minimum income benefit award.

At the special session of the Kentucky General Assembly in December 1976 that provision of KRS 342.730(l)(b) was amended to read as follows: “Notwithstanding any section of KRS Chapter 342 to the contrary, there shall be no minimum weekly income benefit for permanent partial disability.” Because of the conflict created by the holding, we interpret the decision in Apache Coal Co. v. Fuller, supra, to be applicable to claims arising prior to January 1, 1977, the effective date of the new statute, and not finally decided prior to November 12, 1976, the date of denial for rehearing of Apache.

Appellant, on the other hand, argues that the decision in Apache requires that any employee injured in a work-related accident between January 1, 1973, and January 1, 1977, who is determined to have a permanent partial disability is entitled to the minimum weekly benefits as determined by Apache. We do not believe that this is the interpretation intended by the decision because it is completely contrary to the doctrine of res judicata.

The specific provisions for computing income benefits, KRS 342.730 and KRS 342.-740, were renumbered by the 1972 Legislature, effective January 1, 1973. The same language had been used in the predecessor statutes for over 60 years. See KRS 342.-110, KRS 342.070(5); 47 Ky.Law J. 279 (1959). The predecessor statutes have consistently been interpreted in the computations of awards, as the Board did in the present case. See Kentucky Distilleries & Warehouse Co. v. James, 205 Ky. 185, 265 S.W. 629 (1924); Three Point Coal Co. v. Santy, 214 Ky. 357, 283 S.W. 93 (1926); Browning v. Moss & Williams Co., 306 Ky. 520, 208 S.W.2d 495 (1948); Stumbo & Vance Coal Co. v. Tackett, Ky., 300 S.W.2d 232 (1957); Harland-Wallins Coal Corp. v. Jackson, 313 Ky. 823, 233 S.W.2d 1014 (1950).

To apply Apache to the present case would give that decision retroactive effect. In a similar case, a Minnesota court denied an employee’s attempts to reopen his final award based upon a decision which would have granted him significantly increased benefits. Sandal v. Tallman Oil Co., 298 Minn. 264, 214 N.W.2d 691 (1974). The Minnesota statute authorizes any award to be reopened “for cause.” Minn.St.1971, § 176.461. This is much broader than our Kentucky statute, KRS 342.125. In upholding the denial of the motion to reopen, the court stated, at 693:

Here the petitioner obtained an award based upon the then interpretation of the statute and no appeal was taken. Our decisions have made it clear that finality of decision is essential to the orderly administration of the act except under certain circumstances. A subsequent interpretation by the court is not such a circumstance.

The retroactivity of a decision interpreting a workmen’s compensation statute was before the court in Osborne v. Johnson, Ky., 432 S.W.2d 800 (1968). The court there changed the concept of total disability from the employee’s lack of ability to do his “usual and customary” work to his lack of ability to do any job which was normally available in the employee’s local job market. The decision overruled many earlier cases. The court specifically provided in the decision that it would have prospective application only and would apply only to claims filed after the effective date of the opinion. In a subsequent decision where the accident occurred prior to the decision but where the claim was still in litigation when Osborne was decided, the court refused to apply the decision retroactively. Department of Economic Security v. Adams, Ky., 450 S.W.2d 819 (1970).

The decision in the instant action does not use the date of filing as determinative. Osborne is distinguishable on this point because it dealt with factual matters going to the heart of the case. Applying it to pending cases would have required all cases then pending to return to the deposition process for taking of proof to conform to the new definition of total disability. In the present case, we are dealing with a matter of law that would require no more than its application by the Board. Therefore, it is appropriate for the Apache decision to be followed in cases pending as of November 12, 1976.

An award for permanent partial disability benefits under the Workmen’s Compensation Act is designed to approximate the dollar value of the estimated impairment of the employee’s earning capacity based upon his earnings at the time of the accident, the nature and extent of his injury, his subsequent earnings, his age, skills, and physical capacity. KRS 342.730(1)(b); Osborne v. Johnson, Ky., 432 S.W.2d 800 (1968); Couliette v. International Harvester Co., Ky., 545 S.W.2d 936 (1976). The Board did that in the present case.

