text:
    Frank Odis ROGERS, Petitioner, v. Teri Lyn ROGERS, Respondent.
    No. 12555.
    Court of Civil Appeals of Texas, Austin.
    April 13, 1977.
    Rehearing Denied April 27, 1977.
    Keith Woodley, Sudderth, Woodley & Dudley, Comanche, for petitioner.
    Darrell E. Haynes, Brownwood, for respondent.
   SHANNON, Justice.

This cause is in this Court by writ of error from the judgment of the district court of Mills County.

Respondent, Teri Lyn Rogers, filed suit for divorce against petitioner, Frank Odis Rogers. Petitioner had not filed an answer by trial time and did not appear at trial in person or by counsel. The transcript does show that counsel for petitioner had been in correspondence with the court prior to trial. After hearing, the district court on May 27, 1976, entered judgment dissolving the marriage; dividing the community property; appointing respondent managing conservator and petitioner possessory conservator of the minor child of the parties; and ordering petitioner to pay child support.

The court reporter did not attend the hearing and, of course, did not take notes of the oral testimony offered at trial. As a result, petitioner was unable to obtain a statement of facts for this proceeding by writ of error.

Petitioner’s inability to obtain a statement of facts forms the basis for his single point of error.

Prior to its amendment, Tex.Rev.Civ. Stat.Ann. art. 2324 (1971) required the court reporter “[to] attend all sessions of the court” and to take full shorthand notes of all oral testimony offered. In Morgan Express, Inc. v. Elizabeth-Perkins, Inc., 525 S.W.2d 312 (Tex.Civ.App.1975, writ ref’d), the Dallas Court of Civil Appeals considered the problem of the inability of a party to obtain a statement of facts wherein a default judgment had been entered and the court reporter had not taken notes of the oral testimony. Justice Guittard, for the court, wrote that by the terms of Art. 2324 it was the mandatory duty of the court reporter to attend the hearing and take notes; that the failure of the reporter to perform his mandatory duty should not deprive a party of his right to an adequate review on appeal; and that the trial court had the responsibility to see that the court reporter performed that duty. A further holding in Morgan Express, Inc., was that the defaulting party is not required to show that he was unable to obtain a statement of facts by agreement of counsel or by certification from the trial court. Because the Supreme Court refused application for writ of error the principles of law announced in Morgan Express, Inc., are considered as having been correctly determined.

Other Courts of Civil Appeals have followed Morgan Express, Inc. See Wallace v. Snyder National Bank, 527 S.W.2d 485 (Tex.Civ.App.1975, no writ), Hall v. C-F Emp. Credit Union, 536 S.W.2d 266 (Tex.Civ.App.1976, no writ).

Texas Rev.Civ.Stat.Ann. art. 2324 was amended effective May 27, 1975, to provide that the court reporter shall “upon request” attend all sessions of the court and take full shorthand notes of all oral testimony offered in cases tried in the court. Plainly, the amendment of Art. 2324 eliminated the basis for the holding in Morgan Express, Inc. Article 2324, as amended, no longer places a mandatory duty upon the court reporter to attend all sessions of court and to take notes of the oral testimony offered, but instead the court reporter is burdened with that duty only after request of counsel or a party.

The most recent Supreme Court authority is Smith v. Smith, 544 S.W.2d 121 (Tex. 1976). Smith was a divorce case which was taken to the Beaumont Court of Civil Appeals by way of writ of error. In that case the husband filed pleadings, but did not appear in person or by counsel at the trial on the merits. The domestic relations court entered an order granting the divorce, naming the wife managing conservator of the minor child of the parties, and dividing the property. The court reporter did not attend the divorce proceeding and, of course, took no notes of the oral testimony. One appellate position of the husband was that his inability to obtain a statement of facts entitled him to a reversal of the judgment. The Supreme Court agreed with that position and reversed the judgments of the lower courts and remanded the cause for trial.

As authority for its position the Supreme Court in Smith referred to general language in Robinson v. Robinson, 487 S.W.2d 713 (Tex.1972), to the effect that if an appealing party exercised due diligence and through no fault of his own is unable to obtain a proper record of the evidence introduced, a new trial may be required where his right to have the case reviewed on appeal can be preserved in no other way. In Robinson, the domestic relations court required that the testimony of one witness be taken in chambers. Counsel for the complaining party was present in chambers when the witness testified though the reporter was not present and did not take notes of the witness’s testimony. No request was made for the court reporter to take the testimony and no objection was made to the failure of the reporter to be present and take the testimony. The holding in Robinson was that because the party made no objection or request concerning the absence of the court reporter while the witness was testifying, the party was “. not in a position to complain, therefore, of her inability to obtain a transcript of the testimony in question and answer form.” The holding in Robinson is in accord with the general rule that it is the duty of the party or his counsel to request the presence of the reporter and if such request is not made, the right may be waived. See Brady v. Brady, 255 S.W.2d 585 (Tex.Civ.App.1953, no writ). Robinson has been followed in many cases. Whatley v. Whatley, 493 S.W.2d 299 (Tex.Civ.App.1973, no writ), Phillips v. Phillips, 532 S.W.2d 161 (Tex.Civ.App.1976, no writ), Bledsoe v. Black, 535 S.W.2d 795 (Tex.Civ.App.1976, no writ), Wilkinson v. Evans, 515 S.W.2d 734 (Tex.Civ.App.1974, writ ref’d n. r. e.).

The opinion in Smith, other than referring to general language in Robinson, does not set out the specific basis for the reversal of the judgment on account of the inability of the husband to obtain a statement of facts. The Supreme Court in Smith v. Smith, supra, did not refer to Art. 2324 before or after amendment, nor did the Court refer to Morgan Express, Inc.

On its face, Smith v. Smith, supra, cannot be reconciled with Art. 2324, as amended. Article 2324, as amended, imposes a duty upon the court reporter to attend and take notes of oral testimony only “upon request” of a party or his counsel. An absent party cannot invoke that duty since he obviously cannot request the reporter to take the testimony. One may speculate that the Court reached the result in Smith by an inferential determination that the absent party’s right to a question and answer statement of facts is accorded by “due course of the law.” Tex.Const. art. I, § 19. That notion is little more than surmise, however, since the briefs submitted in Smith show no constitutional attack was leveled against Art. 2324.

An examination of the transcript in Smith v. Smith, supra, shows that the trial was conducted and the judgment was entered before the amendment to Art. 2324 became effective. The amended statute became effective on May 27, 1975, and the judgment of the domestic relations court was signed on April 16, 1975. We have, therefore, concluded that the basis for reversal in Smith was that the pre-amendment provisions of Art. 2324 were applicable and, as such, the reporter had the mandatory duty to attend the hearing and take the oral testimony, and that the trial court had the responsibility to see that the court reporter performed that duty. Morgan Express, Inc. v. Elizabeth-Perkins, Inc., supra.

Because Smith was decided under Art. 2324, before amendment, Smith does not control the disposition of the case at bar. In our view, Art. 2324, as amended, requires that the judgment of the district court be affirmed, for the reason that the court reporter in the case at bar was not requested to take notes of the oral testimony and, as a result, had no duty to do so.

The judgment is affirmed.

Affirmed.


source: Caselaw Access Project

author: STEPHENSON, Justice. CLAYTON, Justice

license: Public Domain

text:
    The CINCINNATI, NEW ORLEANS & TEXAS PACIFIC RAILWAY COMPANY, Appellant, v. Charles WRIGHT, by Lorna M. Wright, guardian and Lorna M. Wright, Appellees.
    Supreme Court of Kentucky.
    May 7, 1976.
    Rehearing Denied Oct. 13, 1976.
    R. L. Vincent, Williamstown, Raymond R. Vincent, Florence, Vincent & Vincent, Wil-liamstown, Bert T. Combs, Tarrant, Combs, Blackwell & Bullitt, Louisville, V. A. Bradley, Jr., Bradley & Bradley, Georgetown, Hugh 0. Skees, Vincent & Skees, Florence, for appellant.
    G. Wayne Bridges, Covington, Russel E. Lyons, Coshocton, Ohio, Asa M. Rouse, Walton, for appellees.
   STEPHENSON, Justice.

A Boone Circuit Court jury awarded Charles Wright and his wife, Loma M. Wright, $411,200 for injuries and for loss of consortium resulting from Wright’s automobile colliding with a locomotive owned and operated by the appellant railroad company. The railroad company appeals from the judgment entered pursuant to the jury’s verdict. We reverse.

The trial court submitted the case to the jury on instructions with interrogatory verdicts. The jury returned one verdict that the railroad company was not negligent in the operation of its train. Another verdict was returned finding that Wright was not negligent in the operation of his motor vehicle.

The jury found the railroad company negligent under Instruction No. 2 and awarded damages.

