text:
    Commonwealth of Kentucky, CITY OF DANVILLE, Appellant, v. Minnie Graham DAWSON, Appellee.
    Court of Appeals of Kentucky.
    May 9, 1975.

      Ed W. Hancock, Atty. Gen., Kenneth A. Howe, Jr., Asst. Deputy Atty. Gen., Frankfort, J. Thomas Hensley, Hensley & Smith, Danville, William W. Pollard, Asst. Atty. Gen., for appellant.
    James F. Clay, Jr., Clay & Clay, Dan-ville, for appellee.
    J. Vincent Aprile, II, Asst. Public Defender, Frankfort, for amicus curiae.
   PALMORE, Justice.

Shortly after 1:00 A. M. on February 6, 1974, police officers of the City of Dan-ville observed an automobile being operated in an erratic manner and arrested its driver, Minnie Dawson, for the offense of driving while under the influence of intoxicating beverages, committed in their presence. KRS 189.520. While she was sitting in the police cruiser under arrest the officers called for a wrecker to remove her automobile to a place of storage and, in accordance with a standard policy of the Danville Police Department, proceeded to inventory its contents. In the process they opened the trunk of Mrs. Dawson’s car and discovered two cases of beer and a large quantity of whiskey in half-pint bottles. This led to an additional charge against her for illegally transporting alcoholic beverages for purpose of sale in a dry territory. KRS 242.230. Eventually she was convicted on the drunk-driving charge, but the trial court directed a verdict of acquittal on the transporting charge after excluding evidence of the liquor and beer upon the ground that it had been obtained by an illegal search in violation of the Fourth Amendment. The Commonwealth appeals, seeking a certification of the law..

The Commonwealth’s contention is that the evidence was admissible under “the rule that evidence of crime found in plain view by law enforcement officers who enter an impounded vehicle without a search warrant for the purpose of inventory and storage of effects is admissible over Fourth Amendment objections,” citing Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968), and Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973).

In Harris, the automobile in which the incriminating evidence was found had been lawfully impounded as evidence following the arrest of its owner on a robbery charge. A regulation of the police department required officers to search an impounded vehicle, remove all valuables from it, and leave a property tag listing appropriate information. In the course of executing this procedure at a storage lot to which the automobile had been towed, the arresting officer rolled up the car windows and locked the doors. When he opened the door on the passenger side he discovered an automobile registration card, issued to the victim of the robbery, lying face up on the metal stripping over which the door opened and closed. The decision of the Supreme Court with respect to the admissibility of this evidence was as follows (emphasis added):

“The sole question for our consideration is whether the officer discovered the registration card by means of an illegal search. We hold that he did not. The admissibility of evidence found as a result of a search under the police regulation is not presented by this case. The precise and detailed findings of the District Court, accepted by the Court of Appeals, were to the effect that the discovery of the card was not the result of a search of the car, but of a measure taken to protect the car while it was in police custody. Nothing in the Fourth Amendment requires the police to obtain a warrant in these narrow circumstances.

“Once the door had lawfully been opened, the registration card, with the name of the robbery victim on it, was plainly visible. It has long been settled that objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence.”

In Dombrowski, the automobile in question had been wrecked on the highway and had to be removed at the instance of police officers investigating the accident. The driver was taken to a hospital in a drunken condition. He was an off-duty Chicago policeman, and the local officers believed that he was required to carry his service revolver at all times. In an effort to find such a weapon, in order that it might not fall into unauthorized hands, they searched the automobile at the storage lot to which it had been removed. During the course of the search they discovered incriminating evidence of a homicide committed by the driver. The Supreme Court held this evidence admissible upon the ground that under the circumstances of the particular case the search was not unreasonable:

“Where, as here, the trunk of an automobile, which the officer reasonably believed to contain a gun, was vulnerable to intrusion by vandals, we hold that the search was not ‘unreasonable’ within the meaning of the Fourth and Fourteenth Amendments.” 413 U.S. at p. 448, 93 S.Ct. at p. 2531.

Thus far the Supreme Court has not decided whether or under exactly what circumstances an inventory procedure, either ad hoc or conducted pursuant to regulation or custom, is a search. Other courts have deployed to all points of the compass. See annotation at 10 A.L.R.3d (1974 Supp.), p. 8. An objective and well-reasoned analysis is presented in United States v. Lawson, 487 F.2d 468 (8th Cir., 1973), in which, as in this case, there was “no assertion that the search . . . [could] ... be justified upon any ground other than as an inventory search.” 487 F.2d at p. 469.

Lawson and a companion, Fawcett, were arrested on separate charges of passing cold checks. Fawcett’s car, which was parked in a motel parking lot with its doors and trunk locked, was impounded and taken to the police station. In accordance with regulations applicable to impounded vehicles it was completely searched for the purpose of preparing an inventory of its contents and placing the valuables in storage. Discovery of a pistol in the trunk led to federal firearms charges, during the trial of which this evidence was excluded. In affirming the judgment the Circuit Court of Appeals observed that “the standard of reasonableness must be evolved in light of the Fourth Amendment, not in light of what our view of reasonable police procedures might be,” (487 F.2d at p. 475) and concluded as follows :

“We agree with the District Court that the search of the automobile and seizure of the revolver was unreasonable. It was not justified by a warrant or any exception to the warrant requirement, nor do we wish to create an exception for what might be called ‘searches incident to police custody and control.’ If such an exception is to be created, we feel that it should be done by the Supreme Court. In so holding, we do not formulate a rule that every inventory search is per se unreasonable. However, we do think that the fact such a search is made pursuant to a police regulation should have no bearing in determining whether the search is reasonable under all circumstances.”

******

“We think the proper approach in this area is to assess the reasonableness of the police conduct in light of all the circumstances of the case, without giving effect to the presence or absence of a police regulation. This approach does not have the surety of a rule declaring all inventory searches to be reasonable or unreasonable, and must to some extent leave law enforcement officials with some uncertainty as to what will be considered reasonable or unreasonable. This, however, appears to be a fact of life when dealing with Fourth Amendment problems in a variety of contexts. When unsure as to the legality of their contemplated conduct, it is always open to the police to attempt to secure a warrant in order to have a prior judicial determination of the reasonableness of their proposed conduct, though in many instances the exigencies of the situation may preclude such a course. We do not believe it possible for this court to settle this area of the law. We do think, however, that it should only be in the atypical case that police officers would find it necessary to conduct a general inventory search of an impounded vehicle. The owner or operator of a vehicle may be able to take reasonable steps to safeguard his property at the time of arrest, thus obviating the necessity of impoundment in that instance, unless, of course, the automobile has been impounded as evidence, or pursuant to a forfeiture statute. If the impounding is done for the stated reason, the protection of the owner’s property, it is only reasonable that the owner be allowed to choose whether or not he wishes his car impounded. In cases where the owner or operator cannot make his wishes known, whether because of incapacity, or absence (i. e., a parking violation), in most instances the property would be adequately safeguarded by rolling up the windows and locking the doors, subject, of course, to reasonable steps to safeguard property in plain view within the automobile. We think such a standard procedure would insure as well as an inventory protection against groundless claims for lost property. In the instant case, it is hard to see, when the car was locked and the windows rolled up at the time it was impounded, how the property is better safeguarded by a breaking into the car and locked trunk to inventory. In many cases, the value of the property ‘safeguarded’ by these actions would be less than the damage caused to the automobile by these ‘protective’ measures.

“The case before us is not the atypical case that would support an inventory search. No justification, except police custody of the vehicle, has been advanced or is supportable on the record to validate the warrantless search of the locked trunk of the vehicle. The search was therefore unreasonable.”

In the case before us here the arresting officer had more reason to impound the automobile than did the police in Lawson, because the driver was not capable of operating it herself. Nevertheless, the ticket and complaint completed pursuant to the arrest shows that she lived in Danville, which is not a large metropolis, but a city of the third class. KRS 81.-010(3). Though we need not pass on the "right of the police, vel non, to impound the car, whether it was necessary for them to do so is an element to be considered in determining whether it was reasonable for them to search it. We do not say that police officers must find a custodian for an automobile on a public street after arresting its driver, but ordinarily it should be just as easy to reach some person at his home as it is to call for a wrecker. Moreover, unless it is necessary for the police to impound a vehicle they are no more responsible for its security than they are for the security of the home from which the owner’s arrest causes him to remain absent. If it is locked and the keys are given back to him, and if the arrest is valid, it is no fault of the police that the car must remain unguarded until he is able to make arrangements for its removal. Although in this particular instance the driver was not capable of operating her vehicle while under custody, the practice of impounding vehicles following arrests for mere traffic violations is utterly unnecessary and, indeed, is of questionable legality.

The facts of this case do not bring it within the “plain view” principle of Harris or the “reasonableness” test of Dombrowski. Our view is that if it is reasonably necessary either to impound and store a vehicle or to leave it unattended, police officers may close and lock it, and that whatever they observe in plain view during that process may be used as evidence in support of any charge to which it may be relevant, but that the opening of or prying into compartments or containers within the vehicle constitutes a search, which in the absence of a warrant or of special circumstances as exemplified by Dombrowski is in violation of the Fourth Amendment.

The law is so certified.

All concur.


source: Caselaw Access Project

author: JONES, Justice.

license: Public Domain

text:
    Cecil FUGATE, Appellant, v. UNITED STATES STEEL CORPORATION et al., Appellees.
    Court of Appeals of Kentucky.
    May 9, 1975.
    Rehearing Denied Oct. 17, 1975.
    Eugene Goss, Harlan, for appellant.
    William A. Rice, Harlan, Cyril E. Sha-dowen, Louisville, for appellees.
   JONES, Justice.