The court in Apache determined there were two ways of computing benefits for permanent partial disability. The court went further to hold that the minimum benefits provisions of the statute applied to require the payment of minimum benefits on each workmen’s compensation case. Pri- or to the decision in Apache, the Board had not interpreted the statute in this way. In fact, the amendment passed during the 1976 Special Session of the General Assembly changed this holding. Rather than allow all of the claims for permanent partial disability that were finally decided prior to Apache to be reopened, we believe that the doctrine of res judicata takes precedence over the statutory scheme that would allow the reopening of an award for erroneously not applying the minimum benefit statute.

Affirmed.

All concur.


author: COOPER, Judge.

text:
    Pauline EDWARDS and William D. Edwards, Appellants, v. Claude Thomas INMAN, Jr. and Anna Louise Inman, Appellees. Claude Thomas INMAN, Jr. and Anna Louise Inman, Cross-Appellants, v. Pauline EDWARDS and William D. Edwards, Cross-Appellees.
    Court of Appeals of Kentucky.
    April 28, 1978.
    Rehearing Denied June 6, 1978 and June 9, 1978.

      Paul M. Lewis, Lewis, Bland & Preston, Elizabethtown, for appellants. '
    Nick L. Pearl, Pearl, Pearl & Pearl, Rad-cliff, for appellees.
    Before COOPER, GANT and PARK, JJ.
   COOPER, Judge.

This is an appeal from a judgment in the Hardin Circuit Court allowing the appellants credit for $1,200 in damages and allowing the appellees to recover the sum of $8,800 on a $5,000 deposit for the purchase of real estate.

The appellees, Claude and Anna Inman, made a $5,000 deposit on a contract for the purchase of a 212 acre farm owned by the appellants, Pauline and William Edwards, and the down payment was conditioned upon the appellees being able to get a loan commitment from the Federal Land Bank within fourteen (14) days after the signing of the contract. The Federal Land Bank felt the property was short of the contract acreage and a letter was sent out by the Federal Land Bank fifteen (15) days after the contract date stating that a survey must be obtained prior to any loan commitment being made. The appellants hired a surveyor to survey the property on October 6, 1973, and it was twenty-four (24) acres short of the contract acreage. This survey was never given to the Federal Land Bank and the loan commitment was never made. The appellants then decided to keep the down payment and refused to pay it back; therefore, the appellees sued for refund of the down payment.

A part of the contract of sale as shown by Plaintiff’s Exhibit # 1 is as follows:

ELIZABETHTOWN, KENTUCKY. AUGUST 30. 1973. THROUGH the BRAWNER REALTY CO. AS AGENTS, I will give for the following described property in HARDIN COUNTY. KY., 212 ACRES more or less, located on RFD. 1 EAST VIEW. KY. With all improvements thereon, and known as MRS. TOM NORRIS FARM. NOW WILLIAM EDWARDS FARM. The sum of FIFTY THOUSAND DOLLARS ($50.0001 Payable as follows, After down payment the balance will be paid cash upon delivery of deed. No growing crops will go with sale of farm. This bid of contingent upon the purchaser being able to get a loan. Possession of land will be given after crops are harvested. Two weeks will be aloud Loan committment. No timber will be cut off this farm from this date of contract.
An unemcombered, marketable title to said property is to be conveyed by deed, of General Warranty, with the usual covenants such as any title company will insure, except easements of record and all restrictions as to use and improvements of the property of record and any restrictions imposed by the Planing and Zoning Commission and except for aforementioned encumbrances, if any. DEED to be made on or before 60 days from this date. TAXES for 1973 will be paid by The sellers. POSSESSION of the above described property to be given on or before January 1. 1974. Possession of buildings will be held until January 1. 1974. If Loan is not approved the down payment will be refunded. AS evidence of good faith binding this contract, a deposite of $5.000.00 is made herewith to be applied on purchase price upon pasing of deed or refunded should title prove uninsurable or if offer is not accepted, (sic)

