author: STEPHENSON, Justice.

text:
    Jean Feraca CASALE, Appellant, v. Frank Louis CASALE, Appellee.
    Supreme Court of Kentucky.
    Jan. 14, 1977.
    Rehearing Denied April 22, 1977.
    Frank E. Haddad, Jr., Louisville, for appellant.
    Natalie S. Wilson, Eblen, Milner, Rosenb-aum & Wilson, Lexington, for appellee.
   STEPHENSON, Justice.

In a proceeding for dissolution of marriage, the sole issue presented to the trial court was that of custody of the parties’ infant child. The trial court awarded custody to the father. The mother appeals. We reverse.

The mother, appellant, and the father, appellee, were married in 1968. The child was born in 1973.» The father is an assistant professor of political science at the University of Kentucky. The mother has pursued a graduate program at the University and is employed there as a part-time instructor in English. In 1975, the parties separated and a suit for dissolution of marriage was filed. Agreement was reached on all issues save that of custody of the infant child. This issue was heard by the trial court, and after a lengthy hearing compiling a voluminous record of testimony, the trial court entered findings of fact and conclusions of law awarding custody of the child to the father.

The trial court stated in the findings of fact that “[t]he Court’s decision in this case is based pure and simply on intuition . ” the mother “ ‘by her nature’ is not better suited to have custody of the child . . . ” and “the mother is a very self-centered person.”

We have reviewed the testimony in this case and appreciate the dilemma encountered by trial courts in making a determination of custody between contending parents. The testimony reveals that both parents love and want the child; both parents participated in the day-to-day care of the child; and there is no testimony to indicate that either parent would be unsuited to caring for and raising the child. Much of the testimony is opinion testimony by various witnesses as to the most suitable parent.

The trial court relied on two of the factors in Parker v. Parker, Ky., 467 S.W.2d 595, 596 (1971), in determining custody:

“1. Which of the parents shows the greater character and stability that would make him or her the more suitable person to preside over a home in which the children can adequately be reared?
“2. All factors contributing to the breaking up of a home and marriage.”

While we could agree that the testimony taken as a whole could be evaluated to indicate a marginal preference for the father as the most suitable person to have custody of the child, the test is the “best interests” of the child, and it is in this respect that we believe the trial court erred in awarding custody to the father.

In 1972, the General Assembly adopted the Uniform Marriage and Divorce Act (ULA) embodied in KRS Chapter 403.

KRS 403.270 is dispositive of the issue presented here. This section provides:

“(1) The court shall determine custody in accordance with the best interests of the child. The court shall consider all relevant factors including:
(a) The wishes of the child’s parent or parents as to his custody;
(b) The wishes of the child as to his custodian;
(c) The interaction and interrelationship of the child with his parent or parents, his siblings, and any other person who may significantly affect the child’s best interests;
(d) The child’s adjustment to his home, school, and community; and
(e) The mental and physical health of all individuals involved;
(2) The court shall not consider conduct of a proposed custodian that does not affect his relationship to the child.”

We say this because of the reasoning contained in the Commissioners’ Notes to § 402 of the Uniform Marriage and Divorce Act (ULA), pp. 504, 505. This section was enacted as KRS 403.270. The Commissioners’ Note applicable here is as follows:

“The five factors mentioned specifically are those most commonly relied upon in the appellate opinions; but the language of the section makes it clear that the judge need not be limited to the factors specified. Although none of the familiar presumptions developed by the case law are mentioned here, the language of the section is consistent with preserving such rules of thumb. The preference for the mother as custodian of young children when all things are equal, for example, is simply a shorthand method of expressing the best interest of children — and this section enjoins judges to decide custody cases according to that general standard.”

In our opinion, the situation here is precisely that contemplated by KRS 403.270.

For all practical purposes “all things are equal” here and the preference that the mother should have custody of a young child has not been overcome by the testimony in this case. Parker and KRS 403.270 abrogated the rule that the mother must be shown to be unfit before an award of custody of a child of tender years could be made to the father. We are not prepared to define precisely the quantum of proof necessary to overcome the preference that the mother should be the custodian of children of tender years. This is a value judgment that has to be decided on a case-by-case basis. Here the evidence is so close, we are of the opinion that the natural preference for the mother should prevail.

Our holding here is not, in our opinion, inconsistent with Parker. The factors recited in Parker are not too greatly at variance with the factors embodied in KRS 403.270 enacted a year later. To evaluate the holdings in Parker the facts must be considered. Parker involved the issue of custody -of three children, ages 13, 9, and 5. The parents had been divorced in 1966 and the children awarded to the father. The issue presented in Parker arose when the mother, having remarried, applied in 1969 for a change of custody from the father to the mother. The factual situation here is completely different. We are of the opinion that implicit in Parker is the result we reach in this case. Parker recited that it is not indispensible that a trial court find that a mother is morally unfit to have custody of children as a prerequisite of awarding custody to the father and declining to change custody. Further, Parker states 467 S.W.2d at page 596:

“There has existed in the law the concept that the mother has the better right to young children. However, the basis of this rule is nothing more or less than the fact that under normal conditions a mother by her nature is better equipped to nurture and care for small children. It is more a practical consideration than a rule of law.”

This is what we are saying here in application to a completely different factual situation.

We are of the opinion the trial court did not properly evaluate Parker or apply the reasoning of determining the best interests of the child as required by KRS 403.270. For this reason, we hold the findings of the trial court to be clearly erroneous.

The judgment is reversed.

REED, C. J., and JONES, LUKOWSKY, PALMORE, STERNBERG and STEPHENSON, JJ., sitting.

All concur.


source: Caselaw Access Project

author: PALMORE, Justice.

license: Public Domain

text:
    James JEWELL, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    March 11, 1977.

      Thomas D. Shumate, Peter J. Flaherty, III, Shumate, Shumate & Flaherty, Richmond, for appellant.
    Robert F. Stephens, Atty. Gen., Robert W. Hensley, Asst. Atty. Gen., Frankfort, for appellee.
   PALMORE, Justice.

James Jewell appeals from a judgment entered pursuant to a jury verdict finding him guilty of murder and fixing his sentence at 20 years’ imprisonment. KRS 507.-020, 532.060(2)(a). He claims errors in the following three particulars:

(1) Rejection of evidence pertinent to his affirmative defense of insanity under KRS 504.020;

(2) Reception of evidence relating to his intoxication in terms of the presumptions enacted in KRS 189.520; and

(3) Refusal to instruct on the defense of intoxication under KRS 501.080(1).

The victim of the killing was Taylor Jewell, appellant’s father. He was shot in the chest with a .20-gauge shotgun while seated in a chair on the front porch of his home reading his mail. The only other persons present were James and his sister Violet, who is described in the evidence as having been institutionalized for a mental problem and was unable or unwilling to describe the fatal event. The incriminating evidence was provided by James himself through statements made on the scene and afterward to the various investigating officers. According to their testimony, he first said that he had had to shoot his father in self-defense. Later on, in jail, he said that he wanted the car and some money to go and get himself some more beer but his father kept refusing him and he just had to kill him.

James was a single man 48 years old and had lived at home with his parents all of his life. His mother had passed away some two years before the tragedy. He had a crippled leg and had been taking medicines prescribed for a nervous condition over the course of 15 or 18 years. Though he had no formal education, he had learned to sign checks, bought his medicines at the drug store, and was licensed to drive an automobile.

On the day of the shooting Sheriff Her-shell Lynch arrived on the scene at 1:30 P.M., about 10 minutes after he had received word of it. He described James as “pretty well drunk at the scene,” but said that his talk was “very distinguishable, he answered all the questions,” and that he appeared to know where he was and what had happened. Deputy Sheriff Julian Harris, who arrived a little later, testified that James was drunk when taken to jail.

James also made a statement to District Detective Robert Davidson while he was in custody waiting to be taken to jail. According to Davidson, “he was drunk while he was telling me this.”

At 5:46 P.M. on the same day, some 4½ hours after the shooting, James took a breathalyzer test administered by Floyd McIntosh, a detective for the Kentucky State Police. According to McIntosh, James was still drunk at that time. The test indicated a blood-alcohol content of 0.11%. Over objection by the appellant, Detective McIntosh was permitted to explain that for purposes of driving an automobile a content of 0.10% is equated with being under the influence of intoxicating beverages. He went on to say that among the many breathalyzer examinations he had given there had been one score of 0.32% and that person had been able to walk. Asked whether James was “real bad drunk on this occasion,” he answered as follows: “No, he wasn’t what you are saying he wasn’t real drunk. You can be drunk and be real drunk he read 0.11% and was capable of walking around; after you get up in 0.20% or around 0.30% you usually pass out depending on the person.”

During cross-examination Detective McIntosh estimated that James “could have sobered up anywhere from 0.04% to 0.08%” between 1:30 P.M. and 5:30 P.M., which means, of course, that he could very well have had a blood-alcohol content close to 0.20% at the time of the shooting.

On the day following his arrest, when he was no longer under the influence of alcohol, James again told Detectives Davidson and McIntosh that the shooting had resulted from an argument in which his father would not let him have some money and the use of the automobile.

It appears from the record that while he was in jail James got into such a mental state that he had to be sent to the Lakeland psychiatric institution. From there he was transferred by order of the trial court to the River Region Hospital in Louisville. Meanwhile, in a KRS 202.135 involuntary hospitalization proceeding held by the Jefferson Circuit Court on October 31, 1975, he was found to be mentally ill and was ordered to accept treatment at the forensic medicine facility in Louisville for an indeterminate period of time.

