text:
    CITY OF COVINGTON, Kentucky, Appellant, v. Lawrence F. BECK, George Kreutjanz, City of Lakeside Park, Kentucky, City of Erlanger, Kentucky, and David Stallard, Appellees.
    Court of Appeals of Kentucky.
    May 18, 1979.
    Rehearing Denied July 6, 1979.
    Discretionary Review Denied Oct. 2, 1979.

      A. Wallace Grafton, Jr., Sheryl G. Snyder, Francis J. Mellen, Jr., Wyatt, Grafton & Sloss, Louisville, Patrick C. Hickey, Cov-ington City Sol., Covington, for appellant.
    Joseph L. Summe, Peter J. Summe, Summe & Summe, Covington, for appellees Beck and Kreutjzans.
    Frank A. Wichmann, Covington, for ap-pellees City of Erlanger and David Stallard.
    J. Gregory Wehrman, Covington, for ap-pellee City of Lakeside Park.
    Before VANCE, WHITE and WILHOIT, JJ.
   WILHOIT, Judge.

This is a municipal annexation case in which the City of Covington appeals from the substance of two partial summary judgments incorporated by reference in a subsequent final judgment of the Kenton Circuit Court. The first summary judgment was entered on March 31, 1976, and held that Covington’s proposed annexation of certain surrounding territory was preempted and nullified by the General Assembly’s classification of the nearby City of Edgewood as a fourth-class city. A portion of the City of Edgewood was carved out of territory proposed for annexation by the City of Coving-ton. The second summary judgment was entered October 27, 1976, on behalf of the City of Erlanger and held that the City of Covington was precluded from annexing the southwest corner of the disputed area because the March 31 judgment rendered that area no longer contiguous with the Covington city limits. Both summary judgments were renewed and incorporated in a final judgment entered on August 1, 1978. Appeal is taken from this judgment.

This case is one of a series involving efforts of the City of Covington to annex surrounding territory. On February 21, 1962, the Covington City Commission enacted Ordinance Number 0-11-62 by which it proposed to annex certain unincorporated territory. On March 16, 1962, the remonstrants filed a complaint in the Kenton Circuit Court protesting the annexation, thus preventing the City of Covington from enacting a final ordinance of annexation.

On June 25, 1962, the City of Summit Hills Heights, a city of the sixth class, was incorporated and established by the Kenton Circuit Court within the territory proposed for annexation. On July 30, 1965, the City of Pius Heights was similarly incorporated within the disputed territory. Subsequently, both Summit Hills Heights and Pius Heights annexed additional territory within the area.

On December 10,1967, the Cities of Summit Hills Heights, Pius Heights, and Edge-wood consolidated into a new city named Edgewood pursuant to KRS 81.410 et seq. The new City of Edgewood was classified a fourth-class city by the 1968 Session of the General Assembly. Act of February 16, 1968, ch. 5, 1968 Ky. Acts 5.

The remonstrants moved for partial summary judgment on April 2, 1969, arguing that the Legislature’s reclassification of the city had foreclosed Covington’s right to annex the same territory. The court entered a pretrial order and judgment for the remonstrants. On September 14, 1971, the City of Covington appealed to the then Court of Appeals. On November 23, 1973, the Court of Appeals dismissed the appeal in an unreported memorandum opinion holding that the judgment was interlocutory and not appealable under CR 54.01 and CR 54.02.

Upon remand to the Kenton Circuit Court and after discovery, the judge entered another order and judgment on March 31, 1976, which was substantially identical to the previous judgment. The judgment determined that the legislative classification of Edgewood as a fourth-class city nullified the prior annexation ordinance.

The March 81, 1976 order also had the effect of preventing the City of Covington from annexing another portion of the area originally proposed for annexation. The territory awarded to Edgewood was centrally located within the area and had the effect of dividing the annexation area so that its southwest portion was no longer contiguous with Covington city limits. Consequently, the City of Erlanger moved for summary judgment to preclude that portion of the area from being annexed by Covington. This motion was granted on October 27, 1976.

In 1976, the General Assembly enacted KRS 81.145 which purported to allow the freeholders in an annexation area to “de-annex” the area from the annexing city by referendum. However, in City of Taylor Mill v. City of Covington, Ky.App., 575 S.W.2d 159 (1978), this Court struck down that statute as unconstitutional in violation of Section 156 of the Kentucky Constitution.

The first question presented on appeal is whether the trial court was correct in holding that the 1968 Act reclassifying the City of Edgewood from a sixth to a fourth-class city “vitiated” Covington’s annexation ordinance and prevented it from going forward with the proposed annexation. We believe that the court read more into the Act than was justified, but even if the court’s interpretation of the Act were correct a different result from that which it reached would be required.

It is undisputed that at the time Covington enacted its ordinance proposing annexation the territory in dispute was unincorporated and that no other municipality had taken any steps to annex it. The longstanding rule in this jurisdiction, and that generally applied elsewhere, is that in the case of rivalry between two annexing municipalities that which takes the first “public procedural step” to annex takes priority. City of Louisville v. Kraft, Ky., 297 S.W.2d 39 (1956); City of Lincolnshire v. Highbaugh Realty Co., Ky., 278 S.W.2d 636 (1955). Once that procedural step has been taken, the subsequent incorporation of the territory proposed for annexation has no effect on the procedure by which the annexation is effected. That is, the municipality which first commenced the annexation proceedings may continue just as if the territory had not been subsequently incorporated. Pfeiffer v. City of Louisville, Ky., 240 S.W.2d 560 (1951). Applying those principles to this case, it is evident that because Covington had begun to annex the territory under KRS 81.140 as if the area were unincorporated it was entitled to proceed and to avoid the referendum provisions of the statutes governing annexation of territory of another city.

The appellees argue, and the trial court agreed, that Covington’s right to proceed under the established statutory framework as that framework has up to now been interpreted was nullified by the intervening Act reclassifying the City of Edgewood. The premises upon which this argument is based may be best summarized as follows. Section 156 of the Kentucky Constitution grants to the General Assembly authority to classify, organize, and regulate cities. Pursuant to this authority, the City of Edgewood was reclassified in 1968, and implicit in the reclassification was a recognition and determination by the General Assembly of its boundaries as then existing. Because state statutes dealing with the establishment and regulation of cities take precedence over city ordinances, it follows that any ordinance of the City of Covington affecting the boundaries of the City of Edgewood as at least impliedly established by the General Assembly was nullified. The flaws which must lead to the unraveling of the fabric of this argument are that it misconstrues the significance of classification statutes and that it overlooks pertinent constitutional limitations on the authority of the General Assembly.

We find nothing in the 1968 Act indicating a legislative intent to do more than carry out the mandate of Section 156 that changes in the classification of cities shall be made “as the population of said cities and towns may increase or decrease.” It is indicative only of a determination by the Legislature that, based on information satisfactory to it, Edgewood then had a population numbering at least three thousand but less than eight thousand. It is certainly not indicative of an intent to legislate the corporate limits of that city.

Even if by the classification act the Legislature intended to set the corporate limits of Edgewood, such intent would be frustrated by the precise language of both Sections 156 and 59 of the Kentucky Constitution, as well as a long line of interpretative decisions stretching back almost to the very time when the present constitution was adopted. Section 156 plainly requires that the General Assembly may provide for the organization and government of cities by general laws. Section 59 plainly requires that “where a general law can be made applicable, no special law shall be enacted.” Just as the General Assembly is without power by special act to establish a particular city, Albershart v. Donaldson, 149 Ky. 510, 149 S.W. 873 (1912), so it is powerless by special act to set the boundaries of a particular city. The method by which cities are established and governed and by which their boundaries are set, increased, or decreased must be, and is, presently provided for by general laws.

A better understanding of the purpose of these constitutional limitations may be reached by consideration of some of the circumstances surrounding their drafting and adoption. The present constitution was the first to limit the powers of the Legislature with respect to the organization and government of municipalities. By the time of the constitutional convention in 1890, Kentucky was said to have “a thousand communities, each with a different code of laws, each operating in a different way, each with differing judiciary, and differing agencies.” II Kentucky Constitutional Proceedings and Debates 2129 (1890). On many occasions, city officials would come to the Legislature after their election and have their salaries increased or their terms of office doubled by special acts. Id. at 2150. It was observed on the floor of the constitutional convention that:

In the past, as each city was governed by its own charter, and as its operation must be local and confined entirely to the city controlled by it, the legislator at large gave himself no concern about any provision in it, and remitted all responsibility for its enactment to the member who represented each particular town, and thus this most important department of legislation no longer was the result of the wisdom and the judgment of the entire body, but became the subject of the caprice, whim, avarice or passion of the member who represented the particular city, whose charter was to be prepared or changed. Id. at 2129.

To ensure that such a state of affairs was brought to an end and would not recur, the people of Kentucky adopted Sections 156 and 59 as a part of our Constitution.

The next question presented is the effect of the amendment of KRS 81.160 on the procedure which Covington must follow to complete annexation. Prior to its amendment, KRS 81.160 read as follows:

(1) Whenever a second-class city desires to annex any city of the second, third or fourth class, the legislative body of the city proposing to annex shall pass an ordinance or resolution designating the city proposed to be annexed, declaring it desirable to annex the city and providing that the question of annexation shall be submitted to the qualified voters of the city to be annexed at the next regular election. The mayor of the city proposing to annex shall certify the action of the city to the county clerk, who shall have printed on the ballots provided for use in the city proposed to be annexed, the question: “Are you in favor of annexing to the City of . . . .”? Opposite the question shall be printed “Yes” and “No,” with squares for stamping the cross mark to indicate preference. If a majority of those voting on the proposition favor annexation, the city proposing to annex shall pass an ordinance declaring the other city annexed, and that city shall then be a part of the annexing city.