On January 21, 1974, Cecil Fugate filed an application for adjustment of claim with the Workmen’s Compensation Board. The claim alleged that Fugate became affected with the occupational disease of pneumoconiosis on January 11, 1974, when he was last exposed to the hazards of the occupational disease of pneumoconiosis. Fugate, at the time of the filing of the claim for benefits, was 61 years of age. It is undisputed that he had worked as an underground coal miner for approximately 37 years. In his claim Fugate contended that he was entitled to $81.00 per week for life. Based upon medical reports, United States Steel and the Special Fund withdrew their notices of resistance. Subsequently, United States Steel and the Special Fund filed a motion to amend their withdrawals of resistance. It was their contention that the maximum compensation rate applicable to this claim was less than $81.00 per week and that the maximum duration of compensation was 425 weeks. They further contended that Fugate was not entitled to benefits for life under the state Workmen’s Compensation Law. They insisted that Fugate was entitled to claim additional benefits under federal law.

The Workmen’s Compensation Board awarded Fugate benefits under former KRS 342.095 at the rate of $65.00 per week for 425 weeks as required by the latest average prevailing wage. The board apportioned the award against the Special Fund at $48.75 per week and directed that United States Steel Company pay the additional amount of $16.25 per week.

Fugate filed a petition for review of the award in the Harlan Circuit Court. He alleged that the Workmen’s Compensation Board erred in not awarding him benefits at the rate of $81.00 per week for life. On October 10, 1974, the circuit court affirmed the opinion and award of the board.

The precise issue presented in this appeal is whether Fugate is limited to an award of $65.00 per week for a period of 425 weeks, or is entitled to the increased benefits provided by Chapter 78, Acts of 1972, as construed in Maggard v. International Harvester Company, Ky., 508 S.W.2d 777 (1974).

Section 37 of the 1972 Act provided as follows:

“NOTE: Effective date. This act shall be effective on January 1, 1973; and effective for all claims filed on and after January 1, 1973; provided, however, that in the event federal law specifies that claims covered by provisions of this Act shall be filed with a federal agency such claims shall continue to be filed as required by the federal law until repeal or expiration of the federal law requiring same; then, in that event, the increase in benefits provided herein shall not apply to those claims where benefits are awarded under the federal law. The benefits under the present law KRS Chapter 342 shall apply to those claims.”

In Chapman v. Eastern Coal Corporation, Ky., 519 S.W.2d 390 (1975), it was decided that by virtue of the foregoing provision black lung claims for disability occurring before January 1, 1974, were excluded from the increase in amount of monetary benefits applicable to other disability claims under the 1972 Act. We observed in that opinion that an obvious effect of this legislative exclusion was to leave any additional burden with respect to black lung claims on the taxpayers of the United States so long as Congress saw fit to make the public money available, but that beginning in 1974 black lung was “unequivocally placed on an equal plane with other work-connected disabilities.” 519 S.W.2d at pp. 392, 394. Our statement to the latter effect was based, however, upon the assumption that as of January 1, 1974, our compensation law as amended by the 1972 Act provided “adequate coverage for pneumo-coniosis” within the meaning of the federal law, 30 U.S.C.A. § 931, and indeed it does so appear when the provisions of our law are compared with those of the federal law according to the substantive criteria set forth in 30 U.S.C.A. § 931(b)(2). Nevertheless, as of this writing the Secretary of Labor has not yet listed any state as providing “adequate coverage for pneumo-coniosis.” See 20 CFR 722.152.

The result is that by virtue of 30 U.S.C. § 931 et seq. black lung claims may be filed with and allowed by the United States Department of Labor under the Longshoremen’s and Harbor Workers’ Compensation Act, (hereafter called the Longshoremen’s Act), 33 U.S.C. § 901 et seq., and are payable by the employers or their insurers rather than the public treasury.

It is the contention of the Special Fund that the federal law still provides a remedy for black lung claimants and that the federal law has not been repealed nor has it expired.

The court is of the opinion that the position of the Special Fund is well taken.

Under the provisions of federal law all black lung claimants have a remedy for obtaining benefits. Kentucky has not been certified by the Secretary of Labor as being in compliance with federal requirements in providing benefits for black lung claimants. Under 30 U.S.C.A, Sec. 932(e), payment of benefits is to be continued through the United States Department of Labor for a period of twelve years after December 30, 1969.

The Legislature, by Section 37 of Senate Bill 184, has deferred benefit increases to black lung claimants as long as there is a federal black lung program applicable to Kentucky miners. Such a federal program is now in existence.

Fugate insists that the purpose of Section 37 of Senate Bill 184 was to defer the increase of benefits until January 1, 1974. The language of Section 37 is clear and concise. If that had been the intent of the Legislature, it should have expressed that intent.

The enactment of Section 37 of Senate Bill 184 in 1972, and other amendments to KRS 342, like the opening of Pandora’s box, released a multiplicity of ills relating to “black lung” benefits to coal miners affected with pneumoconiosis. Now, the only thing that remains is hope. If any changes are to be made in Kentucky workmen’s compensation law to increase benefits or to shift the burden of payments that is the province and prerogative of the General Assembly./

The Kentucky Legislature has deferred black lung benefit increases to claimants as long as there is a federal black lung program applicable to Kentucky miners. A federal program does exist and is not slated to expire until 1981 or until this state is listed by the Secretary of Labor as providing adequate coverage for pneumoconiosis, whichever is the earlier.

The judgment is affirmed.

All concur.

      . According to the brief for the Special Fund, the correct amount should be $84 (60% of the average weekly wage of $130.49, per KRS 342.740) rather than $81 per week for a 1974 claim if it is not within the exception of Sec. 37, Ch. 78, Acts of 1972.

      . Under the federal law this particular claimant's benefits would amount to $43.25 per week, subject to adjustment according to current salary schedules for federal employees, whereas the maximum compensation under the 1972 Kentucky law for permanent total disability occurring in January of 1974 is $84 per week for life. On the other hand, though $84 per week is the maximum allowance under Kentucky law regardless of the number of dependents, federal benefits are augmented, during such time as the claimant has dependents, to the extent of 50% for one, 75% for two, and 100% for three dependents. 20 CFR § 725.510(a). Another point of disparity between the federal and state laws is the liberal allowance of attorney fees by KRS 342.320. However, as of the present time the amount of benefits payable under our law ordinarily (that is, in cases involving less than three dependents) would so far exceed those payable under the federal law that the maximum attorney fee of $6500 could hardly spell the difference between adequate and inadequate coverage.

      . The action of the Secretary of Labor in listing or failing to list a state can be subjected to review by a United States Circuit Court of Appeals. 30 U.SC.A. § 931(b)(2). Whether that avenue has been taken by any state thus far is not within our knowledge.


author: SETH T. BOAZ, Special Commissioner.

text:
    Leo TAYLOR and Irene Taylor, his wife, Appellants, v. James CARRICO and Thomas Carrico, Appellees.
    Court of Appeals of Kentucky.
    Jan. 31, 1975.
    William G. Reed, Carrollton, for appellants.
    John M. Berry, Jr., Berry & Floyd, Car-rollton, for appellees.
   AFFIRMING

SETH T. BOAZ, Special Commissioner.

Leo Taylor and his wife, Irene Taylor, appellants herein, instituted this action seeking to recover for alleged damages resulting from an overflow of water from property of the appellees, James Carrico and Thomas Carrico, on April 1st and 2nd, 1970. Appellees and appellants own neighboring farms situated on opposite sides of a county road. Appellees began the construction of a lake on their property in 1967. The dam which created the lake was alongside the county road. By April 1970 this lake had filled with water and appel-lees had opened a drainage ditch or spillway in the west end of the dam, and on the night of April 1st and morning of April 2nd a heavy downpour of rain caused the water from the lake to flow through the spillway and over the dam and thence across the road onto the land of appellants. It is damage alleged to have been caused at this time for which appellants seek to recover.

Subsequent to the date of the alleged damage, but prior to the time this action was filed, appellees had caused to be inserted at the east end of the dam a twelve inch overflow pipe which was located some fourteen inches to two feet below the top of the dam. This pipe was installed some two weeks before the trial and there had been no rainfall of consequence since its installation at the time the case was tried,

By an Amended Complaint appellants sought to enjoin appellees from allowing waters from the lake to overflow onto appellants’ lands and alleging that the lake was dug by the state to obtain dirt for a fill in the construction of an interstate highway; that appellants received compensation for this dirt, and that because of this it would work no hardship on them to construct a drainage ditch over their own land for a distance of approximately 340 feet to a point where it would flow across the county road onto other lands of appel-lees from whence such water would then drain into the Kentucky River. Appellants further claimed additional damages from the construction of the drain pipe at the east end of the dam.

Upon motion of the appellees the trial court struck the allegations concerning compensation for the dirt removed for use in the construction of the interstate highway.

Prior to the construction of the lake and the dam, according to the evidence, water from the Carrico farm had flowed across the Taylor farm in three streams or waterways, one of which was on the west side of the Taylor farm, another in the center of the farm, and a third on the eastern boundary of the farm. After the construction of the dam and the insertion of the overflow pipe the flow of water from the Carrico farm was diverted from the waterways on the west side and through the center of appellants’ farm into a single waterway along the eastern boundary of the farm.

The appellants elected to try the case on the issue of temporary damages and injunction, rather than asking for compensation for permanent damage.

Upon trial of the case the court below found that construction of the lake on the land of the appellees was a reasonable use of the land and that the benefit accruing to the land of the appellees by reason of the construction of the lake outweighed the gravity of any harm that resulted to the land of the appellants, Leo Taylor and wife, Irene Taylor, and denied injunctive relief. The question of damages was then referred to the jury at the conclusion of the plaintiffs’ (appellants’) evidence, the defendants (appellees) having declined to introduce any evidence after the plaintiffs rested their case. The jury found a verdict for the defendants from which this appeal resulted.

On appeal the plaintiffs contend that the findings of the trial court are erroneous in that they are not supported by the evidence and that the trial court’s conclusions are contrary to law. They further contend that the court erred in striking plaintiffs’ allegations in regard to defendants’ having been compensated for the dirt removed from the lands in the construction of the interstate highway and the lake.