On the trial of said action the court instructed the jury as follows:

You will find from the evidence the amount of damages sustained by the defendants, Edwards, by reason of the failure of the plaintiffs, Inmans, to perform and comply with the contract about which you have heard evidence, not to exceed therefore the sum of $500.00 for real estate commission, $200.00 for cost of survey, $500.00 for attorney’s fees and not exceeding $5,800.00 for the fair and reasonable rental value of said property, not exceeding the sum of $7,000.00, the amount claimed; and you will offset such amount of damages as you may find the said defendants sustained with the sum of $5,000.00 received by them as a down payment outlined in said contract, and you will bring in a verdict for the difference between said sums to the party entitled thereto or offset one against the other, as you may believe the evidence justifies.

The jury returned a verdict for the appel-lees in the amount of $3,800 as the difference between the deposit made by the ap-pellees and the damages that were mentioned in the court’s instructions.

The main issue in this case is:

WHETHER THE VENDEES CAN RECOVER THEIR DEPOSIT ON A REAL ESTATE PURCHASE CONTRACT. BASED ON CERTAIN CONDITIONS WITH A THIRD PARTY WHICH NEVER OCCURRED, EVEN THOUGH THE VENDOR MAY HAVE EXPENDED SUMS FOR SURVEYS, ATTORNEY’S FEES AND REAL ESTATE COMMISSIONS.

It appears that the whole contract was contingent upon the ability of the appellees to obtain a loan from the Federal Land Bank within fourteen (14) days. However, the Bank felt there was a shortage in acreage and failed to grant the loan without a survey.

After having a survey made that indicated only 188 acres in the said tract, the appellants never submitted the survey to the Federal Land Bank, which resulted in an incomplete contract.

We do not think it necessary to discuss the 10% rule in this case as the contract was never completed. Undoubtedly, this shortage is the reason the Federal Land Bank demanded a survey, but was never presented to them.

In the case of Green River Steel Corporation v. Globe Erection Company, Ky., 294 S.W.2d 507 (1956), the court reaffirmed the well-established rule that a com itional agreement is void if the condition does not occur. The court stated as follows at page 508:

As general rule, where an agreement is made subject to consent or approval of a third person, it is conditional on giving of such consent within reasonable time, in default of which the agreement will not become effective.

A Kentucky case which is very similar to the case at bar is Guill v. Pugh, 311 Ky. 90, 223 S.W.2d 574 (1949). In this case the court affirmed the lower court’s directed verdict permitting the vendee to be refunded his down payment of a land purchase contract even though the vendee had rescinded the contract. In that case the court stated as follows at page 575:

We think the acts of the parties constitute a rescission of the contract as fully as though it had been done by agreement. Appellee rescinded her contract by notifying appellants she would not go through with it, and by filing this suit on April 23, one month after the contract, to require return of the amount paid thereunder. Appellants in effect rescinded the contract by selling the property to someone else while the suit was pending thus making it impossible for them to comply with the contract. ... To allow them to retain the $500 down payment would result in an unjust enrichment at the expense of the appellee and to which they were not entitled under the terms of the contract. Forfeitures are not favored under the law and there is nothing in this contract which could be construed as giving appellants the right to forfeit this down payment, especially under the facts in this case where they gained by the nonconsummation of the contract.

In the absence of an agreement to the contrary, the burden is on the seller to pay for surveys and other incidentals in the sale of real estate.

The evidence did not support any finding that the appellees breached the contract and it was clearly erroneous for the lower court to direct the jury to find damages for the appellants under the facts in this case.

We have considered both the appeal and cross-appeal in this matter.

The judgment in case No. 76-198 is affirmed. The judgment is reversed on cross appeal No. 76-255, and the trial court is directed to enter judgment for the appellees in the amount of $5,000.00.

