author: JONES, Justice.

text:
    Daniel Lee WAINSCOTT, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    Feb. 21, 1978.
    Rehearing Denied April 11, 1978.
    Jack Emory Farley, Public Defender, David E. Murrell, Deputy Public Defender, Edward C. Monahan, Asst. Public Defender, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., Mark F. Armstrong, Asst. Atty. Gen., Frankfort, for appellee.
   JONES, Justice.

Daniel (Danny) Lee Wainscott appeals from a judgment sentencing him to life imprisonment pursuant to a jury verdict finding him guilty of murder under the provisions of KRS 507.020(1).

There are numerous other questions, but the principal issues deal with whether Danny was sane at the time he committed the offense and whether his confession was voluntary. To dispose of these and other issues, it is necessary to detail some of the evidence presented to the jury. The depositions, pre-trial motions, five volumes of evidence and the exhibits portray a sordid account of the brutal murder of Brenda Woolums Winters, at her home on Juniper Drive in Frankfort on July 24, 1976.

Danny killed Brenda. He told the jury in detail how he did it. His testimony varies to some degree from the confession he made to the state police four days after Brenda’s murder. He contends, however, the confession was coerced. His justification for the homicide at trial and in the confession was nebulous. A part of the confession Danny made to state detective, Bill Young, at 7:15 P.M., July 27, 1976, depicts Danny’s macabre act and attitude on the morning of July 24, 1976, when he murdered Brenda.

The stark reality of what happened on that July morning is contained in the following portion of Danny’s confession:

“I, Daniel L. Wainscott (signed), make the following free and voluntary statement to Detective Bill Young known to me to be a member of the Kentucky State Police. I have been advised that I do not have to make a statement and that anything I say can be used in court against me. I have also been advised of my rights to see an attorney. No threats or promises were made to me to obtain this statement. I am 21 years of age and can read and write.
“Brenda Winters invited me into the house. I sat around for awhile on the couch. In thirty minutes, she was dead. What happened in the meantime wasn’t much. It was just, it was here and there. It wasn’t nothing about sex or nothing like that. She thought I could come up anytime I wanted and be engaged with her in activities. (Emphasis added). I said no reason. I always thought the feeling was mutual. She got a little red about it. A name was called. I said, “I don’t have to take that.” She got a little violent herself. The next thing I know, I grabbed her, threw her on the floor. I was down on top of her, had my fingers completely touching each other around her throat, and then I just let off, got up, went in the kitchen and then I heard her making some noises. (Emphasis added). I came back in there and I said, “I’m in more trouble now if I just leave her lay. If I kill her, something might happen.” I didn’t know what was going on. I found a cord laying nearby and I strangled her. There was a knife in the kitchen. I took it. I didn’t want to do it but I pressed it once and then drawed back and the next time I had it and then it just went in easy. (Emphasis added). The blood came out and I said, “Oh, my God, what did I do” and then I finally realized what I done. The marks on her body was by my foot and that was it and then I left, disposed of the weapon going down Louisville Road. I just didn’t think what it was over. I just lost it completely. I do need help. I know that. I do need help.”

Danny testified that he and Gregg Mar-ston went to Brenda’s house at her invitation. They listened to some music and smoked marijuana. At some point an argument between him and Gregg ensued. There was a struggle. Danny remembered grabbing Brenda. He had a knife and said, “Well, I don’t want to do this.” Nevertheless, he did murder Brenda. First, he “grabbed her by the throat and choked her until she turned blue, and passed out.” He heard her making strange noises, gasping for air. Then he found a cord and strangled her. He then stabbed her. As his final act of cruelty, he kicked her in the head.

Immediately after the murder, Danny removed Brenda’s slacks to make it appear she had been raped. Then he left the crime scene by a window to avoid detection. He was careful not to leave fingerprints. He hid in his automobile to avoid being seen by Carl Edwards. Danny left curtains hanging outside a window. Later that day he requested a friend to drive him by Brenda’s home to see if the curtains were still out. They were. He knew Brenda’s body had not been discovered.

The evidence supporting Danny’s testimony and his confession was overwhelming. Three witnesses observed his brown Toyota parked “catty-cornered” in front of Brenda’s house at 7:00 A.M., July 24,1976, in the range of the estimated time by the coroner and the pathologist as the time of Brenda’s death.

Brenda’s body was discovered by friends at 1:45 A.M., Sunday, July 25, 1976. There were stab wounds in the neck, signs of strangulation and fractures of the skull. This “tell-tale” evidence was consistent with Danny’s confession and his testimony.

The coroner observed the stab wounds in Brenda’s neck, as well as strangulation marks and the fractures of her skull.

The pathologist who performed an autopsy observed the stab wounds in the neck and chest. He saw parallel depression marks on the left side of the neck. These were consistent with strangulation. He was of the opinion that Brenda was strangled and then stabbed. The pathologist and the coroner were of the opinion the stab wounds were the cause of death. They estimated that Brenda’s death occurred between 6:00 and 11:00 A.M., Saturday, July 24, 1976. That was within the time Danny’s automobile was parked perpendicular to the curb in front of her house.

The above is a narrative of Brenda’s gory murder. Additional details will be mentioned as they appear relevant to the questions presented.

Danny first assigns as error the trial court’s failure to direct the jury to find him not guilty by reason of insanity. He argues that he had proved his insanity by a preponderance of the evidence. He contends that the burden of proving him sane then passed to the Commonwealth, which had failed to sustain that burden.

Some three weeks after Danny was lodged in jail, charged with Brenda’s murder, he was given cursory psychological tests by Dr. Parks, a psychiatrist, and Dr. Pruitt, a psychologist. They both testified that at the time of the crime and at the time they examined him, Danny was unable to control his actions. They both were of the opinion Danny suffered from schizophrenia. There was also lay testimony that Danny was mentally ill.

Later, Danny was committed to the forensic unit of Central State Hospital. There, he was examined and given tests by Dr. Ravinni and Dr. Estanislao, both psychiatrists. They gave Danny a glucose tolerance test to see if he had brain damage. They found none. They gave him an electroencephalogram test to see if he had any neurological impairment. He did not. They observed Danny for four days. He was amiable; oriented as to time, place and person, and was in good contact with reality. He participated in ward activities, group and occupational therapy, and mixed well with other patients.

Dr. Ravinni and Dr. Estanislao were of the opinion Danny was not suffering from “mental disease or defect” and was competent to stand trial. They reported that he was probably in possession of his mental faculties at the time he committed the crime.

With the evidence in this posture there was conflicting testimony as to Danny’s sanity at the time he killed Brenda. Thus, it became a matter for the jury’s determination. Recently, this court stated:

“. . . the introduction of proof of insanity does not place a burden on the Commonwealth to prove him sane; rather, it entitles the defendant to an instruction to the jury that [it] may find him not guilty by reason of insanity . . . .” Edwards v. Commonwealth, Ky., 554 S.W.2d 380 (1977).

The jury apparently considered Danny’s conduct before and after Brenda’s murder. It observed his demeanor at trial. It must have considered the fact that Danny was a juvenile counselor at the Kentucky Children’s Home; that he worked 6 shifts per week, from midnight to 8:00 or 8:30 A.M. In addition to his duties as a counselor, he administered medications to the patients. Then too, the jury apparently considered Danny’s cool, calm and deliberate actions in the perpetration of this heinous crime. In truth and in fact, the jury weighed Danny’s fate in the balance and found it wanting. Its conclusion was consistent with the thoughts of a renowned writer who said: “Insanity is often the logic of an accurate mind overtaxed.” It did not accept Danny’s plea of insanity.

This court does not accept Danny’s argument that the Commonwealth had the burden of proving him sane. That burden never shifts. It was incumbent on him to prove his insanity. That was an insurmountable obstacle course that he failed to overcome. Henderson v. Commonwealth, Ky., 507 S.W.2d 454 (1974); Edwards v. Commonwealth, Ky., 554 S.W.2d 380 (1977). Therefore, this court is of the opinion that the trial court did not err in failing to direct the jury to find Danny not guilty by reason of insanity.

Danny’s next argument is that his confession was involuntary and he was forced by the police to make it. He further contends that the confession was obtained in violation of the minister-penitent privilege under KRS 421.210(4).

Prior to trial, Danny’s attorney moved the trial court to suppress the statements and confessions Danny made to the police. The trial court, on the basis of the evidence in support of and in response to the motion, overruled it. Subsequently, Danny, by counsel, requested the trial court to enter a nunc pro tunc order overruling the motion. The trial court did. Also, he made detailed findings of fact and conclusions of law in support of his action. The record in this court was supplemented by filing the order, findings of fact and conclusions of law, so that the matters could be reviewed on appeal.

This court has reviewed that evidence. A detail of relevant parts of the testimony as to Danny’s conduct from the time of Brenda’s murder, Saturday, July 24, 1976, between 6:00 and 11:00 A.M., until he made the confession at 7:15 P.M., Tuesday, July 27, 1976, is necessary to resolve the issues.