“INSTRUCTION NO. 2
“It was the duty of the railroad to maintain its right of way in a safe and reasonable condition, and to maintain a suitable and reasonably safe railroad crossing, including maintenance of so much of a public highway as was on the railroad right of way, and this duty included the duty to cause a sign board to be placed and constantly maintained at the crossing so as to be easily seen by travelers and not to obstruct travel and shall contain on each side in capital letters at least five (5) inches high the words ‘Railroad Crossing.’ (Emphasis ours.)
* * * * * *
“QUESTION NO. 2: Do you find from the evidence that at the time and place of the collision described in the testimony, the railroad company was negligent under Instruction No. 2, and that such negligence was a direct and proximate cause of the collision and of the injuries to Charles Wright?”
The jury answered “yes.”

This instruction was given by the trial court on Wright’s alternate theory of the case that the railroad company did not use ordinary care in maintaining its right of way and crossing in that the railroad company failed to remove sand from the highway within its right of way.

We view the legal issue raised by Instruction No. 2 as dispositive of the case and confine ourselves to the proof on this issue.

The accident occurred on a Wednesday in the month of March. Wright, an engineer with Clow Corporation employed at the company’s plant in Coshocton, Ohio, was en route from Ohio to the company’s plant in a rural area of Boone County. The accident occurred at a railroad crossing on Frogtown Road. In this area, the railroad runs north and south; Frogtown Road runs east and west; and US highway 25 runs north and south roughly parallel to the railroad. From the intersection of US 25 and Frog-town Road, the 24-foot blacktop road is straight and level for approximately 100 feet, then slightly downgrades to the railroad crossing a distance of 150 feet. The road is essentially level at the crossing. The Clow Corporation plant is located on Frogtown Road east of the railroad crossing. On his way to the company plant, Wright proceeded along US 25, turned east on Frogtown Road and proceeded toward the crossing at about 25 to 30 miles per hour. The only eyewitness to the accident testified that Wright slowed down some distance from the crossing, then, when he apparently saw the train, applied his brakes, hit sand that had accumulated on the highway and skidded in the sand. The skid, a distance of 20 to 45 feet, carried his automobile into the side of the locomotive. Because of the serious nature of his injuries, Wright was unable to testify at the trial or give his deposition.

The sand had been spread on the eastbound lane of Frogtown Road west of the crossing by the Boone County Highway Department on Friday, Saturday or Sunday before the accident on Wednesday. The evidence is not clear as to which day it was done. According to the testimony, for many years sand was routinely spread by the county during and after snows and the accumulation of ice on Frogtown Road. The county never removed the sand from the highway. There had been snow on Friday and the day before which occasioned the spreading of sand. On Wednesday, the day of the accident, the weather was clear and dry, and the surface of Frogtown Road was dry. There is no evidence in the record as to when the snow disappeared.

A track supervisor for the railroad company testified that on his regular inspection of railroad right of way he inspected the area including the Frogtown Road crossing southbound on Monday before the accident and northbound on Tuesday before the accident. He testified he looked for things that might cause accidents between automobiles and trains at crossings and that he saw no sand on the approach to Frogtown Road crossing. The railroad right of way is 100 feet in width, 50 feet on each side of the center of the track.

According to the testimony of several witnesses, there was sand on the eastbound lane of the Frogtown Road for a distance of 200, 100, 50 or 30 feet from the railroad crossing back along the eastbound lane of the road. It is not clear from the evidence the amount of sand that had accumulated, and the testimony on this point characterizes it: “would say quite a bit”; “wouldn’t notice sand unless practically on it”; “could not see sand in front of automobile for any distance”; and “sand blends with road, don’t believe you can distinguish it as sand instead of a dirty road.”

It is in the context of this factual situation that we consider the duty of the railroad company with respect to the sand on Frogtown Road.

Instruction No. 2 imposed upon the railroad company the duty “to maintain its right of way in a safe and reasonable condition . . . including maintenance of so much of a public highway as was on the right of way . ?

This instruction is based on Wright’s theory of the case that KRS 277.060(2) imposed a statutory duty on the railroad company.

KRS 277.060(2) reads:

“Every railroad company shall restore to its former condition, as near as may be, any private road, highway, street, lane, alley, railroad, canal or watercourse upon or across which it has constructed its road, and shall maintain the same in that condition within the right of way of the railroad company. It shall construct suitable road and street crossings for the passage of traffic by putting down planks or other suitable material between and on each side of the rails, the top of which shall be at least as high as the top of the rails.” (Emphasis ours.)

Assuming arguendo that the railroad company did have the duty to remove the sand within its right of way, we are of the opinion that Wright has not presented a submissible jury issue on that duty. With this duty imposed upon the railroad company, it was essential for Wright to prove that the railroad company knew, or by the exercise of ordinary care should have known, of this condition. This essential element of proof is required when the condition is created by someone other than the possessor of the premises. We view the situation here as analogous to those situations presented in “slip and fall” cases. Wiggins v. Scruggs, Ky., 442 S.W.2d 581 (1969), and Cumberland College v. Gaines, Ky., 432 S.W.2d 650 (1968). This is a slippery analogy in the sense that “slip and fall” cases involve situations where the possessor of the premises has control thereof. We do not believe that a railroad company has the same degree of control, if any at all, over a public highway constructed on the railroad right of way. Here the county highway department spread sand on a snow on the railroad company right of way Friday, Saturday, or Sunday preceding the accident on Wednesday morning. There is no evidence, direct or circumstantial, from which we could draw an inference as to when the snow melted and left the road in a dry condition as it was on Wednesday morning. One witness testified that he saw sand prior to the accident but does not specify the time. Another witness testified that he observed the sand the morning of the accident. The railroad company supervisor, who inspected the tracks, made his inspection southbound on Monday and northbound on Tuesday. He testified that he had made no entries in his notes on either day with reference to any condition on the crossing and that the crossing was in “good shape.” He further testified that he would have noticed any appreciable accumulation of sand on the crossing and that he did not see any. We observe that this witness was not testifying about the condition of all that portion of the highway within the right of way. It is clear that so long as the snow remained on all or part of the road, there would be no duty to remove the sand by any test. We cannot speculate as to when the snow disappeared and the road became dry and the duty to remove came into being. There is no proof that the railroad company had notice of the condition, or that the condition could have been discovered in the exercise of ordinary care. This rule was applied in a railroad crossing case, Louisville & N.R. Co. v. Bell, 276 Ky. 778, 125 S.W.2d 239 (1939). The court said at page 241:

“. . . [T]he company could not be held liable for resulting injuries unless it had been shown that through its proper agents it knew of that defective condition, or by the exercise of ordinary care, such as its continued existence, it should have known of it.”

In summary to make out a ease for the jury, it was incumbent on Wright to introduce evidence, direct or circumstantial, that the railroad company knew of the condition or could have discovered the condition in the exercise of ordinary care (the condition coming into being with the disappearance of the snow).

Even though this case may be disposed of on the above ground, we are not inclined to leave the question of a statutory duty on the railroad company in these circumstances to another day.

We regard that portion of Instruction No. 2 which recited the duty of the railroad company to cause a signboard to be placed and mounted at the crossing as superfluous. There is no question about the signboard’s being in place and no serious argument that the cause of the accident was other than the sand on the highway.

It is clear that the verdict of the jury was based on that portion of Instruction No. 2 which imposed upon the railroad company the duty to maintain the highway within the right of way in a safe and a reasonable condition. We are of the opinion that in this respect the trial court was in error. We do not find either a common law or a statutory duty on the railroad company to maintain that portion of the highway within its right of way other than the crossing and approaches necessary to the permanent roadbed in situations where the railroad company has not constructed its road across an existing highway or street. The duty imposed on the railroad company by KRS 277.060(2) clearly applies only to those situations. Here, according to the evidence and an exhibit (the maintenance contract between the county and the railroad) the county constructed the highway across existing railroad company tracks; so, the statute has no application here. We find KRS 277.060(2) merely a codification of the common law rule regarding the railroad company’s duty where the tracks are constructed over existing highways and streets. The then statutory duty and notations of the common law rule are found in Louisville & I. R. Co. v. Speckman, 169 Ky. 385, 183 S.W. 915 (1916). There the railroad company, after receiving permission to construct its tracks across a public road, constructed a stone wall as support for a fill for the crossing and approach to the crossing so that for a distance of 15 or 18 feet the fill constituted a highway for the public and a roadbed for the track of the railroad company. Liability was imposed when the stone wall gave way under an automobile approaching the crossing. The public road had been restored to its former condition as near as could be, and we note that the railroad right of way acquired was limited to the space between the rails and 3 feet on either side.

The statute in effect at that time required the railroad to restore the highway to its former condition as near as may be. There was no specific duty to maintain, but this court reasoned that the duty to maintain the approach and crossing in proper condition followed for the reason that the county highway employees were unskilled in the work of maintaining railroad crossings and approaches thereto, and they could not reasonably determine the requirements of a fill to support the roadbed of the railroad company.