All concur.


author: WILHOIT, Judge.

text:
    John WILCHER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    May 26, 1978.
    John S. Smith, Spragens, Smith & Hig-don, Lebanon, for appellant.
    Robert F. Stephens, Atty. Gen., John W. Stewart, Asst. Atty. Gen., Frankfort, for appellee.
    Before COOPER, HOWARD and WIL-HOIT, JJ.
   WILHOIT, Judge.

This is an appeal from a judgment of the Casey Circuit Court entered in accordance with a jury verdict finding appellant, John Wilcher, guilty of wanton endangerment in the second degree, proscribed by KRS 508.-070, and imposing punishment at a fine of $500.00.

The charge of wanton endangerment arose from an incident involving appellant Wilcher and the prosecuting witness, Cecil Stafford. According to Stafford, he was riding with his wife in their pickup truck when he saw Wilcher approaching in his pickup truck from the opposite direction, driving partially in the Stafford’s lane of traffic. Wilcher passed so close to the Stafford truck that he broke the side-view mirrors on both trucks. Mrs. Stafford turned the truck around and they followed Wilcher into Liberty, Kentucky, where he stopped. Mr. Stafford approached Wilcher’s truck and pecked on the window which Wilcher than rolled down. After some conversation between the two men, Wilcher rolled up the window on Stafford’s arm, backed up then pulled forward 3 times in the truck, and then carried Stafford some 25 or 30 feet on the outside of the truck until he fell or was thrown onto the pavement sustaining injury-

Wilcher relies upon the following grounds for reversal: 1) the court erred in permitting witnesses to testify that Wilcher was under the influence of intoxicating liquors or drugs, and 2) the court erred in failing to set aside the swearing of the jury due to improper comments made by the prosecuting attorney.

At trial, Cecil Stafford testified that at the time of the incident Wilcher “was very drunk or doped, one of the two.” David Price, the policeman who arrested Wilcher after seeing him leave the scene of the incident, testified that Wilcher was in no condition to be driving because “[h]e was under the influence of liquor, or drugs, at the time.” Wilcher argues that since the condition of an accused is not in issue when charged with wanton endangerment in the second degree and since he did not raise drunkenness as a defense to the charge, any evidence on his condition was irrelevant. We do not agree.

In an Arkansas case in which the defendant was found guilty of assault with intent to kill, defendant urged reversal on the ground that admitted evidence concerning a blood alcohol test was irrelevant to the charge. The Court stated:

On a charge of assault, the condition of the accused as to intoxication is relevant as a part of the surrounding circumstances. . . Circumstances so clearly related to the main fact under consideration as to illustrate its character and the state of mind, sentiment and disposition of the actor are parts of the res gestae, which embraces not only the actual facts of the transaction and the circumstances surrounding it, but also matters immediately antecedent to and having a direct causal connection with it, as well as acts immediately following it and so closely connected with it as to form in reality part of the occurrence.

Turner v. State, 258 Ark. 425, 527 S.W.2d 580, 586 (1975). See 1 J. Wigmore, Evidence § 85 (3d ed. 1940). We agree with the position expressed by the Arkansas Court and hold that evidence of Wilcher’s intoxication was properly admitted. See also Tester v. Commonwealth, 229 Ky. 403, 17 S.W.2d 260 (1929).

As regards the second ground for reversal, appellant cites numerous instances of alleged improper remarks made by the prosecuting attorney, both during examination of witnesses and in closing argument, which appellant contends require reversal of his conviction. Only one and possibly another of the alleged errors, however, are properly preserved for review since no objections were raised at trial to any of the other comments. On cross-examination by the Commonwealth, appellant testified that the policeman knocked him out and that 3 or 4 days passed before he “come to.” At that point the commonwealth’s attorney asked: “Didn’t take that long to get sober did it?” Appellant’s counsel immediately objected but the trial court did not respond and counsel did not obtain a ruling by the court nor pursue the matter in any other way. Consequently, any objection to this comment was waived. Time Finance Co. v. Beckman, Ky., 295 S.W.2d 346, 349 (1956); Greathouse v. Mitchell, Ky., 249 S.W.2d 738 (1952).