When Danny learned the police wanted to talk to him about the murder, he notified them he would be at State Police Headquarters in a short while if they would “call off” the officers who were looking for him. He didn’t keep that promise.

Meanwhile, two detectives of the Franklin Police Department who were driving by the business place of Danny’s father saw Danny get into his parked automobile. As they approached him, he drove away at a high rate of speed. After a chase in which three other vehicles were damaged he was apprehended.

Danny was advised of his constitutional rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). He was taken to State Police Headquarters, where he was again given his Miranda warnings.

He then was placed under arrest on an outstanding warrant from Anderson County, Ky., on a charge of disorderly conduct. He was questioned briefly concerning Brenda’s murder and denied any knowledge of it. From there he was taken to Frankfort Police Headquarters to await the arrival of Anderson County authorities, to transfer him to Lawrenceburg, the county seat.

On Monday, July 26, 1976, Danny’s parents went to Lawrenceburg. They effected his release by posting bond. He returned to Frankfort. That afternoon he stopped at Frankfort Police Headquarters and picked up an extra set of keys to his automobile. At that time, Danny voluntarily discussed Brenda’s murder with a state police detective. He was not in custody. However, he agreed to take a polygraph test the next day at 1:00 P.M. When he returned to his automobile, he confided in some friends that he was not going to bed until he had taken the polygraph test. In that manner, he assumed he could beat the test.

That night, Danny worked the midnight to 8:00 A.M. shift as a juvenile counselor at the Kentucky Children’s Home in Lyndon, Ky., some 48 to 50 miles from Frankfort.

He returned to his parents’ home in South Frankfort on the morning of July 27, 1976. He did not go to bed, but called a girl friend to come visit him. She stayed until Danny left to take the test. At that time she saw him take a capsule of ten milligrams of valium. He placed another capsule of ten milligrams of valium in one nostril.

Danny drove to State Police Headquarters. The polygraph examiner suggested that he not take the test until he had a blood and urine analysis to determine if he was under the influence of drugs. With Danny’s consent, he was taken to Doctors Place, South Frankfort, where the tests were administered. He then went with the detectives to Frankfort Police Headquarters for questioning.

He was again advised of his rights under Miranda at 2:35 P.M., Sunday, July 27, 1976. Danny then signed a statement in which he waived his Miranda rights. He was asked if he would make a written statement regarding comments he had made the previous day. He agreed, and a stenographer was called to take the statement. He was free to roam the police headquarters while the statement was being typed. He drank a “coke,” conversed with those present, and read a magazine. On being asked if he desired anything to eat, he said he did not. He read the statement, initialed each page and signed it at 4:40 P.M., July 27, 1976.

At no time during his stay at the Frankfort Police Department on the afternoon of July 27, 1976, did he request, nor was he denied, the services of an attorney. He was told each time the Miranda warnings were given that he was entitled to the services of a lawyer. Prior to his confession, he was not charged with Brenda’s murder.

After signing the false statement at 4:40 P.M. he was again interrogated briefly. When he was confronted with Carl Edwards’ statement placing his Toyota in front of Brenda’s house at the time the crime was estimated to have occurred, and viewing photographs of the crime, Danny had a troubled conscience. His burden of guilt was heavy. He requested to see his friend, Reverend Larry Weiss, whom he had met some weeks earlier. Reverend Weiss visited Danny at approximately 6:00 P.M. After conferring with Reverend Weiss, Danny agreed to make a second statement. However, he requested to see his parents, girl friend, former wife and other family members after making a statement as to what actually happened. The police complied with that request. It is evident that after Reverend Weiss conferred with Danny for thirty or forty-five minutes, he wanted the Reverend Weiss to tell the police that he (Danny) had murdered Brenda. The Reverend told Danny that he would have to tell them.

There is not a shred of evidence that undue pressure by the police was exerted to obtain the confession. The facts do not establish that the confessions were obtained in violation of the minister-penitent privilege. Reverend Weiss was at the jail because of Danny’s request. He was certainly not in control or direction of any police officer. At Danny’s request, Reverend Weiss returned to the jail around midnight. Then Danny told him where he had hidden the butcher knife. He authorized the Reverend Weiss to accompany the police detectives, who found the knife where Danny told them he hid it. The Reverend Weiss testified that before Danny confessed, he “[Rjelated some facts which he, in turn, asked me to relate to the detectives outside.” In order to invoke the minister-penitent privilege as provided in KRS 421.-210(4) the statement must be made to the minister in his professional capacity. Here, Danny spoke to Reverend Weiss as a friend rather than as a minister. Thus, no privilege was attached to the statements Danny made.

This court is of the opinion that the trial court’s ruling that the confession was admissible and there was no violation of the minister-penitent privilege is amply supported by the evidence. It is noted also that the trial court’s instructions to the jury included an instruction as to the voluntariness of Danny’s confession.

Danny contends that he suffered from prosecutorial vindictiveness because he refused to plead guilty and take a 20-year sentence. It is true that at a pre-trial hearing involving plea bargaining, the Commonwealth’s Attorney made that offer which Danny rejected. He contends that because he chose to risk his fate at the hands of the jury, the Commonwealth’s Attorney was precluded from asking the jury to fix his punishment at life imprisonment. That is an erroneous assumption. No mention of the offer was made in the closing argument. Hence, no prosecutorial vindictiveness was shown. Furthermore, the Supreme Court of the United States has recognized plea bargaining to be not only constitutional, but also an essential ingredient to the effective administration of criminal justice. See Bordenkircher, Penitentiary Superintendent v. Hayes, - U.S. -, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978).

A thorough review of the record of Danny’s trial reveals no prejudicial error. He received a fair and impartial trial. In the trial arena both Danny’s attorney and the Commonwealth’s Attorney made excellent presentations of their respective theories of the case. They were well prepared. The trial court was patient, tolerant and demonstrated a thorough knowledge of the law of the case. In his instructions, the trial court touched all bases. He instructed the jury on murder, first degree manslaughter, insanity, voluntariness of the confession, the effect of being found guilty by reason of insanity, and reasonable doubt. Who could have asked for more?

This court has carefully reviewed each of the other assignments of error and find them to be without merit. On the totality of all the proceedings it is this court’s considered judgment that Daniel Lee Wain-scott received more than a “tolerably fair trial.”

The judgment is affirmed.

All concur.

      . In his confession, Danny stated he was alone. Marston did not testify.

      . Edwards arrived at Brenda’s around 7:00 A.M., July 24, 1976. He saw Danny’s automobile parked perpendicular to the curb — He saw someone pull back the curtains. Because Brenda had company, he fell asleep in his car. When he awoke, Danny’s automobile was gone.

      . Dr. Ravinni did not testify. It was indicated he was unavailable as a witness. He did file a Forensic Report and recommendation.

      . O. W. Holmes, The Autocrat of the Breakfast Table, Ch. 2 (1858).

      . Danny admitted seeing Brenda, but denied being at her house at any time on July 24, 1976. He said he arrived at his home at 4:30 A.M. and went to bed. He slept until 10:00 to 10:30 A.M.

      . Shawhan v. Commonwealth, Ky., 318 S.W.2d 541 (1958).


source: Caselaw Access Project

license: Public Domain

text:
    Louise M. WILSON, Appellant, v. REDKEN LABORATORIES, INC., Appellee.
    Supreme Court of Kentucky.
    Feb. 21, 1978.
    Rehearing Denied April 11, 1978.

      William E. Johnson, Johnson, Judy & Gaines, Frankfort, Charles E. Carter, Ow-enton, for appellant.
    E. Andre Busald, Busald, Funk & Zeverly, Florence, for appellee.
   JONES, Justice.

This appeal arises from an action brought by Louise M. Wilson against Redken Laboratories to recover damages caused to her hair when Nancy Scobee, Redken’s representative, used its products on Louise’s hair. The jury found for Louise and awarded her $45.00 for medical expenses, $200.00 for the cost of wigs, and $30,000.00 for her past, present and future mental anguish.

Redken appealed to the Court of Appeals of Kentucky. The Court of Appeals affirmed that part of the judgment which found that the negligence of Nancy Scobee could be imputed to Redken. However, it reversed on the question of damages on the ground that the verdict of $30,000.00 for mental anguish struck the mind at “first blush,” as having been given under the influence of passion and prejudice. Louise filed a motion for discretionary review on the sole question of whether the jury verdict was excessive, and upon that basis this court granted review.