The 1978 amendment added the following:

(2) The provisions of subsection one (1) shall also apply in those cases where the city to be annexed was incorporated and became classified as a city of the second, third or fourth class by the legislature prior to January 1, 1978, even if the city was so classified after the institution of annexation proceedings, provided that, the final annexation ordinance has not been adopted by the effective date of this Act. Act of March 30, 1978, ch. 300, § 1, 1978 Ky. Acts 850.

It is clear from the wording of KRS 81.160(1) that it applies only when second-class cities desire to annex territory which is already incorporated at the time the annexation proposal ordinance is adopted. The effect of subsection (2) is to apply the referendum requirements of subsection (1) to the annexation of territory which was incorporated and classified by the Legislature before January 1, 1978, although annexation proceedings had begun before the territory was thus classified. This appears to be a legislative attempt to extend the effect of subsection (1) and modify the rule enunciated in Pfeiffer v. City of Louisville, supra. It cannot be questioned that the Legislature has authority to do so, but it must do so in a constitutional manner. Although we are fully aware that our role in statutory construction is to save and not destroy, Folks v. Barren County, 313 Ky. 515, 232 S.W.2d 1010 (1950), we are nevertheless compelled to agree with the appellant that subsection (2) is unconstitutional.

Because subsection (2) applies only to cities which have been classified prior to January 1, 1978, it can never have any prospective application, and indeed, its retrospective application seems to be limited to the present controversy with Covington. Manifestly it does not affect all second or third or fourth-class cities equally but accords a benefit to those classified prior to January 1, 1978. The Cities of Edgewood and Villa Hills near Covington exemplify the inconsistent impact of the statute. Edgewood was classified a fourth-class city in 1968 while Villa Hills was so classified after January, 1978. Under the statute as amended, territory of one of these same class cities would be subject to annexation only with a referendum while that of the other would not.

In an analogous Kentucky case, Harlan County v. Brock, 246 Ky. 372, 55 S.W.2d 49 (1932), the Court struck down a statute providing for a district detective in judicial districts composed of two counties having a population of 100,000 or more according to the 1930 census. The Court held that the reference to the 1930 census was fatal since only one judicial district in the Commonwealth had a population of 100,000 or more in 1930, and thus, the classification could not be made to apply in the future to any subsequent districts which might attain the required population. The Court said, “Where classification is so static as this, it is not based on reasonable distinctions, but is essentially arbitrary; thus rendering the act based upon it special or local.” 246 Ky. at 374, 55 S.W.2d at 50.

We should add, however, that subsection (2) is severable from the remainder of that statute, thus leaving the remaining provision intact. See Kentucky Municipal League v. Commonwealth, Department of Labor, Ky., 530 S.W.2d 198 (1975); KRS 446.090.

Having concluded that the trial court erred in finding against the City of Coving-ton on the dispute over territory within the City of Edgewood, it is apparent that so much of the final judgment as was entered in favor of the City of Erlanger likewise cannot stand. The southwest area of the original territory proposed for annexation is once again contiguous with the Covington city limits. See Ridings v. City of Owensboro, Ky., 383 S.W.2d 510 (1964). Consequently, we reverse that portion of the final judgment as well.

We are not insensitive to the wishes of those persons who believe that it would be inappropriate for Covington to annex the disputed areas. Neither do we wish to circumvent the intent of the Legislature on any matter. However, the Constitution and the General Assembly have provided a framework for the classification of cities and the annexation of territory, and it appears that Covington properly followed that procedure in adopting its ordinance proposing to annex the area in question. If individuals wish to challenge the action taken by the City of Covington, KRS 81.140 prescribes a course of action. If the General Assembly is dissatisfied with the statutory scheme provided for the annexation of territory by municipalities, it is empowered to amend that scheme, bearing in mind the requirement that this not be done by special acts and that all cities of the same class must possess the same powers and be subject to the same restrictions.

The judgment is reversed.

All concur.

      . Pfeiffer dealt with annexation by a first-class rather than a second-class city, but the relevant statutory scheme for annexation of incorporated territory by either is almost identical.


source: Caselaw Access Project

author: MARTIN, Chief Judge.

license: Public Domain

text:
    Michael Lamont SWEATT, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    May 25, 1979.
    Discretionary Review Denied Oct. 2, 1979.

      Terrence R. Fitzgerald, Deputy Public Defender, Louisville, for appellant.
    Robert F. Stephens, Atty. Gen., Guy C. Shearer, Asst. Atty. Gen., Frankfort, for appellee.
    Before MARTIN, C. J., and REYNOLDS and WILHOIT, JJ.
   MARTIN, Chief Judge.

This is an appeal from a Jefferson Circuit Court jury verdict finding the appellant, Michael Lamont Sweatt, guilty of third-degree burglary for which he received a one-year sentence, second-degree arson for which he received a six-year sentence, and second-degree wanton endangerment for which he received a $500 fine. The two questions raised on this appeal are whether appellant was deprived of a fair trial because of the trial court’s failure to grant a directed verdict on the wanton endangerment charge, and whether appellant was denied a fair trial because the trial court gave an instruction defining reasonable doubt.

On January 23, 1977 at 5:51 p. m., a fire occurred in a dwelling house located at 2807 Wyandotte Avenue in Louisville, Kentucky. The house was the rented residence of Sharon Morris, a friend of the appellant When the firemen arrived at the fire, they found no one in the house.

Sergeant Dennis Kangas of the Louisville Fire Department, Arson Squad, investigated the fire with his partner, Sergeant Alex Ahart. The officers arrived at the scene at approximately 6:05 p. m. as the fire was being extinguished. One fire department engine crew extinguished the fire within fifteen (15) minutes of the initial alarm. Damage to the exterior of the structure was minimal and no one was injured as a result of the fire.

Sergeant Kangas qualified as an expert witness. He testified regarding his investigation of the fire and to his conclusion that the fire had started at two separate points, the rear bedroom and the kitchen. The major portion of the fire in the bedroom was confined to one wall. The kitchen fire was confined to an area above the kitchen sink and was apparently started with the curtains catching fire first. Sergeant Kan-gas testified that in his opinion there could be no natural causes for either of these fires. His investigation further indicated the lower left-hand window pane of the side door to the house had been broken out, with glass fragments being found in the house.

As part of the investigation following the fire, Sergeant Kangas testified that he interviewed several people in the area at the time of the fire. As a result of the information he received in this investigation, an all points bulletin in the City of Louisville was issued for Michael Sweatt. Sergeant Kangas stated that he then went to 312 Cecil Avenue where Michael Sweatt was arrested approximately three hours after the initial fire alarm. At the time of the arrest of Michael Sweatt, photographs were taken of his car. As a result of these photographs, it was determined that the vehicle had been recently operated because of the melting snow on the hood. According to Sergeant Kangas’ testimony, it had snowed that night, and all the other cars on the street were covered with snow. He testified that only the hood of Michael Sweatt’s car was barren of snow and that his radiator was warm to the touch.

Sharon Morris testified that she and Michael Sweatt had been close friends for approximately five years. She further testified that he was the father of her four-year-old daughter and that at one time they had contemplated purchasing a house and marrying. On the day of the fire Sharon Morris received a call from Michael Sweatt at approximately 5:00 p. m. while she was visiting in her father’s house. An argument ensued, and Michael hung up. She further testified that he was aware that she was renting the property where the fire had occurred and that he had in fact visited her on the morning of the fire.

The Commonwealth-produced evidence at the trial that neighbors identified Michael as being at the scene of the fire, and he was positively identified as having been near the rear door shortly before the fire. Michael Sweatt took the stand in his own defense and admitted being at the house on the day of the fire but specifically denied having started the fire.

Appellant first argues that he was entitled to a directed verdict on the wanton endangerment charge because the Commonwealth failed to prove that he created a wantonly dangerous situation. The trial court instructed the jury on first- and-second-degree wanton endangerment, and the jury found appellant guilty under the second-degree count.

In order to establish first-degree wanton endangerment, the actor must have consciously disregarded a substantial and unjustifiable risk that he was creating a danger of death or serious injury to another person, thus manifesting extreme indifference to human life. The two fires in question here did not extend to the exterior of the house and were, in fact, contained within the two rooms. Moreover, the facts show that no one was in the house at the time of the fire. While this is certainly evidence of wanton conduct, it does not appear to rise to the level of conduct manifesting extreme indifference to human life. Extreme wantonness describes conduct such as firing a gun into an occupied automobile. See KRS 508.060, Commentary. Under the circumstances of this case, we think the evidence was insufficient to support an instruction on first-degree wanton endangerment. However, the failure of the court to take from the jury the question of first-degree wanton endangerment was not reversible error. The court correctly instructed the jury on second-degree wanton endangerment, and the jury ultimately, and we think properly, found appellant guilty under that charge. KRS 508.070 provides that a person is guilty of second-degree wanton endangerment when he wantonly engages in conduct which creates a substantial danger of physical injury to another person.

It is argued that there was insufficient evidence to convict appellant of wanton conduct. As indicated above, an examination of the record persuades us otherwise. Two fires were set in a frame house; the house was a mere twenty feet from houses on either side of it; the fires were set at 6:00 p. m., a time when people are customarily home from work and school and in their homes for dinner; the firemen answering the alarm were certain to be in danger — all evidencing a substantial basis for a second-degree wanton endangerment charge. We hold it was proper in this case for the jury to deliberate the wanton endangerment charge. The ultimate jury decision finding defendant guilty of wanton endangerment in the second degree was supported by the evidence.