The opinion stands for the proposition that a railroad company when constructing its tracks over a public highway has the responsibility for maintaining fills, structures and slopes incident to the construction in a safe condition for the travelling public. Maintain is used in the context of safe structural condition and not in the sense of day-to-day maintenance of the surface of the public road.

In Louisville Ry. Co. v. Jackey, 237 Ky. 125, 35 S.W.2d 28 (1930), the railroad company’s tracks crossed a city sidewalk. Whether the tracks were constructed over the street is not mentioned or considered in the opinion, but we infer from the following quote that the railway company built over an existing sidewalk. The plaintiff sued for injuries sustained from a fall after stepping in a hole in the sidewalk and tripping over a rail. There it was said:

“As to the care required to keep this sidewalk in a reasonably safe condition for use by pedestrians, the duty of the city extends to the whole of the sidewalk and every part of and place on it, while the duty of the railway company is confined solely to defects therein resulting from its servitude thereon. ... If this defect resulted from, existed at, or in whole or in part consisted of, the servitude maintained across this sidewalk by the railway company, then, if the railway company and the city knew or by the exercise of ordinary care could have known of it long enough to have repaired it, both the railway company and the city are, or such one as had, or by the exercise of ordinary care could have had, timely notice thereof, is responsible therefor.” (Emphasis added.)

See also Chesapeake & O. R. Co. v. Pope, 296 Ky. 254, 176 S.W.2d 876 (1944).

We are urged by Wright to consider the “width of right of way” cases cited in his brief. We have examined these cases, which include Speekman and Pope, and conclude that none of them applies to the situation here. The factual situations presented in Paducah and Elizabethtown R.R. Co. v. Commonwealth, 80 Ky. 147 (1882), Commonwealth v. Louisville & N.R. Co., 109 Ky. 59, 58 S.W. 478 (1900), and Louisville & N.R. Co. v. Muncey, 229 Ky. 538, 17 S.W.2d 422 (1928), are not, in our opinion, relevant to the instant case. The language contained therein inferring that the railroad company had a duty to maintain the entire right of way does not represent the narrow holding in each case and is not considered to be authority for the position taken by Wright. The other cases cited on this proposition do not apply in any respect.

We agree with the “safe crossing” cases cited by Wright. The common law duty of a railroad company to maintain a safe crossing for the convenience and safety of the travelling public is not the issue here. The difficulty arises when Wright urges us to extend this duty to the entire width of the right of way. We construe that portion of KRS 277.060(2) that reads “shall maintain the same in that condition within the right of way of the railroad” to apply to the construction performed by the railroad, and this language does not include ordinary maintenance of the highway surface outside of the crossing and its immediate approaches:

There is nothing here to show that the railroad track was constructed over the highway. An exhibit shows that in 1967 the county entered into an agreement with the railroad company to widen the county road. We are of the opinion that the railroad company does not have a duty to perform ordinary maintenance on the highway within its right of way outside of the immediate area of the crossing.

We hold in the factual situation presented here that there was no duty on the part of the railroad to remove the sand on that portion of the highway within its right of way, particularly where the county highway department placed the sand there on snow and ice for the safety of the travel-ling public.

The judgment is reversed with directions to sustain appellant’s motion for judgment n.o.v.

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

CLAYTON, J., dissents.

CLAYTON, Justice

(dissenting).

I respectfully dissent from the majority opinion. I do not construe KRS 277.060(2), which contains the duty of railroad companies to maintain roadways within the railroad right-of-way, as applicable only to the railroad roadbed and the immediate area of the roadbed or only to situations where a railroad is constructed over an existing highway. I feel this statutory duty applies to the entire right-of-way and this application exists regardless of which was there first, the highway or the railroad.

The railroad company clearly recognized its duty to maintain safe tracks and .crossings. A supervisor was employed to make frequent inspections of tracks and all crossings and, in fact, had observed the Frog-town Road crossing on the Monday and Tuesday preceding the accident on Wednesday. By virtue of this fact, the railroad company not only could have but should have discovered the dangerous condition represented by the accumulation of sand.

The following quoted language as cited in this court’s opinion in Louisville & I. R. Co. v. Speckman, 169 Ky. 385, 183 S.W. 915, 919 (1916) clearly expresses my view of the manner in which cases of this type should be viewed:

“ ‘As a general rule, it is the duty of a railroad company, both by virtue of statute, and under the principles of common law, to use reasonable care to so construct and maintain in good repair crossings and approaches over all public streets and highways intersecting the line of its road that they will be reasonably safe and convenient for the usual and ordinary purposes of the public; and its failure to do so renders it liable to one who is injured by reason thereof while making a proper, reasonable, and necessary use of the crossing . . .

There was ample evidence presented in the instant case to support the findings of' the jury and I am not inclined to overturn its verdict.

I would, therefore, affirm the judgment.


author: STERNBERG, Justice.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF TRANSPORTATION, BUREAU OF HIGHWAYS, Appellant, v. Morris LAMB, Appellee.
    Supreme Court of Kentucky.
    June 11, 1976.
    Rehearing Denied Oct. 1, 1976.

      Dandridge F. Walton, Asst. Atty. Gen., J. Michael Fleming, Dept, of Transp., Frankfort, Ky., for appellant.
    James M. Baker, Frankfort, John T. Dau-ghaday, Mayfield, for appellee.
   STERNBERG, Justice.

This appeal, for its second time, calls into issue the effect of the state’s merit system of personnel administration. (KRS, ch. 18.)

The Franklin Circuit Court, by judgment of August 30,1974, ordered that appellee be reinstated without loss of pay or other fringe benefits. The judgment was affirmed by this court.

Subsequent proceedings disclose that on June 16, 1975, the appellee was reinstated to his former position. He was paid the sum of $28,732.50, which represented his lost pay for the full period of his layoff (9/15/72-6/16/75). On July 8, 1975, appel-lee made a motion before the judge of the Franklin Circuit Court for a supplemental judgment awarding him (1) damages in the sum of 10% of his lost pay; (2) interest at the rate of 6% per annum from the date of judgment, with interest computed from each pay period; (3) social security benefits; (4) the costs of printing his reply brief in the Court of Appeals; and (5) 43¼ days of annual leave which had been lost. On August 7,1975, the trial court entered judgment awarding appellee (1) damages in the sum of $2,873.25, which is 10% of his lost pay; (2) interest at the rate of 6% per annum, and (3) accumulated annual leave of 30 days. The judgment denied recovery of social security payments and recovery of the costs of printing the reply brief.

On this appeal the Commonwealth contends that (1) the 10% penalty should not have been awarded; (2) interest should not have been allowed; and (3) if allowed, the interest should have been computed only from the date of the supplemental judgment fixing the exact amount of the recovery.

The original judgment of August 30, 1974, is as follows:

“IT IS ORDERED AND ADJUDGED that the defendant, Department of Transportation, Bureau of Highways, reinstate the plaintiff, Morris E. Lamb, to his former position or a position of like status and pay without loss of pay or other fringe benefits of employment and that the plaintiff, Morris E. Lamb, recover of the defendant, Department of Transportation, Bureau of Highways, his costs herein expended or incurred.”

KRS 18.275 lays down the guidelines by which the amount of money which the appellee is entitled to receive may be ascertained. It is not until this sum has been determined that a judgment for money recovery can be entered. The amount of money which appellee was entitled to receive for his loss of time was not determined or adjudged until August 7,1975, the date of the supplemental judgment. The original judgment in effect merely said “Put this man back to work.” The supplemental judgment sets forth the amount of money he lost by reason of his untimely layoff and awarded a sum in damages. The Commonwealth was entitled to mitigation of damages, if justified by the facts (Commonwealth v. Ratliff, Ky., 497 S.W.2d 435), and until this issue was determined there was no final determination of the amount of money that appellee had lost or the amount of his money damages.

Counsel for both appellant and appellee cite and discuss the cases of Rice v. Conley, Ky., 419 S.W.2d 769, and Standard Products Company v. Estes, Ky., 508 S.W.2d 771. The Rice case is distinguishable from the case at bar. In that case the Court of Appeals said:

“ * * * When an award setting forth the amount and time of payment has become a part of a circuit court judgment, it constitutes a money judgment.
The Board awarded Conley $33.33 a week for 425 weeks. We hold that an enforceable money judgment was obtained by Conley upon the affirmance of the award in the circuit court. KRS 342.285. Hence, Conley is entitled to 10% damages on so much of the superseded judgment as was due and payable at the time the mandate of this court issued.”

In the subject case there is no way that the amount of dollar recovery can be calculated from the terms of the first judgment. Consequently, the Rice case would not be determinative of this issue.