The relevant facts of the case are as follows. On November 7, 1973, Louise Wilson went to her beautician, Della Johnson, to have her hair frosted. Louise usually went to Della’s beauty salon once a week. Some several months before that November day, Marvin Stewart, another beautician, had frosted Louise’s hair. However, on this particular occasion after Della had frosted Louise’s hair, some unexplained orange spots were observed. It is apparent that Marvin Stewart had more expertise as a beautician than did Della, as she called Marvin, who came to her shop and inspected Louise’s hair. Marvin suggested that Louise contact Redken Laboratories, Inc., because its representatives had told them that if they ever encountered any problems with Redken’s products, they should contact Redken. Della contacted Redken and informed it that she wanted to have a color technician assist her with Louise’s hair. Nancy Scobee, who identified herself as a color technician from Redken, contacted Della. Nancy made an appointment with Louise to come to Della’s shop on December 10,1973. The purpose, according to Louise, was to get help in solving her hair coloring problem. Between the dates of November 7, 1973 and December 10, 1973, Della applied a Redken product called “Redken P.P.T. Conditioner” to Louise’s hair for the purpose of strengthening and conditioning it. Redken gave no warning that this process could be harmful to the hair if it was used more than once in any given period. Della applied this conditioner to Louise’s hair four times between November 7, 1973 and December 10, 1973. There was no abnormal amount of breakage between that period. On December 10, 1973, when Nancy Scobee arrived at Della’s beauty salon, she examined Louise’s hair and indicated that she could solve the problem. Nancy did not conduct a strand test on Louise’s hair to determine its strength. It is apparent from the record that the purpose of the strand test was to determine the strength and color of the hair. Nancy used a Redken product known as “Cool Blue Bleach.” She applied the product to Louise’s hair and left it for 45 minutes. Nancy used a dye solvent to shampoo and condition Louise’s hair. She then placed plastic cups on Louise’s head and put bleach in the cups. On the hair left outside the cups she placed a dye. Redken’s products were used in that process. After Nancy had completed the frosting on Louise’s hair, Della started combing the hair which immediately began breaking off and continued to break off near the scalp for several days until nearly all of it had fallen out. Louise looked like a man with a burr haircut. Dr. Cooper who testified he saw Louise more than a year after the application of the Redken products by Nancy Scobee, said that 80% of her hair was brittle and breaking or had broken off. Louise had to purchase wigs to cover the ugliness. The damage to her hair made her nervous and upset. When she was asked about it, Louise would cry. She was so distressed about her appearance that she slept in a wig. At the time of the trial, which was some 29 months after Nancy had applied the Redken products, Louise was still sleeping in a wig. Dr. Cooper also testified that he could not state whether she would ever get over the result of the traumatic experience. Dr. Cooper testified that the condition of Louise’s hair had made extremely slow improvement, much slower than one would expect over such a long period. At the time of the trial, May 13, 1976, Louise was still wearing a wig. She removed the wig so the jury could see the condition of her hair. It would still not hold a curl. Louise testified her hair was dry and thinner. She testified also that the reason she wore a wig at night was because she didn’t want her family to see her hair in its damaged condition.

This court now directs its attention to the question of whether there was sufficient evidence to justify the jury’s verdict. For many years this and other courts have used the term “first blush” as meaning at first sight; or without further consideration. However, this court is of the view the phrase “first blush” as applied to the facts of this case is a misnomer. It is not the function of this or any appellate court to blush at any time when it considers the question of damages awarded by a jury to an injured person.

Webster’s New World Dictionary defines blush as “to become red in the face from shame, embarrassment or confusion.” Under the evidence in this case if any person had a right to a “first blush” in the real sense of the plain and ordinary meaning of the phrase, that person was Louise Wilson who lost her hair.

The uncontradicted evidence plainly demonstrates that Louise Wilson had a traumatic experience, and suffered humiliation and distress, which are phases of mental anguish.

The Court of Appeals cited the case of L & N Railroad Co. v. Mattingly, Ky., 339 S.W.2d 155 (1960) to indicate its guidelines for determining the question of excessive damages. In that case one of the issues was whether a verdict of $62,331 should strike the mind at “first blush” as having been given under the influence of passion or prejudice. This court held that under the facts of that case it did not so strike this court. In fact, the court stated:

“A verdict may be set aside as excessive only if ‘it is [so] to such an extent as to cause the mind at first blush to conclude that it was returned under the influence of passion or prejudice on the part of the jury.’ Cumberland R. Co. v. Girdner, 1919, 184 Ky. 375, 212 S.W. 105, 108. On the whole, taking the evidence as to pain and suffering and loss of earning power and projecting it over the period of 30 years from the time of the accident, the award of $61,500 for those items may have been liberal, but we cannot say that it shocks the conscience or is clearly excessive.”

In its opinion the Court of Appeals placed emphasis on the fact that in this case there was no evidence of loss of wages, pain or earning capacity. It is obvious the Court of Appeals determined that in order to recover damages at the hands of the jury there should have been physical pain and suffering. That is a false premise. More than three score years ago this court held that it was proper for the jury to authorize a recovery for mortification and humiliation. The court also held that the word “distress” is a generic term and includes anguish and suffering both of mind and body, and that humiliation and mortification are simply phases of mental anguish. See Perkins v. Ogilvie, 148 Ky. 309, 146 S.W. 735 (1912).

The trial court in its interrogatory # 5(c) instructed the jury as follows:

“What sum of money do you find will fairly and adequately compensate Louise Wilson for the following items of damage she sustained, if any, as a direct result of her hair treatment?
⅜ ⅜ * ⅜: * ⅜:
“(c) For such damages as will reasonably compensate her for past, present, and future mental anguish and suffering, not to exceed the sum of $50,000.00.” (Emphasis added).

The trial court told the jury nothing about any pain attendant to the hair treatment.

This court is of the opinion that the Court of Appeals overlooked the fact that the appearance of a person as seen through the eyes of that person is one of the most important things in life. It is the goal of all well-adjusted persons to constantly strive to project the best appearance possible. One of the greatest pains that any person can suffer is the pain of embarrassment. The sudden loss of Louise’s hair was a traumatic shock. As do most women, Louise had always taken pride in her hair. Wearing a wig made her feel like a phony. She was so ashamed of her appearance that she wouldn’t let anyone, even her family, see her without a wig until well over a year from the happening of the event that caused the loss of her hair. It is this court’s opinion that the “first blush” rule used by the courts as it relates to excessive damages simply means that the judicial mind immediately is shocked and surprised at the great disproportion of the size of the verdict to that which evidence in the case would authorize. This court has stated:

“The rule is that a verdict will not be set aside as excessive, unless it is so grossly disproportionate as to the measure of damages, or is palpably against the evidence, as to shock the conscience and raise an irresistible inference that it was influenced by passion or prejudice.” See Cole & Crane v. May, 185 Ky. 135, 214 S.W. 885 (1919); Elmore v. Speicher, 481 S.W.2d 673 (1972).

The Apostle Paul in his first letter to the Corinthians, spoke upon the subject of a woman’s hair in this manner:

“But if a woman have long hair it is a glory to her for her hair is given to her for a covering.”

Louise Wilson does not have long hair. In effect she is like a lamb shorn. She has no covering, nor is there evidence that she ever will have.

More than 2⅛ years after the hair preparation that damaged Louise’s hair, the jury saw her in person without the wig. It heard all of the evidence and was properly instructed. Louise Wilson has suffered a grievous and severe injury. The evidence indicates that it will still be a source of embarrassment and humiliation.

In light of the evidence presented to the jury this court is unable to say that the judicial mind would have its conscience shocked at the size of the verdict under consideration when viewed in light of the testimony. This court is of the further view that it is not authorized to set aside the verdict on the ground of it being excessive although the award was liberal.

The judgment of the Court of Appeals is reversed with directions for entry of a judgment affirming the trial court.

PALMORE, C. J., and CLAYTON, JONES, LUKOWSKY, STEPHENSON and STERNBERG, JJ., concur.

REED, J., dissents.

      . I Corinthians 11:15.


text:
    Honorable C. Warren EATON, Special Judge, and Brian Schaefer (Intervenor), Appellants, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    Feb. 21, 1978.
    Rehearing Denied April 11, 1978.

      H. Paul Haynes, Frank E. Haddad, Jr., Louisville, for appellants.
    David L. Armstrong, Commonwealth’s Atty., Scott T. Wendelsdorf, Asst. Commonwealth’s Atty., Louisville, Robert F. Stephens, Atty. Gen., Frankfort, for appellee.
   JONES, Justice.

The principal question for decision is whether an order of prohibition is available to test a discretionary ruling of a trial court in a pending criminal action.

Brian Schaefer was indicted for the offense of bribing a witness. Prior to trial, Schaefer’s counsel made a motion to exclude from evidence a tape-recorded conversation between Schaefer and a Jefferson County narcotics officer. Honorable Benjamin Shobe, the presiding judge, granted the motion and ruled the tape-recorded conversation inadmissible.

The Commonwealth sought an order of prohibition from the Court of Appeals restraining the trial court from suppressing the tape. A temporary order by one judge of the Court of Appeals granted prohibition on June 10, 1977. On August 5, 1977, the temporary order was upheld by a three-judge panel of the Court of Appeals. The Court of Appeals ruled in effect that the trial court had no authority to exclude the tape-recorded conversation as a result of an illegal search and seizure. In its opinion and order entered August 5,1977, the Court of Appeals held that, “The trial court’s pretrial order suppressing the Commonwealth’s evidence [is] reviewable by the Court of Appeals in an original action for a writ of prohibition sought by the Commonwealth.” The Court of Appeals held also that the trial court (Shobe) improperly interpreted Sec. 10 of the Kentucky Constitution as it affects warrantless participant monitoring in excluding the tape.