Appellant’s second argument is that the instruction defining reasonable doubt deprived defendant of a fair trial. The reasonable doubt instruction given under instruction 6 was as follows:

' If upon the whole case, you have a reasonable doubt as to the defendant’s guilt, you shall find him not guilty. The term “reasonable doubt” as used in these instructions, means a substantial doubt, a real doubt, in that you must ask yourself not whether a better case might have been proven, but whether, after hearing all the evidence, you actually doubt that the defendant is guilty.

Defense counsel objected in chambers to that part of the reasonable doubt instruction which states “whether a better case might have been proven” and not to the instruction in its entirety.

The trial judge responded that he based his decision to give a reasonable doubt definition on precedent in Kentucky law which allows it. In reading the Supreme Court decision in Taylor v. Commonwealth, 436 U.S. 478, 98 S.Ct. 1930, 56 L.Ed.2d 468 (1978), we do not believe an instruction defining reasonable doubt has been held unconstitutional in Kentucky. In Taylor, the Supreme Court criticized the particular reasonable doubt definition given the jury by the trial court. That court, like the one here, defined reasonable doubt as “a substantial doubt, a real doubt.” Although the Supreme Court was careful to point out that such an instruction is hardly a model of clarity, the instruction as given was not condemned to the status of reversible error. In line with the conclusion in Taylor, the Supreme Court of Kentucky stated in Whorton v. Commonwealth, Ky., 570 S.W.2d 627 (1978), that although it can no longer approve of the reasonable doubt definition, it will refrain from holding inclusion of the definition constitutionally fatal unless and until the highest judicial authority holds it unconstitutional. We shall follow suit and hold that although the trial judge failed to exercise his discretion by giving a vague definition of reasonable doubt, it was nevertheless harmless and did not constitute reversible error under the facts of this case. The record shows, and the briefs of both parties emphasize, that appellant bene-fitted from an aware jury. Questions were asked by jurors which indicated an understanding of the proceedings before it such that they would not likely abuse the court’s definition. Therefore, the definition of reasonable doubt in the instructions to the jury did not deprive defendant of a fair trial.

The judgment of the Jefferson Circuit Court is affirmed. '

All concur.


author: HAYES, Judge.

text:
    Joan Elizabeth RATCLIFF, Appellant, v. Robert Lee RATCLIFF, Appellee.
    Court of Appeals of Kentucky.
    Aug. 24, 1979.

      Elise Givhan Spainhour, Givhan, Spainh-our & Spainhour, Shepherdsville, for appellant.
    John D. Dale,'Jr., Coots & Dale, Taylors-ville, for appellee.
    Before HAYES, LESTER and WHITE, JJ.
   HAYES, Judge.

Pursuant to the dissolution of the marriage of Joan and Robert Ratcliff, the Bul-litt Circuit Court took two actions which are now complained of by Joan. Custody of the couple’s four-year-old son, Robert, was awarded to his father, and the trial court refused to consider as marital property the value of Robert’s employer’s contribution to Robert’s pension account.

We will first consider the award of custody which provided for reasonable visitation rights to the mother. Joan argues that an award of legal custody to Robert is a de facto award of custody to his mother, and that we should thus consider this case as involving the rights of a natural parent, the mother, vis a vis those of a third party, the grandmother. The record indeed reflects that Robert Sr., in whose custody the child has been since the couple separated, delegates a great deal of child care to his mother, who is retired. The court was fully aware of this circumstance, and indeed considerable evidence was heard as to Robert Jr.’s relationship with his grandmother. Most of that evidence was favorable. We recognize that any custodial parent who works for a living must make suitable arrangements for child care during the time that he or she is at work. We do not believe that Robert Sr.’s arrangement with his mother goes beyond that to an abdication of custody. It is still Robert Sr. who bears the responsibility for support of Robert Jr. and for the major decisions affecting the child’s future, i. e. schooling, residence, etc.

Joan also argues that the custody award was influenced by irrelevant evidence as to her marital misconduct. We agree that that evidence, which was rather extensive, was not the proper subject for the court’s consideration and that most of it could perhaps have been excluded. (We might feel more strongly had not Joan herself opened the door to the testimony complained of.) The court’s findings, however, reveal that the decision was not based on any irrelevant considerations. The court did not find Joan unfit, but found the best interests of the child to lie in custody by the father, based on consideration of a number of relevant and appropriate factors. There is ample evidence to support such a determination, and given a trial court’s broad discretion in such matters, we will not disturb the decision below.

We also hold that there was no error in excluding the employer’s contribution to Robert’s pension plan during the marriage. We consider not'the source of the contribution, but rather whether a party’s rights in the fund have vested. We consider non-vested amounts in pension funds to be too speculative to treat as marital property.

There is one context in which it would not be inappropriate to consider the value, however speculative, of such nonvest-ed rights. KRS 403.190(1) calls upon courts to divide marital property in “just proportions.” Courts are directed to consider all relevant factors, including several enumerated in the statute. Subsection (d) shows one of the named factors to be, “[ejconomic circumstances of each spouse when the division of property is to become effective . .” A nonvested or contingent amount in a pension fund can, where equity so requires, be viewed as an “economic circumstance,” even though the nonvested fund is not marital property and therefore cannot be divided. In the instant case, we believe that the court arrived at a just division of marital property whether or not contingent pension amounts were considered.

We affirm the Bullitt Circuit Court.

All concur.


author: HOWERTON, Judge.

text:
    Eugene HERNDON, Appellant, v. Tom McKINLEY, Appellee.
    Court of Appeals of Kentucky.
    Aug. 24, 1979.
    William A. Johnson, Sullivan & Johnson, Taylorsville, for appellant.

      John D. Dale, Jr., Coots & Dale, Taylors-ville, for appellee.
    Before HOGGE, HOWERTON and VANCE, JJ.
   HOWERTON, Judge.

Herndon initiated this action to enjoin McKinley from crossing his land, destroying his gates, and interfering with his farming operation. McKinley filed a counterclaim asserting a right-of-way by deed over Hern-don’s farm, and he claimed that the gates, chains, and locks interfered with his use of the passway. The Spencer Circuit Court entered a summary judgment dismissing Herndon’s petition and enjoining him from erecting more than two gates on the pass-way, one at the property line between the parties, and one at the junction of the pass-way with highway 55.

Herndon argues that the 1886 deed did not extinguish his property rights in the 14-foot right-of-way, except for the specific grant in the deed. Herndon also contends that the dominant owner of a passway may not prevent the .erection of gates by the servient owner when they are necessary to protect the servient owner’s full use and enjoyment of the land. These propositions are basically true, but they will not change the result in this case.

The granting clause in the deed reads in part as follows: “. . . that a passway is granted and guaranteed ... to the pike as said passway now runs except the gate on the dividing line may be changed as agreed on . .” There is no longer an issue concerning the erection and maintenance of a gate on the property line between the parties and at the boundary adjoining the highway. The controversy on this appeal involves a third gate which has been erected across the passway inside the Herndon property.

Herndon did not plead, nor prove, that a third gate ever existed at any location. McKinley filed an uncontroverted affidavit stating that only two gates had existed since he purchased the dominant estate in 1971. The trial judge did inquire if a third gate had existed at any point for fifteen (15) years to establish a right by adverse possession. The judge was informed that such a gate had existed at one time, but at another location. Herndon offered no further proof of that fact.

There is no hard and fast rule governing if and when the owner of a servient estate may erect gates across a passway on his land. The manner of creation of the passway is one factor bearing upon the right to erect one or more gates. Generally speaking, different rules do apply to pass-ways created by adverse use as opposed to a passway created by an express grant, reservation, or devise. Whitaker v. Yates, 200 Ky. 530, 255 S.W. 102 (1923).

We have an express grant in this case, but except for the notation that the gate on the dividing line may be changed by agreement, the instrument is in general terms with no specific stipulation as to gates. Maxwell v. McAtee, 48 Ky. (9 B. Mon.) 20 (1847), is considered to be the landmark case on easements of this nature. The case has been cited on numerous occasions. The original rule reads: “The grant of a passway in general terms, over a particular part of the grantor’s land, does not imply a negation of his right to erect gates at the termini of the way in entering and leaving his land.” The court reasoned that the mere grant of a right-of-way passes nothing more than its terms imply. Every right in the land not inconsistent with its use under the grant remains in the grantor, but the grantor’s use of the land must not lessen the rightful enjoyment of the pass-way.

The “termini rule” has been amplified and continued by many subsequent cases. McKinley cites Reed v. Flynn, 205 Ky. 783, 266 S.W. 644 (1924), for the proposition that when a contract is silent as to gates, the erection of gates across a passway at any place other than its termini will not be permitted, unless conditions and circumstances show it was the intention of the parties that the owner of the servient estate could erect gates at other places across the passway. This rule was the basis for the decision of the trial court. Since only two gates were found to exist from the beginning, it was reasoned that the servient owner was limited to the two gates at the “termini.”

We frankly fail to see the full wisdom of the “termini rule,” because if all things are otherwise equal, a gate erected anywhere along the passway is no greater obstruction than the same gate erected at either end. The location of a gate may be a factor for consideration, but the location itself is of doubtful importance as the sole basis for a decision.

What we are concerned with in this case, however, is a third gate. At the time of the 1886 grant, it appears that only two gates obstructed the passway. Any additional obstruction could give the grantee, his successors, and assigns, less than what was probably bargained for.

We must also consider the rights and needs of the owner of the servient property, as well as the reasonableness of the erection of an additional gate. A similar conveyance was considered in Sandman v. Highland, 312 Ky. 128, 226 S.W.2d 766 (1950). Sandman was not concerned with gates, but with a temporary disruption in use and a permanent change in grade of a passway. The decision prescribed a doctrine of reasonableness and a balancing of the rights, needs and interests of the parties. Sandman, supra, at 132, 226 S.W.2d at 768, reads: “The servient owners must permit the free and unrestricted use of the pass-way by the owners of the dominant estate while the latter must use their right so as to be as little burdensome as possible . . .”