The next step in the instant proceeding was an order of the trial court entered on May 18, 1976, noting that James had been confined in the Kentucky State Hospital for hospitalization and treatment and had now been declared ready for release, and directing that he be remanded to jail. He was tried for murder on June 23, 1976.

James testified in his own behalf at the trial and denied having shot his father. He also stoutly denied having been drunk. At the same time, however, he insisted that he had no recollection whatever of the events in question, as illustrated by the following excerpts from his testimony:

On direct examination:
Q. Do you know who did it?
A. No, I was so crazy I didn’t know a thing until they got me in Louisville hospital.
Q. Do you know about how many days that was after your father was killed?
A. No, I don’t.
Q. There is testimony to the effect you told the officers you and your Daddy got in argument over the keys to the car and your right to drive the car, do you recall anything of that nature?
A. No.
Q. There is also testimony you told the officers you shot your Daddy for the reason that he was about to kill you or in self defense, do you remember that?
A. When they come I was crazy and that is the truth.
Q. Wait . . .
A. I was crazy, I didn’t know nothing.
Q. You have no recollection of shooting your Daddy?
A. No.
Q. Did you have any quarrel with him over money?
A. I had money, no.
Q. Did you have a quarrel with your Daddy over him spending your money?
A. I never killed him.
Q. You don’t think you killed your Daddy?
A. No.
Q. They brought you to jail and said you was drunk when they saw you up there shortly after the shooting and they brought you to jail do you remember talking to the officers in the jail?
A. No, I was crazy; I didn’t know nothing that is the truth.
Q. When did you first come to your senses or know anything?
A. When they took me to Louisville they give me that there glucose and went to giving me some nerve pills and I went to getting better.
Q. You did not know anything until you got to Louisville?
A. No, not nothing.
* * * * * *
Q. You mean you came to your senses in the Louisville General hospital is that right?
A. Yeah.
Q. If you had been at your self, in your right senses would you have shot your father?
A. No sir, I wouldn’t. I didn’t shoot him.
Q. Did you have any malice or ill feeling toward your Daddy?
A. No.
Q. And then were, you later taken to the insane asylum at Danville, Kentucky?
A. Yeah.
Q. You remember being taken there do you?
A. Yeah.
Q. And you remember how long you stayed there?
A. I stayed there about seventy-five days.

On cross-examination':

Q. Mr. Jewell, would you pull that microphone down just a little more and look at the jury and talk right up, I believe it is your testimony that you don’t remember anything that happened on September 13, 1975, is that right?
A. Don’t remember nothing.
Q. You don’t remember killing your father?
A. I don’t know what happened.
Q. You don’t remember whether you was drunk or sober?
A. I wasn’t drunk; they said I was drunk, but I wasn’t.
Q. You remember not being drunk?
A. I wasn’t drunk; they swore a lie. * * ⅝: ⅜ * *
Q. Did you get on a drunk?
A. No, I never got on no drunk.
Q. In September, 1975?
A. No sir.
Q. How do you know you never if you can’t remember?
A. I know I never got on no drunk when they said I was drunk they told a damn lie; I will tell them that.
Q. Now let me ask you this, if you can’t remember anything how do you know you weren’t drunk?
A. I wasn’t drunk; I was crazy; that is the reason they took me to Louisville to the crazy hospital to try to get straightened out.
Q. You could have been drinking as well as crazy?
A. I was crazy. That is a God damn lie.

We come now to the assignments of error.

KRS 504.020 provides that a defendant, after giving the notice required by KRS 504.050, may prove in exculpation that when he committed the act in question he was afflicted with a mental disease or defect that deprived him of substantial capacity to appreciate the criminality of the act or, if he did appreciate it, to conform his conduct to the requirements of the law. Essentially, this is the defense of insanity set forth in Terry v. Commonwealth, Ky., 371 S.W.2d 862, 865 (1963), and as explained in that opinion, fundamentally it is a refinement of the old M’Naghten and “irresistible impulse” tests. In the M’Naghten aspect it confines “right” and “wrong” to a legal vis-a-vis moral sense. Id., at 371 S.W.2d 865.

Counsel sought to prove the insanity of James through lay testimony by his brother and sister and a certified copy of the October 31, 1975, judgment of the Jefferson Circuit Court finding him to be mentally ill. All of this evidence was ruled inadmissible.

“It is well settled in this state that persons who are not experts, but by association and observation have had an opportunity to form an opinion as to the sanity of a person, may testify to that opinion; giving also, the facts upon which the opinion is based, so that the jury may judge for themselves what weight the opinion is entitled to. Insanity is often shown by the flash of the eye, an expression of the face, a movement of the muscles, or a number of slight circumstances which, while they may produce a conviction in the mind of the observer, cannot, in many cases, be reproduced before the jury as they were exhibited to the eye of the witness, so that, if testimony of this sort were not allowed, great injustice would in many cases be done. The judgment of a person’s intimate friends and acquaintances as to his soundness of mind is therefore always competent in cases of this character.” Abbott v. Commonwealth, 107 Ky. 624, 628, 21 K.L.R. 1372, 55 S.W. 196, 198 (1900).

Minnie Garrett, James’ sister, had known him all of her life, 46 years. She was asked whether from her observation of him in the jail and ’her acquaintance with him throughout the years she could give an opinion “whether ... he had enough mind and memory to know right from wrong.” After an objection had been sustained and the question was read to her in chambers for avowal purposes, she responded, “He had never been capable of taking care of his — ” but was admonished by the trial court (during the avowal) to answer “Yes” or “No” and to confine herself to the time she saw James in jail after her father’s funeral, whereupon she replied as follows: “He didn’t when I talked to him at the jail, no.”

The following opinion of Perry Jewell, a brother of James, as preserved by avowal also was held inadmissible:

Q. “At the time you saw him in the jail after the funeral and talked with him and observed him state whether or not you in your opinion the defendant, James Jewell, had sufficient mind and manner [sic] to know the difference between right and wrong.”

A. “No sir, I don’t think he did in my opinion.”

As counsel for James contends, it is, or should be, elementary that this type of evidence is competent on the issue of sanity, whether in a civil or criminal proceeding. Wide latitude must be given to the way in which a lay opinion is expressed, and it is not inadmissible merely because the question is couched in terms of the capacity to distinguish between right and wrong, or because it invades the jury’s prerogative, or because it is not confined to the precise time of the offensive act. See Banks v. Commonwealth, 145 Ky. 800, 141 S.W. 380, 384-385 (1911), in which the subject was thoroughly considered and discussed by the late Judge Carroll.

A certified copy of the judgment of the Jefferson Circuit Court finding James mentally ill was offered, but the trial court excluded it on the ground that “the way to prove this is to bring people in here that examined him and have them testify or either take their depositions.” This clearly was in error. See Smedley v. Commonwealth, 138 Ky. 1, 127 S.W. 485, 488-89 (1910). The term “lunacy” has long since been replaced in the statutes by “mentally ill,” and “lunacy inquest” by the more euphemistic “determination of mental condition,” but the principle here involved remains the same.

We are unable to say that the errors in excluding the opinion testimony of James’ brother and sister and the judgment of the Jefferson Circuit Court as probative evidence on the issue of insanity were not prejudicial. It is a tragedy, of course, that this state does not make adequate provision for the safekeeping of deranged people who have demonstrated harmful propensities by acts of violence against others. Certainly they do not belong in penal institutions, but in the absence of some kind of realistic provision for their detention a prosecutor can truthfully remind the jury, as he did in this case, that in the event of an acquittal on grounds of insanity there is very little, if any, assurance that they will not soon be at large again. Even so, however, the trial of such a person must conform to the principle that insanity is a defense, and the defendant must be allowed to prove it in accordance with the accepted rules of evidence.

Though it was held in Overstreet v. Commonwealth, Ky., 522 S.W.2d 178 (1975), that in a felony case the jury should not be informed of the presumptions established by KRS 189.520, we need not decide whether Detective McIntosh’s testimony in that respect was prejudicial. As one who had administered blood-alcohol examinations on many occasions he qualified as an expert in his own right, and it was within his special competence to relate the percentages to degrees of drunkenness based on his personal observation of other persons he had tested. On another trial, however, reference to the statute should be avoided.

KRS 501.080(1) provides that intoxication (even though it may have been voluntarily induced) is a defense to a criminal charge if it negates the existence of an element of the offense. The burden of proof remains with the Commonwealth, cf. KRS 500.-070(1), but the difficult question that arises is whether the evidence in a given case requires that the defense be specifically embodied in the instructions. In this case the pertinent element is intent.

The Kentucky Penal Code codifies or reenacts several “defenses,” including ignorance or mistake (KRS 501.070), intoxication (KRS 501.080), duress (KRS 501.090), self-protection (KRS 503.050), protection of others (KRS 503.070), protection o/property (KRS 503.080), use of force in law enforcement (KRS 503.090), immaturity (KRS 504.-010), entrapment (KRS 505.010), and others. The only significant difference between these defenses and a simple denial by the defendant that he committed one or more of the essential elements of the crime is that when the defense is raised it requires an instruction calling it to the attention of the jury. A defense is so raised by the presentation of evidence that could justify a reasonable doubt of the defendant’s guilt. The sufficiency of the evidence to accomplish that purpose is a question of law for the courts to determine on a case-by-case basis.