On August 15, 1977, Judge Shobe filed a motion with the Court of Appeals to reconsider the opinion and order granting the order of prohibition. Schaefer also filed a “motion to join in and adopt the motion to reconsider.”

On September 6, 1977, the Court of Appeals denied those motions. On September 9, 1977, Judge Shobe filed a notice of appeal to this court. On September 14, 1977, he reassigned the case of Commonwealth v. Schaefer for trial on November 30, 1977. However, on October 25, 1977, the Chief Justice of this court, acting on the affidavit of the Commonwealth, filed pursuant to KRS 22A.020, disqualified Judge Shobe and the Honorable C. Warren Eaton was designated as Special Judge to preside at Schae-fer’s trial. On December 7,1977, this court, on its own motion, designated the Honorable C. Warren Eaton as an appellant. At that time this court anticipated that there might otherwise be some question as to whether any order the Court of Appeals or this court made with respect to the Honorable Benjamin Shobe would be binding on Judge Eaton.

On November 29, 1977, Special Judge C. Warren Eaton assigned the case of the Commonwealth v. Brian W. Schaefer for trial on February 21, 1978.

The order of prohibition is an extraordinary remedy available only in certain narrowly defined circumstances. It is not available to control the discretionary acts of a trial court within its jurisdiction. In this case the trial court was ruling upon the admissibility of evidence. That was a matter clearly within his jurisdiction. The fact that his ruling may have been erroneous does not remove the jurisdictional basis for his action. This court many years ago stated:

“No question is better settled in this jurisdiction than that the writ of prohibition will not lie to restrain an inferior court from acting within its jurisdiction, however erroneous its action may be; and this is true although the party seeking the writ is without right of appeal.” Gordon v. Tracy, Circuit Judge, 194 Ky. 166, 238 S.W. 395 (1922).

The Commonwealth attaches great significance to the fact that no remedy of appeal is available. The Court of Appeals in its opinion and order emphasized that fact also. It is evident that the Commonwealth anticipates Special Judge Eaton’s ruling on the admissibility of the evidence to be the same as the ruling of Judge Shobe. It may be the same, yet, the evidence might be viewed differently by Judge Eaton. It is true that the exclusion of the tape at trial would possibly result in a dismissal of the Commonwealth’s case. However, this possibility does not permit an appellate court to disturb the discretionary ruling of a trial court acting within its jurisdiction. The United States Supreme Court has said:

“Nor are the considerations against ap-pealability made less compelling as to orders granting motions to suppress, by the fact that the Government has no later right to appeal when and if the loss of evidence forces dismissal of its case.” Dibella v. U. S., 369 U.S. 121, 82 S.Ct. 654, 7 L.Ed.2d 614 (1962).

A Commonwealth’s Attorney seeking an appeal of discretionary rulings within a trial court’s jurisdiction has a remedy. See KRS 22A.020(4). Here the Commonwealth did not pursue this statutory avenue. In this connection, this court construes the term “proceedings” as used in KRS 22A.020(4)(a) as referring to proceedings after the attachment of jeopardy. Unless the constitutional right to a speedy trial were unduly threatened, we see no reason why an interlocutory “ruling” entered prior to trial, if it decides a matter vital to the Commonwealth’s case, could not be reviewed by appeal.

This court has reviewed the entire record and is of the view that an order of prohibition is not available to test the discretionary rulings of a trial court acting within its jurisdiction. His circuit is his domain. He has the right to rule on the admissibility or the inadmissibility of evidence although the ruling may be erroneous.

The judgment of the Court of Appeals granting an order of prohibition is reversed. The motion for an order of prohibition is denied.

All concur.

      . Smith v. Shamburger, Judge, 314 Ky. 850, 238 S.W.2d 844 (1951); Kaufman v. Humphrey, Circuit Judge, Ky., 329 S.W.2d 575 (1959).


author: VANCE, Judge:

text:
    Martha DIXON, Appellant, v. John A. COWLES, Appellee.
    Court of Appeals of Kentucky.
    Aug. 26, 1977.
    Rehearing Denied March 17, 1978.

      Edwin L. Cohen, Cohen & Cohen, Louisville, for appellant.
    Kenneth L. Anderson, Woodward, Hob-son & Pulton, Louisville, for appellee.
    Before MARTIN, C. J., and HOGGE and VANCE, JJ.
   VANCE, Judge:

This case requires an interpretation of certain sections of the Motor Vehicle Reparations Act, KRS 304.39-010 — 304.39-340. The facts are not in dispute. The issue is whether one who is a passenger in an uninsured automobile, but who does not own, operate or maintain a motor vehicle in this state, is barred by KRS 304.39-060 from asserting tort liability for injuries received in an automobile accident. The trial court held the action is barred. We reverse.

It is undisputed that appellant, while riding as a passenger in an automobile operated by her husband, was injured as a result of a collision between her husband’s automobile and an automobile operated by ap-pellee.

Neither appellant nor her husband maintained an insurance contract providing basic reparation benefits and consequently appellant was not a “basic reparation insured” as that term is defined in KRS 304.39-020.

Appellant did not own or maintain an automobile in this Commonwealth. She did not have an operators license and was not an operator at the time of the accident.

All persons who register, operate, maintain or use a motor vehicle on the public roadways of this Commonwealth are deemed to have accepted the provisions of the act. KRS 304.39-060(1). The constitutionality of the act was upheld in Fann v. McGuffey, Ky., 534 S.W.2d 770 (1975).

Tort liability with respect to accidents occurring in this Commonwealth arising from the ownership, maintenance or use of a motor vehicle is abolished, with certain exceptions not material in this case, for damages because of bodily injury to the extent that basic reparation benefits provided by the act are payable therefor. KRS 304.39-060(2)(a & b). KRS 304.39-060(2)(c) provides that:

Tort liability is not so limited for injury to a person who is not an owner, operator, maintainer or user of a motor vehicle within subsection (1) of this section, nor for an injury to the passenger of a motorcycle arising out of the maintenance or use of such motorcycle.

Because appellant was admittedly not an owner, operator or maintainer of a motor vehicle, it follows, pursuant to KRS 304.39-060(2)(c), that her right to sue was not limited unless she was a user of a motor vehicle. The term “user” is defined in KRS 304.39-020(14) to mean a person who is a basic reparation insured or who would be a basic reparation insured if such person had not rejected the limitations upon his tort rights as provided by the statute.

A “basic reparation insured” is a person identified by name as an insured in a contract of basic reparation insurance and certain other persons, including spouses of the named insured not identified by name in any other insurance contract, provided they reside in the same household with the named insured. KRS 304.39-020(3).

Appellant was not a “basic reparations insured” and therefore was not a “user” as those terms are defined in the statute. Ap-pellee contends that non-compliance with the terms of the statute should not allow one to abrogate the rights of others who have complied with it. Admittedly, if appellant’s husband had complied with the statute, appellant would have been a “user” as defined and her right to sue in this case rests upon the fact that her husband did not obtain insurance upon his vehicle as required by statute.

Nevertheless, when the general assembly finds it advisable to define a term as it is used in a statute, the term should be given that meaning when it is used and this is true even though it may on occasion produce an anomalous result.

The limitations of tort liability was considered in Fann v. McGuffey, Ky., 534 S.W.2d 770 (1975) in the following language appearing on page 774 of the opinion:

This limitation upon recovery for pain, suffering, mental anguish and “inconvenience” does not apply if the plaintiff was not an “owner, operator, maintainer or user” of an automobile. ... In this special respect, one who “uses” an automobile (e. g., a passenger) is not a “user” unless he is a named insured in a policy with BRB coverage or is covered as a member of the named insured’s household.

We consider Farm v. McGuffey, supra, as dispositive of the issue on this appeal.

The judgment is reversed for further proceedings consistent with this opinion.

All concur.


author: WINTERSHEIMER, Judge.

text:
    William C. JACOBS, Appellant, v. KENTUCKY STATE RACING COMMISSION, Appellee.
    Court of Appeals of Kentucky.
    Sept. 22, 1977.
    Rehearing Denied Nov. 11, 1977.
    Discretionary Review Denied April 4, 1978.

      William C. Jacobs, Jack G. Jones, Jr., Lexington, for appellant.
    Fred F. Bradley, Frankfort, for appellee.
    Before COOPER, REYNOLDS and WIN-TERSHEIMER, JJ.
   WINTERSHEIMER, Judge.