Herndon may have the use and enjoyment of the 14-foot passway, but only to the extent that his use does not unnecessarily and unreasonably interfere with the rights granted to McKinley’s predecessors in title. The third gate erected by Herndon is obviously a burden on the use of the passway by McKinley. No proof was presented to show why Herndon determined that a third gate was essential to the use and enjoyment of his land.

Herndon has requested, as an alternative to reversal, that we remand the case to the trial court to provide him an opportunity to prove that a third gate did exist at another point on the passway. Without deciding whether the establishment of an additional gate at one location by adverse use entitles one to move the gate to another location along a passway, we must nevertheless conclude that the proper time for attempting to prove adverse use was when the case was before the trial court.

Since the facts are not otherwise in dispute, we conclude that the trial judge did not abuse his discretion, that the correct result was reached, and that the case was properly disposed of by summary judgment. Continental Casualty Co. v. Belknap Hardware & Manufacturing Co., Ky., 281 S.W.2d 914 (1955).

The judgment of the trial court is affirmed.

All concur.


author: WINTERSHEIMER, Judge.

text:
    David BECKER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Aug. 24, 1979.
    As Modified Sept. 28, 1979.

      Gilbert Hale Nutt, Kenneth L. Sales, Louisville, for appellant.
    Robert F. Stephens, Atty. Gen., Carl T. Miller, Jr., Asst. Atty. Gen., Frankfort, for appellee.
    Before WINTERSHEIMER, HOGGE and REYNOLDS, JJ.
   WINTERSHEIMER, Judge.

Appellant sought review of an order of the Jefferson Circuit Court overruling his motion to reduce bail.

In an order entered by this Court August 20, 1979, the order of the circuit court was affirmed.

This opinion follows for the purpose of outlining the rules of procedure appropriate to an appeal from an order of the circuit court overruling a motion to reduce bail.

An appeal of this nature is proper under guidelines set forth in Abraham v. Commonwealth, Ky.App., 565 S.W.2d 152 (1977).

While that case remains sound law, subsequent rule changes warrant an updating of the appeal procedures to be utilized in a so-called Abraham appeal.

The following procedures shall apply to an appeal from an order of the circuit court overruling a motion to reduce bail:

(1) The notice of appeal from the order of the trial court overruling the motion to reduce bail shall be filed as required by RCr 12.04.
(2) Upon the filing of the notice of appeal, the clerk of the circuit court shall prepare and certify the original or a copy of such portion of the record which relates to the question of bail and is needed for the purpose of deciding the issue on appeal. See CR 73.08, 75.07, and CR 75.10. The abbreviated record shall be transmitted to the clerk of this Court as required by CR 75.10.
(3) The appellant’s brief, required by CR 76.12, shall be abbreviated and shall not exceed five double-spaced, typewritten pages. It shall be served on the local Commonwealth Attorney and on the Attorney General. No counterstatement shall be required, but the Commonwealth may file a counterstatement within seven days after the date the appellant’s statement was filed, such counterstatement not to exceed five double-spaced, typewritten pages. No other briefs need be filed unless requested by the Court.
(4) The appeal shall stand submitted for final disposition seven days after the date on which the appeal was perfected by the appellant.
(5) Neither the filing of the notice of appeal nor the pendency of the appeal shall stay further proceedings in the prosecution.

As previously ordered in this case, the order of the Jefferson Circuit Court overruling the motion to reduce bail is AFFIRMED.

All concur.


author: REYNOLDS, Judge.

text:
    Linda DOWELL, Individually, and William L. Dowell, Individually and as Administrator of the Estate of Thomas Knox Dowell, Age Five, Deceased, Appellants, v. Leroy BIVINS and Ann Bivins, Appellees.
    Court of Appeals of Kentucky.
    Aug. 31, 1979.

      John D. Miller, Miller, Taylor, Burlew & Meyer, Owensboro, for appellants.
    John H. Helmers, Sandidge, Holbrook & Craig, P.S.C., Owensboro, for appellees.
    Before COOPER, HOWERTON and REYNOLDS, JJ.
   REYNOLDS, Judge.

A Daviess Circuit Court jury returned a verdict for appellee-driver of motor vehicle that had struck and killed a five-year-old infant child upon a public highway, and appellants-parents and administrator appeal from the adverse judgment.

On the early afternoon of January 4, 1975, appellee, Leroy Bivins, was operating his automobile eastwardly upon Highway 405 in Daviess County near the Wright’s Landing Road intersection. Mr. Bivins had just met and passed a westbound vehicle when the infant, accompanied by his two dogs, attempted to cross from the north side of the road to the south side and was struck and fatally injured.

The appellants maintain:
1. The trial court erred in admitting evidence that the child was neither closely supervised nor prone to stay near his home, and that he had played in the road or thereabouts on numerous occasions pri- or to the day of the accident.
2. The trial court erred in instructing the jury.

The parents, being the plaintiffs and administrator below, testified in chief that their child always played close to home and that he never played alongside the highway or in the bean and córn fields in the area. The defense introduced testimony of several witnesses as to past occasions when the child had been seen on or around the public road, on which he was killed, without adult supervision, and the trial court permitted this testimony, without admonition, for the purposes of rebuttal evidence. Such testimony was to the effect that the child was often seen without adult supervision playing alongside the road and that he had been questioned about his activities and physically. removed from the center of the road on past occasions by these witnesses. One witness, a contractor, stated that he had cautioned his drivers to watch for the child at the point on the road where he was later killed.

Appellants argue that this testimony as to past occasions when the child had been seen around the road without adult supervision is inadmissible habit evidence, that it has no probative value upon any issue in the case and that it is more prejudicial than probative. Appellants maintain that even if the evidence is admissible it would be admissible only to impeach their testimony that the child was always around their home, and that the jury should have been admonished to consider such evidence only for impeachment purposes and not as substantive evidence of any negligence on their part.

Evidence of occurrences similar to the ones involved in this litigation is often sought to be introduced for one reason or another. Clearly, evidence of prior negligent acts, when offered solely to prove negligence on a particular occasion, is inadmissible since it has little or no probative worth and constitutes great potential for confusion of the issues. See Louisville & N. R. Co. v. Taylor’s Adm’r, 104 S.W. 776, 31 Ky.L.Rep. 1142 (1907); and Kentucky-West Virginia Gas Co. v. Slone, Ky., 238 S.W.2d 476 (1951). Appellants cite Massie v. Salmon, Ky., 277 S.W.2d 49 (1955), in support of their contention that the evidence in this case of the child’s propensity to leave home and play in dangerous areas was inadmissible. We believe Massie, supra, is distinguishable. In Massie an attempt was made to prove that several months before the plaintiff’s car collided with a calf owned by the defendants that the defendants had permitted a bull calf to escape and run at large for some time. The trial court correctly prohibited the introduction of this evidence on the ground that it did not involve the same animal and that the prior escape of the bull calf was irrelevant. Clearly, the isolated incident of the escape of another animal from an undisclosed enclosure a long time prior to the accident had no relevancy to the issues presented. Yates v. City of Covington, 119 Ky. 228, 83 S.W. 592 (1904), permitted testimony that was characterized in some special way that indicated a relevancy beyond the mere similarity of certain particulars.

Parents in the immediate control of a child of tender years have a duty to watch over such child and to guard it from danger, and while they are not required to do the impossible in caring for their child, “they are bound to provide such reasonable care and protection as an ordinarily prudent person, solicitous for the welfare of his child, would deem necessary.” 59 Am. Jur.2d Parent & Child § 14 at 97. This parental obligation includes the duty to exercise such care and supervision over an infant as to reasonably prevent him from getting out on a highway. Burch v. Byrd, Ky., 246 S.W.2d 595 (1952).

The mere fact that a child of tender age has been killed, while at large and unattended on a public highway, does not necessarily impute contributory negligence to his parents as a matter of law, rather it is only prima facie evidence of negligence on their part, subject to explanation. United Fuel Gas Co. v. Friend’s Adm’x, Ky., 270 S.W.2d 946 (1954). Thomas Dowell was of such tender years as to be incapable of contributory negligence, and any negligence in his being upon the highway must be regarded as the negligence of his parents for failing to exercise that degree of care which an ordinarily prudent person would have exercised under like circumstances. Brown McClain Transfer Co. v. Major’s Adm’r, 251 Ky. 741, 65 S.W.2d 992 (1933). Similar Kentucky cases have made reference to prior acts on the part of a parent or a child that either did or did not indicate that parent’s previous knowledge as to his child’s practices or activities. See United Fuel Gas Co., supra, and Burch, supra. Reber v. Hansen, 260 Wis. 632, 51 N.W.2d 505 (Wis.1952), held evidence similar to that introduced in this case to be both relevant and competent.

We determine, from the record, that the parents testified upon direct examination that their child was closely supervised and not prone to wander. Under these circumstances, therefore, the trial court properly admitted defense testimony to counteract and disprove the parents’ testimony, and as such, it was properly characterized as rebuttal evidence. See Houser v. Coursey, 310 Ky. 624, 221 S.W.2d 432 (1949).