Mere drunkenness will not raise the defense of intoxication. Cf. Richards v. Commonwealth, Ky., 517 S.W.2d 237, 241 (1975). This continues to be so under KRS 501.080(1). There must be something in the evidence reasonably sufficient to support a doubt that the defendant knew what he was doing. Thus in Mearns v. Commonwealth, 164 Ky. 213, 175 S.W. 355 (1915), in which the defendant testified that by reason of his extreme drunkenness at the time he had no knowledge of taking the money he was accused of having stolen, or of being in the room where the theft was alleged to have occurred, this court held that he was entitled to an exculpatory instruction on the theory of intoxication. A similar result was reached in Ray v. Commonwealth, Ky., 284 S.W.2d 76 (1955), a breaking-and-entering case. Oddly, however, through the years the court clove to the following distinction:

“Voluntary drunkenness . . . is no excuse for perpetration of a crime, yet voluntary drunkenness is an evidential circumstance to be considered in mitigation of the crime charged so as to reduce it from one of higher degree to one of lower degree. And if the crime charged . . . is of such a character that the accused may be convicted of either a higher degree or a lower degree, depending upon the evidence bearing on the question of malice, then no specific instruction relating to the accused’s drunken condition is necessary. The evidence alone should serve as a reducer so as to pull down conviction from the higher to the lower degree, according to the jury’s discretion. But if the crime charged . is of such a character that the accused may be convicted of only one degree of wrong, then a specific instruction on drunkenness should be given by the court to assist the jury in deciding whether the accused is guilty or innocent, under all the circumstances.” Abbott v. Commonwealth, 305 Ky. 620, 623, 205 S.W.2d 348, 350 (1947), a malicious cutting and wounding case (old KR3 435.170) in which the defendant was held not entitled to the instruction because he could have been convicted of the lesser included offense of cutting and wounding “in a sudden affray or in sudden heat and passion, without previous malice” (old KRS 435.180).

We characterize this distinction as odd because “malice” and “intent” are not one and the same, and the exculpatory effect of intoxication clearly relates to the capacity to form an intent as well as the capacity to deliberate or premeditate (cf. Roberson’s New Kentucky Criminal Law and Procedure, 2d ed., Sec. 59). The two degrees of shooting or cutting and wounding (old KRS 435.170 and 435.180) both required intent, as did murder and voluntary manslaughter (old KRS 435.010 and 435.-020). Yet the distinction was drawn on the basis that drunkenness might eliminate malice, but not intent. It is interesting to note that although it did not follow through and apply its own rationale to the facts of the case, the court in Slone v. Commonwealth, 238 Ky. 727, 38 S.W.2d 709, 711 (1931), another malicious cutting case, did summarize its view in this manner:

“Therefore, where there are lower degrees of the offense contained in the indictment, some of which do not contain the element of intent or malicious purpose, then the fact of defendant’s intoxication should not be singled out in a separate instruction, or the jury told in any manner what effect, if any, it should give to such intoxication, upon the theory that the jury itself may consider and weigh such fact and give to it such effect as it sees proper under the instructions submitting to it all degrees of the charged crime, just as it weighs any other evidence in the case. But, if there are no degrees of the offense contained in the indictment, or where there are such degrees, but in them intent is likewise an element, then in such cases the court should instruct the jury, in substance (if the evidence authorized it), that if defendant was so intoxicated that he did not realize what he was doing, or was incapable of entertaining the necessary criminal intent, then he should be acquitted.” (Emphasis added.)

The theory that intoxication alone could have the effect of reducing murder to voluntary manslaughter, regardless of whether there was evidence to suggest a sudden affray or sudden heat of passion, was finally abandoned by this court in Richards v. Commonwealth, Ky., 517 S.W.2d 237, 241 (1975). The same reasoning applies to this case, in which the difference between murder (KRS 507.020) and lst-degree manslaughter (KRS 507.030) as embraced by the instructions depended solely on the presence or absence of extreme emotional disturbance. Therefore, the necessity, vel non, for an instruction on intoxication is not determinable on the old ground that voluntary intoxication could serve only to reduce the degree of homicide. In this instance both degrees required intent, and they were the only degrees included in the instructions given.

All of the witnesses who observed James at the scene of the shooting described him as drunk. Between four and five hours later, without having consumed any more alcoholic beverages during the interim, he still had a blood-alcohol content of 0.11%. Though he insisted at the trial that he was not drunk, he insisted just as vigorously that he had no recollection of the occasion. There was, therefore, (1) evidence that he was drunk and (2) evidence that for some reason he was out of his mind. We think that this was enough to call for an instruction on intoxication under KRS 501.080.

The judgment is reversed with directions for a new trial.

All concur except that STEPHENSON, J., feels that the evidence of ■ intoxication was insufficient to justify an instruction on that defense.

      . Since repealed and superseded by KRS 202A.060.

      . Cf. KRS 202A.010(7); KRS 202A.060. Major changes in terminology were effected by Ch. 67, Acts of 1960.

      . KRS 504.030 provides that when a defendant is acquitted on the ground of insanity the court may have him committed for examination and possible detention pursuant to KRS Ch. 202 (now 202A). As we see in this case, however, after having been committed prior to his trial James was soon released. The lesson likely to be drawn by the jury from that is obvious.


author: LUKOWSKY, Justice.

text:
    CITY OF SOMERSET and Somerset City Hospital, Appellants, v. Richard Louie HART, Appellee.
    Supreme Court of Kentucky.
    April 1, 1977.

      Robert L. Milby, Hamm, Taylor, Milby & Farmer, London, for appellants.
    Brown, Sledd & McCann, Lexington, Sutton, Higgason & Davis, Corbin, for appellee.
   LUKOWSKY, Justice.

This is an appeal by the Hospital and its alter ego, the City, from their share of a $28,144.38 malpractice judgment in favor of Hart. The verdict of the jury apportioned the recovery forty percent or $11,257.75 against the operating surgeon and sixty percent or $16,886.63 against the Hospital and the City. The surgeon has paid his share and gone forth rejoicing.

In July of 1970 Hart was afflicted with a kidney stone. His family physician referred him to a surgeon for further treatment. Surgery was indicated and Hart was admitted to the Hospital. The stone was located in the ureter near its entrance into the bladder. The surgeon first sought to remove the stone by use of a cystascope and a “basket.” This procedure was unsuccessful. Major surgery was indicated.

Hart was taken to the operating room and given a general anesthetic. The surgeon opened his abdomen and exposed the ureter and bladder. In order to remove the stone it was necessary for the surgeon to incise both the ureter and bladder. After the stone was removed, the surgeon closed. This was the first time Hart had undergone abdominal surgery.

Hart’s hospital recuperation was uneventful. He was seen by his surgeon postopera-tively at four and six weeks and discharged. On each occasion he complained of pain and was told that this was not abnormal. For about three months the pain remitted and then it exacerbated. Hart again sought the aid of a family physician.

This physician treated Hart with analgesics and prostate massage. His symptoma-tology of pain and bloody urination continued to worsen. In August of 1971 he was referred to another surgeon who examined him and took x-rays. The x-rays revealed a bladder stone from which a scalpel blade protruded.

Shortly thereafter Hart’s urinary system became completely obstructed with blood clots. The second surgeon admitted Hart to a second hospital. A second major operation was performed and the clots, stone and blade were removed. It was established that the pain, bleeding and clots were caused by the stone and blade irritating the wall of the bladder. Since the second operation his condition has progressively improved.

Obviously, the part of the Hospital in the first operation becomes the subject of scrutiny.

The Hospital supplied the operating room and staffed it with a supervisor, a scrub nurse and a circulating nurse. This staff was selected, paid and generally supervised by the Hospital. The staff was required to set up the room, lay out the instruments, including scalpels with blades attached, hand instruments to the surgeon and generally assist him during the operation. The operating surgeon was authorized to supervise and direct the staff in the operating room.

The Hospital supplied the instruments in the form of an instrument pack. This pack is a set of instruments of a type and number prescribed by the Hospital sufficient to perform the operation scheduled by the surgeon. The packs are assembled by employees of the Hospital. The rules of the Hospital do not require that the number of instruments be verified by their operating room staff by either a preoperation or pre-closing instrument count. However, the Hospital does require its operating room staff to make a post operation count at the time the instruments are cleaned, to keep count of the number of scalpel blades used and to report any deficiency. No such report was made here either to the hospital administration or the operating surgeon. If a scalpel blade becomes dull during an operation it is the duty of the operating room staff on request of the surgeon to obtain a new blade, replace the dull one on the handle and dispose of the used blade. No one recalls whether such a replacement was made here.

The only assignment of error by the Hospital worthy of discussion is that the operating room staff are the borrowed servants of the surgeon and that the Hospital as their general employer is not liable for their negligence. Hart’s response to this assignment of error is that there is distinction between administrative and medical acts, that the Hospital is the master in regard to administrative acts, that the surgeon is the master in regard to medical acts, and that the failure to account for a scalpel blade is an administrative omission chargeable to the Hospital. The parties rely on a plethora of cases, most of which are discussed in an annotation, “Liability of Hospital for Negligence of Nurse Assisting Operating Surgeon”, 29 A.L.R.3d 1065 (1970). We find both submissions to be superficial.