Appellant seeks to reverse a judgment of the Franklin Circuit Court which sustained an order of the Kentucky State Racing Commission, entered October 6,1973, which in turn had upheld a Steward’s ruling of April 28, 1973, which had ordered a horse named “Cause No Trix”, owned by the appellant, to be unplaced for all purposes except pari-mutuel betting. The horse had won the fifth race at Keeneland on April 26, 1973, but following a report by the official chemist that a urine sample taken from the horse after the race proved positive as to a prohibited medication known as oxyphenylbutazone, a Steward’s hearing was conducted on April 28 to dispose of the matter pursuant to Rule 14.05 of the Racing Commission. Appellant, who is an attorney, represented the trainer at the hearing. The horse was disqualified and the purse was not awarded to the owner. Appellant appealed to the Kentucky State Racing Commission and presented evidence in his behalf at a hearing held June 26,1973. The full Commission sustained the Steward’s ruling and an appeal was taken by the owner to the Franklin Circuit Court which sustained the order of the Racing Commission on November 6, 1974. A notice of appeal was filed November 6, 1974. This matter was transferred by the Supreme Court to the Court of Appeals on January 31, 1977.

Appellant presents six assignments of error as follows:

1) Does the Kentucky State Racing Commission have the power to enact and enforce rules to prohibit participation in the purse distribution by a horse which tests positive for a prohibited medication?
2) Is the owner entitled to be notified of a Steward’s hearing concerning a “positive test” when the trainer of the horse is notified, particularly when the owner has actual notice of the hearing and participates therein as the attorney for the trainer?
3) Is the testing of winners only, without testing other horses in the race, a selective enforcement of the Commission rule for a post-race test?
4) May the Commission, pursuant to statute, promulgate a rule which prohibits the presence of a medication which is a derivative of phenylbutazone in a horse’s urine sample as a proper and legitimate exercise of its rule making power?
5) Is the Commission regulation prohibiting purse participation by a horse whose urine sample indicates the presence of a prohibited medication reasonable and not arbitrary?
6) Where the trainer admits to administering the prohibited drug, is it error to penalize the owner when the prohibited substance is a derivative of phenylbuta-zone?

This Court affirms the judgment of the trial court which sustained the Kentucky State Racing Commission and the Steward’s ruling.

Seventy-two hours prior to the race, the horse received a medication referred to variously as oxyphenylbutazone or phenylbuta-zone or a derivative of phenylbutazone. The record indicates that this substance is commonly known as “bute”. This medication was administered to the horse because of pain which arose from chronic ankle trouble. The horse won the fifth race at Keeneland in Lexington, Kentucky, on April 26. Thereafter, the horse was disqualified when the prohibited substance was found in a urine sample.

The Kentucky State Racing Commission has the power to enact and enforce rules which result in the denial of participation in the purse distribution by the owner of a horse which tests positive for a prohibited medication. The statute provides that it is in the interest of the public health and safety to vest in the Commission forceful control of thoroughbred racing. Inherent in such control is the right to enact and enforce rules which are necessary to fulfill that mission. Moreover, the statutes permit rules which condemn the presence of prohibited substances which affect the speed or health of a race horse. In this instance the health of the horse is the controlling factor in the application of the Commission’s authority. The record indicates that the subject animal had a history of chronic ankle trouble. The medication was prescribed to reduce pain. The ultimate affect of the alleviation of such pain on the outcome of the race or the speed of the horse is clearly within the purview of the Commission’s authority as enunciated by the statutes. KRS 230.215, 230.240 and 230.260. The owner is not necessarily entitled to be notified of a Steward’s hearing concerning a positive test when the trainer is notified, particularly when the owner has actual notice of the hearing and has participated therein as the attorney for the trainer.

The testing of all winners of races without testing other horses is a valid exercise of the Commission’s enforcement power. Such action is a legitimate classification based on long standing custom and practice in the racing industry. In certain situations there are exceptions, such as at the discretion of the Stewards, or when the first two horses are tested in races involving exotic betting where there is a separate pool for selecting the first two horses. The Commission has authority to disqualify a horse where a prohibited substance is found in the post-race testing process. This record does not show that it is practical to test the other horses who may benefit as a result of a disqualification of the original winner. The record does not support the argument that this should have been done in this case or should be done in every case. Certainly the question of selective enforcement of the rule for testing is of great interest. The practical solution to this kind of problem is not satisfactorily presented here. In fact, the possibility of such an amendment to the testing procedures might best be presented to the Racing Commission in the form of a rule modification. It is of some concern to this Court that the owners of a horse placing second or third in a race, where the original winner is disqualified, are permitted to retain their share of the purse without any post-race testing.

The Racing Commission Rule 14.06, which prohibits the presence of a medication which is a derivative of phenylbuta-zone in a horse’s urine sample is a legitimate exercise of the Commission’s administrative statutory powers. The Commission is vested with broad powers to regulate thoroughbred racing and to prescribe rules and regulations relative to racing. KRS 230.260. The record in this case does not disclose sufficient reasons for a finding that the Commission’s determination prohibiting the medication is unreasonable or arbitrary. In this situation the evidence indicates that the trainer was fully aware of the history of chronic ankle trouble and that “bute” was used in training the horse. Dr. Proctor, one of the appellant’s witnesses, testified that he had prescribed the “bute” and that such medication is used only when the horse is hurting. It is clear that such a situation supports the logical presumption for banning the use of “bute” in order to protect the health of horses.

The Commission rule which prohibits purse participation when a banned medication which is a derivative of phenylbuta-zone is found in the horse’s urine is reasonable. The Kentucky rule provides that the mere presence of the prohibited substance shall cause a horse to be disqualified. The record, as distinguished from the arguments of counsel, does not disclose any sound reason to disturb the findings of the Racing Commission and the trial court in this regard. Although there may be more equitable regulations in other states, the record does not clearly indicate that the Kentucky rule is arbitrary or unreasonable. It would appear that the racing industry should utilize every opportunity to improve itself. Perhaps the introduction of a blood test prior to the race would remove the possibility of selectivity or discrimination in the testing of horses, and provide a better system of disqualifying animals prior to the race. However, the facts and record in this case do not warrant a finding of unreasonableness as to the Kentucky rule.

The record fails to disclose that the application of the Kentucky rule was improper. The chemist’s testimony indicates that the terms derivative or metabolized phenylbu-tazone are synonymous, with the only distinction being that a derivative would be when this is done in a laboratory, and metabolized when it is done in the animal’s body. It is only a different process of obtaining the same product.

In this case great reliance has been placed by the appellee on the decision in a somewhat similar case, Kentucky State Racing Commission v. Fuller, Ky., 481 S.W.2d 298 (1972). It is the opinion of this Court that there are significant differences between the instant case and the Fuller case, and the Fuller case is not dispositive of the issues presented here since that case turned on the question of substantial evidence of a sufficient probative value.

The judgment of the trial court is affirmed.

All concur.


author: COOPER, Judge.

text:
    Commonwealth of Kentucky, DEPARTMENT OF REVENUE and Kentucky Board of Tax Appeals, Appellants, v. WARREN CHEMICAL & JANITOR SUPPLY COMPANY (also known as Warren Chemical & Supply Co. and Warren Chemical Company), Appellee.
    Court of Appeals of Kentucky.
    Sept. 30, 1977.
    Discretionary Review Denied April 4, 1978.
    Glenn McDonald, Louisville, for appellants.
    William L. Sullivan, Henderson, for ap-pellee.
    Before COOPER, REYNOLDS and WIN-TERSHEIMER, JJ.
   COOPER, Judge.

This is an appeal from a judgment of the Webster Circuit Court which reversed a decision of the Kentucky Board of Tax Appeals. The Board of Tax Appeals affirmed a Sales and Use tax deficiency assessment by the Kentucky Department of Revenue against the appellee in the amount of $9,838.96, plus interest.

The appellee is a manufacturing company and a wholesaler of hundreds of different items. It sells many kinds of supplies to purchasers such as theaters, restaurants, carwashes, service stations, American Legion Posts, doctors offices, florists, funeral homes, hotels, motels, printing companies, trailer sales companies, used car lots, drug stores and other businesses. The sales subject to the deficiency assessment were made to companies or organizations within the Commonwealth; and the tangible, personal property subject to the deficiency assessment was delivered by the appellee to the various businesses mentioned above.

The items on which the tax deficiency assessment was made were supplies such as paper towels, paper cups, hand cleaners, mops, brooms, floor wax, floor finishers, toilet bowl cleaners, glass cleaners, smoking urns, white sand, insect spray, windshield towels, chamois skins, disinfectants, light bulbs, fluorescent lamps, deodorant blocks, industrial sprayers, guest checks used in the restaurant business, turkish towels, vacuum cleaners and numerous other items.

The appellee took certificates for resale pursuant to statute on each and every one of the questioned sales which under normal circumstances would represent that the sales made were not retail sales, but for resale by the buyer. The Board of Tax Appeals, which was reversed by the lower court, held that the appellee was responsible for the remittance of the sales tax in the above sales because the sales were actually retail sales and the resale certificates were not taken in good faith by the appel-lee.