Appellants’ second contention of error relates to the court’s instructions in that they failed to inform the jury that this child was so young that he was incapable of contributory negligence, and they failed to inform the jury of the duties of a motorist in relation to such a child. The court’s instructions were as follows:

Instruction No. I — It was the duty of Leroy Bivins in driving his automobile to exercise ordinary care for the safety of other persons on the highway, and this general duty included the following specific duties:
(a) To keep a lookout ahead for persons in front of him or so close to his intended line of travel as to be in danger of collision;
(b) To have his automobile under reasonable control;
(c) To drive at a speed not greater than was reasonable and prudent, with regard for the traffic and for the condition and use of the highway and not exceed 55 miles per hour; AND
(d) To exercise ordinary care to avoid collision with other persons using the highway including the deceased Thomas Knox Dowell.
If you are satisfied from evidence that the defendant Mr. Bivins failed to comply with anyone or more of these duties and that such failure was a substantial factor in causing the accident, you will find for the Plaintiffs; otherwise you will find for the Defendants.
Instruction No. II — It was the duty of Linda Dowell and William L. Dowell, Plaintiffs herein and parents of the deceased child, to exercise ordinary care for his safety and protection. Although you might otherwise find for the Estate of the deceased child, if you are further satisfied from the evidence that Linda Dowell and William L. Dowell failed to comply with that duty and that such failure on their part was a substantial factor in causing the accident, you will find for the defendants, Leroy and Ann Bivins.

These standard instructions properly apprised the jury of the parties’ respective duties which should enter into the jury’s determination of whether or not the driver exercised reasonable care in the operation of his automobile and whether or not appellants exercised ordinary care for their child’s safety and protection. The instructions also followed the better practice of not referring to the age of the pedestrian child or to his sudden appearance. See 2 J. Palmore Kentucky Instructions to Juries § 1609 (1977); and Liberty National Bank & Trust Co. v. Raines, Ky., 416 S.W.2d 719 (1967). The child’s tender age was vigorously stressed throughout the trial, and.it was not necessary to overload the instructions with reference to each and every circumstance. Farmer v. Pearl, Ky., 415 S.W.2d 358 (1967).

The judgment is affirmed.

All concur.


author: GANT, Judge.

text:
    Juaneta PIERCE, Appellant, v. RUSSELL SPORTSWEAR CORPORATION, James R. Yocom, Commissioner of Labor and Custodian of the Special Fund, and the Workmen’s Compensation Board of Kentucky, Appellees.
    Court of Appeals of Kentucky.
    Aug. 31, 1979.

      Robert L. Bertram, Jamestown, for appellant.
    Robert B. Hensley, Horse Cave, Gemma M. Harding, Dept, of Labor, Louisville, Kenneth E. Hollis, Denis Kline, Dept, of Labor, Frankfort, for appellees.
    Before GANT, HAYES and HOWARD, JJ.
   GANT, Judge.

Appellant successfully prosecuted a workmen’s compensation claim against the ap-pellee, Russell Sportswear Corporation, and was awarded 100% occupational disability, apportioned 50% to the employer and 50% to the Special Fund. In addition, the employer was assessed for all medical expense, pursuant to KRS 342.020(1).

Subsequently, after time for appeal had run, appellant filed a motion with the Workmen’s Compensation Board to enforce payment of the medical expenses awarded, and appellee resisted on the ground that all said expense had been paid by insurance. The Board overruled the motion to enforce, amended its order, and appeal to the Russell Circuit Court ensued.

The sole questions here presented are:

(1) Does the payment of medical expense by other insurance bar enforcement of an award of such expense against the employer?

(2) Does the Special Fund have any liability for medical expense?

Answering the questions in reverse order, it has been clearly established that the Special Fund has no liability for medical expense. Young v. Terwort, Ky., 459 S.W.2d 136 (1970), and Proven Products Sales & Service v. Crutcher, Ky., 464 S.W.2d 800 (1971).

Considering the first question, the Court is puzzled by the procedure utilized by the appellant in seeking to enforce the award. Appellant filed a motion to enforce with the Board and not with the circuit court. This was totally contrary to KRS 342.305, which provides:

342.305. Enforcement by circuit court of agreement or award. — Any party in interest may file in the circuit court of the county in which the injury occurred a certified copy of a memorandum of agreement approved by the board or of an order or decision of the board, or of an award of the board on appeal from, or an award of the board rendered upon an appeal whether or not there is a motion to reopen or review pending under KRS 242.125. The court shall render judgment in accordance therewith and notify the parties. Such judgment shall have the same effect, and all proceedings in relation thereto shall thereafter be the same as though it had been rendered in a suit duly heard and determined by that court. Any such judgment, unappealed from or affirmed on appeal or modified in obedience to the mandate of the Court of Appeals shall be modified to conform to any decision of the board ending, diminishing or increasing any weekly payment under the provisions of KRS 342.125 upon a presentation to it of a certified copy of such decision.

The sole forum for enforcement of an award is the circuit court and the Workmen’s Compensation Board was without jurisdiction to modify the original award of medical expense. However, this was never made an issue before the Board or the circuit court, and at this late date the procedures here utilized should be considered by the circuit court as a proceeding under KRS 342.305. However, the circuit court should have tried this action without considering any evidence offered before the Workmen’s Compensation Board, or the probative value thereof, and should have totally disregarded the Board’s orders of June 13,1977, overruling plaintiff’s motion to enforce medical payments, and July 11, 1977, overruling plaintiff’s motion to reconsider, as same are without force and effect.

KRS 342.020(1) states:
342.020. Medical treatment at expense of employer — Artificial members and braces — Provisions for determining selection of physician and hospital. — (1) In addition to all other compensation provided in this chapter, the employer shall pay for the cure and relief from the effects of an injury or occupational disease such medical, surgical and hospital treatment, including nursing, medical and surgical supplies and appliances, as may reasonably be required at the time of the injury and thereafter during disability, or as may be required for the cure and treatment of an occupational disease. The employe may select the physician to treat his injury, and the hospital in which he shall be treated.

This statute does not say that payment shall be made by the employer only in the event same is not paid by another source. However, it should be made clear that the employer should not be required to pay the medical payments twice. If the medical expenses have been previously paid by another source under circumstances which would give rise to subrogation under the collateral source rule, the employer may defend a motion to enforce the award by furnishing the court with that proof. See Bryan v. Henderson Electric, Ky.App., 566 S.W.2d 823 (1978).

The mere fact of payment by other insurance is not, of itself, a defense to an action to enforce an award. Payment from other insurance must have been made under a policy which excludes payment for conditions arising out of or in the course of employment or otherwise providing for a subrogation of payments. This is an affirmative defense on the employer. CR 8.03. The burden is not on the claimant to prove that his expenses were not paid.

The meager proof herein consisted of an affidavit filed by the controller of the hospital that the entire sum of $16,124.60 had been paid by insurance, together with a letter from Blue Cross-Blue Shield that they had paid $7,698 of this amount for which, under their policy, they were entitled to reimbursement from the employer’s carrier. The policy itself was not offered in evidence and $8,425.60 was completely unaccounted for.

Accordingly, this case is reversed and remanded with the following instructions:

(1) The Russell Circuit Court shall consider this action as an original motion filed pursuant to KRS 342.305.

(2) The appellant, having filed a copy of the award and an itemized list of his medical expenses which are.uncontroverted, has fulfilled his obligations under the motion.

(3) The appellee shall be permitted to prové, by competent evidence, that the expenses of the appellant were paid by other sources under circumstances which would permit such sources to become subrogees of the claimant under the collateral source rule or under some other subrogation by exclusion of primary coverage.

(4) If such proof does show conclusively the subrogation or exclusion rights, the employer shall not be required to pay the medical expenses of the claimant, but may be required to reimburse others under appropriate action.

(5) If no subrogation rights or exclusion exist, the employer shall pay the claimant, irrespective of other coverage.

All concur.


author: WHITE, Judge.

text:
    Jack HENRY, Jr., Appellant, v. COMMONWEALTH of Kentucky, Appellee (three cases.)
    Court of Appeals of Kentucky.
    Aug. 31, 1979.

      Jack Emory Farley, Public Advocate, M. Gail Robinson, Asst. Public Advocate, Com. of Ky., Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., J. Gerald Henry, Asst. Atty. Gen., Frankfort, for ap-pellee.
    Before WHITE, HAYES and LESTER, JJ.
   WHITE, Judge.

This appeal involves three cases. Two concern resentencing of appellant in 1977 and 1978 for convictions occurring in 1961 and 1964. The third case is an appeal from an order refusing to settle a record of appellant’s 1964 trial so that an appeal could now be taken or, in the alternative, in the event the record cannot be settled, that a new trial be granted.

Appellant was tried on June 22, 1961, in the Caldwell Circuit Court on an indictment for storehouse breaking. He was convicted of the charge and sentenced on June 24, 1961, to serve three years in prison. The record is silent as to whether or not counsel for appellant was present at the time of sentencing. Appellant has served this sentence.

On June 29 and 30, 1964, appellant was tried and convicted in the Crittenden Circuit Court for possession of burglar’s tools and storehouse breaking. On July 4, 1964, appellant was sentenced to a five-year prison term. This record is also silent as to whether appellant was represented by counsel at sentencing. Appellant has served the term of this sentence.

In 1973, appellant was indicted for burglary, for possession of burglary tools and for being an habitual criminal. He was convicted on all three counts, receiving sentences of eight years, four years, and life imprisonment. Subsequently, upon motion by appellant, the eight- and four-year penalties were eliminated by the trial court because of the greater sentence of life, in keeping with Covington v. Commonwealth, Ky., 481 S.W.2d 62 (1972). At trial, appellant moved to have the habitual criminal charge dismissed on the grounds he was not represented by counsel at the 1961 and 1964 sentencing procedures. The 1961 and 1964 convictions were used to sustain the habitual criminal charge.

Upon appeal, the Supreme Court of Kentucky upheld the habitual criminal conviction on the ground that KRS 431.190 provides increased punishment only for convictions of prior felonies. The court held that sentencing was not involved and that the lack of counsel at the sentencing stage was not crucial.