The borrowed servant doctrine frequently rears its head in malpractice cases primarily because of the relationship between hospital employees and attending staff physicians and surgeons. In few other areas where the doctrine of respondeat superior may be potentially applicable is the issue of control as crucial or as difficult to resolve as it is in many of the doctor-hospital relationships. Although hospital employees are primarily servants of the hospital and not of the doctor the familiar rule of agency law that a servant may serve two masters simultaneously, and at times only momentarily, comes into play when interns, nurses or other hospital personnel assist a physician or surgeon as he treats a patient. Restatement of Agency 2d, Secs. 226, 227 (1957); Stewart v. Manasses, 244 Pa. 221, 90 A. 574 (1918); Dickerson v. American Sugar Refining Co., Inc., C.A.3d, 211 F.2d 200 (1954).

A dangerous tendency exhibited in some of the borrowed servant malpractice cases is to blindly hold that because a nurse or other hospital employee was lent to a physician or surgeon so as to render him liable under the doctrine of respondeat superior for the employee’s negligence, the hospital by reason of the loan necessarily ceased to be liable. Minogue v. Rutland Hospital, 119 Vt. 336, 125 A.2d 796 (1956). Sometimes, even though the question may be left to the jury as to which was liable, doctor or hospital, the assumption is clearly that only one of them could have been liable because the hospital employee could not simultaneously have been the servant of both. McCowen v. Sisters of Most Precious Blood of Enid, 208 Okl. 130, 253 P.2d 830 (1953); Cavero v. Franklin Benevolent Soci ety, 36 Cal.2d 301, 223 P.2d 471 (1950). This is to ignore the legal principle that a person may be the servant of two masters, not joint employers, at one time as to one act, if the service to one does not involve the abandonment of the service to the other. Restatement of Agency, 2d, Sec. 226 (1957).

Frequently, if not most often, the hospital nurse or other employee who is temporarily lent to the physician or surgeon, in every realistic sense continues to carry on her hospital duties. Her work is of mutual interest to both of two employers, the physician or surgeon and the hospital, and is performed to effect their common purpose. The doctrine of respondeat superior is therefore equally applicable to both employers. Dickerson v. American Sugar Refining Co., supra. Martin v. Perth Amboy General Hospital, 104 N.J.Super. 335, 250 A.2d 40 (1969). Tonsic v. Wagner, 458 Pa. 246, 329 A.2d 497 (1974).

The failure of courts to more generally perceive this is probably due to an unarticulated feeling that it would be unjust to impose liability on the hospital where the nurse has only obeyed the orders of her superior, the physician or surgeon. We recognize that the nurse’s duty to obey such orders exculpates her and her hospital employer from responsibility for the results of the competent execution of the orders, unless the orders are so obviously improper that the ordinarily prudent nurse would not obey them. When exculpation is the result, it is so because the nurse’s obedience to the orders does not constitute negligence, and consequently, there is no basis for vicarious liability of the hospital. This is far different from a general and uncritical elimination of the hospital’s liability under the doctrine of respondeat superior solely because the nurse or other employee was lent to the physician or surgeon.

It is beyond cavil in this case that the accurate accounting for scalpel blades is “of mutual interest to both” the surgeon and the hospital, that such an accounting “effects their common purpose”, i. e., the cure of the patient, and that the surgeon issued no orders to the operating room staff in regard to the accounting for scalpel blades which conflicted with those of the Hospital. Consequently, the operating room staff acted as servants of both the surgeon and the hospital as a matter of law.

The facts of this case which we have so tediously related mandate the application of the doctrine of “res ipsa loquitur”. Jewish Hospital Association of Louisville v. Lewis, Ky., 442 S.W.2d 299 (1969). Once the doctrine is applied the jury had a right to infer, as it did, that the operating room staff failed in its duty to accurately account for scalpel blades and that such failure was a substantial factor in causing the scalpel blade to be left in Hart’s bladder with attendant and protracted bad results. This negligence is of course, as chargeable to the hospital as it is to the surgeon.

The judgment is affirmed.

All concur.


author: CLAYTON, Justice. JONES, Justice,

text:
    KENTUCKY ASSOCIATION OF CHIROPRACTORS, INC., Appellant, v. JEFFERSON COUNTY MEDICAL SOCIETY et al., Appellees. KENTUCKY STATE BOARD OF CHIROPRACTIC EXAMINERS et al., Appellants, v. JEFFERSON COUNTY MEDICAL SOCIETY et al., Appellees.
    Supreme Court of Kentucky.
    April 1, 1977.

      John C. Anggelis, Timothy C. Wills, Ang-gelis, Vimont & Bunch, P.S.C., Lexington, for appellant Kentucky Ass’n of Chiropractors, Inc.
    Robert F. Stephens, Atty. Gen., William W. Pollard, Asst. Atty. Gen., Frankfort, Dale Burchett, Glasgow, for appellant Kentucky State Bd. of Chiropractic Examiners.
    Carl L. Wedekind, Jr., Stites, McElwain & Fowler, Louisville, for appellee Jefferson Cty. Medical Soc.
    John P. Godfrey, Jr., Frankfort, for ap-pellee Com. of Kentucky, Dept, for Human Resources.
    Rudy Yessin, Frankfort, for appellee Kentucky State Bd. of Medical Licensure.
    William T. Warner, Wood, Goldberg, Ped-ley & Stansbury, Louisville, for appellees International Clinical Laboratories of Kentucky, Inc., and Malcolm L. Barnes, M.D.
   CLAYTON, Justice.

This is a consolidated appeal requiring that we determine whether chiropractors are included in the phrase “other person authorized by law” of KRS 333.150 and .160 so as to authorize them to submit specimens from the human body to state-licensed medical laboratories and to use the reports thereby obtained in diagnosing human ailments. After carefully considering the issue, we are of the opinion the General Assembly has not so empowered practitioners of chiropractic, and we therefore affirm the judgment of the circuit court.

This case arises from the following factual situation and statutory authority. KRS 333.240(3) prohibits state-licensed medical laboratories from accepting specimens submitted by and making reports to “persons who are not legally qualified or authorized to submit specimens to medical laboratories and to receive such reports.” KRS 333.160 enumerates those persons authorized to manipulate a patient for the collection of specimens as including “only a licensed physician, dentist or other person authorized by law,” and KRS 333.150 designates that “a medical laboratory shall examine human specimens only at the request of a licensed physician, podiatrist, dentist or other person authorized by law to use the findings of medical laboratory examinations . . .” At the commencement of this action, “chiropractic” was defined by KRS 312.015(2) as “. . . the science of locating and adjusting the subluxations of the articulations of the human spine and its adjacent tissues; . .” This section was amended, effective June 19, 1976, to now read “. ‘Chiropractic’ means the science of diagnosing and adjusting the subluxations of the articulations of the human spine and its adjacent tissues; . . . ” and a statutory definition of “chiropractor” was added by a new subsection — “. . . ‘chiropractor’ means one qualified by experience and training ... to diagnose his patients and to treat those of his patients diagnosed as having diseases or disorders relating to subluxations of the articulations of the human spine and its adjacent tissues by indicated adjustment of those subluxations and by applying methods of treatment designed to augment those adjustments . . .

International Clinical Laboratories of Kentucky, Inc., a medical laboratory licensed under the provisions of KRS Chapter 333, performed tests upon blood and urine specimens submitted to it by the Ken-tuckiana Center for Education, Health and Research, Inc., a nonprofit clinic and school for retarded children employing the services of chiropractors licensed under the provisions of KRS Chapter 312 and regulated by appellant Kentucky State Board of Chiropractic Examiners. The results of those tests were reported back to the chiropractors who used them for diagnostic purposes in providing chiropractic services to the children attending the school. When the Jefferson County Medical Society called these actions into question, International Clinical Laboratories and its director, Malcolm L. Barnes, M.D., petitioned for a declaration of rights in the Jefferson Circuit Court as to whether the chiropractors could take and submit such specimens to it and whether it was permitted to evaluate such specimens and report its findings back to the chiropractors for diagnostic purposes. Named as defendants in the action were all parties in interest, including the Jefferson County Medical Society; Kentuckiana Center for Education, Health and Research, Inc.; Commonwealth of Kentucky, Department for Human Resources; Commonwealth of Kentucky, State Board of Medical Licensure; and the Kentucky State Board of Chiropractic Examiners. The circuit court permitted the intervention of the Kentucky Association of Chiropractors, Inc., as a respondent-intervenor, and granted the request of the Kentucky Chiropractic Society to file an amicus curiae brief. Having determined that an actual controversy exists between the parties which is suitable for a declaratory judgment and that no issue as to any material fact exists, the court considered the motions of both sides for summary judgments, ruling in favor of the position that chiropractors are not permitted under Kentucky law to utilize the services of state-licensed medical laboratories in diagnosing human ailments, and holding that prohibiting chiropractors from so using such laboratories is not a denial of due process of law or of equal protection of the laws. These appeals, brought by the Kentucky Association of Chiropractors, Inc., and the Kentucky State Board of Chiropractic Examiners, result from that ruling.