In Standard Products Company v. Estes, supra, we said:

“The factual situation in Rice, supra, distinguishes it from the present proceeding and except for the situation presented in Rice we think that a judgment of the court affirming an award of the Compensation Board is not properly a judgment for the payment of money but is no more than a judicial declaration that the Board did not exceed its powers, the award was not procured by fraud and was in conformity with the act, was not clearly erroneous, arbitrary or capricious or the result of abuse of discretion. * * *”

The situation presented in Rice was that the award was for $33.33 per week for 425 weeks. Mere multiplication was all that was needed to determine the total award. Thus, it was a money judgment. Again, in the subject action the money damages could not be determined from the judgment of August 30, 1974. The- Standard Products Company case is determinative of this issue. The judgment of August 30,1974, was not a money judgment on which a 10% penalty was authorized, notwithstanding the wording of the mandate of this court which issued on June 10, 1975.

Next, appellant complains that interest should not have been awarded.

KRS 360.040 provides that “A judgment shall bear legal interest from its date. * * *” In Commonwealth, Department of Highways v. Young, Ky., 380 S.W.2d 239, the Court of Appeals said that by reason of statutory authority (KRS 44.140(2) and KRS 360.040) the Commonwealth was liable for interest. There, the interest was allowed by reason of a statute which the court construed as authority for its award. In Department of Revenue v. Jack Cole Co., Ky., 474 S.W.2d 70, the Court of Appeals held that a gasoline tax refund did not carry interest because interest was not authorized by statute. In the course of the opinion it is stated:

“With respect to interest, it is our opinion that it should not have been allowed. KRS 134.580 makes no provision for the allowance of interest, except in subsection (2) when refunds result from ‘error’ of the department. * * *”

In Bankers Bond Co. v. Buckingham, 265 Ky. 712, 97 S.W.2d 596, it is stated:

“ * * * it is a well-settled principle that neither a state nor any subdivision thereof may be held to the payment of interest on their public debts ‘unless bound by an act of the legislature or by a lawful contract of its executive officers made within the scope of their duly constituted authority. * *

It is the opinion of this court that there is no statutory authority or any contract which authorizes the payment of interest. Consequently, the award of interest is not justified.

In view of the determination that interest is not justified, issue number (3) becomes moot.

The judgment is reversed with directions to enter judgment in keeping with this opinion.

All concur.


author: JONES, Justice.

text:
    Jefferson PREECE et al., Appellants, v. Howard QUEEN, Committee for Philip Preece, Sr., et al., Appellees.
    Supreme Court of Kentucky.
    June 25, 1976.
    Rehearing Denied Oct. 1, 1976.

      Lillian D. Williams, Creech, Hogg & Williams, Ashland, for appellant.
    Kit C. Elswick, Wayne L. Bromley, Sr., Louisa, for appellees.
   JONES, Justice.

This action was commenced on May 17, 1973, by Eldred E. Adams, Committee for Philip Preece, Sr., an incompetent, against Kit C. Elswick, personal representative of the estate of Nanie Preece, deceased wife of Philip Preece, Sr., and other heirs and devisees of Nanie Preece. Adams resigned as Committee and Howard Queen was substituted for Adams. Adams filed an action in the Lawrence Circuit Court requesting instructions as to the renunciation of Name's will.

On June 21, 1973, several next of kin of Philip Preece, Sr. filed a motion to intervene in the action. That motion was not expressly ruled on by the trial court. The trial court struck the pleadings of the inter-venors and refused to permit them to introduce evidence. Thereafter the trial court determined that it would not be in the best interest of Philip Preece, Sr. to renounce Name’s will. The intervenors prosecute this appeal.

The estate of Philip Preece, Sr. has opened the floodgates to litigation. Motions, pleadings, responses, charges and countercharges, like arrows, have showered this court.

Nanie Preece died January 24, 1973. Philip Preece, Sr. died March 25,1976. This court is of the opinion that the death of Philip Preece, Sr. renders this appeal moot.

The right to renounce a will has long been considered a personal one, exercisable only by the persons named in the statute. Georgetown National Bank v. Ford, 215 Ky. 472, 285 S.W. 218 (1927); Harding’s Adm’r v. Harding’s Ex’r, 140 Ky. 277, 130 S.W. 1098 (1910); etc. If that person is legally incapacitated the election will be made for him by the court or his Committee. Miller v. Keown, 176 Ky. 117, 195 S.W. 430 (1917); Harding’s Adm’r, supra. Whether exercised by the person himself or by his Committee, however, the choice must be made before his death. Eckert v. Givan, 298 Ky. 621, 183 S.W.2d 809 (1944); Harding’s Adm’r, supra. As Philip Preece, Sr. is now dead, the right of renunciation has expired. Resolution of issues in this appeal, therefore, would serve no purpose.

The appeal is dismissed.

All concur except CLAYTON, J., who did not sit or participate in the consideration of this case.


author: PER CURIAM.

text:
    KENTUCKY BAR ASSOCIATION, Complainant, v. Daniel T. TAYLOR, III, Respondent.
    Supreme Court of Kentucky.
    Sept. 3, 1976.
    Rehearing Denied Jan. 28, 1977.

      Leslie G. Whitmer and John T. Damron, Kentucky Bar Ass’n, Frankfort, for complainant.
    Robert Allen Sedler, Lexington, Patrick M. Flannery, Jr., Covington, for respondent.
    Daniel T. Taylor, III, pro se.
   PER CURIAM.

This is a disciplinary proceeding against Daniel T. Taylor, III, a member of the Kentucky bar.

On February 1, 1974 respondent entered a plea of nolo contendere to an information charging him with the offenses of wilfully failing to file federal income tax returns for the years 1968,1969 and 1970 in violation of 26 U.S.C. § 7203. The United States District Court for the Western District of Kentucky at Louisville sentenced him to imprisonment for one year on each count. The sentences were to be served concurrently. The first 30 days were to be served in a jail type institution, the balance was suspended and the respondent was placed on probation for a period of two years thereafter.

On January 29, 1975 the complainant commenced disciplinary proceedings against the respondent charging that the foregoing constituted “unethical and/or unprofessional conduct and the same is calculated to bring the bench and bar of the Commonwealth of Kentucky into disrepute”.

The charge was referred to a trial committee. A hearing was held. The committee found the respondent guilty as charged and recommended that the respondent be suspended from the practice of law for a period of 6 months.

The recommendation of the trial committee was reviewed by the board of governors of the complainant. The board found him guilty as charged by a vote of 10 to 6. The board recommends to this court by a vote of 9 to 7 that respondent be issued a public reprimand. The minority votes are for a recommended period of suspension of 6 months.

Our opinions in Kentucky Bar Association v. Vincent, Ky., 537 S.W.2d 171 (1976) and Kentucky Bar Association v. Trimble, Ky., 540 S.W.2d 599 (rendered August 20, 1976) are fully dispositive of the issues presented here. It would serve no useful purpose to rehash the obvious and expand this opinion by repetition of principles previously announced.

The respondent is guilty as charged. He is suspended from the practice of law for a period of 6 months and directed to pay the costs of this action.

All concur.

      . In disciplinary actions a plea of nolo conten-dere is deemed to be the equivalent of a plea of guilty. Kentucky Bar Association v. King, Ky., 535 S.W.2d 83 (1975); Maryland State Bar Association, Inc. v. Agnew, 271 Md. 543, 318 A.2d 811 (1974).


text:
    Harry HAGAN and Louise Hagan, Appellants, v. Julian W. KNIPPENBERG, Commissioner, Kentucky Department of Alcoholic Beverage Control Board, et al., Appellees.
    Supreme Court of Kentucky.
    Dec. 17, 1976.
    Rehearing Denied May 20, 1977.

      William A. Young, Young & Williams, Frankfort, for appellants.
    James L. Avritt, Spragens, Avritt & Smith, Lebanon, William M. Johnson, Frankfort, R. Coleman Endicott, Lexington, for appellees.
   PER CURIAM.

Harry Hagan and Louise Hagan, as protestants, appeal from a judgment of the Franklin Circuit Court, upholding an order of the Alcoholic Beverage Control Board, granting a retail package liquor license to Boston Beverage Company.

For a period of some nine years prior to July 1975, Boston Beverage owned and operated a retail package liquor store on U.S. Highway 62 near the community of Boston in Nelson County. Prior to July 7, 1975, Boston Beverage applied to the Alcoholic Beverage Control Board for approval of a retail package liquor license for a new premises located on U.S. Highway 62, being 1.2 miles down the highway from its existing premises. The object of this application was to effect a transfer of the license from the premises near Boston to the new premises on Highway 62.

KRS 243.650 restricts the transfer of a license to another premises to cases of destruction of the licensed premises by an act of God or a casualty for which the licensee is not responsible. An effective method of evading the clear mandate of the statute has been the development of a common subterfuge by which the method of transferring a license from one location to another is effected by the cancellation of the license for the original premises upon the issuing of a license to the same licensee for a new location. Even though the transaction is characterized as a transfer of a license, it is readily discernible that it is in effect nothing more than an application for a license for a different premises. There is, of course, the added inducement to the Board of a surrender of the license on the original premises should the new license be issued.