After exhausting his state remedies, appellant, on July 18, 1977, petitioned the Federal District Court for a writ of habeas corpus. A judgment was issued September 23, 1977, and a new trial ordered within 90 days on the habitual criminal charge, or if no new trial was forthcoming within the time designated, appellant was to be discharged.

In a memorandum opinion attached to the judgment, the Federal District Judge stated that sentencing was a critical stage under the new Kentucky Criminal Rules and that criminal defendants were entitled to representation of counsel during sentencing. In addition, the memorandum opinion stated:

. we hold that the evidence as to the convictions of the petitioner had no weight and that the convictions themselves were invalid. We do not hold, however, that the convictions are void, but merely that petitioner is entitled to a writ of habeas corpus, unless the State grants him a new trial within 90 days after entry of our judgment.
Likewise, nothing we have said here will deter the Commonwealth from affording to petitioner counsel for the purposes of having him resentenced as to the 1961 and 1964 convictions.

In an apparent effort to give full faith and credit to the Federal Court judgment and in keeping with the suggested solution for re-sentencing, on December 19,1977, the Caldwell Circuit Court resentenced appellant to three years in prison on the 1961 conviction. The court credited the time appellant had already served and ordered that appellant serve no further confinement for this sentence. Appellant was represented by counsel at this proceeding.

On February 8, 1978, the Crittenden Circuit Court resentenced appellant on the 1964 convictions. Appellant was sentenced to five years. The court ordered no further confinement of appellant because the sentence had already been served. Counsel for appellant was present at this sentencing hearing.

Appellant now appeals both of these judgments (78-CA-676-MR and 78-CA-723-MR) on the grounds that his Fourteenth Amendment due process rights were violated or, in the alternative, that the 1961 and 1964 convictions themselves are now reviewable. He also contends that the trial courts are without jurisdiction to resen-tence him and the Federal District Court did not order such action.

The novelty of the question before us is not as much a matter of procedure for resentencing as it is whether the court has any further jurisdiction at all.

If it was merely the matter of resentenc-ing upon a conviction wherein the penalty imposed is to be prospectively served, that would involve the question of unreasonable delay or perhaps persuasion of mitigation of punishment.

RCr 11.02(1) provides that the sentence shall be imposed “without unreasonable delay.” If delay is unreasonable, a court may lose jurisdiction to impose sentence. Green v. Commonwealth, Ky., 400 S.W.2d 206 (1966). A delay of 16 and 14 years respectively in sentencing is patently unreasonable.

RCr 11.02 also provides that a defendant be afforded an opportunity to make statements or present evidence or information in mitigation of punishment. RCr 11.04 indicates that the trial judge must decide whether sentences be served consecutively or concurrently. To impose sentence after it has already been served nullifies any opportunities a defendant is afforded under RCr 11.02 or 11.04.

Thus, the real crux of this case is whether the trial courts have any jurisdiction at all over a person once he has completed the punishment imposed and has been released from custody.

To our knowledge, this precise question has not heretofore been passed on by our court. It would seem to us, and we so hold, that satisfaction of the debt to society by a defendant who has served his time of confinement under the conviction precludes subsequent action of any nature against him on that charge.

In the case of Dillingham v. Commonwealth, Ky., 249 S.W.2d 827, 828 (1952), the court had before it the question of whether a defendant could appeal a conviction for involuntary manslaughter in which a 90-day jail sentence had been imposed and served. The court there said:

Clearly, the case is moot. Since appellant has already satisfied the sentence of the court, we could make no order on this appeal which would affect her status. We cannot remit the jail sentence already served, and even if we should decide the sentence should not have been imposed, the opinion could not afford appellant any effectual relief in this case.

If the court could not entertain the appeal because the issue was moot, it would necessarily follow that the trial court could not enter any subsequent order or judgment for the same reason.

The federal rule is that the whole matter is moot unless, in consequence of the conviction or sentence, the defendant suffers collateral legal disabilities or burdens; in which event the defendant is considered to have a sufficient stake in the conviction or sentence to survive the satisfaction of the sentence and to permit him to obtain a review or institute a challenge. See Annotation, 9 A.L.R.3d 462 (1966); Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968). However, that is not the question before us.

As to the appeal from the trial court order by Special Judge C. J. Waddill (79-CA — 200—MR) refusing to settle a record of appellant’s 1964 trial, we find that issue now moot.

The judgment of the Crittenden and Caldwell Circuit Courts (78-CA-676-MR and 78-CA — 723-MR) resentencing appellant are hereby reversed and the orders resentencing are hereby set aside and this case is remanded to enter orders in conformity with this opinion.

All concur.


author: GUDGEL, Judge.

text:
    Marilyn (Hammonds) BURKE, Appellant, v. Donnie HAMMONDS, Appellee.
    Court of Appeals of Kentucky.
    Aug. 31, 1979.
    As Modified Oct. 12, 1979.
    Robert L. Caummisar, Grayson, for appellant.

      Walter W. Turner, Salyersville, for appel-lee.
    Before GUDGEL, WHITE and WIL-HOIT, JJ.
   GUDGEL, Judge.

This is an appeal from an order of the Carter Circuit Court permanently enjoining appellant, Marilyn Burke, from changing the names of her children, and directing she use their given name for all purposes. The issues are: (1) whether a circuit court has jurisdiction, on application of a natural father, to enjoin a mother from changing a child’s name to his step-father’s name; and (2) if so, whether the injunction may issue without the court having held an evidentia-ry hearing.

Mrs. Burke was granted a divorce from appellee, Donnie Hammonds, in 1969, and later remarried. The divorce judgment awarded custody of their two children to Mrs. Burke. Mr. Hammonds was granted visitation rights and ordered to pay support. In 1978, Mr. Hammonds filed an application in the divorce action asking the court to permanently enjoin Mrs. Burke from changing the children’s name from “Hammonds to Burke.” The court did not hear evidence, but did order the parties to brief the issue. It then entered findings of fact, conclusions of law, and an order permanently enjoining Mrs. Burke from changing the children’s name, and directing her to use the “Hammonds name for all purposes.” Mrs. Burke appeals.

I

Mrs. Burke contends that she has an absolute right to apply for a name change, and that the circuit court did not have jurisdiction to enjoin her exercise of that right. We disagree.

This jurisdiction recognizes the common law right of any person to informally change their name by public declaration. KRS Chapter 401 is not intended to abrogate the common law, but merely to insure that a permanent record is made of the name change. Winkenhofer v. Griffin, Ky., 511 S.W.2d 216 (1974). Therefore, even a child, on his own initiative, may exercise the common law right. However, he may not do so pursuant to statute because the statutory right is vested in the parent.

It is true, as Mrs. Burke argues, KRS 401.020 was amended in 1974 to provide that a “parent” has the right to change the name of a child under eighteen by petition to the district court of the county in which they reside. However, although a mother may possess the statutory right to change her child’s name, it does not follow that a circuit court may not enjoin her exercise of that right if it has jurisdiction to do so as an incident of its statutory jurisdiction to determine custody matters attendant upon a marriage dissolution. We hold that it does.

Our marriage dissolution statute mandates that it “shall be liberally construed and applied to promote its underlying purposes.” Two of these are the safeguarding of family relationships and the mitigating of potential harm to spouses and their children caused by a dissolution. Further, the statute recognizes the circuit court’s continuing jurisdiction to modify custody decrees, and to modify visitation orders.

We believe that our marriage dissolution statute manifests an intent that circuit courts should assume an activist role in matters involving minor children, arising out of a marriage dissolution, especially matters affecting the emotional welfare of a child. No one can seriously argue that changing a child’s name from that of his natural father to that of his step-father could not weaken the emotional bond between the child and his father, or that such a change would necessarily be in the child’s best interest. Further, it is recognized that a natural father has a protectable right to have his child bear his name, 57 Am.Jur.2d Name § 14 (1971), and injunctive relief is the only remedy by which that right can be adequately protected. Therefore, since the circuit court is vested with continuing jurisdiction of custody matters attendant upon the dissolution of a marriage, and because KRS Chapter 403 mandates that the court safeguard family relationships and mitigate potential harm to parents and children, we hold that a circuit court has jurisdiction to enjoin a mother from changing a child’s name to his step-father’s name. Otherwise, we would permit an unsubstantial statutory right to apply for a name change, to take precedence over an express statement of public policy favoring preservation of family relationships. Our decision is not novel. It comports with the weight of authority. See, e. g., Solomon v. Solomon, 5 Ill.App.2d 297, 125 N.E.2d 675 (1955); Annot., 53 A.L.R.2d 914 (1957).

The injunction should not issue unless the court finds that it is in the “best interest” of the child. This determination should be based on the standards contained in KRS 403.270(1) and any other relevant considerations.

II

Mrs. Burke argues alternatively that, if the court had jurisdiction to issue an injunction, she was entitled to an evidentia-ry hearing. We agree.

Although the court entered findings of fact and conclusions of law sufficient on their face, it did not hear evidence from witnesses. While a court’s findings will not be disturbed on appeal if they are supported by substantial evidence, they will not be sustained if they are supported by no evidence. CR 52.

The need for an evidentiary hearing is obvious. Only after a full hearing, at which all interested parties are given an opportunity to be heard, can the court determine if the proposed name change is or is not in the best interest of the child. Further, such a hearing is mandated by the requirements of due process. Therefore, the court erred when it issued a permanent injunction without hearing evidence.

The order granting an injunction is reversed and remanded for further proceedings consistent with this opinion.

All concur.

      . Mr. Hammonds did not defend this appeal, advising his attorney that he could not afford it, and that even if this Court ruled in his favor, Mrs. Burke would not cease using the Burke name for the children. Therefore, we must decide this appeal without the benefit of an appellee’s brief.