The trial judge applied the rules laid down in the case of Klutey v. Commonwealth, Department of Highways, Ky., 428 S.W.2d 766, wherein it was held that, although a lower owner is hound to accept natural drainage from an upper owner, the rights of the upper owner are not unlimited and that the upper owner may not unreasonably change the natural flow of water or cause it to collect and be cast upon the lower estate at a point where it had not previously flowed or in an increased volume or accelerated rate of flow so as to its substantial damage to the lower owner. This case was cited as authority in the case of Commonwealth of Kentucky, Department of Highways v. S & M Land Company, Inc., Ky., 503 S.W.2d 495, and in that case again it was stated that the rule in substance weighs the reasonableness of the use of the land drained against the gravity of the harm to the land receiving the burden of the drainage.

The trial judge found that there was no substantial damage to the land of appellants and that the use of the land of the upper owners (appellees) was reasonable and that the benefits of that use outweighed the harm, if any, done to the land of the lower owner. In the instant case it appears that the judgment of the trial judge was supported by the verdict of the jury which found that there was no damage done to appellants’ land as a result of the overflow from appellees’ lake.

As to appellants’ contention that this finding by the judge and later by the jury is not supported by the evidence we can only say that the only expert witness to testify was introduced by the appellants and his testimony was to the effect that appellants’ land was not damaged by the overflow.

While other witnesses did testify that appellants’ land was overflowed on the occasion in issue, none of these witnesses testified as to the damage resulting from .this overflow. Appellant, Leo Taylor, was the only witness who attempted to place a money value on the damage done, and his evidence was so speculative as to be worthy of little consideration. The court below did, however, submit the case to the jury under an instruction allowing them to find damages in the amount claimed by the appellant, Leo Taylor, and the jury under such instruction found for the defendants.

Appellants argue that the Klutey case does not apply to the instant action because it deals with surface waters while the instant case deals with overflow from a lake. It appears that this is a distinction without a difference. While it is true that where a landowner through artificial means causes water to accumulate on his land in such a way as to constitute a nuisance he is liable for any damage done to adjoining landowner by reason of the escape of the accumulated waters, yet there is no such liability if the accumulated water does not constitute a nuisance. 93 C.J. S. Waters § 141, p. 856. The court below found that appellees’ lake did not constitute a nuisance, and in any event the absence of damage precludes recovery.

We find no error in the Court’s refusal to allow the introduction of testimony relating to the sale of the dirt from the construction of the lake, since that had no bearing on the reasonableness of appellees’ use of their land nor upon the question of damages to appellants’ land.

The judgment is affirmed.

All concur.


author: CULLEN, Commissioner.

text:
    James R. YOCOM, Commissioner, Kentucky Department of Labor, etc., et al., Appellants, v. Roy R. KARST et al., Appellees.
    Court of Appeals of Kentucky.
    May 23, 1975.

      Earl M. Cornett, Gen. Counsel, William F. Gadd, Asst. Counsel, Kentucky Dept, of Labor, Frankfort, for appellants.
    J. W. Craft, Jr., Hazard, for Karst-Rob-bins Coal Co.
    Eugene Goss, Harlan, for appellee Roy R. Karst.
   CULLEN, Commissioner.

On the ground that he had not given the notice of claim required by KRS 342-316(2)(a), the Workmen’s Compensation Board denied the claim of Roy R. Karst for compensation for total permanent disability from silicosis. On an appeal by Karst to the Harlan Circuit Court judgment was entered setting aside the board’s order and directing that an order be entered awarding compensation to Karst. Karst’s most recent employer and the Special Fund have appealed from that judgment.

After having worked for the Karst-Rob-bins Coal Company for a little more than 10 years, Karst quit work in April 1971. He was then 70 years of age and he had worked in coal mines for close to 50 years. The reason he quit work was that he was unable to work. A doctor who examined him in April 1971 found him to be suffering from Grade-Ill silicosis, and Karst was informed of the diagnosis at that time. Karst did not give any notice of claim to Karst-Robbins, after he quit, and he did not file a claim for compensation under the Kentucky Workmen’s Compensation law. He remained idle until June 4, 1973, when he returned to work for Karst-Robbins. This latter work episode lasted only two weeks, until June 19,1973. Karst’s testimony was that during these two weeks he was exposed to dust, around the tipple, for a total of about five hours. He quit the work on June 19, 1973, and then gave notice of claim to Karst-Robbins, followed by the filing of the claim for compensation that is here in issue. Karst testified that his condition in 1973 when he returned to work was no better than it was in April 1971 when he first quit; that he was unable to work when he tried it in 1973; and the reason he tried to resume work was that he “needed a little more money.” While two doctors testified that the five hours of exposure in June 1973 were capable of contributing to silicosis, neither testified that the exposure did in fact enhance Karst’s previous state of disability.

The Workmen’s Compensation Board was of the opinion that Karst was disabled in 1971 from silicosis, and knew it, wherefore he was required to give notice of claim at that time. The circuit court was persuaded that Karst’s claim for compensation did not mature or ripen until after his last exposure in 1973, and that his notice of claim filed in 1973 thus was in time.

It is our opinion that the controlling consideration is the time when Karst sustained a disability for which a claim could be asserted. We think it is clear from the record that Karst, suffering from Grade-Ill silicosis and by his own statement unable to work, had a claim for disability when he quit work in 1971. Being disabled, and having been told of the medical diagnosis of his condition, he was required under KRS 342.316(2)(a) to give notice of claim. The argument made by his attorneys that he did not then have a claim is pure sophistry.

Karst’s attorneys seek to persuade us that Karst’s employment in 1973 was a continuation of his former employment, and therefore Karst was not disabled in 1971 under our cases holding that so long as the workman continues in full-time employment by the same employer he cannot be considered to be disabled as far as an occupational disease is concerned. See Mary Helen Coal Corp. v. Chitwood, Ky., 351 S.W.2d 167; Stephens Elkhorn Coal Co. v. Tibbs, Ky., 374 S.W.2d 504; Brock v. International Harvester Co., Ky., 374 S.W.2d 507; American Radiator & Standard San. Corp. v. Girth, Ky., 375 S.W.2d 817; Allen v. Commonwealth, Dept. of Highways, Ky., 425 S.W.2d 283. The reasoning behind the rule in those cases was that since the giving of notice and the assertion of a claim by an employed workman, for compensation for disability from an occupational disease probably would result in his employment’s being terminated by the employer, despite the fact that he was physically able to continue working at least for a limited future time, the Act would be construed so as to permit the workman the chance to continue the employment he had when he first became aware or was chargeable with knowledge of the fact that he had the disease. The rationale of the rule was that until the termination of that employment the workman could not be considered to be disabled. The effect of the rule was to establish a conclusive presumption of non-disability, in occupational disease cases, so long as the workman continued in full-time employment by the same employer.

The key to the rule in the above case is continuation in employment, because there is no other basis on which to rest the presumption of nondisability. Once the employment ceases, the hook on which the presumption hangs is gone. The question of the workman’s ability to compete for a job in the labor market then is put squarely in issue. The answer to that question should depend on proof, and not be predetermined by a presumption. (The fact that the workman may in fact obtain another job will merely be some evidence on the question of the extent of his disability. See Osborne v. Johnson, Ky., 432 S.W.2d 800.)

We think that the employment during which the workman first knew or became chargeable with knowledge of his diseased condition cannot be considered to have continued if there is any period of time, between the cessation of that employment and a bona fide renewal of the same type of employment, significant enough to classify the workman as having been in a state of unemployment. In that case the presumption of nondisability arising from continuation in employment cannot be invoked.

There is no way to reconcile Davis v. Harlan Everglow Coal Co., Ky., 392 S.W.2d 62, in which the workman was deemed to have continued in regular employment despite the fact that he was off work, due to the closing of the employer’s mine, for some seven months, and then secured employment with a different employer. We consider that case to be an aberration, resulting from a misinterpretation of the Chit-wood rule, and we now overrule it.

It is our conclusion that since Karst entered into an obvious state of employment after he quit work for Karst-Rob-bins in 1971 he cannot be presumed then not to have been disabled. The existence of disability and the extent of it were matters of proof. The evidence that Karst was suffering from Grade — III silicosis in 1971 established that he had some disability at that time and the Workmen’s Compensation Board was entitled to find from Karst’s testimony (which in the posture of this case amounted to an admission against interest) that he was then totally disabled. Thus there is no basis on which he could claim (which he does not) that he was only partially disabled when he quit work in 1971, that he sustained additional disability by his two-week work episode in 1973, and that at least he is entitled to compensation for that portion of his disability attributable to the 1973 work episode.

Karst’s attorneys further maintain that Karst did not have a claim in 1971 because, under KRS 342.316(1) as amended in 1972, the employer in whose employment the employee was last exposed to the hazards of silicosis is made liable, and the compensation payments are to begin from the date of last injurious exposure or from the date of disability, whichever is later. Whatever the amended statute does mean (and assuming for the purpose of argument that the 1972 amendment constitutionally could apply in Karst’s situation), we are convinced that it does not mean that a workman who is disabled within the meaning of the compensation law, from silicosis, who knows the fact and cause of disability, and by reason of those facts does have a claim, which by failure of notice he does not perfect, can retrospectively, simply by virtue of further exposure, be considered not to have had a claim. The duty to prosecute a claim cannot rationally be deferred indefinitely while the workman contemplates whether he will attempt to get further exposure.

Throughout the history of our workmen’s compensation law liability for compensation has rested on the creation of disability, and the amount of compensation has been governed by the statutes in force when the disability occurred. In this case and in others now before us a seemingly concerted effort is being made to persuade us that the entire basic philosophy of the compensation law was changed in 1972, so that liability now rests on exposure without any regard to its effect on disability, and the workman now, by deciding whether or not to seek additional exposure, can determine which statutes will control the amount of his benefits. We are not so persuaded; on the contrary, we view the argument as a distortion of the meaning and a perversion of the purpose of the 1972 amendments.

We do not question here the proposition that the employer in whose employment the last exposure preceding disability occurred may be subjected to a liability for compensation, but we do hold that as to any existing disability for which a claim could be asserted, a subsequent exposure cannot be the basis for liability.