KRS 139.260 provides as follows:

“139.260. Presumption That All Gross Receipts Are Taxable.
For the purpose of the proper administration of this chapter and to prevent evasion of the sales tax, it shall be presumed that all gross receipts are subject to the tax until the contrary is established. The burden of proving that a sale of tangible personal property is not a ‘retail sale’ or ‘sale at retail’ is upon the person who makes the sale, unless he takes from the purchaser a certificate to the effect that the property is purchased for resale.”

KRS 139.270 provides as follows:

“139.270. Certificate Of Intention To Resell.
The certificate relieves the seller from the burden of proof only if taken in good faith from a person who is engaged in the business of selling tangible, personal property and who holds the permit provided for in KRS 139.250, and who at the time of purchasing the tangible, personal property, intends to sell it in the regular course of business or is unable to ascertain at the time of purchase whether the property will be sold or will be used for some other purpose.” (emphasis added)

It is clear, from a reading of the above statutes, that the presumption is absolute that the gross receipts taken by the seller are taxable, and the burden of proving that the property sold is not taxable to the seller is shifted only if the certificates for resale are taken in good faith by the seller. Consequently, in the instant case, we feel that the issue correctly stated is as follows:

WHETHER THE APPELLEE ACTED IN GOOD FAITH SO AS TO BE RELIEVED OF THE STATUTORY BURDEN IMPOSED ON SELLERS TO REMIT THE SALES AND USE TAX IMPOSED BY THE KENTUCKY REVISED STATUTES?

To properly decide this issue, we must first consider what constitutes good faith in situations such as the case at bar. Ballentine’s Law Dictionary, Third Edition, defines good faith as, “acting in the absence of circumstances placing a man of ordinary prudence on inquiry.”

Other jurisdictions have dealt more specifically with circumstances analogous to the case at bar. In the case of Merriwether v. State, 252 Ala. 590, 42 So.2d 465, 11 A.L.R.2d 918 (1949), the Alabama Supreme Court held that in cases where a wholesaler sells to customers where the property sold may be subject to the sales tax,

. it is his duty to know the general nature of the business conducted by the customer. He is bound to find out the nature of business conducted by him in respect to resales and consumption of goods of a similar sort. . . . But the dealer, as we have said, is bound at his peril when he sells to a customer to know whether the customer is engaged in consuming such goods as a part of his course of business. If so, the sale of them all is taxable, though the customer may also out of the same lot habitually resell some of them to others. . Responsibility for what is finally done with the merchandise when good faith and diligence are used at the time of the sale cannot be visited upon the dealer. But he must exercise diligence to know the course of business of his customer, and see that the goods sold are delivered at a place where the custom of the business is known to be for resale only, or take the consequences.

The above principle of law is apparently the general rule throughout the nation. In 68 Am.Jur.2d, Sales and Use Taxes § 150, it is stated:

Notwithstanding that a vendor may take from his vendee a resale certificate it is still the duty of every wholesale merchant selling tangible personal property to a retailer for resale to make reasonable and prudent inquiry concerning the type and character of tangible personal property as it relates to the principal business of the retailer as the statute so provides.

The appellee contends that the taking of a resale certificate in of itself relieves the seller from any responsibility as to whether the property is actually resold or consumed by the buyer in his business. For the court to hold as such would not be consistent with the intent of the legislature, which by a reading of the statute clearly requires good faith in the receiving of a resale certificate.

From the testimony in the record, it is clear that the appellee did not exercise the requisite good faith in its receipt of the resale certificates. It is ludicrous that the appellee could have received in good faith the resale certificates from a funeral home which purchased a weed killer, or from the Kentucky State Police in the purchase of toilet bowl cleaner, or from any number of other sales made by the appellee. It is clear from the record that the appellee exercised no diligence to ascertain whether the property sold was actually for resale or consumption by the buyer. Its blind acceptance of the certificates of resale is not legally acceptable and will not shift the burden of proof from the appellee to the Kentucky Department of Revenue. The appellee has not met its burden of proving the sales in question were not retail sales.

We hold that the findings of the Kentucky Board of Tax Appeals are supported by substantial evidence and that the lower court misconstrued the law in its reversal of the decision. Therefore, we reverse the lower court and order that a judgment be entered for the appellants in conformity with the decision of the Kentucky Board of Tax Appeals, with the cost of the action left to the discretion of the lower court to the extent permitted by the law.

All concur.


author: LESTER, Judge.

text:
    Mrs. L. E. OWEN, Appellant, v. Robert L. DAYSON, Patricia A. Dayson, Patricia Ann Dayson, Edith M. Wilson, Edward B. Mersch, Margaret R. Mersch and Ashland Oil, Inc., Appellees.
    Court of Appeals of Kentucky.
    Oct. 21, 1977.
    Discretionary Review Denied April 4, 1978.
    Robert G. Hunt, King, Deep & Brana-man, Henderson, for appellant.
    Benjamin C. Cubbage, Jr., Trimble, Cub-bage, Lindsay & Thomason, Henderson, Ralph C. Wible, Sandidge, Holbrook & Craig, Owensboro, for appellees.
    Before HAYES, HOGGE and LESTER, JJ.
   LESTER, Judge.

This appeal involves the sufficiency of a description of a gas and oil lease in order to comply with the statute of frauds.

Appellant herein is a nominal party since her husband transacted all of his business in her name and acted with full authority as her agent.

Leslie Owen is a semi-retired dealer in oil and gas leases who has been so engaged since 1922 while Robert L. Dayson styles himself as being in the business of oil exploration and production with his stationery denominating him as a geologist. Dayson and the other appellees herein (except Ash-land Oil, Inc.) owned all of the working interest (⅞ of the production, the remaining ⅛ being the landlord’s retained royalty in interest) in an oil lease located in McLean County known as the Bodo Lloyd Lease. Dayson had full authority to act as agent for the co-owners and, in such capacity, he had several discussions with Owen concerning the sale of the lease and in furtherance of the proposal, the two agents went to the offices of Kenneth Ragland, an attorney representing the land owner, Bodo Lloyd. In order to consummate the transaction, Owen wrote a check dated August 14, 1972, drawn upon the account of Mrs. L. E. Owen in the amount of $3,000.00 payable to “Kenneth N. Ragland, Atty.” which instrument recited in the lower lefthand corner “(f)or the Bodo Lloyd Oil Lease WI 3⅜2 of the WI”. The endorsement on the draft was “Kenneth Ragland, Attorney.” The lawyer was to draw assignments of the lease and when this was accomplished, agent Dayson was to get the money held in escrow. Prior to completion of the lease purchase, appel-lees decided not to sell their interests and in reply to an inquiry from Owen’s lawyer, Dayson wrote a letter cancelling the transaction which document made no other reference to the subject matter than the words “Bodo Lloyd Lease.”.

Appellant filed her action for specific performance and after extensive pleadings, briefings and depositions, the trial court sustained appellees’ motion for summary judgment upon the theory that the writing supporting the purported transaction failed to satisfy the statute of frauds (KRS 371.-010). The precise question presented to this court is whether the description upon the check and the letter of repudiation are sufficient writings to take the matter outside of the prohibitions of the statute of frauds.

The conveyance or assignment of a working interest in an oil and gas lease constitutes an interest in real estate within the meaning of the statute of frauds. Barnett v. Hagans, Ky., 445 S.W.2d 839 (1969); 37 C.J.S. Statute of Frauds § 112 c, at 603; I American Law of Property § 3.56 at 294; II American Law of Property § 10.12 at 544. In the case at bar, we must determine if description of the subject matter as contained in the check written by appellant and the letter drafted by appellee is sufficient and if the endorsement by attorney Ragland upon the check constitutes an agency upon behalf of appellees so as to satisfy KRS 371.010 when it provides:

(N)o action shall be brought to charge any person:
. (6) Upon any contract for the sale of real estate, or lease thereof for longer than one year;
unless the promise, contract, agreement, representation, assurance or ratification, or some memorandum or note thereof, be in writing and signed by the party to be charged therewith, or by his authorized agent .

The vast majority of reported opinions dealing with the issues presented to us involve the sale of parcels of real estate as opposed to the assignment of a mineral lease. Assuming there would be no great distinction in the average litigation, one does in fact exist here because the evidence reflects that at a time proximate to the transaction before us for the “Bodo Lloyd” lease the parties had indulged in some discussions concerning not one but two other leases known as the “E. A. Lloyd” leases. We glean from the brief evidence in this respect that the three different leases were adjacent to each other. Appellant argues that Sullivan v. Lay, Ky., 457 S.W.2d 266 (1970) “overhauled” the law of this jurisdiction finding its basis in Montgomery v. Graves, 301 Ky. 260, 191 S.W.2d 399 (1945) and should be controlling here. In Sullivan, supra, there was a memorandum dated at Julip, Kentucky, mentioning a “farm at Ju-lip, Kentucky,” signed by the person sought to be charged (the vendor) which set forth the basic terms of the transaction while in Montgomery, supra, there was a receipt for a “house 544, Camden” signed by the vendor. Moreover, the Court, in the last mentioned case, gave great significance, 301 Ky. at p. 268, 191 S.W.2d 399, to the affidavit executed by one of the sellers which bore the jurat of a notary public of Jefferson County, Kentucky, thus inferring that the property was situated in a specific county and state.