In separate briefs, appellants argue that chiropractors are expressly and impliedly authorized to use medical laboratories for diagnostic purposes. Express authorization, they argue, has been given by a regulation duly promulgated by the Kentucky State Board of Chiropractic Examiners during the pendency of this action before the circuit court, and subsequently declared void by that court, as being inconsistent with the provisions of KRS Sections 312.015 to 312.-185, the statutes governing the practice of chiropractic. Implied authorization is argued to come from the statutory definition of “chiropractic” as it read prior to amendment in 1976 which, it is contended, confined the scope of a chiropractor’s permissible treatment but did not limit his realm of diagnostic procedures. It is further claimed in connection with this section that following its amendment, Kentucky chiropractors now have specific statutory authorization to perform the activities in question here, so that the case is now moot. Finally, reliance is placed on KRS 312.190, which authorizes chiropractors to sign death certificates and other unspecified legal documents “. with the same authority as members of other schools or systems of treatment,” as providing a broad inference that this would also permit the result sought here, the reasoning being that since the use of laboratory findings is necessary in many instances to diagnose the cause of death, in enacting this section the legislature was evidencing its intent that chiropractors be permitted to use these findings and that they be considered an “other person authorized by law” within the meaning of KRS 333.150 and .160. The regulation relied upon as express authorization, 201 KAR 21:020, Section 3, provides as follows:

“Chiropractors may examine, analyze and diagnose the patient and his diseases by the use of any physical, chemical, or thermal method reasonably appropriate to the case. Chiropractors qualified by training and skill for diagnosis and analysis of patients by use of radiographs, blood analyses or other methods of examination may utilize the services of persons authorized by law to perform the procedures involved in such methods of examination. Provided, however, that the board may upon notice and hearing find any licensee unfit to use specified methods of examination, and provided further that the board by duly promulgated regulation may prohibit or restrict use of specified methods of examination which the board determines are appropriately so regulated.” (1 Ky.R. 1254; eff. 7 — 2—75.)

While appellants are correct in their assertion that administrative regulations which have been duly adopted and properly filed have the full effect of law, nonetheless the power of the agency to adopt such regulations is limited to a direct implementation of administration of the functions and duties assigned to the administrative body by statute or executive order. KRS 13.082(1). As we read the regulation in issue here, we see it as an attempt to grant to chiropractors authority which had been previously withheld. It therefore goes well beyond the powers granted to the Board of Chiropractic Examiners by KRS 312.075, and the statutory definition of Chiropractic as originally written and as amended. As such, it is legislative in nature and in violation of Sections 27 and 28 of the Kentucky Constitution. In Henry v. Parrish, 307 Ky. 559, 211 S.W.2d 418 (1948), we recognized that the power to make regulations is not the power to legislate in the true sense, and the statute which is being administered may not be altered by the exercise of a power to make regulations thereunder. Regulations are valid only as subordinate rules and when found to be within the framework of the policy defined by the legislature. We therefore can find no error in the circuit court’s declaring this regulation void.

We also cannot sustain appellants’ argument of implied authorization. In determining the intent of the General Assembly in enacting legislation, the primary rule is to ascertain the intention from the words employed in enacting the statute, rather than surmising what may have been intended but was not expressed. Gateway Construction Company v. Wallbaum, Ky., 356 S.W.2d 247, 249 (1962). As correctly pointed out by the circuit court in its opinion, the language of the original statutory definition of “chiropractic” gives absolutely no authorization for the collection and submission of human specimens to a medical laboratory, but merely authorizes the location and adjustment of partial dislocations of joints of the spine and its adjacent tissues. We thus can find no evidence from the definition as originally worded of any intent by the General Assembly to authorize any activity by chiropractors involving medical laboratories. Neither do we believe that the amendment of KRS 312.015 by the substitution of “diagnosing” for “locating” and the addition of the new subsection (3) defining “chiropractor” now provides such authorization, for again, the wording of the statute does not provide even an inference that such authorization was intended. To the contrary, by the addition of a subsection (4) enumerating the fields of medicine within which the practice of chiropractic is not to be included, the inference results that the General Assembly intended to make no fundamental change in the practice of chiropractic by these amendments.

Appellants’ reliance on the statute permitting chiropractors to sign death certificates and other legal documents is similarly ill-placed. An examination of the relevant statutes shows that while KRS 312.190 permits chiropractors to sign death certificates and KRS 213.080 requires the death certificates contain the cause of death, neither of these statutes authorizes the removal of specimens from the human body for submission to laboratories. Where it is contemplated that circumstances surrounding death might require examination utilizing the facilities of a medical laboratory, KRS 72.070 and .080 specifically limit such examinations to be made by a surgeon, physician or chemist. We therefore conclude the authority to sign a death certificate and to state the cause of death does not carry with it the authority sought to be recognized here.

Appellants’ final contention is that prohibiting chiropractors from employing the services of medical laboratories in the manner envisioned constitutes a violation of substantive due process of law and of equal protection of the laws, contrary to the Fourteenth Amendment to the United States Constitution. We disagree. The Fourteenth Amendment permits states wide discretion in enacting laws which affect some group of citizens differently from others, the due process or equal protection safeguards contained therein being offended only if the resultant classifications or deprivations of liberty rest on grounds wholly irrelevant to a reasonable state objective. McGowan v. State of Maryland, 366 U.S. 420, 425-426, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961). Therefore, unless a statutory classification is arbitrary, or not founded on any substantial distinction suggesting the necessity or propriety of such legislation, the courts have no right to interfere with the exercise of legislative discretion. In the instant case, we are of the opinion the classification of chiropractors as a distinct class of persons who may not collect and submit specimens from the human body to a medical laboratory for purposes of diagnosis does not violate the Fourteenth Amendment guaranteeing equal protection of the laws, nor does it amount to a violation of life, liberty or property without due process of law. This view is based on our recognition that it is clearly within the province of the General Assembly to determine that, to protect the public health and general welfare, only those persons admitted to the practice of medicine should be authorized to perform the activities in question here.

The judgment is affirmed.

All concur except JONES and LUKOW-SKY, JJ., who dissent. ⅜

JONES, Justice,

dissenting.

In my view, common sense and public policy considerations apply to the stattitory enactments in this case. Because “common sense” and “public policy” considerations are foreign to the view as expressed by the majority, I dissent.

Aside from the literal language of the statutes (set out in the majority opinion) which I believe are sufficient to authorize chiropractors to use medical laboratories, there are other considerations to be applied in determining the legislative intent of KRS Ch. 333. Particularly is this so as it related to the question of whether chiropractors are “other persons ” authorized to use medical laboratories. While the wording of an act as passed by the legislature is of major importance, the application of common sense is not to be excluded. Kentucky Region Eight v. Commonwealth of Kentucky, Ky., 507 S.W.2d 489 (1974).

On the question of who is an “other person authorized by law,” the majority view is eloquent by its silence. The majority opinion simply holds that, only a licensed physician, [podiatrist, or a dentist] shall manipulate a patient for the collection of specimens. . . . The majority of my colleagues either ignore the phrase, “or other person authorized by law” (emphasis added), or treat it as surplusage. They in effect give the chiropractors of this Commonwealth a bone stripped of meat.

Statutory law is an expression of the will of the General Assembly. When a court is faced with interpreting a statute, as is the case here, it must determine what the legislature intended by enacting the statute, as well as the purpose behind it. Where the language of the statute is clear and unambiguous and expresses the intent of the legislature, then the statute must be interpreted by the court as written. Griffin v. City of Bowling Green, Ky., 458 S.W.2d 456 (1970).

In light of these legal principles it is apparent that the phrase “other person authorized by law” would not have been included in the statute if the legislature had not intended for someone other than a doctor, dentist, or podiatrist to use the facilities of a medical laboratory. The phrase in plain, concise, everyday meaning, is that persons in addition to those mentioned may use laboratory findings.

I am of the opinion that as a matter of public policy, chiropractors should be permitted to make a diagnosis as to the best of their professional skill. Their patients are entitled to the best treatment chiropractors are able to give, and this includes diagnosis in order to determine whether the patient is susceptible to chiropractic treatment or if it would be harmful to him. An opportunity should be given the chiropractor to weed out those patients who would not benefit from his treatment or might be harmed by his treatment. If the diagnosis indicates that a patient might be harmed by chiropractic treatment, the chiropractor should be permitted to refer him to the proper branch of the healing arts. I believe the following example would indicate the problem: Patient A may consult his chiropractor complaining of a pain in his lower back. The pain could be caused by subluxation, a condition which only a chiropractor is statutorily authorized to treat by adjustment. On the other hand, Patient A’s complaint could be a pain caused by an organic disorder. His complaint might be as consistent with a kidney disorder as it is with a sub-luxation. A simple diagnostic test of A’s urine to determine the presence or absence of blood or pus will aid the chiropractor. If the latter condition were present, that would indicate to the chiropractor that there is no subluxation. Patient A could then be referred to a physician.

The chiropractic profession has been recognized in this Commonwealth for nearly fifty years. At its 1928 session the General Assembly passed an act to create a Board of Chiropractic Examiners, to regulate the practice of chiropractic, to provide penalties for violation of the act, and to prohibit the practices of any other mode or system under the name of chiropractic. Ky. Acts, 1928, Ch. 123, pp. 416-421. That act was approved on March 8, 1928. It is interesting to note that the most significant change in the statutes dealing with chiropractors came about in 1976. For nearly half a century the definition of chiropractic remained the same. The 1928 act, Sec. 5, defines chiropractic as follows:

“Chiropractic is defined as the science of locating and adjusting the subluxations of the articulations of the human spine and its adjacent tissues.”

In the act of 1976, House Bill 758, approved March 30, 1976, (KRS 312.015(2)) chiropractic is defined:

“Subject to the limitations of Subsection 4 of this section, ‘chiropractic’ means the science of diagnosing and adjusting the subluxations of the articulations of the human spine and its adjacent tissues . .” (Emphasis added).

It is obvious that the majority view equates “locate” with “diagnose” or “diagnosis.” Ah, there’s the rub that finds me at variance with my colleagues’ interpretation. Locate is defined in Webster’s Third International Dictionary as follows:

“1. to determine or indicate the place of: define the site or limits of . . .;
2. (a) to set or establish in a particular spot or position;
3. (a) to seek out and discover the position of . . .;
3. (c) to determine the position of.”