There is no merit in Karst’s argument that the defense of failure to give notice could not be invoked because it was not affirmatively pleaded. See Church v. Turner Elkhorn Coal Company, Ky., 492 S.W.2d 877.

The judgment is reversed with directions to enter judgment upholding the order of the Workmen’s Compensation Board which dismissed the claim.

All concur.

      . At the time the rule of the Chitwood line of cases was developed, the prevailing concept was that any disability from silicosis and related diseases was total disability, so it was considered that once a workman admitted to having such a disease his employment opportunities were ended. Since that time we have recognized, in Osborne v. Johnson, Ky., 432 S.W.2d 800, Princess Manufacturing Co. v. Jarrell, Ky., 465 S.W.2d 45, and Young v. Marsillett, Ky., 473 S.W.2d 128, that there can be a partial disability from silicosis and related diseases. That holding weakens the basis for the Chit-wood rule, but does not destroy it.


text:
    Sillis BROCK, Appellant, v. WORKMEN’S COMPENSATION BOARD et al., Appellees.
    Court of Appeals of Kentucky.
    May 23, 1975.

      John E. Anderson, Charles G. Cole, Cole, Cole & Anderson, Barbourville, for appellant.
    Thomas L. Ferreri, Dept, of Labor, Louisville, Patterson & Berger, Pineville, Gayle G. Huff, Harlan, for appellees.
   JONES, Justice.

The Workmen’s Compensation Board denied the claim of Sillis Brock for compensation for total-permanent disability from pneumoconiosis. The basis for denial of the claim against Coal Resources was that Brock worked only two days (February 1st and 2nd, 1973). At the time of his last employment he was disabled from pneumo-coniosis and knew it.

On an appeal to the Harlan Circuit Court, the order and opinion by the board was affirmed. Brock appealed from that judgment.

The board found that Brock’s last injurious exposure to the hazards of the disease of pneumoconiosis occurred December 28, 1972, while he worked at Kentucky East. The law to be applied to the case was the law in effect at the time of the last exposure. The pre-1973 workmen’s compensation law governs this case. Thus, Brock was not exposed to the hazards of pneumoconiosis in his employment within this state for at least two years next before his disability as required by KRS 342.316(4), the law in effect on December 28, 1972.

Brock’s argument that he became disabled and was last injuriously exposed to the occupational disease of pneumoconiosis on February 2, 1973, after working two days, stretches the bounds of credulity. This court will not permit a claimant to attempt to “wheelbarrow” a claim such as attempted here, through the back door, when he was unable to bring it through the front door on its merits. The court is of the opinion that the board was substantially correct in terming the claim a “subterfuge.”

This court’s opinion in Yocom v. Karst, Ky., 528 S.W.2d 697 (Decided this date) is dispositive of the issues presented on appeal.

The judgment is affirmed.

All concur.


author: LUKOWSKY, Justice. STEPHENSON, Justice

text:
    Janice EMBS, Appellant, v. PEPSI-COLA BOTTLING COMPANY OF LEXINGTON, KENTUCKY, INC., a Kentucky Corporation, et al., Appellees.
    Court of Appeals of Kentucky.
    May 23, 1975.
    Rehearing Denied Sept. 19, 1975.
    Charles T. Walters, Winchester, for appellant.
    Leslie W. Morris, II, Stoll, Keenon & Park, Lexington, for appellees Pepsi-Cola Bottling Co. of Lexington, Kentucky, Inc. and Pepsi-Cola Bottling Co. of Winchester.
    Janet R. White, Winchester, for appellee Stamper’s Cash Market, Inc.

      Ben L. Kessinger, Jr., Harbison, Kessinger, Lisle & Bush, Lexington, for appellee Arnold Lee Vice.
   LUKOWSKY, Justice.

This is an appeal from a judgment entered by the Clark Circuit Court dismissing the claim of plaintiff-appellant pursuant to a directed verdict granted at the completion of her proof. We reverse and remand.

On the afternoon of July 25, 1970 plaintiff-appellant entered the self-service retail store operated by the defendant-appellee, Stamper’s Cash Market, Inc., for the purpose of “buying soft drinks for the kids.” She went to an upright soft drink cooler, removed five bottles and placed them in a carton. Unnoticed by her, a carton of Seven-Up was sitting on the floor at the edge of the produce counter about one foot from where she was standing. As she turned away from the cooler she heard an explosion that sounded “like a shotgun.” When she looked down she saw a gash in her leg, pop on her leg, green pieces of a bottle on the floor and the Seven-Up carton in the midst of the debris. She did not kick or otherwise come into contact with the carton of Seven-Up prior to the explosion. Her son, who was with her, recognized the green pieces of glass as part of a Seven-Up bottle.

She was immediately taken to the hospital by Mrs. Stamper, a managing agent of the store. Mrs. Stamper told her that a Seven-Up bottle had exploded and that several bottles had exploded that week. Before leaving the store Mrs. Stamper instructed one of her children to clean up the mess. Apparently, all of the physical evidence went out with the trash. The location of the Seven-Up carton immediately before the explosion was not a place where such items were ordinarily kept.

The defendant-appellee, Arnold Lee Vice, was the distributor of Seven-Up in the Clark County area. As such, he supplied Stamper’s Cash Market, Inc. with its entire stock of Seven-Up. He would deliver it with his truck to the store and place it in the store and the cooler. Employees of the store would also place Seven-Up in the cooler from other locations in the store. His truck was loaded with Seven-Up by the bottler at the plant.

The defendant-appellee, Pepsi-Cola Bottling Co. of Lexington, Kentucky, Inc., was the bottler who produced and supplied Vice with his entire stock of Seven-Up.

The foregoing narrative is a fair summary of the evidence introduced by the plaintiff-appellant in support of her claim for bodily injury. When she rested her case, the defendants-appellees moved for a directed verdict in their favor. The trial court granted the motion on the grounds that the doctrine of strict product liability in tort does not extend beyond users and consumers and that the evidence was insufficient to permit an inference by a reasonably prudent man that the bottle was defective or if it was, when it became so.

In Dealers Transport Co. v. Battery Distributing Co., Ky., 402 S.W.2d 441 (1966) we adopted the view of strict product liability in tort expressed in Section 402 A of the American Law Institute’s Restatement of Torts 2d.

“402 A. Special Liability of Seller of Product for Physical Harm to User or Consumer
(1) One who sells any product in a defective condition unreasonably dangerous to the user or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it was sold.
(2) The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and sale of his product, and
(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.”

Comment f on that section makes it abundantly clear that this rule applies to any person engaged in the business of supplying products for use or consumption, including any manufacturer of such a product and any wholesale or retail dealer or distributor.

Comment c points out that on whatever theory, the justification for the rule has been said to be that the seller, by marketing his product for use and consumption, has undertaken and assumed a special responsibility toward any member of the consuming public who may be injured by it; that the public has the right to and does expect that reputable sellers will stand behind their goods; that public policy demands that the burden of accidental injuries caused by products intended for consumption be placed upon those who market them, and be treated as a cost of production against which liability insurance can be obtained; and that the consumer of such products is entitled to the maximum of protection at the hands of someone, and the proper persons to afford it are those who market the products.

The caveat to the section provides that the Institute expresses no opinion as to whether the rule may not apply to harm to persons other than users or consumers. Comment on caveat o states the Institute expresses neither approval nor disapproval of expansion of the rule to permit recovery by casual bystanders and others who may come in contact with the product, and admits there may be no essential reason why such plaintiffs should not be brought within the scope of protection afforded, other than they do not have the same reasons for expecting such protection as the consumer who buys a marketed product, and that the social pressure which has been largely responsible for the development of the rule has been a consumer’s pressure, and there is not the same demand for the protection of casual strangers.

The caveat articulates the essential point: Once strict liability is accepted, bystander recovery is fa.it accompli. Strict Products Liability to the Bystander: A Study in Common Law Determinism, 38 Univ. of Chicago L.R. 625, 630. Moreover, with but one exception no jurisdiction which has adopted strict tort liability has rejected the bystanders claim. Id. at 635. That exception is Davidson v. Leadingham, E.D.Ky., 294 F.Supp. 155 (1968). This was a diversity case in which Judge Swinford was required to construe Kentucky law. He cautiously and laudably refrained from extending the rule in the absence of clear indications in our cases of the direction which we would take. Suffice it to say, this is a question of state law and we are not bound by the opinion.

Our expressed public policy will be furthered if we minimize the risk of personal injury and property damage by charging the costs of injuries against the manufacturer who can procure liability insurance and distribute its expense among the public as a cost of doing business; and since the risk of harm from defective products exists for mere bystanders and passersby as well as for the purchaser or user, there is no substantial reason for protecting one class of persons and not the other. The same policy requires us to maximize protection for the injured third party and promote the public interest in discouraging the marketing of products having defects that are a menace to the public by imposing strict liability upon retailers and wholesalers in the distributive chain responsible for marketing the defective product which injures the bystander. The imposition of strict liability places no unreasonable burden upon sellers because they can adjust the cost of insurance protection among themselves in the course of their continuing business relationship. Anno.: Products Liability: Extension of Strict Liability in Tort to Permit Recovery by a Third Person who is Neither a Purchaser Nor User of Product, 33 A.L. R.3d 415, 417.

We must not shirk from extending the rule to the manufacturer for fear that the retailer or middleman will be impaled on the sword of liability without regard to fault. Their liability was already established under Section 402 A of the Restatement of Torts 2d. As a matter of public policy the retailer or middleman as well as the manufacturer should be liable since the loss for injuries resulting from defective products should be placed on those members of the marketing chain best able to pay the loss, who can then distribute such risk among themselves by means of insurance and indemnity agreements. Caruth v. Mariani, 11 Ariz.App. 188, 463 P.2d 83 (1970). Any inclination to relieve the retailer must have in mind the little corner grocery store but in these days the dealer is more likely to be Safeway Stores or some other nationwide enterprise which is the prime mover in marketing the goods and the manufacturer only a small concern which feeds it to order. Prosser, The Fall of the Citadel, 50 Minn. L.R. 791, 816.