For more than two years prior to Boston Beverage’s application for a license to operate a package liquor store at the new location, it had owned the premises described in the application. Its decision to relocate had been one of public knowledge for more than two years, as a sign on the premises proclaimed it as the location of the new home of Boston Beverage. The present action was precipitated by Harry and Louise Ha-gan’s filing of an application for a license to operate a retail package liquor store on an adjoining property. The Hagan procedure was a “transfer of license” transaction by which they proposed to transfer to the new location a license they then held in Bards-town, some ten to twelve miles away. The Hagan proceeding and this proceeding have been pending, and hearings have been conducted almost within the same period of time. However, Hagan succeeded in getting a license for his new premises before Boston Beverage.

Hagan appeals from the order of the Board granting Boston Beverage a retail package liquor license for the premises adjoining his new location because Boston Beverage had not complied with the requirements of KRS 243.230(4)(a).

The town of Boston is an unincorporated community as is the new location of Boston Beverage, 1.2 miles away. The statute provides that a retail package liquor license may be issued for a premises not located within a city if “substantial aggregations of population would otherwise not have reasonable access to a licensed vendor.” It is now asserted that Boston Beverage failed to prove the existence of this particular requirement and that the Board, in granting the new license, completely disregarded the statute and made no findings which would justify the granting of the license.

Hagan argues that there was no evidence presented from which the Board could determine that substantial aggregations of population would be deprived of reasonable access to a licensed vendor unless Boston Beverage’s application was approved. In Pearl v. Marshall, Ky., 491 S.W.2d 837 (1973), this court held that the issuance of a license in a rural area was conditioned upon a determination of the following basic facts: (1) the approximate number of people who would be affected by a denial of the application and (2) what access would these people have to a licensed vendor if the application were to be denied? Herein lies the crux of the protestants’ argument. However, the factual situation presented in this proceeding does not require that the Board again make these basic findings.

The Board, in awarding Boston Beverage a retail package liquor license for the new location, found as follows:

“1. For the last nine years applicant has held a retail package liquor license for premises located on the south side of U.S. Highway 62, in western Nelson County, Kentucky.
2. Applicant’s present premises are situated on the outskirts of Boston, Kentucky, a small unincorporated area of approximately 400 residents.
3. Applicant seeks to transfer its existing retail package liquor license to premises which are located approximately 1.2 miles to the west of its existing premises by surrendering its existing license upon the issuance of a new license for its proposed premises.
4. Both applicant’s existing and proposed premises are located in the 12th voting precinct of Nelson County, Kentucky; and both are located in unincorporated areas.
5. Applicant’s proposed premises are more spacious and more modern than its existing premises and the entrance thereto is less hazardous and the proposed premises will provide better service to the area.
6. Applicant’s proposed premises will serve the same geographic area of Nelson County, Kentucky, as its existing premises without adversely affecting its present service.
7. Applicant, its officers, directors and stockholders meet all requirements necessary for the issuance of a retail package liquor license.
8. Applicant’s proposed premises meet all of the requirements necessary for the issuance of a retail package liquor license, and are free from any statutory or regulatory disqualifying features.”

It is apparent from an examination of the Board’s findings and of the evidence adduced in its support that the area to be served from the new premises in relation to that served by the old premises was neither enlarged nor diminished or was there any change in the reasonableness of access to a licensed vendor afforded the customers within the area. Actually, it would be almost impossible to find in this proceeding the existence of a substantial aggregation of population which would be denied reasonable access to a licensed vendor for, in fact, the area served by the old and new locations is identical.

It is only where there is a distinction between the area being served and the area to be served that a finding that substantial aggregations of population would not otherwise have reasonable access to a vendor would be required. Examining this within the concept of Pearl v. Marshall, supra, a new determination of the required basic facts was unnecessary. The issue of “substantial aggregations of population” had been resolved in favor of Boston Beverage approximately nine years prior to the filing of the present application. At the time the first license was issued, compliance with the requirements of KRS 243.230(4)(a) had been established.

The distance involved in the move requested by Boston Beverage from the location of its present store to its proposed new location is comparatively so small that such a move could have no perceptible effect upon the existing situation with respect to the ability of citizens and residents of this section of Nelson County to obtain reasonable access to a licensed retail package liquor store.

The procedure of cancelling an outstanding retail package liquor license and the subsequent issuance of a new license of the same type for a different premises but to the same licensee seemingly has become the acceptable method of accomplishing the transfer of a license from one location to another in those instances where such transfer is not permissible under KRS 243.-650. Consequently, where the present holder of a valid retail package liquor license issued for premises situated in the rural or nonincorporated area of a county applies “to transfer” the license to another rural location in the same county and within the same general geographic area, it is within the discretionary power of the Alcoholic Beverage Control Board to approve and authorize such “transfer.”

The applicant for the new license in the rural area must have previously satisfied the requirements of KRS 243.230(4)(a) by showing that substantial aggregations of population otherwise would not have reasonable access to a licensed vendor. Furthermore, the change of location of the licensed premises must be such that it will have no significant effect upon the existing situation with respect to the ability of citizens and residents in the proximate vicinity of both old and new locations to obtain reasonable access to a licensed vendor.

In this proceeding Boston Beverage has met these requirements, and the findings of fact made by the Board are supported by the evidence. Therefore, the approval and granting of the license sought by Boston Beverage Company were neither arbitrary nor unreasonable.

The judgment is affirmed.

CLAYTON, JONES, LUKOWSKY, PAL-MORE, STEPHENSON and STERNBERG, JJ., concur.

REED, C. J., not sitting.


text:
    William J. HIGDON et al., Appellants, v. Julian W. KNIPPENBERG et al., Appellees.
    Supreme Court of Kentucky.
    Dec. 17, 1976.
    Rehearing Denied May 20, 1977.
    Joseph J. Leary, Frankfort, James L. Av-ritt, Lebanon, William M. Johnson, Frankfort, for appellants.
    William A. Young, Frankfort, Quinn F. Pearl, Sr., Elizabethtown, for appellees.
   PER CURIAM.

William J. Higdon and others, as protestants, appeal from a judgment of the Franklin Circuit Court, upholding an order of the Alcoholic Beverage Control Board granting a retail package liquor license to Harry Hagan and Louise Hagan.

The Hagans owned and operated two retail package liquor stores in Bardstown, Nelson County. Prior to November 18, 1974, the Hagans applied to the Alcoholic Beverage Control Board for approval of a retail package liquor license for a new location approximately twelve miles west of Bardstown on U.S. Highway 62, one to one and one-half miles from the community of Boston and .4 of a mile from the Hardin County line — a dry county. The avowed purpose was to effect a transfer of a Bards-town package license to the new location. The Boston Beverage Company at the time owned and operated a retail package liquor store on the outskirts of the small unincorporated town of Boston at a point approximately 1.2 miles from the Hagans’ proposed location.

The procedure by which Hagan proposed to move his package liquor license from Bardstown to the new location is designated throughout the briefs as a “transfer of a license.” However, this is a misnomer of the first magnitude. KRS 243.650 restricts the transfer of a license to another premises to cases of destruction of the licensed premises by an act of God or casualty for which the licensee is not responsible. In an effort to evade the clear mandate of the statute, there seems to have come into being a common subterfuge by which a license holder desiring to relocate his premises would apply for a license for the new premises with the understanding that if it were granted the license for the old premises would be surrendered. Regardless of its designation, the procedure under the statute was nothing more than an application for a new license for a different location.

In Nelson County a package license could be issued for an area outside the corporate limits of a city only by compliance with KRS 243.230(4)(a). The statute, after limiting licenses to incorporated cities of the first, second, and third classes, provides that notwithstanding this limitation the Board, after an investigation, could issue a license to sell distilled spirits by the package at premises not located within a city if “substantial aggregations of population would otherwise not have reasonable access to a licensed vendor.” The Hagans, in an effort to meet this statutory requirement, introduced census records of Nelson County and incorporated areas within the county. The protestants introduced a map of the county showing the voting precincts with the number of registered voters in each precinct. Hagan’s new premises, as well as the business operated by Boston Beverage Company, were both located in Boston Precinct No. 14. The area was definitely rural. The evidence indicated that there were only four houses with some ten to twenty residents within a radius of one mile of Ha-gan’s proposed premises, while within a radius of five miles there were no more than 1500 residents — men, women, and children.

A majority of the precincts used in an effort to establish the “substantial aggregations of population” was so bounded that in each there were included areas of the urban population of Bardstown surrounding the city limits. Many of these residents voted in Bardstown, and it is error to characterize them as rural residents of Nelson County. There was no showing in the record that any of the residents in the precincts used by Hagan and the Board to justify the issuance of a new package liquor license was so situated that he would not have reasonable access to a licensed vendor should Ha-gan’s application be denied.

There is substantial evidence in the record that Boston Beverage Company had for a period of some nine years adequately served this area of Nelson County. In fact, no one testified that he was being inconvenienced by the fact that there was only one outlet in the area.