Diagnose is defined by Webster, supra, as:

“1. to identify (as a disease or condition) by symptoms or distinguishing characteristics;
2. to determine the causes of or the nature of by diagnosis.”

Diagnosis is defined as:

“1. the art or act of identifying a disease from its signs and its symptoms
2. an investigation or analysis of the nature or cause of the condition, stipulation or problem.”

While this matter was pending in the circuit court, the Kentucky State Board of Chiropractic Examiners promulgated an administrative regulation authorizing doctors of chiropractic to use the findings of a medical laboratory examination. The regulation provides:

“Chiropractors may examine, analyze and diagnose the patient and his diseases by the use of any physical, chemical, or thermal method reasonably appropriate to the case. Chiropractors qualified by training and skill for diagnosis and analysis of patients by use of radiographs, blood analysis or other methods or examination may utilize the services of persons authorized by law to perform the procedures involved in such methods of examination. Provided, however, that the Board may upon notice and hearing find any licensee unfit to use specified methods of examination, and provided further that the board by duly promulgated regulations may prohibit or restrict use of specified methods of examination which the board determines are appropriately so regulated.” K.A.R. 21:020, § 3.

Thereafter Jefferson County Medical Society, Bureau of Health Services, and the Kentucky State Board of Medical Licensure filed their motion and supporting brief for summary judgment. Subsequently, in reading a brief filed by the Kentuckiana Center for Education, they learned of the existence of the regulation. Then they filed with the trial court an amended cross claim requesting the trial court to declare the regulation void. The Kentucky Association of Chiropractors, Inc., filed a motion to amend the judgment as it pertained to the regulation. It also requested the court to include a finding as to what portions of the regulation are inconsistent with the statutes governing the practice of chiropractic. On January 27, 1976, in its amended judgment, the trial court refused to amend the original judgment.

It is the general rule in Kentucky that administrative regulations properly filed and adopted have the same effect as statutes directly enacted by the General Assembly from which the administrative agency is delegated its authority. Rietze v. Williams, Ky., 458 S.W.2d 613 (1970). The regulations adopted by any state agency must be confined to the function that the agency is authorized to administer.

Former KRS 312.075 repealed by the legislature in 1976 is now KRS 312.019. Subsection 9 grants the board rule-making power relative to governing the practice of chiropractic as long as the rules promulgated by the board are not inconsistent with the provisions of the statutes.

This regulation was submitted to the Legislative Research Commission for review in accordance with KRS 13.085 on May 15, 1975. The Administrative Regulation Review Subcommittee approved the regulation on July 3, 1975, thereby affirming the Legislative Research Commission’s finding that the regulation conformed to the statutory authority under which it was promulgated.

Chiropractic is not a cult. The evidence reveals that there are ten outstanding colleges of chiropractic in the United States. Each of these offer courses in diagnostic procedures. Each applicant who desires to be a licensed chiropractor “shall have satisfactorily completed not less than sixty (60) semester credit hours of study from a college or university accredited by the Southern Association of Colleges and Universities or an accrediting agency recognized by the Southern Association of Colleges and Universities or any successor to the powers of either and is a graduate of a chiropractic college accredited by the Association of Chiropractic Colleges, or the council on chiropractic education or their successors, and which maintains a standard of reputability approved by the board.” KRS 312.085.

Each applicant for a license to practice chiropractic is required to take an examination.

“(2) The examination shall consist of a written test including questions of essay or objective type designed to measure the applicants’ knowledge of the subjects of anatomy, physiology, pathology, neurology, histology, hygiene, bacteriology, chemistry, chiropractic orthopedics, diagnosis, the use and effects of x-ray and chiropractic principles and practices as taught in chiropractic schools and colleges. A portion of said examination shall consist of a practical demonstration of clinical competency to be evaluated by the board by such methods as it may designate prior to the examination.” (Enact. Acts 1962, ch. 179, § 11; 1976, ch. 359, § 12.) KRS 312.115(2).

The critical shortage of health care delivery personnel in this Commonwealth would seem to mandate the complete and full utilization of all of those persons reasonably equipped by training and experience. The purpose behind KRS Ch. 333 is to protect the health and welfare of the people in Kentucky by requiring medical laboratories to provide reliable and competent information to health professionals. KRS 333.010. The interests of the public health and safety of the citizens of this Commonwealth require that chiropractors be given the right to use those diagnostic tools which they are reasonably equipped to perform through training and experience.

In my view, to deny chiropractors the use of clinical laboratories for the analysis of the blood or urine of their patients would be a disservice to the patients by not assuring them of the best professional diagnosis available to the chiropractor, and would contradict the obvious legislative intent of the General Assembly.

The majority opinion seems to relegate the profession of chiropractic to the mere manipulation of the spine. Such a position is archaic, intellectually naive, and without scientific merit.

For the foregoing reasons, I dissent.

I am authorized to say that LUKOW-SKY, J., joins in this dissent.

      . Which in Kentucky clearly does not include practitioners of chiropractic, KRS 312.015(4); Neagle v. State Highway Department, Ky., 371 S.W.2d 630 (1963).


author: JONES, Justice.

text:
    KENTUCKY BOARD FOR LICENSING HEARING AID DEALERS et al., Appellants, v. Louis RALLO et al., Appellees.
    Supreme Court of Kentucky.
    April 22, 1977.
    Ed W. Hancock, Atty. Gen., Mary Ann Delaney, Asst. Atty. Gen., Frankfort, for appellants.
    Winfrey P. Blackburn, Jr., Ralston W. Steenrod, Carl K. Helman, Louisville, for appellees.
   JONES, Justice.

This litigation involves an interpretation of KRS 334.190, the “grandfather clause” contained in KRS Ch. 334, which regulates hearing aid dealers and fitters. The Kentucky Board for Licensing Hearing Aid Dealers and its individual members prosecute this appeal from a final order granting summary judgment to Rallo and seven other hearing aid dealers. The trial court held that the legislative intent of KRS 334.190 was to exempt from the requirement of examination those persons who were dealers for a period of two out of three continuous years prior to June 16, 1972. He held that Rallo and seven other hearing aid dealers were within the exception of the “grandfather clause.” KRS 334.190.

The sole issue presented in this appeal is whether Rallo and the seven other hearing aid dealers are entitled to licenses without examination under the “grandfather clause.” KRS 334.190.

Louis Rallo and seven other hearing aid dealers applied for hearing aid licenses as required by KRS Ch. 334. They invoked KRS 334.190 to avoid the required licensing examination.

KRS 334.190 provides:

“For a period of six months following June 16, 1972, an applicant for a license shall be issued a license without examination provided applicant:
(1) has been principally engaged as a hearing aid dealer or fitter for a total of at least two (2) continuous years within a period of three (3) years immediately prior to June 16, 1972; (emphasis added)
(2) is a person of>good moral character;
(3) is eighteen (18) years of age or older; and
(4) is free of contagious or infectious disease.”

Rallo and the seven others were formerly active in the sale and fitting of hearing aids. However, during the time prescribed by statute Rallo and the others had occupied executive and managerial positions.

The Board for Licensing Hearing Aid Dealers requested that Rallo and the seven other hearing aid dealers submit a list of the names and addresses of ten individuals each had personally tested and fitted with a hearing aid during the time preceding June 16, 1972. Rallo and the other dealers refused to supply such information.

Thereafter the Board for Licensing Hearing Aid Dealers notified Rallo and the others that if they continued to withhold the requested information each would be required to take the licensing examination or cease and desist from selling hearing aids. Subsequently the hearing aid licensing board notified Rallo and the others they were not eligible for licensing under the “grandfather clause.”

Rallo and the other dealers filed an appeal in the circuit court. The trial court granted summary judgment to Rallo and the others. He held that the word “dealer” was to be construed as to its common ordinary meaning; that is, one who buys to sell. He also held that Rallo and the other hearing aid dealers were exempt from the licensing requirements of KRS Ch. 334.

A dealer is ordinarily defined as one who buys to sell. Webster’s Third New International Dictionary (1966); Black’s Law Dictionary (4th Edition 1957). Although admitting that the ordinary meaning of “dealer” would entitle Rallo and the seven other hearing aid executives to licensing without the necessity of examination, the licensing board contends that within the hearing aid industry “dealer” has assumed a technical or trade usage. The licensing board contends that a “dealer” within that industry is “one who sells, in addition to fitting, hearing aids.” The board’s interpretation would require Rallo and the seven other hearing aid executives to demonstrate that each had personally fitted hearing aids during the statutorily prescribed period in order to be exempted from the required licensing examination.

Rallo and the other hearing aid executives contend that the use of the words “dealer” and “fitter” throughout the chapter constitutes a legislative recognition of two separate and distinct activities within the industry. They argue that such usage militates against the board’s interpretation of the word “dealer” as one who sells in addition to fitting hearing aids. As dealers of hearing aids during the statutorily prescribed period, Rallo and the seven other executives assert that the clear wording of the “grandfather clause” entitled them to licenses without any demonstration that they had fitted hearing aids.

The interpretation of statutes in this Commonwealth is governed by the provisions of KRS 446.080, which require that all statutes be liberally construed to promote their objectives and that all words be construed according to their common and approved usage, unless they have acquired a peculiar meaning.