      . There is no restriction as to which parent may apply. Previously, the statute had reserved the right to the father.

      . KRS 403.110.

      . KRS 403.110(1) and (3).

      . KRS 403.340.

      . KRS 403.320.


author: SEILER, Judge. BARDGETT, Chief Justice,

text:
    FISCHER, SPUHL, HERZWURM & ASSOCIATES, INC., et al., Appellants, v. FORREST T. JONES & COMPANY, et al., Respondents.
    No. 60720.
    Supreme Court of Missouri, En Banc.
    Sept. 11, 1979.
    Rehearings Denied Oct. 10, 1979.

      Harvey M. Tettlebaum, Jefferson City, Theodore S. Schechter, Schechter & Zer-man, Clayton, for appellants.
    Cullen Coil, Carson, Monaco, Coil & Riley, Jefferson City, John T. Martin, William G. Zimmerman, Robert E. Northrip, Shook, Hardy & Bacon, Kansas City, Forrest T. Jones & Co., Inc., David A. Yarger, Woolsey & Yarger, Versailles, Alex Bartlett, Hen-dren & Andrae, Jefferson City, American Health & Life Ins., Veryl L. Riddle, John J. Hennelly, Jr., Lee H. Wagman, St. Louis, Robert J. Quigley, Eldon, New York Life & Health Ins., for respondents.
    John D. Ashcroft, Atty. Gen., Roger Bern, Nanette K. Laughrey, Asst. Attys. Gen., Jefferson City, for amicus curiae.
   SEILER, Judge.

This is an appeal in a suit wherein plaintiffs sought damages for lost commissions in the sale of insurance allegedly caused by defendants’ acts in restraint of trade, claimed to be unlawful under both the former and new Missouri antitrust statutes, and for tortious interference with plaintiffs’ business relations. The trial court held that the former antitrust law did not apply to the types of insurance involved in this case, that all activities of the insurance industry are exempt from the Missouri antitrust law of 1974 under § 416.041.2, RSMo 1978, and that plaintiffs failed to assert a cause of action for tortious interference with business relations. The trial court granted defendants’ motion to dismiss the actions. Plaintiffs appealed and filed a motion to transfer the case prior to opinion from the court of appeals, western district, to this court under rule 83.06. We granted the motion to transfer because of the general interest and importance of the questions presented and we will treat the case as though here on original appeal. Mo.Const. art. V, § 10.

Appellants are insurance brokers who filed a petition in the circuit court of Miller County alleging that over the years respondents had violated § 416.010, RSMo 1969, of the former antitrust statute and § 416.031, RSMo 1978, of the new antitrust statute, by engaging in unlawful contracts, combinations, undertakings or conspiracies that constitute an unreasonable restraint of trade or commerce. Appellants also allege that respondents’ activities constituted tortious interference with appellants’ business relations. Respondents are as follows: Forrest T. Jones & Co., an insurance brokerage company; Missouri State Teachers Association (MSTA), a corporation organized to represent the interests of teaching and non-teaching personnel of elementary and secondary schools in Missouri; American Health and Life Insurance Co., Fidelity Security Life Insurance Co., and New York Life Insurance Co., past or present underwriters of group insurance coverage for teachers employed by Missouri school districts; Forrest T. Jones, Dorothy M. Jones, Richard F. Jones, and M. M. Morrison, officers and directors of Forrest T. Jones & Co.; J. A. Kinder, officer, and Everett Keith, former officer of MSTA; James E. Wood-ruff, licensed insurance agent and director of the MSTA Group Insurance Plan; and, Warren P. Gardner, officer and director of Fidelity Security Life Insurance Co.

Specifically, appellants allege in their petition, among other things, that respondent Forrest T. Jones & Co., had made gifts to and provided entertainment for persons in positions of authority with MSTA or its affiliated groups, that respondent Forrest T. Jones & Co. had entered into agreements with MSTA and its agents and school districts to withhold necessary statistical data, or to provide incomplete or false data, concerning MSTA members employed by particular school districts from potential competitors of Forrest T. Jones & Co., and that Forrest T. Jones & Co. entered into agreements with school districts pursuant to which districts could obtain group accident and health insurance only if they also purchased group life insurance. Appellants allege that Forrest T. Jones & Co. acted as agents of American Health and Life Insurance Co., Fidelity Security Life Insurance Co., and New York Life Insurance Co. in the above anticompetitive activities.

On appeal, appellants contend that the trial court improperly dismissed the action. Appellants submit that the former antitrust statute did apply to life, health and accident insurance, and that § 416.041.2 of the new statute does not exempt entire industries. Rather, appellants contend, § 416.041.2 of the new statute merely codifies the “state action” doctrine of federal antitrust law and exempts only specific anticompetitive activities and arrangements in fact expressly approved or regulated by the state. Appellants contend further that the alleged anticompetitive activities of the respondents were not expressly approved or regulated by the division of insurance and are therefore outside of the scope of the exemption granted in § 416.041.2. Moreover, appellants argue that they have stated a cause of action for respondents’ tortious interference with appellants’ business relations. Respondents answer that the former antitrust statute was limited in its application to activities related to products, commodities, articles or things and did not apply to insurance, except for the express inclusion of insurance of property against loss or damage by fire, lightning or storm in the statute. As to the new antitrust statute, respondents answer that the statutes relating to the regulation and supervision of the insurance industry are an exclusive and complete code. Accordingly, respondents submit, the insurance industry’s activities are regulated by the state and therefore are exempt under § 416.041.2. Respondents also submit that the appellants’ failure to allege the existence of a contract or a preexisting business relationship is fatal to the claim of tortious interference with appellants’ business relations. We will discuss these issues in the order that they are set out above.

The “old” antitrust statute, originally enacted in 1907, did not apply to restraints in trade occurring in connection with service activities. Almstead and Tyler, State Antitrust Laws: New Directions in Missouri, 39 Mo.L.Rev. 489, 489-90 (1974). The statute applied only to activities relating to products, commodities, articles and things. See §§ 416.010 through 416.040, RSMo 1969, and Bond, The Antitrust Laws of Missouri, 27 J.Mo.B. 61, 62 (1971). Section 416.040 of the old antitrust statute, however, expressly included insurance of property against loss or damage by fire, lightning or storm within the purview of the statute. The statute did not otherwise apply to services or other types of insurance, such as the life, health and accident insurance contracts involved in this case. The trial court correctly held that the old antitrust statute did not apply to the insurance contracts and activities which are the subject of this litigation.

Arguably in part because the old antitrust statute did not apply to service contracts, but whatever the reason, the General Assembly enacted the Missouri antitrust law of 1974 (the Act), §§ 416.011 to 416.161, RSMo 1978, with a much broader scope of application. See Almstead and Tyler, 39 Mo.L.Rev. at 490-91. The Act closely parallels provisions of the Sherman and Clayton Acts of federal antitrust law. Section 416.031.1 of the Act makes unlawful every contract, combination or conspiracy in restraint of trade or commerce, conduct which is prohibited by § 1 of the Sherman Act, 15 U.S.C. § 1 (1976). Section 416.031.2 of the Act makes unlawful monopolization, attempted monopolization, and conspiracy to monopolize trade or commerce, conduct which is prohibited by § 2 of the Sherman Act, 15 U.S.C. § 2 (1976). Section 416.031.3 of the Act makes unlawful specified acts that substantially lessen competition or tend to create a monopoly, conduct which is prohibited by § 3 of the Clayton Act, 15 U.S.C. § 14 (1976). Like the federal antitrust laws, the Act applies to “any individual, corporation, firm, partnership, incorporated or unincorporated association of any other legal or commercial entity”, § 416.-021(2), RSMo 1978, and “any economic activity involving or relating to any commodity or service.” § 416.021(4), RSMo 1978.

The Act expressly exempts, with some qualifications, labor, agricultural and horticultural organizations in § 416.041.1, RSMo 1978, the same organizations expressly exempted from federal antitrust laws by § 6 of the Clayton Act, 15 U.S.C. § 17 (1976). In § 416.041.2, the Act exempts “activities or arrangements expressly approved or regulated by any regulatory body or officer acting under statutory authority of this state or of the United States.” At issue is whether this provision is a codification of the “state action” doctrine of federal antitrust law, which exempts anticompetitive conduct which is required or approved by state law, or whether, as respondents contend, this provision exempts the insurance industry because its activities are regulated by state law.

The Act directs that its provisions “shall be construed in harmony with ruling judicial interpretations of comparable federal antitrust statutes.” § 416.141, RSMo 1978. The legislature, through this section and the Act’s substantive provisions based on federal antitrust laws, intended to provide a ready body of precedent for interpreting the law and a single standard of business conduct already known and acquiesced in by businesses in Missouri. See Almstead and Tyler, 39 Mo.L.Rev. at 519.

The United States Supreme Court has spoken clearly as to the construction to be given to exemptions to the federal antitrust laws and therefore provides guidance for the construction to be given to exemptions under the Act. In Abbott Laboratories v. Portland Retail Druggist Association, Inc., 425 U.S. 1, 96 S.Ct. 1305, 47 L.Ed.2d 537 (1976), the court most recently stated that antitrust laws are to be construed liberally and exceptions from their application are to be construed strictly. 425 U.S. at 11, 96 S.Ct. 1305. In another recent case, the Supreme Court addressed the question whether a congressional regulatory scheme serves as an implied exemption from federal antitrust law. “Implied antitrust immunity is not favored, and can be justified only by a convincing showing of clear re-pugnancy between the antitrust laws and the regulatory system.” United States v. National Association of Securities Dealers, Inc., 422 U.S. 694, 719-20, 95 S.Ct. 2427, 2443, 45 L.Ed.2d 486 (1975). In construing the Act in harmony with these ruling judicial interpretations of comparable federal antitrust statutes, we read § 416.041.2 narrowly and find that it does not exempt the insurance industry solely because its activities are regulated. Moreover, we find that respondents have not shown that an implied exemption is justified by clear repugnancy between the antitrust laws and the regulatory system.