The result which we reach does not give the bystander a “free ride.” When products and consumers are considered in the aggregate, bystanders, as a class, purchase most of the same products to which they are exposed as bystanders. Thus, as a class, they indirectly subsidize the liability of the manufacturer, middleman and retailer and in this sense do pay for the insurance policy tied to the product.

Public policy is adequately served if parameters are placed upon the extension of the rule so that it is limited to bystanders whose injury from the defect is reasonably foreseeable. Elmore v. American Motors Corp., 70 Cal.2d 578, 75 Cal.Rptr. 652, 451 P.2d 84 (1969).

For the sake of clarity we restate the extension of the rule. The protections of Section 402 A of the Restatement of Torts 2d extend to bystanders whose injury from the defective product is reasonably foreseeable.

In the administration of the law we must be satisfied with proof which leads to a conclusion with reasonable probability where absolute logical certainty is not possible. We may be constrained to act upon indecisive evidence where complete proof is impossible. Then the logical, probative force of the evidence produced is measured in part by the test of whether it is the best evidence available. Foltis, Inc. v. City of New York, 287 N.Y. 108, 38 N.E.2d 455. The law does not require an injured plaintiff to go about picking up pieces of an exploded bottle while her leg bleeds profusely or the submission of these pieces, which are not obtainable because they have been discarded by the retailer, to an appropriate agency for the purpose of making a scientific inspection and determination as to defects.

It matters not that the evidence be circumstantial for as Thoreau put it “Some circumstantial evidence is very strong, as when you find a trout in the milk.” There are some accidents, as where a beverage bottle explodes in the course of normal handling, as to which there is common experience that they do not ordinarily occur without a defect; and this permits the inference of a defect. Prosser on Torts, 4th Ed., 673. This is particularly true when there is evidence in the case of the antecedent explosion of other bottles of the same product. Coca-Cola Bottling Works v. Shelton, 214 Ky. 118, 282 S.W. 778 (1926).

In cases involving multiple defendants the better reasoned view places the onus of tracing the defect on the shoulders of the dealers and the manufacturer as a policy matter, seeking to compensate the plaintiff and to require the defendants to fight out the question of responsibility among themselves. Prosser, The Fall of the Citadel, supra, at 847.

The motions for a directed verdict should have been denied and the defendants-appel-lees should have been required to come forward with their evidence.

The judgment is reversed and the cause is remanded to the Clark Circuit Court for further proceedings consistent herewith.

All concur except STEPHENSON, J., who dissents.

STEPHENSON, Justice

(dissenting).

I respectfully dissent from the majority opinion to the extent that it subjects the seller to liability. Every rule of law in my mind should have a rational basis. I see none here.

Liability of the seller to the user, or consumer, is based upon warranty. Restatement, Second, Torts § 402 A. To extend this liability to injuries suffered by a bystander is to depart from any reasonable basis and impose liability by judicial fiat upon an otherwise innocent defendant. I do not 'believe that the expression in the majority opinion which justifies this rule for the reason that the seller may procure liability insurance protection is a valid legal basis for imposing liability without fault.

I respectfully dissent.


author: GARDNER, Commissioner.

text:
    COMMONWEALTH of Kentucky, Appellant, v. Louis A. LITZELSWOPE et al., Appellees.
    Court of Appeals of Kentucky.
    May 23, 1975.
    Rehearing Denied Oct. 3, 1975.
    Ed Hancock, Atty. Gen., Kenneth A. Howe, Jr., Asst. Atty. Gen., Frankfort, for appellant.
    Frank E. Haddad, Jr., Matthew B. Quinn, Jr., Louisville, for appellees.
   GARDNER, Commissioner.

Appellees organized a committee for the purpose of furthering a political candidacy, and were indicted for the failure to register with the Kentucky registry of election finance in violation of KRS 123.075 which provides:

“(1) Each committee organized, in whole or in part, for the purpose of furthering a political candidacy, shall register with the registry, by filing official notice of intention at the time of organization, giving names and addresses and positions of the officers of the organization and designating the candidate or candidates it is organized to support on forms prescribed by the registry.
“(2) All provisions of KRS 123.005 and 123.051 to 123.101 governing the duties and responsibilities of a candidate or campaign treasurer shall apply to a registered committee.”

The committee received and disbursed funds for political candidates from August 1972, until February 1974, four months before appellees were indicted. The circuit court dismissed the indictment, relying on KRS 123.991(4) which provides:

“Prosecution for violation of any provision of KRS 123.005 or 123.051 to 123.101, shall not be commenced after one year has elapsed from the date of the violation.”

Appellees assert that the statute “ * * states that all committees must, ‘at the time of organization,’ register with the appropriate state bureau,” and a violation of the statute could occur only once, namely, at the time of the committee’s organization. Under this interpretation the organizing of the committee and the committee’s registering must be simultaneous, so that there would be no organized committee until it registered. The logical conclusion of this reasoning is that no prosecution could be maintained under this section since the only organized committee would be a registered committee.

We believe the language of the statute reveals that the intent of the legislature was to require a committee to register before conducting business, and every time it conducted business without being registered the members were in violation of KRS 123.075(1). Since the committee was still disbursing funds on February 14, 1974, prosecution under the indictment of May 2, 1974, was not barred by the limitation statute (KRS 123.991(4)).

The law is so certified.

All concur.


author: STERNBERG, Justice.

text:
    R. E. GADDIE, INC., Appellant, v. Marie Vance PRICE, Administratrix of the Estate of Bill A. Price, et al., Appellees. John GRAINGER et al., Cross-Appellants, v. R. E. GADDIE, INC., et al., Cross-Appellees.
    Court of Appeals of Kentucky.
    May 23, 1975.
    Rehearings Denied Sept. 19, 1975.

      H. Jefferson Herbert, Jr., Wilson, Herbert, Garmon & Gillenwater, Glasgow, for R. E. Gaddie, Inc.
    Marshall Funk, E. R. Gregory, Bowling Green, for Marie Vance Price, Adm’x and others.
    William E. Allender, Allender, Simmons & Robertson, Philip Grogan, Bowling Green, for John Grainger and William Settle.
   STERNBERG, Justice.

William Price, who was hired to supervise the construction of a motel, was fatally injured on the job when a truck backed over him. The administratrix of his estate filed a wrongful-death action against John Grainger, driver of the truck, and William Settle, owner of the truck. By amended complaints R. C. Gaddie, Inc., the subcontractor in charge of the paving of the parking lot, and Gary Brothers Crushed Stone Co., the supplier of the paving material, were named defendants. Gary Brothers was dismissed by summary judgment and is not a party to this appeal. Gaddie cross-claimed against Grainger and Settle, seeking indemnification or contribution for any amount the jury determined it (Gaddie) owed Price’s estate. The jury returned a verdict for $82,589.83 against Gaddie, based only on a last-clear-chance instruction. Judgment was entered on that verdict and a supplemental judgment was entered exonerating Grainger and Settle from any liability either to Price’s estate or to Gad-die.

Gaddie appeals from the judgment and the supplemental judgment and names Marie Price, administratrix of Price’s estate, Grainger and Settle as appellees. Grainger and Settle cross-appeal only as a protective measure. Gaddie’s motion for judgment notwithstanding the verdict attacked both the original and supplemental judgments. It charged that the verdict was not sustained by sufficient evidence and was contrary to law. It also complained of errors of law occurring at the trial. The motion was overruled. This appeal is taken from the judgment entered on June 15,1971, and from the supplemental judgment entered on July 2, 1971.

The “Statement of Questions Presented” in appellant’s brief is directed at the original judgment entered on the verdict of the jury and does not attack the supplemental judgment. Failure of appellant to discuss the alleged errors in its brief is the same as if no brief had been filed in support of its charges.

Rule 1.260(b) of the Rules of the Court of Appeals of Kentucky provides: “If the appellant fails to file his brief within the time allowed, the appeal may be dismissed.” See Adams v. Parsons, Ky., 313 S.W.2d 426 (1958).

It is our opinion that the appeal as to Grainger and Settle has been abandoned and should be dismissed. The supplemental judgment of the Warren Circuit Court entered on July 2, 1971, is affirmed.

The accident occurred when a truck driven by Grainger was backing up to deposit a load of asphalt into a paving machine operated by Paul Anderson, an employee of Gaddie, the subcontractor. It was the usual and customary practice for the paving machine operator to direct the movement of the truck by a hand, voice or horn signal. Grainger testified that Anderson gave him a hand signal, after which he (Grainger) began backing the truck toward the paving machine and that he never saw Price either before or after the truck was in motion. Anderson was seated at the rear of and on the left-hand side of the paver, with his vision unobstructed. He testified that he saw Price walking toward the truck and that when Price was about three or four steps away from it, he (Anderson) yelled “Hold the truck”, or words of like import. There was conflicting testimony by witnesses who were close to the scene of the accident as to whether any verbal warning was given. Anderson further testified that he could have sounded a horn which was located on the paver, but he did not remember whether he did. There was testimony that no horn signal was given.

Gaddie claims that the trial court erred when, over objection, it gave an instruction based on the last-clear-chance doctrine. It is clear from the record that Price was inattentive rather than helpless; therefore, the right to recover under the last-clear-chance doctrine is governed by the rule announced in Restatement of the Law, Torts 2d, which states:

“480. Last Clear Chance: Inattentive Plaintiff.
A plaintiff who, by the exercise of reasonable vigilance, could discover the danger created by the defendant’s negligence in time to avoid the harm to him, can recover if, but only if, the defendant
(a) knows of the plaintiff’s situation, and
(b) realizes or has reason to realize that the plaintiff is inattentive and therefore unlikely to discover his peril in time to avoid the harm, and
(c) thereafter is negligent in failing to utilize with reasonable care and competence his then existing opportunity to avoid the harm.”