The other alleged impropriety occurred when appellant made a written motion during trial to exclude the results of a blood alcohol test performed on Wilcher. The court sustained the motion and the following occurred within the hearing of the jury:

By Mr. Paul Carter [Commonwealth’s Attorney]: Judge I think I have a right to show he had a blood test and what it showed.
By Mr. Smith: Objection your Honor! Now counsel is going to testify.
By the Court: Alright the objection is sustained Mr. Carter. Stand Aside Mr. Price.
By Mr. Carter: Okay, if they don’t want it to come out.

At this point appellant requested that the court admonish the jury to disregard the last remark and that it be stricken from the record. The court told the jury to “disregard that entirely and give it no consideration whatsoever.” Appellant’s counsel then requested that the court declare a mistrial which the court refused to do. Appellant argues that this comment by the Commonwealth’s attorney was prejudicial to appellant, even though he received only a fine and no jail term, and that the relatively mild punishment may indicate that the “jurors didn’t really believe in his guilt and may well have been punishing him for the use of alcohol.”

At oral argument, appellant’s counsel urged that the recent Supreme Court case of Campbell v. Commonwealth, Ky., 564 S.W.2d 528 (1978), supports the conclusion that reversal is necessary in this case. In Campbell, the murder conviction of Leroy Campbell was reversed due to improper conduct on the part of the prosecuting attorney who questioned a witness about threatening telephone calls he had received prior to trial. The Court held that it could not be said that such an error was harmless beyond a reasonable doubt given the fact that the prosecutor reinstated by a remark during closing argument the link between Leroy Campbell and the threatening calls, “a link which otherwise might have been dispelled by the court’s admonition, and given the fact that Leroy received the minimum sentence for the crime for which he was convicted, which indicates ... a compromise among the jurors . . . .” Id. at 531. The alleged error raised by Wilcher in this case, however, was followed by an admonition; this is not the situation where the error has been reinstated by the closing argument as it was in Campbell. Also, the punishment here is not the minimum and a $500 fine does not necessarily indicate to us a compromise. The two “givens” upon which the Court concluded that the error was not harmless beyond a reasonable doubt in Campbell are not, therefore, present in this case. While we certainly do not condone the comment made by the prosecuting attorney, upon a consideration of the whole case, especially the weight of the evidence, we do not believe that there is a substantial possibility that the result would have been any different had the comment not been made and the error is, therefore, nonprejudicial. Abernathy v. Commonwealth, Ky., 439 S.W.2d 949 (1969).

The judgment of the trial court is, therefore, affirmed.

All concur.


text:
    Sarah Amanda GAINES, Appellant, v. Julian GAINES, Appellee.
    Court of Appeals of Kentucky.
    May 26, 1978.

      James H. Highfield, Berry, Floyd & Highfield, Carrollton, for appellant.
    Stanley M. Billingsley, Carrollton, for ap-pellee.
    Before HOWERTON, LESTER and WHITE, JJ.
   LESTER, Judge.

This appeal from a judgment of dissolution of marriage raises questions concerning the jurisdiction of the trial court relative to child custody, support, maintenance, costs and the power of the court to make determinations regarding personal property and debts situated outside the Commonwealth.

We are not favored with a transcript of evidence or a narrative statement of what the testimony was, so we will glean from the pleadings and the findings of fact so much of the circumstantial history of the litigation as we are enabled to find.

The parties to this action were married in 1965 in the State of Georgia and resided either in that jurisdiction or some place other than Kentucky until March of 1976 when they moved to Warsaw. The couple have two children who are approximately eight and ten years old at the present time. Domestic problems arose, and appellant and the children returned to Warner-Robbins, Georgia on or about January 22, 1977. Ap-pellee filed his petition for dissolution of marriage on February 8, 1977. In his case, appellee recited, among the standard allegations, that his wife was the proper party to have custody of the children; that she was capable of working and did not require maintenance; that they had acquired a small amount of marital property and several debts; and that appeljáñt’á1 parents had given the parties various items of personal property which should be restored to his mother and father.