The purpose of KRS Ch. 334 is to protect the public from abuses within the hearing aid industry. To accomplish this purpose, the legislation established a board for the examination and licensing of hearing aid dealers and fitters and the general policing of the industry. Under this chapter no person may engage in the “sale of or practice of fitting hearing aids” unless he holds a valid license from the board. KRS 334.-020. Except for certain limited exceptions, such a license will only be issued to persons who have, by examination, demonstrated a knowledge of and proficiency in techniques pertaining to the fitting of hearing aids. KRS 334.070. The objective of these provisions is to insure that all future licensees, whether dealers or fitters, will have a basic competency in the fitting of hearing aids. That objective, the board argues, will be thwarted by allowing Rallo and the other hearing aid executives to become licensed without an examination or demonstration of their competency to fit hearing aids. Such an argument ignores the specific legislative intent of the provisions of KRS 334.-190.

It is not the general intent of the legislature in enacting KRS Ch. 334 that is relevant, but the specific legislative purpose in enacting the “grandfather clause” of that chapter. This court has held that the purpose of a “grandfather clause” in initial regulatory legislation is to satisfy the dictates of fairness by affording relief to previously established enterprises. Commonwealth Air Transport v. Stuart, 303 Ky. 69, 196 S.W.2d 866, 869 (1946). In varying degrees, such clauses exempt from regulation those individuals and enterprises operating in an area prior to its regulation and who have acquired rights which would be adversely effected by the legislation. “Grandfather clauses” are purposeful legislative concessions to those pioneers or established entities in an area which have actively sought the regulatory legislation. If the words “dealer or fitter” may be taken at their common meaning, Rallo and the other hearing aid executives are clearly entitled to the relief afforded by KRS 334.190.

A determination of whether the legislature intended the trade or common meaning for the word “dealer” requires an examination of the use of the words “dealer” and “fitter” within KRS Ch. 334. Although nowhere are the words “dealer” and “fitter” individually defined, KRS 334.010 defines the “practice of fitting and dealing” in hearing aids as “the measurement of human hearing by means of an audiometer or by other means devised for the purpose of making selections, adaptions and sales of hearing aids to compensate for hearing loss.” The most logical interpretation of that definition is that “fitting” subsumes the measurement of hearing and the selection of the most appropriate device to compensate for hearing loss, while “dealing” is the sale of the hearing aid so fitted. This interpretation is supported by a number of instances within the chapter in which the word “fitter” appears without the word “dealer.” In those instances the words “sale of hearing aids” are used to segregate that activity from “fitting.” For example, in KRS 334.040(2) certain persons, authorized to fit hearing aids, are exempt from licensing “so long as they do not engage in the sale of hearing aids.” See also KRS 334.030(1); 334.110. These instances compel the conclusion that the legislature contemplated two separate activities within the hearing aid industry, “fitting” and “dealing.” The legislature’s use of the phrase “engaged in the sale of” interchangeably with the word “dealer” sufficiently demonstrates a legislative adoption of the common meaning of the word “dealer.” The use of that common definition gives the provisions of KRS Ch. 334 an internal consistency and clearly defines their scope and degree of regulation. The suggested trade usage, if applied, would render many of the passages redundant.

The board concedes that most states have adopted statutes which provide no individual definition of the words “fitter” or “dealer,” but define the practice of fitting and dealing in hearing aids much as it is defined in KRS 334.010(5). The definitional statutes of the three states cited to this court as evidencing a trade usage of “dealing” are not persuasive, nor do they necessarily support the board’s position. Further, the board offered no expert testimony or other evidence at trial in support of their theory of trade usage.

It is the purpose of “grandfather clauses” generally to relieve the established individuals from the adverse effects of initial regulatory legislation. The clear wording of KRS 334.190 would be to exempt certain qualifying “dealers” or “fitters” from the examination prerequisites to licensing. The words “dealer” or “fitter” in their common usage, both satisfy the general purpose of “grandfather clauses” and are consistent with the use of those words throughout the chapter. The use of the suggested trade meaning would not only be contrary to the principle of liberal construction of “grandfather clauses,” but would also inject redundancy and confusion into otherwise clear wording. Rallo and the other executives, having sold hearing aids during the statutorily prescribed period therefore qualify for the relief provided by the “grandfather clause.” KRS Ch. 334.190.

This court is of the opinion that the judgment should be and is affirmed.

All concur.


author: GANT, Judge.

text:
    BOARD OF TRUSTEES OF the HENDERSON-HENDERSON COUNTY PUBLIC LIBRARY, Henderson, Kentucky, et al., Appellants, v. HENDERSON COUNTY FISCAL COURT, Henderson, Kentucky, et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 22, 1976.
    Discretionary Review Granted Jan. 13, 1977.

      E. Lambert Farmer, Jr., King, Deep & Branaman, Henderson, for appellants.
    David H. Thomason, Trimble, Cubbage, Lindsay & Thomason, Henderson, Charles B. West, West & Ternes, Henderson, for appellees.
   GANT, Judge.

This action is concerned with Chapter 173 of the Kentucky Revised Statutes and particularly with those sections providing for the creation of a public library district. Two methods of creation are provided by the statutes, one of which is set out in KRS 173.470 and which method provides that upon the filing of a duly certified petition of 100 or more qualified voters in each county to be included within the district, the Fiscal Court of that county shall adopt a resolution submitting this question on the ballot at the next general election for the purpose of creating the district and imposing a special ad valorem tax for the purpose of maintaining and operating the district. Hereafter, this will be referred to as the “ballot method.”

In addition to the “ballot method”, KRS 173.720 provides an alternative method for the organization of the district. This section states that upon the filing of a duly certified petition of fifty-one percent (51%) or more of the number of duly qualified voters who voted in the last general election in the county to be included within the district, the Fiscal Court of that county shall adopt a resolution ordering the levy of the tax and creating the district. We shall hereafter refer to this as the “petition method”.

In this action, the voters of Henderson County, Kentucky, satisfied the requirements of both sections and the Fiscal Court of that county adopted resolutions under both KRS 173.470 and KRS 173.720. This court is required to resolve the dispute as to which of these methods shall be followed.

Virtually all of the facts in this action are submitted to this court by stipulation. In the late fall of 1975, the Appellants and their supporters began to circulate petitions in Henderson County in order to obtain the signatures of the 51% required under the “petition method”, canvassing door to door in the desired public library district. Subsequent to the initiation of these petitions, the Intervenors or persons in their behalf, began to circulate petitions to obtain the signatures of the 100 or more voters required under the “ballot method”. It is stipulated between the parties to this action that the signatures of the persons on the petition required by the “ballot method” were obtained and that these signatures and petitions comply with the provisions of the statute as to form, required number of signatures, authenticity of signatures and registered voter status of the signers in sufficient number to satisfy the statute.

The Appellants continued to seek the signatures of sufficient voters to fulfill the requirements of KRS 173.720, or the “petition method”, and did, in fact, obtain signatures in a number greater than 51% of the duly qualified voters who voted in the last general election on November 5, 1975. These petitions, according to the stipulation of all parties, complied with the provisions of the applicable statutes as to form, required number of signatures, authenticity of signatures and registered voter status of the signers.

This court is informed that there were between 120 and 130 signatures on those petitions which constituted the “ballot method” and between 3,600 and 3,700 signatures on those petitions filed under the “petition method”. The petition under the “ballot method” was filed on January 19, 1976. The Henderson County Fiscal Court, at a regular meeting on January 26, 1976, adopted a resolution providing that the “ballot method” should be followed and immediately thereafter adopted a resolution that the “petition method” should be followed. It is further stipulated that this court was properly convened, a quorum present and voting, and that both resolutions were adopted unanimously in proper and correct form and that these resolutions have both been entered in the Order Books of the Henderson Fiscal Court.

Thereafter, the Appellants appealed to the Henderson Circuit Court from the resolution directing the Henderson County Court Clerk to place the public library district and tax question on the ballot. A companion action was filed asking that the Henderson Circuit Court declare void the resolution adopted pursuant to the “petition method” and that an injunction be issued to prevent the Henderson County Court Clerk from collecting the tax. Thereafter, and on June 29, 1976, the Honorable Carl D. Melton, Judge of the Henderson Circuit Court, entered his order declaring that the “ballot method” should prevail and declaring the “petition method” a nullity and directing that the Henderson County Fiscal Court had not legally created a public library district.

This action is composed of a succession of unexpressed intent. In the first instance, the Legislature of Kentucky did not express its intent in passing the “petition method” some four years after it passed the “ballot method”. Also, we have no expressed intent by the Henderson County Fiscal Court in passing the two resolutions other than the fact that the County Attorney, appearing on behalf of that court, stated that the court had no preference but felt that both methods were made mandatory by Chapter 173 of the Kentucky Revised Statutes. Finally, we have no expressed intent by the signers of the petition pursuant to the “ballot method”, so that we cannot determine whether by their method they intended to organize a district or whether by utilization of the “ballot method” they intended to block or negate the “petition method” sought by the Appellants.

In examining the question of intent of the Legislature in passing these two statutes, we have several guideposts which we can follow. The courts have long held that where two statutes seemingly conflict, courts must harmonize them and give them such construction as will give effect to each if possible. General Motors Acceptance Corporation v. Shuey, 243 Ky. 74, 47 S.W.2d 968 (1932); Tubbs v. Commonwealth, 248 Ky. 24, 58 S.W.2d 236 (1933); Lewis v. Mosely, 215 Ky. 573, 286 S.W. 793 (1926).