Section 480, when read with section 12(1) of the same Restatement, requires such a defendant to have actual knowledge “of the plaintiff’s situation.” General Telephone Company of Kentucky v. Yount, Ky., 482 S.W.2d 567; Beasley v. Standard Paving and Engineering Co., Inc., Ky., 511 S.W.2d 667. Also there must be sufficient time after the peril is discovered for the defendant to avoid the impending harm. Cincinnati, New Orleans and Texas Pacific Railroad v. Wood, Ky., 392 S.W.2d 437. Until the defendant has actual knowledge of the peril the calculation of time for the opportunity to avoid the accident does not begin. Beasley v. Standard Paving and Engineering Co., Inc., supra.

In Young v. De Bord, Ky., 351 S.W.2d 502, we said:

“In applying the last clear chance doctrine to a given situation, the defendant must, as a matter of fact, have a last clear chance and not a speculative or a possible chance to avoid the accident. * * sfc tf

Thus, possibility of avoidance is not the test but rather that the chance of avoidance was clear, plain, apparent, self-evident, distinct, manifest and unmistakable. Also see Eades v. Stephenes, Ky., 302 S.W.2d 117 (1957).

There was some conflict in the testimony as to what happened at the time of the accident. However, the jury, which is a fact finder, had the right to believe such of the witnesses as it chose to arrive at its conclusion.

Price was the general supervisor of the whole construction project, which included the blacktopping of the parking lot. He was 39 years of age; had been in the construction business for many years; was well qualified and undoubtedly familiar with the hazards attendant to paving undertaking; and, unbeknown to his fellow workers, was hard-of-hearing.

Grainger, the driver of the truck, pursuant to a signal given to him by Anderson, started the truck in a backward motion. He did not see Price prior or subsequent to putting the truck in a backward motion. He did not know that he had hit and run over Price until after it had occurred and he had brought the truck to a stop.

Anderson, an employee of Gaddie, the subcontractor, was sitting in the operator’s seat at the left rear of the paver. He noticed Price talking to James Scott, foreman of the paving crew. He did not see Price again until Price was three or four steps away from the truck. He yelled out “Hold the truck”, or words of like import. He could have, but did not give a horn signal for the truck to stop.

The witness James Scott was talking with Price immediately preceding the accident. After they concluded their conversation they separated and Scott started walking toward the paving machine. For some unexplained reason, Scott turned around, saw the truck coming back and Price walking toward it. Scott testified:

“Q66. What did you do after you turned around? Tell the jury what you did and what you saw.
A. When I turned around and thought the truck would hit Mr. Price if he kept on walking, I hollered. I said, ‘Look out, Bill’, and — but he never did hear me or anything or something. I don’t know whether he did or not, but he kept on walking.
Q67. Now, what would have happened if he had stopped when you shouted with regard to—
Mr. Gregory: Objection, Judge.
Q67. (Continuing) — with regard to colliding with the truck?
A. I don’t think the truck would have hit him.”

The finding by the jury under Instruction IV (last clear chance) presupposes that they made a prior determination that Price was negligent as defined under Instruction III, which would relieve the appellant of liability but for the last-clear-chance instruction. The question then presented is whether there was substantial evidence of any overriding negligence of the defendant Anderson so as to overcome the negligence of Price and thereby justify the submission of the last-clear-ehance doctrine to the jury.

The overriding negligence of appellant, for which it may be held liable under the last-clear-chance doctrine, is limited to the failure of Anderson, its employee, to act after Price’s peril, in which he had placed himself, was discovered by Anderson.

There has been a rash of litigation in recent years as a result of personal injuries or fatal injuries having been received from trucks backing up on construction jobs. Harper Company v. Slusher, Ky., 469 S.W.2d 955 (1971); Yates v. Wilson Bros. Trucking Company, Ky., 471 S.W.2d 744 (1971); and Ward v. Owensboro River Sand and Gravel Co., Ky., 431 S.W.2d 884 (1968). The Ward case is controlling in the decision of the instant case. There, we held that where a person’s experience should alert him, but he pays no attention to impending dangers and is killed thereby, he is contrib-utorily negligent as a matter of law as he is not exercising that standard of ordinary care which is expected of him. In the case at bar, Price, for reasons unbeknown to anyone, was not attentive to impending dangers with which he was familiar. Anderson first learned of Price’s peril when Price was but three or four steps from the truck and he (Anderson) reacted with a vocal warning. Although he could have sounded a horn, it is purely speculative as to whether Price or Grainger would have heard it and responded in time to avoid the impending danger.

We hold that there is no evidence which indicates that Anderson did not react in a normal, reasonable manner when first presented with the dangerous situation. The evidence discloses that Price was guilty of contributory negligence as a matter of law.

The judgment is reversed with directions that judgment be entered dismissing the appellant, R. E. Gaddie, Inc., from any claim of the estate of William Price.

All concur.


author: CATINNA, Commissioner.

text:
    James Christopher COUCH, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    June 6, 1975.
    Rehearing Denied Oct. 3, 1975.

      Anthony M. Wilhoit, Public Defender, Anna H. Isaacs, Asst. Public Defender, Frankfort, for appellant.
    Ed W. Hancock, Atty. Gen., William W. Pollard, Asst. Atty. Gen., Frankfort, for appellee.
   CATINNA, Commissioner.

James Christopher Couch appeals from a judgment of the Rockcastle Circuit Court entered on his plea of guilty to charges of housebreaking, six years; robbery, six years; and robbery, six years. Couch insists that the trial court erred in overruling his motion to withdraw his plea of guilty to these charges.

A Rockcastle County grand jury indicted Couch on one count of housebreaking and two counts of armed robbery. While these indictments were pending, Couch was serving a two-year sentence in the Kentucky State Reformatory as a result of a conviction in the Lincoln Circuit Court. Couch was represented by the public defender. The record indicates that sometime prior to the trial date the public defender and the Commonwealth’s attorney had engaged in plea-bargaining negotiations by which it was agreed that if Couch would plead guilty to charges of housebreaking, robbery, and robbery the Commonwealth’s attorney would recommend sentences of six years on each charge to run concurrently and would further recommend that these latter sentences run concurrently with the sentence he was then serving. Couch then appeared before the judge of the Rockcastle Circuit Court, along with his counsel and the Commonwealth’s attorney, and changed his plea of not guilty to guilty. The court in each instance pronounced a sentence of six years as recommended by the Commonwealth’s attorney.

Prior to any motion on the part of Couch to withdraw his guilty plea, the Commonwealth’s attorney fully complied with his agreement by recommending to the court that the three six-year sentences be run concurrently with each other and with the existing Lincoln County sentence of two years. The court indicated that it had no objection to the six-year sentences being served concurrently with each other but that it would not permit them to run concurrently with the existing two-year sentence, because Couch would be immediately eligible for parole. Upon the court’s indicating that it would not be bound by the recommendation of the Commonwealth’s attorney, Couch immediately moved that he be permitted to withdraw his plea of guilty and enter a new plea of not guilty, which motion the court overruled.

In support of his claim of error, Couch cites RCr 8.10 and the opinions of this court in Wood v. Commonwealth, Ky., 469 S.W.2d 765 (1971); and Anderson v. Commonwealth, Ky., 507 S.W.2d 187 (1974). RCr 8.10 provides that the trial court may at any time before judgment permit a plea of guilty to be withdrawn and a plea of not guilty substituted.

Wood and Anderson, supra, are, in effect, located at opposite ends of the spectrum governing the discretionary authority of the court in permitting the withdrawal of a plea of guilty.

In Wood, the Commonwealth’s attorney had assured the defendant that if she would plead guilty to a lesser charge he would make no objection to her motion for probation. He broke this agreement and discussed her case with the probation officer and recommended that she not be granted probation. In reversing the court’s refusal to permit a withdrawal of the guilty plea, this court concluded that the plea had been induced by the promise of the prosecuting attorney, which he did not in fact or spirit perform, and was therefore involuntary.

In Anderson, the defendant entered a plea of guilty and was then released to complete a sentence in a federal prison. Upon his return to the Laurel Circuit Court for sentencing, the defendant claimed that he entered his plea of guilty only because it was his understanding that his sentence would be probated upon his release from federal prison. Evidence-wise, there was no showing of any promise of probation. The defendant claimed only that he had understood from his attorney that he would be probated but that neither the trial judge nor the Commonwealth’s attorney committed themselves to him. In upholding the refusal of the trial court to permit defendant to withdraw his plea of guilty, this court said that permission to withdraw a plea was a matter within the sound discretion of the trial court and that the failure of the defendant to make any showing that a promise of probation had been made was a clear showing that there had been no abuse of discretion on the part of the trial court.

In this case we find that the position of Couch is midway between the two extremes as illustrated by Wood and Anderson. Here, the Commonwealth’s attorney had fully performed each item of his agreement with Couch and his counsel and had made the required recommendations. However, the court refused to be bound by the recommendation of the Commonwealth’s attorney. The question then becomes whether the refusal of the court to be bound by the agreement and recommendation of the Commonwealth’s attorney was such as to make the guilty plea involuntary and the action of the court in refusing to permit its withdrawal an abuse of discretion.

This court is of the opinion that in most instances this question can be resolved by a determination of just how extensively the defendant was misled, if he was, by the action of the trial court at the time of the entry of the plea of guilty. At the time the court accepted the guilty plea of Couch on the three indictments, the judge questioned him at length concerning his plea of guilty, and although the questions propounded upon each charge are not exactly verbatim their similarity is such that we do not deem it necessary to quote more extensively than the following. On the housebreaking indictment and the plea, the court examined Couch and his counsel in part as follows:

“Q. Have any promises been made to you that if you plead guilty to the charge in Indictment # 678 that the Court will go easy on you?
A. No, sir.
Q. Do you understand that no one can make you a promise that would bind me as Judge of this Court?
A. Yes, sir.
Q. Mr. Rogers the defendant has entered a plea of guilty to Indictment # 678 housebreaking do you have any recommendations?
HAROLD ROGERS:
I recommend that he be found guilty and his punishment fixed at six years.
Q. Mr. Couch you have heard the recommendation of the Commonwealth Attorney that you be found guilty and that your punishment be fixed at six years in the penitentiary, now the Court again wants to inform you that the recommendation of the Commonwealth’s Attorney is not binding upon this Court, I could find you, upon a plea of guilty, I can find you, fix your punishment at 6 years, I can I can fix it at ten years I can fix it at two years, or five years, it is all in the discretion of the Court, now knowing the recommendation of the Commonwealth’s Attorney and knowing that the Court is not bound thereby the Court will give you an opportunity now to withdraw your plea of guilty and enter a plea of not guilty if you so desire do you want to withdraw your plea of guilty and enter a plea of not guilty?
A. No, Your Honor.
Q. Mrs. Isaacs, you understand that the recommendation of the Commonwealth’s Attorney is not binding upon the Court do you, as his attorney, want more time, to confer with your client as to whether he should or should not withdraw his plea of guilty?
ANNA ISAACS: No Your Honor.
Q. Do you desire to withdraw his plea of guilty or let it stand?
ANNA ISAACS: Desire to let it stand.”