Based upon proper affidavit as to appellant’s nonresidency, the circuit clerk designated a warning order attorney to notify the wife as to pendency of the action, which resulted in a reply from an attorney in Georgia making certain inquiries as to Kentucky jurisdiction in divorce matters. Appellant was never subject to the circuit court by either personal service or entry of appearance.

After an unreported hearing, the trial court entered findings of fact and conclusions of law to the effect that the court had jurisdiction “of all issues raised by the pleadings” and based thereon, dissolved the marriage and awarded the custody of the children to the wife and ordered appellee to pay $80.00 per month per child in spite of the fact that he was unemployed. The court then required Julian Gaines to pay two loans to banks in Georgia in the total amount of $2,681.65 but allowed him a credit of $1,340.82 against the child support. Other conclusions were entered to the effect that Amanda, having sufficient estate of her own, was not entitled to maintenance. The court then restored to appel-lee’s father certain enumerated items of household furnishings and ordered Amanda to return to Mr. Gaines, Sr. a ladies gold pocket watch and a fur coat. On the other hand, the court awarded certain items of personalty to the wife (including a 1968 Ford Thunderbird automobile) part of which Amanda must have taken to Georgia while others remained in Kentucky, for the Gallatin Circuit Court went on to mandate that Julian could properly refuse to release such personalty as he had that had been awarded to Amanda until she returned the watch and fur coat to Julian’s father. The balance of furniture and appliances were given to appellee, and he and his wife were to divide certain wedding gifts. All remaining debts were to be paid by the husband.

Amanda filed a motion by way of special appearance, to set aside the entire judgment except the order of dissolution upon the ground that the court lacked jurisdiction over her and the children. The motion was overruled and she appeals.

Jurisdiction of a circuit court to enter decrees concerning child custody is governed by KRS 403.260 from which we quote the following pertinent sections:

(1)A court of this state competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:
(a)This state is the home state of the child at the time of commencement of the proceeding; or
(b) It is in the best interest of the child that a court of this state assume jurisdiction because:
1. The child and his parents, or the child and at least one (1) contestant, have a significant connection with this state; and
2. There is available in this state substantial evidence concerning the child’s present future care, protection, training, and personal relationships; or
(c) The child is physically present in this state; and
1. Has been abandoned; or
2. It is necessary in an emergency to protect him because he has been subjected to or threatened with mistreatment or abuse or is neglected or dependent; or
(d) 1. No other state has jurisdiction under prerequisites substantially in accordance with paragraphs (a), (b), or (c) of subsection (1), or another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine custody of the child; and
2. It is in his best interest that the court assume jurisdiction.
(2) Except under paragraphs (c) and (d) of subsection (1), physical presence in this state of the child, or of the child and one (1) of the contestants, is not alone sufficient to confer jurisdiction on the court of this state to make a child custody determination.
(3) Physical presence of the child, while desirable, is not a prerequisite for jurisdiction to determine his custody.

Dissecting this statute, we observe that custody jurisdiction is granted if Kentucky is the home state of the minors at the time of commencement of the action. The affidavit for warning order recites that appellant was a resident of Georgia although neither that document nor the complaint mention the residency of the children. On the other hand, the conclusions of law set forth that the appellee had visitation rights with his offspring, provided he bore the expense of transporting them from their home to his residence and return. It cannot be argued that Kentucky was the home state either at the commencement, during pendency or upon the conclusion of this cause at the trial court level, and apparently the court recognized this fact.