As noted above, the Act expressly applies to “any individual, corporation, firm, partnership, incorporated or unincorporated association or any other legal or commercial entity” and to “any economic activity involving or relating to any commodity or service.” §§ 416.021(2), (4), RSMo 1978. In the exemption in § 416.041.2, the legislature chose the words “activities or arrangements expressly approved or regulated”. To say that certain activities, otherwise proscribed by the Act, are exempt because they are approved by the state or in compliance with the legislature’s regulatory scheme for a given industry, is quite a different matter from saying that because an industry is regulated, its activities are exempt from the Act, irrespective of whether the activities are in compliance with or in violation of the regulations applicable to the industry. Nowhere in the Act is there an express exemption for regulated businesses and industries, or the insurance industry in particular, although in § 416.041.1 the legislature specifically exempted agricultural, horticultural and labor organizations from the purview of the Act. Rather than interpret the scope of the exemption in § 416.041.2 so broadly as to exempt by mere implication potentially hundreds of businesses and industries, we adhere to the narrow construction given to exemptions to the federal antitrust statutes, as we are directed to do by § 416.141 of the Act.

The exemption in § 416.041.2 represents a codification of the “state action” doctrine of federal antitrust law, first enunciated by the United States Supreme Court in Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315 (1943). In Parker, the court held that while a state may not give immunity to those who would violate the Sherman Act, legitimate statutory measures to solve economic problems through regulatory schemes will not violate federal antitrust laws despite their anticompetitive features. The court, in Parker, upheld a California statute that adopted a mandatory marketing and pricing program for the state’s raisin crop. Since Parker, the “state action” exemption has been further explained by recent Supreme Court decisions.

In Goldfarb v. Virginia State Bar, 421 U.S. 773, 95 S.Ct. 2004, 44 L.Ed.2d 572 (1975), the court found that the “state action” exemption did not apply to the Virginia Bar Association’s minimum fee schedule and therefore its enforcement by the bar association constituted unlawful price fixing under the Sherman Act. The court states that “[t]he threshold inquiry in determining if an anticompetitive activity is state action of the type that the Sherman Act was not meant to proscribe is whether the activity is required by the State acting as sovereign.” 421 U.S. at 790, 95 S.Ct. at 2015. And in Cantor v. Detroit Edison Co., 428 U.S. 579, 96 S.Ct. 3110, 49 L.Ed.2d 1141 (1966), the Supreme Court directly addressed the issue of implied exemptions from the federal antitrust laws through state regulation. In Cantor, the court found that despite the state’s participation in and approval of a light bulb exchange program, the “state action” exemption did not apply and the program restrained competition in violation of the Sherman Act. The court explained that it “has consistently refused to find that regulation gave rise to an implied exemption without first determining that exemption was necessary in order to make the regulatory [a]ct work, ‘and even then only to the minimum extent necessary.’ ” 428 U.S. at 597, 96 S.Ct. at 3121.

Under the Supreme Court’s interpretation of the “state action” exemption in Goldfarb and Cantor, which we use as guidance in construing the exemption in § 416.-041.2 of the Act, it is clear that the alleged anticompetitive conduct of respondents does not fall within the scope of the exemption. There is no question that the state does not require the anticompetitive conduct alleged. Nor does this case involve “activities or arrangements expressly approved” by the state. Nor is the alleged anticompetitive activity even arguably insulated on the ground that it is in compliance with state statutes regulating the insurance industry. In sharp contrast, respondents contend that they are exempted from the Act because their allegedly anticompetitive conduct may violate insurance regulations that prohibit unfair practices and fraud under §§ 375.930 to 375.948, RSMo 1978. Respondents thus contend that these prohibitions against unfair practices and fraud give rise to an implied exemption from the Act for such unlawful activities. Under the “state action” exemption, anticompetitive activities are exempt if they are compelled by state regulations. The “state action” doctrine does not relieve antitrust liability for anti-competitive conduct which also violates state regulations for particular industries. This is not a case where an implied exemption from the Act is necessary “in order to make the regulatory [a]ct work” under the “state action” doctrine as articulated in Cantor. 428 U.S. at 597, 96 S.Ct. at 3121.

After applying “ruling judicial interpretations of comparable federal antitrust statutes”, which we are directed to use as guidance in our construction of the Act by § 416.141, we find that the alleged anticom-petitive activities at issue do not fall within the scope of the “state action” exemption in § 416.041.2. The decision of the trial court in granting the respondents’ motion to dismiss appellants’ cause of action under the Act was in error.

The last issue in the case at bar is whether appellants’ petition pleaded facts sufficient to state a claim upon which relief can be granted for tortious interference with business relations. Respondents contend that appellants must allege the existence of a contract or a pre-existing business relationship as an element of the cause of action. In Downey v. United Weatherproofing, Inc., 363 Mo. 852, 253 S.W.2d 976, 980 (1953), this court held that a reasonable expectancy of commercial relations is protected.

“The right of recovery for inducing a breach of contract is but one instance of the protection which the law affords against unjustified interference in business relations. An existing contract may be the basis for greater protection, but some protection is appropriate against unjustified interference with reasonable expectancies of commercial relations even where an existing contract is lacking.”

Respondents cite Saloman v. Crown Life Insurance Co., 536 F.2d 1233 (8th Cir.), cert. denied, 429 U.S. 961, 97 S.Ct. 387, 50 L.Ed.2d 329 (1976) as authority for their contention that a contract or a pre-existing business relationship is a necessary element of a claim of tortious interference with business relations. In Saloman, the Eighth Circuit correctly stated the elements of a cause of action for tortious interference with business relations under Missouri law:

“(1) A contract or a valid business relationship or expectancy (not necessarily a contract);
(2)Defendant’s knowledge of the contract or relationship;
(3) Intentional interference by the defendant inducing or causing a breach of the contract or relationship;
(4) The absence of justification; and,
(5) Damages resulting from defendant’s conduct.”

536 F.2d at 1238 (emphasis added). Respondents submit that, in any event, the trial court’s dismissal of appellants’ petition was proper because appellants failed to show the existence of a reasonable expectancy of commercial relations or that respondents had knowledge of the appellants’ expectancy of commercial relations.

In Scheibel v. Hillis, 531 S.W.2d 285 (Mo. banc 1976), this court held that a petition is sufficient against a motion to dismiss if it invokes the substantive principles of law which entitle plaintiff to relief and alleges facts which inform the defendant of what plaintiff will attempt to establish at trial. 531 S.W.2d at 290. We believe that appellants have met this minimum requirement. On its face, count IV of appellants’ petition alleges that appellants had an expectancy of business relations, as it claims interference with “actual and potential business relations.” The count also alleges that respondents’ acts were intentional and without justification, and that appellants have suffered damages as a result of respondents’ intentional conduct. The only element of tortious interference with business relations which is not stated in count IV is respondents’ knowledge of appellants’ expectancy of business relations. Count IV does, however, incorporate by reference the allegations in the other counts of the petition which charge that respondents acted unlawfully in restraint of trade. These allegations supply the knowledge element necessary for the tort.

Appellants allege that respondents conspired with school districts and entered into illegal “tying” agreements, under which districts could obtain group accident and health insurance only if they purchased group life insurance, and other anticompeti-tive agreements that caused school districts to refuse to deal with appellants and other competitors of respondents. Appellants also allege that respondents gave financial contributions and gifts to school board members and employees to shut out respondents’ competitors in the insurance market for the 80,000 employees of the state’s school districts. While these allegations do not specifically state that respondents knew of appellants’ individual expectancies of commercial relations, the allegations claim that respondents knew their activities tor-tiously interfered with the business relations of respondents’ potential competitors, and that appellants were potential competitors.

Appellants’ petition invokes the substantive principles of law which entitle appellants to relief and informs the respondents of what appellants will attempt to establish at trial. As we stated in Scheibel:

“Plaintiff could be compelled by motion . to plead more specifically or by interrogatories to give more information . but this does not mean the petition does not state a cause of action in its present form. A pleader is required to state only the ultimate facts and it is not necessary to plead the facts or circumstances by which the ultimate facts will be established.”

531 S.W.2d at 290. Appellants stated a cause of action for tortious interference with business relations and the trial court erred in dismissing count IY of appellants’ petition for failure to state a claim upon which relief can be granted.

The judgment of the trial court is affirmed in part and reversed in part, and the cause is remanded to the trial court for further proceedings consistent with this opinion.

RENDLEN and MORGAN, JJ., and WELBORN, Special Judge, and FINCH, J., concur.

BARDGETT, C. J., concurs in part and dissents in part in separate opinion filed.

DONNELLY, J., not sitting.

WELLIVER and HIGGINS, JJ., not participating because not members of the court when cause was submitted.

BARDGETT, Chief Justice,

concurring in part and dissenting in part.

I concur in the principal opinion except as to that part which reaffirms earlier holdings that the “old” antitrust statutes, sections 416.010-416.040, RSMo 1969, do not apply to life, health or accident insurance contracts. I agree that the earlier cases so held but I believe those cases were wrong. In my opinion, the “old” antitrust statutes which play some part in the instant case apply to insurance industry, company, or brokerage activities in connection with all forms of insurance. I would therefore reverse and remand for further proceedings on all counts.

      . See generally Comment, The Missouri “State Action” Antitrust Exemption, 45 U.M.K.C.L Rev. 257 (1976).