Couch and his counsel were afforded opportunities down to the very last minute to withdraw the plea of guilty, and we can find nothing in this record to indicate that he was in any wise misled and surely not to the extent that the plea became involuntary. This court is of the opinion that the trial court properly exercised its discretion under RCr 8.10 in denying Couch’s motion to withdraw his guilty plea.

The judgment is affirmed.

All concur.


text:
    KENTUCKY BOARD OF TAX APPEALS et al., Appellants, v. BROWN HOTEL COMPANY, Appellee.
    Court of Appeals of Kentucky.
    June 6, 1975.

      William S. Riley, William P. Sturm, Dept, of Revenue, Frankfort, for appellants.
    Charles F. Wood, Wood, Pedley, Stans-bury, Rice & Warner, Louisville, for appel-lee.
   CATINNA, Commissioner.

The Jefferson Circuit Court, Chancery Branch, Fourth Division, entered a judgment reversing that part of an order of the Kentucky Board of Tax Appeals upholding the Department of Revenue’s assessment against the Brown Hotel of use taxes in the amount of $31,512.57 (exclusive of interest) on items of tangible personal property, consisting of glassware, linens, silverware, and similar items used in connection with the rooms and restaurant of the hotel, it being adjudged that no use tax was due on such items. The trial court affirmed that part of the order of the Board assessing use taxes in the amount of $6,929.81 (exclusive of interest) upon food used by the Brown Hotel to furnish meals to its employees. The trial court ordered that interest should begin to accrue as of March 18,1966, on any amount due the Commonwealth. The Board appeals from that part of the judgment which reversed its order upholding the levy of a use tax on the tangible personal property used by the hotel and established the date from which interest should accrue on any amount due the Commonwealth.

Between July 1, 1960, and June 30, 1963, the period of an audit made by the Department of Revenue, the Brown Hotel purchased numerous items of personal property such as glassware, linens, silverware, table linens, bed linens, towels, tumblers, and draperies for use in connection with the renting of rooms and the selling of meals in its Louisville hotel. The Brown Hotel Company gave the seller from whom it purchased these items a “resale certificate,” thereby avoiding payment of the sales tax levied by the Commonwealth. The hotel, in brief, maintains that the purchase of this property was for “resale” to hotel guests who rented its rooms and ate its meals, as the Kentucky sales tax was charged and collected on the total price of each room rented and meal sold. The hotel would have this court believe that it is not the ultimate user of the tangible personal property purchased, but rather that it was acquired for “resale” to customers of the hotel and, therefore, a person who rents a room is the buyer and ultimate “user” of the bed linens, towels, draperies, carpets, etc., in the room. Consequently, the hotel was not required to pay the sales tax or use tax, as it was paid by each guest who paid a sales tax on the total amount charged for a room.

It is likewise argued, but not so vehemently, that if a guest bought a meal at the hotel he became a purchaser and the ultimate user of the dishes, glasses, and silverware necessary for the consumption of the meal purchased. Reverting to the question of the charges for the room, the hotel argues:

“It makes no difference whether the guest thought he ‘purchased’ the tangible property in question because when he paid his consideration for the room the guest acquired the right to use the property which was located therein, and we have been unable to see how a guest could rent a room unless he wanted to sleep on the bed, use the glassware from which to drink, or avail himself of towels and a washcloth to cleanse his body.”

Neither can this court visualize a hotel which would have the ability or the salesmanship to rent a totally bare room to a prospective guest. Of course, if the guest were carrying a sleeping bag, he might survive. In seeking to refute the contention of the Commonwealth that the hotel, and not the guest, is the ultimate consumer of the property in question, it is argued:

“For example, the hotel guest, in consideration of his room fare, acquires the sole and exclusive right to benefit from the accommodations furnished him. To be more explicit, no person other than the guest himself has the right to use or consume the items of personal tangible property which are located in his room. The guest’s exclusive right of possession and occupancy is good against the whole world including, in particular, the hotel’s employees, other business invitees of the hotel, and members of the general public.”

The hotel asserts that:

“Bed linens, beds, equipment, and glassware are ‘sold’ by the hotel in its ordinary course of business because they are a part and parcel of the accommodations the hotel furnishes the guests under KRS 139.100(2)(a).”

The magic word seems to be “accommodation,” and the best we can determine it is the view of the hotel that accommodations include everything in a room except the four walls or everything necessary for the serving of a meal except the prepared food, the rationale being that the furnishing of an “accommodation” entails a “sale” of all of the tangible personal property required for the use or enjoyment of the room or the meal. We can hardly refrain from remarking that if this train of thought and logic were followed to its absolutely illogical conclusion, a guest who rents a room in a hotel would become the owner and possessor of the furnishings in the room and apparently would have the right to haul them away in a wheelbarrow when he vacates the room. Likewise, a guest in a dining room, after the completion of the meal purchased, would have the right to take the dishes, silverware, and glassware used by him in consuming the meal. Of course, this cannot be the ultimate result of the hotel’s defense, for it would be at absolute cross purposes with the diligence used by any hotel in prosecuting guests who have a tendency to check out with a suitcase full of glassware, towels, bed linens, and occasionally a television set. The absurdity of the situation presents the old common-sense solution to the question being considered.

The Commonwealth directs this court’s attention to the fact that when one rents a room there is a single all-embracing charge. The hotel does not submit an itemized statement which shows that a guest has been “sold” an interest in each and every item of tangible personal property located in the room. In fact, this personal property is “used” by the hotel in the conduct of its business to make a room livable and renta-ble. The furnishing of this tangible personal property is a basic prerequisite to the operation of any hotel. Although the guest may be an incidental beneficiary, the prime recipient of any benefits arising from its use is the hotel.

Brown Hotel does not argue that it is in the business of selling individual items of personal property but rather holds itself out as being in the business of renting rooms and selling meals. Items of tangible personal property are part of the equipment of the hotel and are incidental to the hotel’s operation.

Chapter 139 of the Kentucky Revised Statutes, Sales and Use Taxes, provides the legal foundation of the hotel’s liability. KRS 139.100 provides in part as follows:

“(1) ‘Retail sale’ or ‘sale at retail’ means:
(a) 1. A sale for any purpose other than resale in the regular course of business of tangible personal property, or
2. The furnishing of the facilities and services mentioned in subsection (2) of this section;
(b) The delivery in this state of tangible personal property by an owner or former owner thereof or by a factor, or agent of such owner, former owner or factor, if the delivery is to a consumer or person for redelivery to a consumer pursuant to a retail sale made by a retailer not engaged in business in this state. The person making the delivery shall include the retail selling price of the property in his gross receipts.
(2) ‘Retail sale’ or ‘sale at retail’ shall include but shall not be limited to the following:
(a) The rental of any room or rooms, lodgings, or accommodations furnished by any hotel, motel, inn, tourist camp, tourist cabin, or any other place in which rooms, lodgings, or accommodations are regularly furnished to transients for a consideration. The tax shall not apply, however, to rooms, lodgings, or accommodations supplied for a continuous period of ninety (90) days or more to an individual;”

KRS 139.120 provides:

“(1) ‘Sale’ means, the furnishing of any services and facilities included in KRS 139.100 or, any transfer of title or possession, exchange, barter, lease or rental, conditional or otherwise, in any manner or by any means whatsoever, of tangible personal property for a consideration, * * *
******
“(2) ‘Transfer of possession,’ ‘lease’ or ‘rental’ includes only transactions found by the department to be in lieu of a transfer of title, exchange or barter.” KRS 139.190 provides:
“ ‘Use’ includes the exercise of any right or power over tangible personal property incident to the ownership of that property, or by any transaction in which possession is given, except that it does not include the sale of that property in the regular course of business.”

The clear intent of KRS 139.100 is the levy of a sales tax on gross income received from the sale of meals and that realized from the rental of rooms, lodging, or accommodations furnished by a hotel. A “sale” is also defined by KRS 139.120 as meaning any transfer of title or possession of tangible personal property. However, the transfer of possession is defined as being a transaction entered into in lieu of a transfer of title. The Brown Hotel cannot argue that there is ever a transfer of title to a guest or customer of any of the tangible personal property of the type in controversy. In an effort to avoid the “transfer-of-title” requirement, the hotel argues at length the proposition that the guest is the “ultimate user” or sole possessor of the items located in the hotel room. In many instances an “ultimate user” is not the purchaser of, nor does he acquire title to, the property used by him. Likewise, a “sole possessor” does not acquire title to the tangible personal property over which he may exercise momentary dominion. The fact that a guest is at the best a part-time ultimate user or sole possessor will not convert the transaction into a “resale” of tangible personal property to the guest who rents a room or purchases a meal.

A hotel, of course, is not a regular vendor to the consuming public of linens, dishes, glasses, silverware, etc., but rather deals almost exclusively in services. The capability of rendering the required services is dependent upon the possession and use of numerous items of tangible personal property such as glassware, silverware, linens, etc.