We are not unaware of the language of Freeman v. Freeman, Ky., 547 S.W.2d 437, 441 (1977) to the effect:

We note that the 1976 General Assembly by amendment to KRS 403.260 deleted the provisions which in the absence of the extraordinary circumstance provided for requires a period of six months to confer jurisdiction as the child’s “home state.” KRS 403.260 otherwise remains as enacted in 1972. We are of the opinion the philosophy of the Act necessitates some period of time before this state becomes the “home state” of the child.- Without some time period, the rest of the Act does not make sense. We are not advised whether the General Assembly deemed the six-months period too short or too long. In order to give effect to the Act, we feel that it will be incumbent upon this court in an appropriate case to fill the vacuum and construe the time period necessary to give effect to the spirit of KRS 403.260.

Although we agree that the “act” does not make sense without some time period being enunciated, nevertheless, none is provided by either legislative enactment or judicial fiat, and it is not within the province of this court to implement statutes especially where a provision existed and was subsequently deleted by the General Assembly.

It has been held that there must be maximum rather than minimum contact with the state in order to gain jurisdiction of custody matters. Turley v. Griffin, Ky., 508 S.W.2d 764 (1974). In the case before us, there was no contact with the state upon the commencement of this action, so there could be no jurisdiction obtained under KRS 403.260(l)(a). For that matter, during the entire marriage and lives of the children, the parties resided in this Commonwealth but eleven months.

Turning to subsection (b) 1 and 2 of the same statute, we note that the Gallatin Circuit Court would have been the proper forum if it would have been in the best interests of the children because one or both of the parents and the children had a significant connection with the state and there was available herein substantial evidence concerning the children’s present future care, protection, training and personal relationships. Even though one parent had a significant connection in Kentucky, this factor must be considered along with the availability of substantial evidence of the children’s welfare, and if any there might have been, it does not appear in the record before us, nor does the trial court make any findings or conclusion in this regard. So we have nothing upon which we can conclude that jurisdiction was afforded under KRS 403.260(l)(b) 1 and 2. Moreover, the purpose of those subsections is to limit jurisdiction rather than proliferate it. Turley supra.

KRS 403.260(l)(c) 1 and 2 have no application, for these sections are applicable to abandonment or emergency situations where the child is present in the Commonwealth.

Appellee urges that since appellant had not resumed residence in Georgia for the jurisdictional period of time (six months —Ga.Code § 30-107) for the purpose of commencing a divorce action, then the Kentucky court could make a custody award pursuant to KRS 403.260(l)(d) when read in the light of KRS 403.260(3). We disagree, for KRS 403.260(2) strongly implies that under subjection (l)(d) 1, physical presence is a necessity to confer jurisdiction. Our conclusion finds support in Hawley v. Shaver, Ky., 528 S.W.2d 669 (1975) to the effect that

Physical presence alone is not sufficient to confer jurisdiction except under KRS 403.260(l)(c) and (d) . .

Therefore, our interpretation of the statute is that by virtue of subsection (2) and the Hawley, supra, opinion, in order for a Kentucky court to be empowered to make an award of child custody pursuant to (l)(c) or (d), the minor must be present in the state. If we reached the opposite conclusion, a situation could arise where a nonresident couple could have been wedded for many years and have had children, and then one of them having removed himself to Kentucky without the child and having remained here for six months, could file a dissolution or custody petition; and if his former state did not have a statute having prerequisites substantially in accordance with KRS 403.260(1) (a), (b) or (c), then he could gain custody absent any other issue such as a constitutional prohibition.

Visitation with minor children may be granted to the parent not having custody, and having concluded that the court was without jurisdiction to award custody, then it was in a similar position regarding visitation and accordingly, we must reverse so much of the judgment as pertains to appellee’s privilege of visitation.

The matter of that portion of the court’s judgment dealing with support payments is next put in issue. Appellant argues that if the court was without jurisdiction to make an award of custody, it was in a similar position regarding support. KRS 408.210 invests the power to require either or both parties to pay a reasonable amount for the support of the children. Appellee invoked the forum of the Gallatin Circuit Court and when he did so, he alleged that appellant was a fit and proper person to retain custody. He knew or should have known the resources of his wife out of which to provide for their children and of his obligation or co-obligation to maintain them. He is presumed to be aware that whether his family was before the court or not, he was under a duty to see to it that his offspring were clothed with the necessities of life regardless of where they might reside.