The Board, in granting the license, made findings of fact, pertinent ones being as follows:

“5. The population of Nelson County, as disclosed by the 1970 U.S. Census, was 23,477. This figure represents some population growth since the 1960 U.S. census. According to the same census figures, 5,816 persons reside in Bardstown, 1,072 persons reside in the town of Bloomfield and 977 persons reside in the town of New Haven. The total rural population of Nelson County outside of the last three mentioned urban areas was 15,612.
6. The location to which the applicants desire to move their existing license is situated near the terminus of the Boston-New Haven Road. The location of the applicants’ proposed premises is in Boston Precinct #14. This precinct is contiguous to precincts #2, #12 and #13 of Nelson County. There are presently 505 registered voters in Precinct #14, 568 registered voters in Precinct #2, 548 registered voters in Precinct # 12, and 732 registered voters in Precinct #13. These four precincts contain a total population of 2,353 persons.
7. The only retail package liquor outlet in reasonable proximity to the proposed premises of the applicants is that of the protestants, Buckler, Higdon and Crain, doing business under the trade name of Boston Beverages, Inc., situated in the rural community of Boston.
8. Substantial aggregations of population would otherwise not have reasonable access to a licensed vendor of whiskey by the package at retail unless the application herein sought by the applicants is granted.”

Parenthetically, the map filed by the protestants discloses that all of Precinct No. 2 except the northwest corner near Boston, the southeast corner of Precinct No. 14, and almost one-half of Precinct No. 13 are located south of the Bluegrass Parkway. The Hagan location is north of the parkway. In order for a resident south of the parkway to reach Hagan’s new location, he would be required to travel west to the Boston interchange, located near the Hardin County line, or travel east to the interchange on U.S. 31E near Bardstown.

In Pearl v. Marshall, Ky., 491 S.W.2d 837 (1973), this court held that the issuance of a license in a rural area could be justified only upon a determination of the following basic facts: (1) the approximate number of people who would be affected by a denial of the application; and (2) what access would these people have to a licensed vendor if the application were to be denied ?

The findings of fact of the Board studiously neglect to designate any number of people who would be affected by the denial or the access these people would have if the application were to be denied. In fact, the findings are confined solely to a parroting of census figures concerning the various populated areas of the county along with the records of the county court clerk giving the number of registered voters in the various precincts. There is an ominous silence regarding how many of the residents or registered voters might be affected by a denial of the application.

The findings of the Board admit that there is already one retail package liquor store located within approximately one mile of the location proposed by Hagan but deliberately neglect to even hint that this outlet, Boston Beverage Company, is not adequately providing for the needs of the people located within the area. It is difficult to understand how substantial aggregations of the population would otherwise not have reasonable access to a licensed vendor, when at the time there was and had been for a period of nine years an active, viable, and apparently aggressive vendor located within approximately a mile of the Hagans’ proposed location.

The record is devoid of any evidence which would support the Board in granting the license to the Hagans. Therefore, the granting of the license by the Board was an abuse of its discretion. Pearl v. Marshall, Ky., 491 S.W.2d 837 (1973), and Simms v. Angel, Ky., 513 S.W.2d 176 (1974).

This court has upon a number of occasions commented upon the difficulty created by the utter lack of standards concerning the issues presented by this appeal. The failure of the Board in this instance to at any time adopt regulations which would forewarn applicants of the required evidence necessary to effect the approval of an application brings about the dilemma in which the Hagans now find themselves. It is unfortunate that they have gone to the expense of erecting a building and moving a business to this location. Regulations and guidelines properly drawn and enforced could and would have prevented the problems and potential financial loss to the Ha-gans.

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

CLAYTON, LUKOWSKY, PALMORE, STEPHENSON and STERNBERG,’ JJ., concur.

REED, C. J., not sitting.

JONES, J., dissents.


author: LUKOWSKY, Justice.

text:
    Donnie Ruby CURTSINGER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    April 22, 1977.

      Jack E. Farley, Public Defender, Larry H. Marshall, Asst. Public Defender, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., William W. Pollard, Asst. Atty. Gen., Frankfort, for appellee.
   LUKOWSKY, Justice.

On February 20, 1968 appellant Donnie Ruby Curtsinger was adjudged guilty of possession of burglar’s tools by the Jefferson Circuit Court and given the maximum ten (10) year sentence for that offense. KRS 433.120(2). Rendition of judgment was, however, withheld pursuant to KRS 439.260 and appellant was placed upon probation for the maximum five year period allowed by KRS 439.270. Within this statutory period the trial court, on June 22,1972, had an opportunity to revoke appellant’s probation but, chose not to do so. Rather the trial court sought to extend the probationary period on this 1968 conviction beyond February 20,1973, the statutory maximum.

Appellant remained on probation continuously from February 20, 1968 until February 20,1973. On the latter date no warrant issued by the court was pending against him and his probation had not been revoked. Therefore, by operation of statute, the Jefferson Circuit Court lost jurisdiction to revoke appellant’s probation on February 20, 1973. KRS 439.270, Gossett v. Commonwealth, Ky., 384 S.W.2d 308 (1964). Cf. KRS 533.020(3). See also 18 U.S.C. Sec. 3651; United States v. Strada, 503 F.2d 1081 (8 Cir., 1974); Green v. Commonwealth, Ky., 400 S.W.2d 206 (1966).

On January 20,1975 the Jefferson Circuit Court entered an order revoking appellant’s 1968 probation and requiring him to serve the sentence imposed by the judgment of conviction rendered against him in 1968. That order is void because the court lost its jurisdiction on February 20, 1973. Appellant’s RCr 11.42 motion to vacate the sentence he is serving pursuant to that order of revocation should have been granted.

The judgment is reversed and the cause is remanded with directions to set aside and hold for naught the order of January 20, 1975.

All concur.


author: LESTER, Judge.

text:
    J. INMON INSURANCE AGENCY, INC., Appellant, v. KENTUCKY FARM BUREAU MUTUAL INS. CO., Appellee.
    Court of Appeals of Kentucky.
    Jan. 21, 1977.

      William P. Swain, John C. McCord, Boehl Stopher Graves & Deindoerfer, Louisville, for appellant.
    James A. Hall, Jr., LaGrange, for appel-lee.
    Before LESTER, WHITE and HOGGE, JJ.
   LESTER, Judge.

Kentucky Farm Bureau Mutual Insurance Company sued J. Inmon Insurance Agency to recover $9,500.00 that Kentucky Farm had paid in settlement of a claim against a policy which it had written after it had been assigned the obligation of coverage through the Kentucky Automobile Insurance Plan alleging that Inmon, the agency with which the insured had dealt in obtaining the policy, by not giving notice of the accident as soon as practical caused Kentucky Farm to make the settlement. The Circuit Court believed the case an appropriate one for summary judgment and ruled in favor of Kentucky Farm according to its impression of what law controlled. Since we take a different view of the nature of this case, we reverse.

The Court below reasoned that Kentucky Farm became potentially liable on the policy when the insured notified Inmon of the accident the next day because notice to Inmon constituted notice of an accident as soon as practical; therefore, Kentucky Farm acted reasonably in settling the claim within the policy limits of $10,000.00 since 106 days had already elapsed. However, Inmon had a duty to notify appellee of the occurrence of the accident within a reasonable time and Inmon’s failure to so notify Kentucky Farm created a liability on the part of appellant to Kentucky Farm for the amount of the good faith settlement irrespective of whether the late notice prejudiced Kentucky Farm.

We find two flaws in this rationale. First of all, in order for notice to appellant to have been notice to Kentucky Farm and for Inmon to have had a duty to report the accident to appellee within a reasonable time, Inmon must have been an agent of the insurance carrier. Secondly, even if an agency relationship could be established, summary judgment would only be proper if Kentucky Farm need not show prejudice by the late notice.

Inmon had informed the insured, Gary Stutzenberger, of his need to obtain insurance through the Kentucky Automobile Insurance Plan because of his status as a high risk. Inmon assisted Stutzenberger in the preparation of an application for coverage and forwarded this application to the governing committee of the Plan. Kentucky Farm was assigned the risk and on June 2, 1970, issued its policy insuring Stutzenber-ger. On November 14, 1971, Stutzenberger had an accident in which his truck collided with a building which resulted in serious injury to his passenger, William C. Dabney. Stutzenberger’s policy with Kentucky Farm remained in effect at the time of the accident. Stutzenberger notified Inmon of the accident a day afterwards, but appellee did not receive notice until Dabney’s attorney contacted it in connection with compensation for his client’s injuries some 106 days later. After receiving the notice of the accident, a claim representative of Kentucky Farm made no greater investigation of the accident than to talk with Stutzen-berger and look at the police report, even though the police report suggested that Stutzenberger had been drinking. On August 1, 1972, Kentucky Farm paid $9,500.00 in settlement of the claim of Dabney.