Although we have not been directly confronted with the question presented by the hotel, a number of other jurisdictions have considered this question and held that the hotel is the ultimate consumer and user of the tangible personal property, even though the guests paid sales tax on the room-rental charge and the price of the meal. Hotels Statler Company v. District of Columbia, 91 U.S.App.D.C. 122, 199 F.2d 172 (1952); Atlanta Americana Motor Hotel Corp. v. Undercofler, 222 Ga. 295, 149 S.E.2d 691 (1966); Theo B. Robertson Products Co. v. Nudelman, 389 Ill. 281, 59 N.E.2d 655 (1945); American Air Lines, Inc. v. Department of Revenue, 58 Ill.2d 251, 319 N.E.2d 28 (1974).

The final question presented on this appeal concerns the date that interest begins to run on any amount due the Commonwealth. The trial court relied upon KRS 131.110 in holding that the interest began to run on March 18, 1966, this being thirty days after the date of the notice of the decision of the Board of Tax Appeals in this proceeding. KRS 131.110 may be characterized as a general statute delineating the rights and obligations of parties in the numerous proceedings before the Board of Tax Appeals involving any one of a number of taxes levied by the Commonwealth. KRS Chapter 139 concerns itself solely with the levy and collection of sales and use taxes, and we are of the opinion that those sections in this chapter concerning the due date of taxes and the penalty and interest to be levied are exclusive and controlling in all matters involving sales and use taxes.

KRS 139.540 provides: “The taxes imposed by this chapter are due and payable to the department monthly and shall be remitted on or before the 20th day of the next succeeding calendar month.”

KRS 139.550 requires that a return of taxes due for the preceding month be filed on or before the 20th day of the month following the calendar month, and KRS 139.580 requires that taxes due shall be remitted at the time of the filing of the return. Finally, KRS 139.650 requires: “In every case, any tax not paid on or before the due date shall bear interest at the rate of six per cent (6%) per annum from the date due until the date of payment.”

This court is of the opinion that in view of the provisions of Chapter 139 of the Kentucky Revised Statutes, interest accrued on all amounts due and owing from the Brown Hotel from the due date as determined by KRS 139.540.

So much of the judgment as upholds the order of the Board of Tax Appeals levying a sales tax upon food used to furnish meals to hotel employees is hereby affirmed, but in all other aspects the judgment is reversed for proceedings consistent with this opinion.

All concur.


text:
    Robert V. HALE, Individually, etc., et al., Appellants, v. Elizabeth Nickell DEATON, etc., Appellee. Elizabeth Nickell DEATON, etc., Cross-Appellant, v. Robert V. HALE, Individually, etc., et al., Cross-Appellees.
    Court of Appeals of Kentucky.
    June 6, 1975.

      Joe C. Savage, Turley, Savage & Moore, Lexington, for appellants and cross-appel-lees.
    Frank G. Gilliam, Gilliam, Weinberg & Gilfedder, Lexington, for appellee and cross-appellant.
   CATINNA, Commissioner.

Robert V. Hale appeals and Elizabeth Nickell Deaton cross-appeals from a judgment entered by the Fayette Circuit Court, Civil Branch, Fourth Division, ordering that Hale and others make an accounting of property that came into the possession of Minnie Hale as a result of power of attorney executed to her by George Hubert Hale. Robert V. Hale asserts upon appeal that the findings, conclusions, and judgment of the trial court concerning a ratification were clearly erroneous. Elizabeth Deaton asserts upon cross-appeal some eight grounds of error, and also claims that the judgment entered by the trial court on April 29, 1974, was interlocutory, and the subsequent order of May 28, 1974, did not render it final and appealable.

Deaton is the committee for George Hubert Hale, incompetent; Minnie Hale, now deceased, was the wife of George Hubert Hale; Johnie Hale, now deceased, was the son of Minnie by a prior marriage and executor of her will. Johnie died after this action was filed, and Robert V. Hale qualified as alternate executor of the estate of Minnie Hale, and May Fern Hale qualified as executrix of the estate of Johnie Hale. Johnie Hale, Robert V. Hale, and May Fern Hale were named defendants individually at the time this action was filed, and they are still parties individually and in their fiduciary capacity, except Johnie, who is deceased.

While George Hubert Hale and Minnie Hale were married, he executed a general power of attorney to Minnie and she, using this power, proceeded to dispose of a major portion of his estate. There is evidence that some of his estate was transferred either to Minnie or to her son Johnie without consideration. Prior to her death, Minnie obtained from George a ratification of her acts as his attorney in fact, under the power of attorney executed by him to her.

Elizabeth Deaton later qualified as committee of George Hubert Hale, who had been adjudicated an incompetent. She filed this action seeking the following relief: (1) A declaration that the power of attorney from George Hubert Hale to Minnie Hale was null and void and all improper and unauthorized acts under the power of attorney were null and void; (2) a declaration that the ratification executed by George Hubert Hale was null and void; (3) a restoration of property; and (4) an accounting of all property of George Hubert Hale within the knowledge or control of the named defendants. The complaint also sought damages against all of the defendants in the amount of $500,000 and punitive damages against the defendant Johnie Hale in the amount of $250,000.

After an extended hearing, the court made findings of fact and conclusions of law concerning a number of the issues in controversy. Primarily, the court found that at the time of the execution of the power of attorney and at the time of the execution of the ratification George Hubert Hale was mentally competent and not acting under undue influence. However, the court found that the ratification did not ratify the acts of Minnie Hale because George Hubert Hale was not given details of the transactions involved. The court then found that there should be an accounting made of the property of George Hubert Hale. On April 29, 1974, the following “judgment” was entered:

“IT IS HEREBY ORDERED AND ADJUDGED that the defendants shall make an accounting of the property that came into the possession of Minnie Hale as a result of the Power of Attorney of George Hubert Hale; that if there is an evidentiary dispute as to what property came into her possession, that the matter be assigned to the Master Commissioner for hearing as to what property came into Minnie Hale’s possession, the disposition of the property, and the disposition of the proceeds from the sale of said property. When this has been accomplished, the Court will make further Findings of Fact as to restoration due George Hubert Hale from the defendants." (Emphasis ours.)

A May 28, 1974, order of the trial court overruling the motion of Hale for a modification of the court’s findings and conclusions also provided: “The Judgment entered herein, and this Order are final and appealable Orders and Judgment of the Court.”

CR 54.01 defines a final or appeala-ble judgment as “a final order adjudicating all the rights of all the parties in an action or proceeding, or a judgment made final under Rule 54.02.” Cf. Burroughs v. Bake Oven Supply Company, Ky., 434 S.W.2d 32 (1968). The judgment entered by the trial court in the proceeding before us could not and does not adjudicate all the rights of all the parties. Actually, it merely prefaces the entry of additional orders by the trial court, their context being dependent upon facts developed by the accounting required by the judgment. The April 29, 1974, judgment was interlocutory and nonappealable.

An interlocutory judgment or order may be made final and appealable by compliance with CR 54.02(1) which provides:

“When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may grant a final judgment upon one or more but less than all of the claims only upon a determination that there is no just reason for delay. The judgment shall recite such determination and shall recite that the judgment is final. In the absence of such recital, any order or other form of decision, however designated, which adjudicates less than all the claims shall not terminate the action as to any of the claims, and the order or other form of decision is interlocutory and subject to revision at any time before the entry of judgment adjudicating all the claims.”

For the purpose of making an otherwise interlocutory order final and appeala-ble, the trial court is required to determine “that there is no just reason for delay,” and the judgment must recite this determination and also recite that the judgment is final. CR 54.02(1). The omission of one of these requirements is fatal. Com., Dept. of Highways v. General Refractories Corporation, Ky., 453 S.W.2d 531 (1969).

Before the processes of CR 54.02 may be invoked for the purpose of making an otherwise interlocutory judgment final and appealable, there must be a final adjudication upon one or more of the claims in litigation. The judgment must conclusively determine the rights of the parties in regard to that particular phase of the proceeding. While Deaton, in an effort to recover funds and property belonging to George Hubert Hale, demanded an accounting, this procedure was a corollary aspect of the principal claim. The judgment directing that the Hales account for property of George Hubert Hale that came into possession of Minnie Hale under the power of attorney executed by him did not finally fix the rights of any of the parties but was at the most an intermediate step in the proceeding. Considering the avowed intention of the trial court to make additional findings of fact and enter appropriate orders and judgments, the judgment directing the accounting was interlocutory and this status was not altered by an attempted compliance with CR 54.02. Chittum v. Abell, Ky., 485 S.W.2d 231, at page 237 (1972).

The appeal and cross-appeal are dismissed.

All concur.


author: PER CURIAM.

text:
    Howard SALLEE, Commissioner, Department of Banking & Securities, Commonwealth of Kentucky, Appellant, v. MT. ZION DEPOSIT BANK, ELLISTON, GRANT COUNTY, Kentucky, Appellee.
    Court of Appeals of Kentucky.
    June 18, 1975.
    Thomas C. Jacobs, Frankfort, for appellant.
    John Allen Taylor, Louisville, for appel-lee.
   PER CURIAM.

This is a proceeding under CR 65.08(2) seeking review of the refusal of the Franklin Circuit Court to suspend, during the pendency of appeal, an injunction issued by that court which prohibits the Commissioner of Banking and Securities from taking charge of the Mt. Zion Deposit Bank, a state bank located in Grant County, Kentucky.

KRS 287.600 clearly provides that any question regarding the propriety of the actions of the commissioner relevant to taking charge of a bank pursuant to KRS 287.-560(1) is subject to review in the county in which the banking institution is located. We have held in Barr v. Dorman, 249 Ky. 367, 60 S.W.2d 939 (1933), and Sweeny v. Jefferson County Bank’s Reorganization Committee, 250 Ky. 187, 61 S.W.2d 1090 (1933), that the circuit court in the county in which a bank is located is the only court with authority to review the actions of the commissioner relevant to taking charge of a bank.

The relief sought in the Franklin Circuit Court necessarily required a review by that court of the actions of the commissioner relevant to taking charge of a Grant County bank. The Franklin Circuit Court had no authority to undertake such a review.

The injunction issued by the Franklin Circuit Court is dissolved.

All concur.