In Sullivan v. Lay, supra, Judge Neikirk wrote (457 S.W.2d p. 268):

It is recognized that real estate contracts have been the subject of much controversy. Conclusions in each case vary because of the wording, the facts, and the circumstances attending the making of the contract, (emphasis added)

Thus, it appears that each case must be decided upon its own peculiar set of facts.

Kentucky is not devoid of oil and gas lease litigation involving a statute of frauds question as evidenced by Barnett v. Hagans, supra, Lively v. Elkhorn Coal Co. Inc. 101 F.Supp. 1014 (E.D.Ky.1952) aff’d. 206 F.2d 396 (6th Cir. 1953), and the leading case of Kentucky Counties Oil Company v. Cupler, 204 Ky. 799, 265 S.W. 334 (1924) as affirmed by Randlett v. Sharp, Ky., 328 S.W.2d 548 (1959). In Randlett, Commissioner Clay wrote:

The agreement sued on was not in writing. The only written evidence of such a contract consists of five receipts for $450, which bear the notation “½2 interest C. Miller lease * * * Daviess County, Kentucky.” A much more comprehensive receipt, having a similar reference to the subject matter, was held deficient for failure to identify the property and consequently not to satisfy the statute of frauds in Kentucky Counties Oil Co. v. Cupler, 204 Ky. 799, 265 S.W. 344. On the basis of this direct authority, the Chancellor correctly determined the statute of frauds constituted a complete defense to plaintiffs’ original complaint.

Neither Randlett, nor Cupler, has been specifically overruled, nor have they been by implication as appellant urges. They are the latest authority directly in point on sufficiency of a description of an oil and gas lease as affected by the statute of frauds and since each of those cases had a more detailed description (Sanders lease, Allen Co. and V32 interest C. Miller lease .

Daviess County, Kentucky) than the case at bar we must conclude that the references to the subject-matter as contained in appellant’s check and appellees’ letter are insufficient to remove this case from the prohibition of the statute of frauds.

For the reasons stated above, the judgment of the McLean Circuit Court is affirmed.

All concur.


text:
    Randy L. WHITTINGHILL, Appellant, v. Charles C. SMITH, Appellee.
    Court of Appeals of Kentucky.
    Oct. 28, 1977.
    Discretionary Review Denied April 4, 1978.
    Richard L. Frymire, Moore, Morrow & Frymire, William A. Logan, Madisonville, for appellant.
    Dan Cornette, Greenville, for appellee.
    Before GANT, VANCE and WILHOIT, JJ.
   VANCE, Judge:

The question is whether a summons issued by a circuit court clerk and held by her at the express direction of plaintiff’s counsel tolls the running of the statute of limitations.

Appellant’s action for damages for personal injuries was filed on the 365th day following a motor vehicle accident. Settlement negotiations were under way and appellant’s counsel directed the clerk to hold the summons and not deliver it to the sheriff for service.

In compliance with this instruction, the clerk held the summons from May 13, 1975, the date of issuance, until July 30, 1975, when appellant’s counsel instructed her to deliver the summons to the sheriff. The summons was served on July 30, 1975.

Appellee’s motion to dismiss was treated as a motion for summary judgment because matters outside of the pleadings were considered by the court. CR 12.03. Summary judgment was granted to appellee upon the ground that the action was barred by the statute of limitations.

KRS 413.140 provides that an action for personal injury to the person of plaintiff shall be commenced within one year after the cause of action accrued. KRS 413.250 provides that an action shall be deemed to commence on the date of the first summons or process issued in good faith from the court having jurisdiction of the cause of action. CR 3 provides that a civil action is commenced by the filing of a complaint with the court and the issuance of a summons or warning order in good faith.

The issuance of a summons does not commence an action unless accompanied by an intent that the summons be served in due course. In Louisville and N. R. Co. v. Little, 264 Ky. 579, 95 S.W.2d 253, 255 (1936) the rule was stated as follows:

The taking out of summons is presumptive evidence of an intention to have it served in due course, but that presumption may be rebutted by the facts. It may have been issued to be used or not, as circumstances thereafter required. Service may have been intentionally withheld by direction of the plaintiff until the occurrence of an event upon which his decision as to effecting the process depended. In other words, causing a summons to be issued by the clerk conditionally is not causing it to be issued in good faith. An intention to postpone starting the litigation is thereby evidenced. All the authorities are to the effect that the cause of action is not commenced until there is a bona fide intention to have the summons filled out and signed by the clerk, accompanied by bona fide, unequivocal intention to have it served or proceeded on presently or in due course or without abandonment. Action and intention combined constitutes the commencement of the suit, because a summons filled out and signed with no intention of having it served is altogether inoperative.
⅜ * * * * *
Of course, though it has been postponed, when a summons is actually served or put in line of service, the mere intention to have it issued is translated into a good-faith intentional action. But if the suspension is not closed before the right to sue ends, it must be regarded that the plaintiff slumbered through the time prescribed. So it is in the instant case. The plaintiff either deliberately withheld the actual legal issuance of the summons, or through oversight postponed the starting of the litigation until after the bell had rung out the hour barring his right of action. The trial court, therefore, should have sustained the defendant’s plea of limitation and dismissed the petition.

Appellant relies upon Roehrig v. Merchants and Businessmen’s Mutual Insurance Company, Ky., 391 S.W.2d 369 (1965) and Rucker’s Adm’r v. Roadway Express, Inc., 279 Ky. 707, 131 S.W.2d 840 (1939). These cases are distinguishable from L & R Co. v. Little, supra, on the ground that the delay in the service of the summons was inadvertent and did not evince an intention to withhold the service. Here the delay was not inadvertent, but deliberate.

It may well be that appellant did not at any time intend to abandon the action but it is equally plain that counsel did not intend for the process to be executed in due course following its issuance by the clerk. The intention to go forward with the service of process was not reached until the limitation period had expired and thus the action was not commenced within the limitation period.

The judgment is affirmed.

All concur.


author: PARK, Judge.

text:
    H. E. CUMMINS AND SONS CONSTRUCTION COMPANY, an Oklahoma Corporation, Appellant, v. The TURNPIKE AUTHORITY of Kentucky, the Commonwealth of Kentucky, Department of Transportation, Bureau of Highways and all other Boards, Bureaus, Agencies or Commissions which, in any Manner, Directly or Remotely had any Authority, Contractual or otherwise in Connection with the Structure Described in the Complaint, Appellees.
    Court of Appeals of Kentucky.
    Oct. 28, 1977.
    As Modified Oct. 31, 1977.
    Discretionary Review Denied April 4, 1978.
    Lovett, Wible & Lamar, Owensboro, Joseph J. Leary, Frankfort, for appellant.
    Ed W. Hancock, Charles D. Moore, Jr., Sherman Goodpaster, III, Dept, of Transp., Frankfort, Robert F. Stephens, Atty. Gen., Frankfort, for appellees.
    Before PARK, WHITE and WINTER-SHEIMER, JJ.
   PARK, Judge.

In this action, the plaintiff-appellant, H. E. Cummins and Sons Construction Company (Cummins), seeks to sue the defendant-appellee, the Turnpike Authority of Kentucky, for work performed under a contract for the construction of a part of the Green River Parkway. The Franklin Circuit Court held that the Turnpike Authority was entitled to the defense of sovereign immunity under the section 231 of the Kentucky Constitution. The trial court also concluded that the Turnpike Authority could be sued only under the provisions of the Contract Claims Act, KRS 44.260 to 44.330. As the action had not been brought within the time provided by KRS 44.310, the trial court dismissed the action.

Although the Commonwealth of Kentucky and various named and unnamed agencies are specified as appellees in the notice of appeal and in the statement of appeal, Cummins concedes that there was no compliance with the Contract Claims Act. In its brief and during oral argument, Cummins questioned only the dismissal of the claim against the Turnpike Authority. Therefore, we need not consider whether the trial court erred in dismissing the complaint against the other defendants.

On this appeal, the parties have directed almost all of their attention to the question whether the Turnpike Authority is entitled to invoke the doctrine of sovereign immunity in a contract action. Citing such cases as Gross v. Kentucky Board of Managers, 105 Ky. 840, 49 S.W. 458 (1899), Cummins asserts that a quasi public corporation such as the Turnpike Authority is not protected by the doctrine of sovereign immunity. Even if incorrect in this respect, Cummins asserts that the legislature has given its consent to suits against the Turnpike Authority, citing the enabling statute which provides that the Turnpike Authority has the power to “sue and be sued.” KRS 175.430. In answer to these arguments, the Turnpike Authority cites Edgar H. Hughes Co., Inc. v. Turnpike Authority of Kentucky, 353 F.Supp. 1105 (E.D.Ky.1973), for the proposition that the Turnpike Authority is the alter ego of the State of Kentucky. Hence, the Turnpike Authority asserts that it is entitled to the defense of sovereign immunity under the principles laid down in Foley Construction Co. v. Ward, Ky., 375 S.W.2d 392 (1963). In particular, the Turnpike Authority relies on that portion of the Foley Construction Co. case which cites a Maryland decision for the proposition that authority “to sue and be sued” does not constitute a waiver of sovereign immunity.