In Louisville Railway Company v. Dugan, 179 Ky. 825, 201 S.W. 324, 325 (1918) it was said: “An often invoked rule of construction, where two acts or sections of the statutes appear to conflict, requires that each section or act shall be given that meaning which will most completely effectuate the legislative intention without running counter to the other, thus harmonizing and bringing the two into a consistent whole.”

Although Appellants argue that the passage of KRS 173.710 some four years after KRS 173.450 constituted a repeal of the earlier method, it is the opinion of this court that both of those methods have a useful function. In highly populous districts, it would be virtually impossible to utilize any method other than the “ballot method” provided in KRS 173.450, et seq., while in smaller districts with a more modest population, it is obvious that the “petition method” provided for in KRS 173.710, et seq., would be practical, inexpensive and efficient in accomplishing their goal. Again, it is obvious to this court that two separate methods were intended and provided for by the Legislature and that these methods are not without reason and are reconcilable in accordance with the cases herein above cited. As set out in the case of Commonwealth ex rel. Martin v. Tom Moore Distillery Co., 287 Ky. 125, 152 S.W.2d 962, 967 (1939) “All statutes are presumed to be enacted for furtherance of a purpose on the part of the Legislature and should be construed so as to accomplish that end rather than to render them nugatory.”

In considering the action of the Henderson County Fiscal Court in passing both resolutions, we find no significance in the fact that the resolution approving the “ballot method” was passed prior to the resolution approving the “petition method”. These two resolutions were approved at the same session of the Henderson County Fiscal Court within a few minutes of each other and this court considers them to have been passed simultaneously. It seems to this court that the “ballot method” providing for a form of referendum was satisfied by the presentation of petitions containing the signatures of over 3,600 voters who had already cast their vote for the library district. Counsel for Appellees urges that KRS 173.470 provides for a “secret ballot” method in preference to a petition signed by various qualified voters. We are not persuaded that the secret ballot is so sacred as to nullify the petitions filed pursuant to the “petition method” when the statutes provide for the “petition method”.

In looking for the intent of the signers of the petition of the “ballot method”, we have previously stated that we are unable to ascertain their intent from anything in the record and thus must take into consideration the consequences of their action. It has been long established that “in construing statutes and reconciling conflicts, the courts must ascertain intention from subject matter and may take into consideration the consequences of their enactment in case of conflict.” Comity Board of Education of Daviess County v. Fiscal Court of Daviess County, 221 Ky. 106, 298 S.W. 185 (1927). We find in this action that to uphold the “ballot method” would be to set aside and void the “petition method”. Fortunately, we have a guideline to ascertain the reason for the enactment of both of these methods as set out in Chapter 173 of the Kentucky Revised Statutes. In relating to the “ballot method” KRS 173.-460 provides as follows: “All of the territory in a county, or in two (2) or more counties contiguous to each other, may be organized into a public library district for the purpose of levying a tax for establishing, equipping, maintaining and administering libraries, or for contracting for library service from any existing library.”

KRS 173.715 contains exactly the same language. Each of these sections is followed by the two above-described methods of creating a library district, KRS 173.470 and KRS 173.720, which encompass the “ballot method” and the “petition method”, respectively.

Each of these sections above quoted provides for a method by which all of the territory in a county “may be organized into a public library district” and was not intended to encompass a method by which the territory in any county may be prevented from being organized into a public library district. These were enabling statutes and, as hereinabove stated, were enacted as separate methods to attain the same goal. In our opinion, one method should not be utilized to block another. This court is not saying that it was the intent of those signers of the petition pursuant to the “ballot method” to thwart the efforts of some 3,600 plus citizens, but the effect of that petition under the “ballot method”, if we were to accept it, would be to nullify and make void their action. If, in fact, it was the intent of the persons signing the petition pursuant to the “ballot method” to assist in the organizing of a library district and the imposition of a supporting tax, then the decision of this court should certainly meet with their approval because it is our position that this district is now organized by the use of the “petition method”.

Because the time for filing a petition for rehearing or a petition for discretionary review in the Supreme Court will not lapse before election day, it is the opinion of this court that the issue in question should, nevertheless, remain on the ballot on November 2, 1976. If the issue is defeated at the polls, it is the opinion of this court that such referendum is null and void, and that the public library district shall be deemed created pursuant to KRS 173.720. If the issue is passed at the polls, the question will then, of course, be moot.

For the reasons above stated, the judgment of the lower court is reversed.


author: WINTERSHEIMER, Judge.

text:
    Vanzel STEWART, Jr., et al., Appellants, v. Gerry Fannin COMPTON et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 4, 1977.
    Kelley Asbury, Catlettsburg, for appellants.
    Todd M. Ward, Louisa, for appellees.
   AFFIRMING IN PART — REVERSING IN PART

Before WINTERSHEIMER, WHITE and WILHOIT, JJ.

WINTERSHEIMER, Judge.

This action was instituted on May 23, 1975, by Gerry Fannin Compton and other heirs of C. H. Fannin, against Curtis R. Robinette and others, who are the owners of a certain tract of land in Lawrence County, Kentucky. The Plaintiffs below sought an injunction requiring the Defendants to remove or open a locked gate across the roadway to a private cemetery. The action was heard by the trial court on agreed Statements of Facts and Memorandum Briefs submitted by counsel. On August 16,1976, the trial court issued Findings of Facts, Conclusions of Law and a Judgment which permanently enjoined the Defendants below and prohibited them from placing any kind of lock or locking device upon or attached to, or from locking in any way, the gate across the pass way leading to the C. H. Fannin Cemetery. The court further ordered the Defendants to restore the previously existing roadway, ten feet in width, to as near its condition prior to the bulldozing by the Defendants as possible, and ordered the Plaintiffs free and unhindered use thereof. The court further ordered that the Plaintiffs be entitled to use the said roadway leading to the cemetery and be entitled to a reasonable amount of space around the cemetery for turning their vehicles. The Defendants appealed from this Decision. This Court affirms in part and reverses in part.

There are three issues presented:

1. May the owner of a servient estate, who purchased such estate with knowledge of an open pass way to a cemetery thereon, place a lock on the pass way gate without the consent of the owners of the pass way right?
2. Do the owners of the servient estate have a right to change the location of a free pass way so long as it does not change the beginning or ending of the pass way and no material inconvenience results?
3. Where there is a reservation of a free pass way to a cemetery, may the trial court order a turn around without specifically defining it?

The major issue in contention in this appeal is the right of the Appellants to place a locked gate across a free pass way. The issue here is that the easement is an express reservation and is to be a free pass way which means it shall be open and available for use without any hindrance or other burden. The persons visiting the cemetery were to be able to do so at their convenience. To require such persons to resort to keys would be an unreasonable interference with their right as owners of the dominant estate. There is no contest as to the right to maintain a gate. The sole issue is the right to keep the gate locked.

The Appellants rely on the case of Blair v. City of Pikeville, Ky., 384 S.W.2d 65 (1964). That case concerns a situation where the pass way was not in existence at the time of the grant. In the instant case we have a free pass way not only in existence at the time of the reservation, but which was also in existence for many years prior to the reservation.

The Appellants further cite the case of Wharton v. Cole, Ky., 453 S.W.2d 741 (1970). The Wharton case refers to locked floodwall gates. In that case the number of persons requiring keys could be readily ascertained and the gate access could be quickly established. Moreover, in the Wharton case, a readily discernible reason for the locking of the gates was available. In the instant case it is difficult to imagine that even a locked gate would deter a thief or a vandal. Further, there is no evidence in the record of vandalism or theft as a result of an unlocked gate.

The second issue relates to the change of location of the free pass way by the owners of the servient estate without the consent of the owners of the dominant estate or pass way. In Terry v. Boston, 246 Ky. 222, 54 S.W.2d 909 (1932), the Court of Appeals of Kentucky established that the owner of a servient estate may change the location of a free pass way easement so long as the owner of the servient estate does not change the beginning and ending thereof, and it does not result in a material inconvenience to the rights of those entitled to use the free pass way. There is no evidence in this case that there is any present material inconvenience or injury caused by changing the location.

The case of Newberry v. Hardin, 290 Ky. 394, 161 S.W.2d 369 (1942), is not applicable to the present situation and does not change the rule enunciated in the Terry v. Boston case.

The final issue to be considered by the Court is the question of whether the trial court erred in failing to define the turn around provision related to the use of the cemetery pass way. The trial court ordered that the Plaintiffs were entitled to use the roadway leading to the cemetery and a reasonable amount of space around the cemetery for turning their vehicles. Since it is the right of the Plaintiffs/Appel-lees to have ingress and egress to the cemetery, it is necessary under modern conditions to permit a reasonable space to turn their vehicles around. There is no evidence in the record of any abuse of the right of ingress and egress and it is the opinion of this Court that the award of a reasonable amount of space around the cemetery for turning vehicles, without specifically defining the space, is not an abuse of discretion or error by the trial court. Without such a right, the right of ingress and egress would be meaningless.

The Judgment below is affirmed in respect to the right of the Plaintiffs/Appel-lees to a permanent injunction prohibiting the placing of any kind of lock or locking device on the gate across the pass way leading to the C. H. Fannin Cemetery.

The Judgment of the trial court is reversed in respect to the requirement that the Defendants/Appellants shall restore the previously existing roadway prior to its bulldozing.

The Judgment of the court is affirmed in respect to the awarding of a reasonable amount of space around the cemetery for the turning of visiting vehicles.

ALL CONCUR.