Appellee takes the position that In-mon became the agent of appellee when it issued the policy to Stutzenberger. Kentucky Farm thus became liable on the policy as soon as Stutzenberger notified Inmon since notice to appellant amounted to notice to the carrier. Appellee cites Mutual Benefit Health and Accident Association v. Smith, 257 Ky. 288, 77 S.W.2d 957 (1934) as supportive of this proposition. In that case, the insurer appealed from a judgment in favor of the insured on the ground that the insured had misrepresented the condition of his health. The insured asserted estoppel by waiver of the agent who took the application. The insurer responded by pointing out that the person who took the application was not one of its authorized agents and argued that it could not be bound by the representations of someone who solicited applications for its authorized agent, but did not receive any authority from it. The court held that because the company accepted the services of the broker and wrote the policy it ratified the transaction and, therefore, became responsible for the act of waiver of the broker. We do not find this estoppel theory to be of assistance to us in the present case, especially when we consider that under the operation of the Plan Kentucky Farm had no choice other than to issue the policy.

Although no Kentucky case discusses the question of whether notice to the insurance broker who sold the insurer’s policy to the insured through an assigned risk plan, is notice to the insurer, several other jurisdictions have decided this point holding almost uniformly that in the absence of statutory authority or some special indicia of authority the assigned risk broker is the agent of the insured and not of the insurer and that notice to this broker is not notice to the insurer. Employers Casualty Company v. Mireles, 520 S.W.2d 516 (Tex.Civ.App.—San Antonio 1975); Hannah v. State Farm Mutual Ins. Co., 403 F.2d 375 (6th Cir. 1968); Yoshida v. Liberty Mutual Ins. Co., 240 F.2d 824 (9th Cir. 1957); Iowa National Mutual Ins. Co. v. Richards, 229 F.2d 210 (7th Cir. 1956); Bradford Inc. v. Travelers Indemnity Co., 301 A.2d 519 (Del.Super. 1972); Gabriel v. Attigliato, 60 Misc.2d 536, 303 N.Y.S.2d 399 (Supreme Court of Rockland County, 1968); Manufacturers Casualty Ins. Co. v. Hughes, 229 Ark. 503, 316 S.W.2d 827 (1958). See also Appleman, Insurance Law and Practice, Section 8732; 43 Am.Jur.2d Insurance Section 149 (1969); 6 St. Mary’s Law Journal 690; thus the broker had no obligation to the carrier including the serving of notice. We agree that this approach should be adopted in cases of this type but, we decline to decide whether such indicia of authority exists in this case or what would be the effect of such a finding on Inmon’s liability to Kentucky Farm since this litigation was not focused on these questions. In any event, the finding of such indicia of authority will depend on the facts of the particular case and summary judgment, as in this case, will generally not be warranted.

The trial court’s summary judgment in favor of Kentucky Farm rested in part on its belief that Metropolitan Life Ins. Co. v. Nusz, 261 Ky. 281, 87 S.W.2d 607 (1935) enabled appellee to recover from appellant without showing prejudice from late notice but Metropolitan Life, supra, refers to a different relationship and context than that in the case with which we are presently concerned. That litigation stands for the principle that in order for the insured to collect on his policy he must comply with all the conditions of his insurance contract including the giving of timely notice. We do not have before us an insurer refusing to pay its insured because of breach of a contractual condition. The only possible basis on which Inmon could be liable would be for breach of its duty to Kentucky Farm as Kentucky Farm’s agent. Even if this case had been one in which Inmon clearly was Kentucky Farm’s agent, appellee could only recover to the extent that it could show damage. See Aero Drapery of Kentucky, Inc. v. Engdahl, Ky., 507 S.W.2d 166 (1974) and 43 Am.Jur.2d Insurance Section 169.

The judgment of the Circuit Court is reversed.

All concur.


author: PARK, Judge.

text:
    Charles Lee BISHOP, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Feb. 18, 1977.
    Discretionary Review Denied May 17, 1977.

      Robert F. Stephens, Atty. Gen., B. F. Radmacher, III, Asst. Atty. Gen., Frankfort, for appellee.
    Jack Emory Farley, Public Defender, Gary E. Johnson, Asst. Public Defender, Frankfort, for appellant.
    Before PARK, VANCE and WILHOIT, JJ.
   PARK, Judge.

The appellant, Charles Lee Bishop, appeals from a judgment of conviction of robbery in the first degree (KRS 515.020) and kidnapping (KRS 509.040). Bishop was tried and convicted by a jury which fixed the maximum term of imprisonment at ten years on each charge. The Fulton Circuit Court imposed a sentence of imprisonment for each offense and directed that the sentences were to be served consecutively.

Both charges against Bishop arise out of the robbery of Cecil’s IGA Supermarket near the City of Fulton on the evening of October 29, 1975, shortly before closing time. On the trial of the case, the main issue was one of identification. Bishop denied that he was the person who committed the robbery, and he offered alibi witnesses. On appeal, essentially two issues are raised. The first relates to the charge of robbery in the first degree; the second, to the kidnapping charge.

Bishop was indicted and convicted of robbery in the first degree rather than robbery in the second degree on the theory that he was “armed with a deadly weapon” during the commission of the robbery. KRS 515.-020(l)(b). Under KRS 500.080(4), a “deadly weapon” is defined as “any weapon from which a shot, readily capable of producing death or other serious physical injury, may be discharged”. The employees of the supermarket testified that the robber was armed with a sawed off shotgun.

The shotgun used in the robbery was never introduced into evidence. In the appellant’s brief, it is argued that there is no proof that the robbery weapon was capable of firing a shot as required by the statutory definition of a deadly weapon. The appellant claims that a directed verdict should have been granted, or that an instruction should have been given submitting to the jury the issue whether the sawed off shotgun was a deadly weapon.

The instruction given by the circuit court was taken directly from 1 Palmore and Lawson, Instructions to Juries in Kentucky, § 4.21 (1975). This instruction required the jury to believe beyond a reasonable doubt that Bishop used a shotgun in the course of the robbery, but the instruction did not submit to the jury the issue whether the shotgun in question was in working order. There was no testimony indicating that the sawed off shotgun used in the robbery was not in working order. In fact, the assailant told the store manager to open the store’s safe or “I will blow your legs off.” It is a matter of common knowledge (and common sense) that a sawed off shotgun falls within the definition of a deadly weapon. As has been stated:

“It should never be necessary in the instructions to use or define the words ‘deadly weapon,’ because the weapon itself will be named. Whether a particular instrument is or is not a ‘deadly weapon’ should be determined by the court as a matter of law.” 1 Palmore and Lawson, Instructions to Juries in Kentucky, § 2.11, pp. 56-57.

The circuit court did not err in its instructions on the charge of robbery in the first degree and did not err in refusing to direct a verdict for Bishop on this issue.

There was no evidence that the sawed off shotgun used in the robbery was not capable of firing a shot. However, even if for some reason the sawed off shotgun had been inoperable, it would not automatically cease to be a deadly weapon. The person using the sawed off shotgun in this robbery clearly intended to convince the store employees that it was capable of causing death or other serious physical injury, and the store employees were in fact so convinced. Under those circumstances, the sawed off shotgun would be a deadly weapon even if it were inoperable. Merritt v. Commonwealth, Ky., 386 S.W.2d 727 (1965); Kennedy v. Commonwealth, Ky., 544 S.W.2d 219 (1976).

The second issue raised on appeal relates to the kidnapping charge. This issue is raised in a rather oblique fashion. Although conceding that the trial counsel conducted a skillful defense on the issues of identification and alibi, Bishop’s counsel on appeal asserts that Bishop was denied effective assistance of counsel during the trial. This alleged incompetency of trial counsel is related to two matters. First, it is argued that trial counsel should have raised the issue whether the sawed off shotgun was a deadly weapon. In light of our disposition of that issue, the contention has no merit. Second, it is claimed that trial counsel failed to raise a statutory defense to the kidnapping charge thereby demonstrating trial counsel’s ignorance of the law.

Bishop’s counsel on appeal relies on KRS 509.050 which provides:

“A person may not be convicted of * * kidnapping when his criminal purpose is the commission of an offense defined outside this chapter and his interference with the victim’s liberty occurs immediately with and incidental to the commission of that offense, unless the interference exceeds that which is ordinarily incident to commission of the offense which is the objective of his criminal purpose.”

Bishop was convicted of kidnapping Ricky Elliot, a clerk in the supermarket. Bishop’s counsel on appeal claims that any restraint of Elliot was merely incidental to the robbery and would not constitute the offense of kidnapping under the exemption provided by KRS 509.050.