In this regard, the court entered an in personam order requiring appellee to perform an act, namely, make payments, which it had the power and jurisdiction to do. We know of no reason why the children had to be within the state in order for the trial court to direct their father to support them in view of the fact that he is the one who invoked the jurisdiction.

Having resolved that the order directing appellee to pay child support was proper, we now direct our attention to that segment of the judgment which allows him a set-off or credit for one half of the two Georgia bank loans he was directed to pay against those support payments. In essence, what the circuit court has done is to say to appellant, you do not have to repay the lending institutions but when your former husband liquidates these debts, or while he is doing so, the money for the maintenance of the children is suspended. From that point of view, the Gallatin Circuit Court is in effect entering an in person-am judgment against appellant, for during such period of time as it requires Julian to reimburse one half of the loans, Amanda is chargeable with 100% of the child support. It is acknowledged that the court can order either or both parties to provide for the minors, but it could only make such demand upon appellant if she were before the court. Professor Petrilli, in his volume on Kentucky Family Law (§ 27.4 at 492) maintains that the right of support belongs to the child, and we can conceive of no reason why a portion of a debt of one of the parents should be allowed as a set-off against those sustenance payments. Our conclusion finds support in the logic of the California courts in Williams v. Williams, 8 Cal.App.3d 636, 87 Cal.Rptr. 754 (1970), when it denied a husband’s set-off of his wife’s portion of the net deficit resulting from the operation of a community property apartment house against child support payments, for the reason that such support was not an ordinary debt but rather a court-imposed parental duty, and for further reason that the obligation resulting from the deficit was that of the wife and not the child’s. This jurisdiction has always placed the immediate welfare of the offspring first regardless of whatever equitable adjustments should be made between the parents, Elkins v. Elkins, Ky., 359 S.W.2d 620 (1962) and accordingly, we will reverse the trial court’s judgment in this respect.

Remaining for our consideration are the issues of jurisdiction of the court to terminate any maintenance appellant might have been entitled to and to distribute the chattels of the parties.

Both KRS 403.190(1) concerning disposition of property and KRS 403.200(1) dealing with maintenance recognize separate actions for both subsequent to a dissolution action where one spouse was not subject to the jurisdiction of the court at the time of the original divorce proceedings. This recognition carries with it the strong implication that when neither the spouse nor the property are before the court, then no disposition can be made, but when the chattels are within the court’s jurisdiction, then it can make appropriate orders disposi-tive thereof. On the other hand, the court cannot enter an in personam order directed to an absent litigant to do some act with reference to personalty which is either within or without the state. Our views find support in Restatement (Second) of Conflict of Laws § 60 (1971) to the effect:

A state has power to exercise judicial jurisdiction to affect interests in a chattel in the state, which is not in the course of transit in interstate or foreign commerce, although a person owning or claiming an interest in the chattel is not personally subject to the judicial jurisdiction of the state.

Moreover, at § 77(2) of the same Restatement, we note that:

A state may not exercise judicial jurisdiction to absolve one spouse from any duty of support he may owe the other spouse in the absence of personal jurisdiction over the other spouse.

Based upon these principles, we must reverse so much of the judgment as denies Amanda maintenance and makes disposition of any chattels not within the jurisdiction of the court or orders appellant to return such personalty. On the other hand, we affirm that portion of the trial court’s judgment distributing those items of personal property that had their situs in this Commonwealth.

We assume that when appellee filed his petition on February 8, 1977, alleging that the parties had separated on January 22, 1977, that he meant they had lived together prior to this last mentioned date. If this is true, recalling that there is no transcript of evidence, we suggest that the trial court’s finding of fact reciting that “the parties have lived apart continuously for more than 60 days prior to the filing of the petition” be amended to reflect the actual facts.

The judgment is affirmed in part and reversed in part with directions that the circuit court enter orders in conformity with this opinion.

All concur.