Cummins makes a very persuasive argument that the Turnpike Authority is not entitled to the protection of the doctrine of sovereign immunity. In Turnpike Authority of Kentucky v. Wall, Ky., 336 S.W.2d 551 (1960), the court held that the bonds issued by the Turnpike Authority were not debts of the Commonwealth within the debt limitation section of the Kentucky Constitution. If the Turnpike Authority had sufficient independent existence for debt limitation purposes, it would seem that it would have sufficient independence to place it outside of the scope of sovereign immunity. However, this court need not decide that question.

The trial court dismissed the action because Cummins had not complied with the provisions of the Contract Claims Act. The question before this court is whether a contract action against the Turnpike Authority must be brought pursuant to the Contract Claims Act. This question requires an examination of the provisions of the Contract Claims Act and the nature of the Turnpike Authority.

KRS 44.270(1) fixes venue of an action against the Commonwealth on “a lawfully authorized written contract with the commonwealth” in the Franklin Circuit Court. KRS 44.260 defines “commonwealth” to mean “the commonwealth of Kentucky and any of its departments or agencies.” This court, therefore, must determine whether the Turnpike Authority is an agency of the Commonwealth.

Cummins relies upon the provisions of KRS 175.430(1) for the power of the Turnpike Authority to “sue and be sued.” However, when the remainder of that statute is considered, it is apparent that the Turnpike Authority is an agency of the Commonwealth. KRS 175.430(1) provides:

The governor, the lieutenant governor, the commissioner of highways, the state engineer, and the attorney general, and their respective successors in office, shall be a body corporate and politic constituting a public corporation and governmental agency and instrumentality of the commonwealth by the name of “The Turnpike Authority of Kentucky,” with perpetual succession and with power in that name to contract and be contracted with, sue and be sued, have and use a corporate seal, and exercise, in addition to the powers and functions specifically stated in this chapter, all of the usual powers of private corporations to the extent that the same are not inconsistent with specifically enumerated powers, (emphasis added).

We conclude that the Turnpike Authority is an agency of the Commonwealth and that any contract action against the Turnpike Authority must be brought pursuant to the provisions of the Contract Claims Act.

Without regard to the question of sovereign immunity, the legislature has the express power to enact legislation fixing venue and limitations for all actions including contract actions brought against an agency of the Commonwealth. Ky.Const., § 231. In its action against the Turnpike Authority, Cummins was bound by the limitations provided by KRS 44.310. We need not decide whether the Turnpike Authority would have been subject to suit if the legislature had not enacted the Contract Claims Act.

As Cummins’ action was barred by the provisions of the Contract Claims Act, the circuit court did not err in dismissing the action. The judgment of the circuit court is affirmed.

All concur.

      . As enacted in 1976, KRS 175.425 provides that the Turnpike Authority is created “solely to perform essential governmental functions.” The statute further provides that, “the turnpike authority of Kentucky shall be and constitute a de jure municipal corporation and political subdivision of the commonwealth of Kentucky.”


author: HOWARD, Judge.

text:
    Nathaniel DAVIS, Appellant, v. AMERICAN STATES INSURANCE COMPANY, Appellee.
    Court of Appeals of Kentucky.
    Nov. 25, 1977.
    Rehearing Denied March 17, 1978.

      William I. Bubenzer, Covington, for appellant.
    Donald J. Ruberg, Covington, for appel-lee.
    Before HAYES, HOWARD and WIL-HOIT, JJ.
   HOWARD, Judge.

This is an appeal from the Kenton Circuit Court wherein the claims of the plaintiff-appellant, Nathaniel Davis, against defendant-appellee, American States Insurance Company, were dismissed.

On July 21, 1977, this court entered an order granting plaintiff-appellant’s motion to strike the defendant-appellee’s counters-tatement and granting plaintiff-appellant’s motion to accept plaintiff-appellant’s statement of facts and issues as correct.

Plaintiff-appellant, Nathaniel Davis (hereinafter referred to as Davis), had, in 1968, purchased a two-story house located at 1332 Wheeler Street, Covington, Kentucky. At that time, Davis purchased a homeowner’s policy issued by defendant-ap-pellee, American States Insurance Company (hereinafter referred to as the Insurance Company), to cover said house. This policy was in effect on November 8, 1974.

In December, 1973, Davis rented the first and second floors of this house to Mary Bean, and Davis moved into the basement of the house. Davis allowed this tenant to use the furnishings on the first and second floor of the house, but it was understood between the parties that Davis was to get married in the future and at that time he would take his furnishings to his new home.

On November 8, 1974, Davis returned to his house after being away for several days. He discovered that the tenant had moved out. Davis further discovered that a lock had been removed from one of the doors and upon entering the house discovered that all his furnishings had been removed. Davis reported the break-in and theft to the Covington Police Department and at a later date discovered that the furnishings had been removed in a truck owned by a person living in Dayton, Ohio. Davis had no knowledge of any participation in the theft by Mary Bean.

Davis promptly notified the Insurance Company of his claim for theft loss under his homeowner’s policy. This action was brought to recover the loss of the property valued at $3,550.00.

Several months after the theft, the appellant discovered three additional items of clothing missing from the portion of the basement where he lived. This additional loss was reported to the Insurance Company in July, 1975.

At the trial, the only evidence presented by the Insurance Company was the insurance policy in question. The specific provision relied upon by the Insurance Company is as follows:

Coverage C — This coverage excludes:
6. Property rented or held for rental to others by the insured, except property contained in that portion of the described premises customarily occupied exclusively by the insured and occasionally rented to others or property of the insured in that portion of the described dwelling occupied by roomers or boarders; .

The Insurance Company denied coverage to the later discovered articles because of lack of notice within sixty (60) days after the date of loss as required by the policy. The Insurance Company further claims that these items are not covered because the appellant did not establish that these articles were on his premises. The insurance policy provides:

This coverage also includes such unscheduled personal property while elsewhere than on the described premises, anywhere in the world:
1. owned or used by the insured; .
3. but the limit of this company’s liability for the unscheduled personal property away from the premises shall be an additional amount of insurance equal to ten percent of the amount specified for coverage C but in no event less than $1,000.00.

Davis raises as the issue on this appeal whether the trial court erred in determining that Davis’s claims for the losses of personal property were denied because they were excluded by provisions of the policy.

There are no Kentucky cases elaborating on the exclusion provision under Coverage C heretofore mentioned. However, it is a fundamental rule in the construction of insurance contracts that the contract should be liberally construed and any doubts resolved in favor of the insured. State Farm Mutual Automobile Ins. Co. v. Shelton, Ky., 413 S.W.2d 344 (1967). Another general rule is that exceptions and exclusions should be strictly construed to make insurance effective. State Automobile Mutual Insurance Co. v. Trautwein, Ky., 414 S.W.2d 587 (1967).

Black’s Law Dictionary defines “roomer” as a lodger, one who rents a room or rooms in a house. “Lodger” is defined in Black’s as an occupant who has mere use without actual or exclusive possession. Lodger as defined in Marden v. Radford, 229 Mo.App. 789, 84 S.W.2d 947 (1935), is a tenant of part of another’s house; one who has leave to inhabit another man’s house; one who inhabits a portion of a house of which another has general possession and custody; one who lives in a hired room or rooms in the house of another; one who occupies hired apartments in another’s house.

Davis testified that he had purchased the house and lived in it a number of years by himself. He further testified that he rented two floors of this house to Mary Bean and moved into the basement. She was paying rent for the rooms only, but was allowed to use the furnishings until such time as Davis would remove them. Clearly it was Davis’s house and furnishings therein, and Mary Bean had mere use of the furnishings without actual or exclusive possession.

KRS 304.14-060(2) defined insurable interest in property as:

. any actual, lawful, and substantial economic interest in the safety or preservation of the subject of the insurance free from loss, destruction, or pecuniary damage or impairment.

Mary Bean had no interest in the subject furnishings so as to be able to obtain insurance herself. It was Davis’s furniture; he procured homeowner’s insurance; and should be entitled to collect on the policy for his loss. We hold that the exclusion under Coverage C does not apply to Davis’s furnishing as he falls within the exception to the exclusion; namely “property of the insured in that portion of the described dwelling occupied by roomers. . . ."

As to the later discovered articles, Davis did not file his proof of loss within sixty (60) days of the date of loss as required by the policy. As to these items of clothing, we hold that the trial court was correct in denying coverage.

We affirm the trial court in denying coverage for the later-discovered articles and reverse the trial court so as to allow coverage for the furnishings which Davis claims as loss by theft.

All concur.