After the store manager was compelled to open the safe, Elliot was required to fill a sack with the contents of the safe. Instead of taking the sack from Elliot, the robber forced Elliot to precede him out of the supermarket at gun point. Elliot testified as follows:

“A After filling the bag, I approached him with the bag, I expected him to want it, but he told me to keep it and told me that I was to go with him, and we proceed out the front door, and he asked me where my car was parked, and I told him it was down toward the Walmart Store, and then he asked whose car this was parked directly in front of us which was in front of the store, and I told him it was one of the employees. We then went back into the store and asked for that employee to apparently use his car. We then on discovering that the employee was not there we went back outside and down in front of the building and as we got to the comer of the building he instructed me to walk toward the . . . run toward the fire. From there we ran toward the woods .
Q Now where was this fire?
A To me in the corner it was toward the town of Fulton. , It was what you would call it kind of to the back of the store but not exactly more or less at a forty five degree angle from the corner of the store there.
Q Now what did you see?
A Well, you could see a bright glow and a lot of smoke . . . and we ran to, to the edge of the woods and there at the woods he took the money from me and told me to go into the woods and wait and he went, I suspect from what I heard that he went on into the woods himself in another direction, and after a small .
Q Alright, and when you reached a point some distance from the store then he left you and went into the woods?
A He took the money bag from me and told me to go in that direction into the woods and he went another.
Q You went in another direction?
A Another direction into the woods.
Q Now did you go into the woods?
A Yes, sir. I did.
Q How far did you go into these?
A Maybe fifty feet, wasn’t very far.
Q Did you ever leave what is generally called Walmart property?
A (Silence)
Q You know it is concreted back to a certain distance, but you know where the Walmart excavation took place when they were building that. There was still part of the excavation there?
A No, we were into the trees.”

In its instructions, the circuit court required the jury to believe beyond a reasonable doubt that Bishop used Elliot as a “shield or hostage” to advance the commission of the robbery and that Elliot was restrained “in the field to the rear of Cecil’s IGA.” Under these instructions, Bishop would not have been guilty of kidnapping when he forced Elliot to accompany him from the store the first time in search of an automobile. Under the instructions, a kidnapping could occur only when Bishop forced Elliot to accompany him a second time from the store to the wooded field in the rear of the supermarket. By its verdict, the jury clearly found that Bishop used Elliot as a shield or hostage by forcing him to the wooded field at the rear of the store.

The offense of kidnapping defined by KRS 509.040 was intended to apply to those restraints of a person’s liberty which involve “great risk of death or serious bodily injury.” See the Commentary, Kentucky Penal Code, Final Draft, p. 118 (1971). The offense of robbery in the first degree necessarily involves a risk of death or serious bodily injury to the victim inasmuch as there is a threat of the immediate use of physical force upon another person by an assailant who is armed with a deadly weapon. As the Commentary to KRS 509.050 states:

“Before criminal behavior that is directed toward the completion of robbery, rape, or some other offense can constitute kidnapping, there must be an interference with liberty in excess of that which ordinarily accompanies that offense.” Id., at p. 120.

The exemption from the kidnapping statute provided by KRS 509.050 is similar to the rule applied by the California Supreme Court in People v. Daniels, 71 Cal.2d 1119, 80 Cal.Rptr. 897, 459 P.2d 225, 43 A.L.R.3d 677 (1969). The California court held that the legislature intended to exclude from the offense of kidnapping not only “standstill” robberies, but also those in which the movements of the victim “are merely incidental to commission of the robbery and do not substantially increase the risk of harm over and above that necessarily present in the crime of robbery itself.” Id. 71 Cal.2d at 1139, 80 Cal.Rptr. at 910, 459 P.2d at 238, 43 A.L.R.3d at 695. In a later California case, a robbery conviction was sustained when two girls were stopped around midnight by the defendant on a well lighted public street and forced into a nearby dimly lighted alley where the robbery was carried out. The court pointed out that the risk of harm to the two girls was much greater in the darkened alley than it was on the lighted public street. People v. Thomas, 3 Cal.App.3d 859, 83 Cal.Rptr. 879 (1970).

In the present case, Elliot was singled out from the other store employees and forced to leave the relative safety of the well lighted supermarket. The jury found that Bishop intended to use Elliot as a hostage or shield. Elliot was forced at gunpoint to the darkness of the wooded field behind the store and beyond the parking lot. With a sawed off shotgun to his head, Elliot was subject to Bishop’s unfettered control. When Elliot was taken an appreciable distance from his lighted place of employment to the darkness of the field behind the store, he was exposed to a much greater risk of death or serious bodily injury, and the interference with his liberty was far in excess of that which ordinarily accompanies a robbery in the first degree.

All of the foregoing discussion relates to the question whether trial counsel was incompetent. This court has no hesitancy in holding that Bishop was not denied the effective assistance of counsel during the trial of his case. The efforts of Bishop’s trial counsel were not such as to shock the conscience of the court or to render the proceedings a farce and a mockery of justice. Lay v. Commonwealth, Ky., 506 S.W.2d 507 (1974). We affirmatively hold that Bishop did receive reasonably effective assistance of counsel in accordance with the tests set forth in Beasley v. United States, 491 F.2d 687 (6th Cir. 1974), and Boyd v. Cowan, 494 F.2d 338 (6th Cir. 1974). In so holding, it is not the intention of this court to adopt the Beasley rule. See Perkins v. Commonwealth, Ky., 516 S.W.2d 873, 874, n. 1 (1974). This court finds no error of judgment on the part of the trial counsel which could have affected the verdict in this case.

This court is cognizant of the general rule that adequacy of counsel is not reviewable on direct appeal. Caslin v. Commonwealth, Ky., 491 S.W.2d 832 (1973). However, in fairness to trial counsel and in order to avoid the necessity for further judicial proceedings, this court has decided to face that issue. Based upon a review of the transcript of the evidence, this court concludes that the trial counsel insured that Bishop had a fair trial.

Judgment of the circuit court is affirmed.

All concur.


author: WINTERSHEIMER, Judge.

text:
    ISLAND CREEK COAL COMPANY, and Occidental Petroleum Corporation, Appellants, v. John BAYS, Jr., Appellee.
    Court of Appeals of Kentucky.
    Feb. 18, 1977.
    Michael J. Schmitt, Wells, Porter <⅞ Schmitt, Paintsville, for appellants.
    Robert J. Greene, Paintsville, for appel-lee.
    Before WINTERSHEIMER, LESTER and WILHOIT, JJ.
   WINTERSHEIMER, Judge.

John Bays, Jr., filed his complaint on September 16, 1972, seeking a judgment, jointly and severally, in the sum of $13,000 compensatory damages and in the sum of $25,000 punitive damages, because of the Defendants/Appellants’ alleged negligent conduct in allowing a large slag pile to accumulate and creating a hazardous condition which caused the damage to the Plaintiff/Appellee’s truck. At the conclusion of the Plaintiff/Appellee’s evidence, the trial judge overruled the Appellants’ motion for a directed verdict whereupon the Defendants/Appellants declined to introduce any evidence and renewed their motion for a directed verdict. The jury rendered a verdict of $9,010.98 after which the Appellants renewed their motion for a directed verdict, submitted a motion for a judgment notwithstanding the verdict, both of which were overruled. The Defendants/Appellants appealed on August 14, 1974, and the Supreme Court of Kentucky transferred this case to the Court of Appeals on October 8, 1976. This Court reverses the judgment of the trial court.

The Appellee, John Bays, Jr., operates large tandem coal trucks in the Floyd and Knott County area. On April 11, 1972, one of his large tandem trucks, loaded with twenty-three (23) tons of coal, having a gross weight which equalled or exceeded 73,280 pounds, sank into the surface of a county road in Floyd County. The truck remained stuck through April 12, 1972, when a severe cloudburst occurred in the area. The rainfall was so intense that flooding followed and the entire area was rendered impassable to traffic for approximately a week. When the flood receded, Bays returned to his truck and discovered it had been extensively damaged. Subsequently, he filed suit against the Appellants.

The principal question presented is whether the conduct of the Defendants/Appellants in maintaining a slag dump, which resulted in some sludge runoff, was the proximate cause of the damage to the truck.

It is well settled that tort liability is conditioned upon causal connection between the negligence alleged as the wrong and the injury of which complaint is made. “Negligence must be proven directly or such facts must be proven as that negligence must be necessarily inferred from the existence of the facts proven. It must be shown that the act of negligence was also the proximate cause of the injury.” Johnson v. Mobile & O. R. Company, et al., 178 Ky. 108, 198 S.W. 538 (1917). Proximate cause is an indispensable element of negligence.

The evidence in the record indicates that the substance referred to as sludge was in the roadway for several hours prior to the cloudburst and subsequent flooding on April 12. The coal truck had become mired in the narrow county road on April 11. The record indicates that there is testimony that the road was not impassable and that it was acknowledged that a bulldozer was necessary to remove the stuck truck.

The record is clear in that each witness testified concerning high water and the flooding and attributed the same to the extraordinary storm. The flood water actually covered the coal truck. When the flood water receded and the truck was reached, no more than three (3) feet of the sludge substance was discovered around the wheels of the truck. There is no evidence that the sludge dump below was ever used as a dam for the impounding of surface water.

No evidence was ever presented which would support a reasonable inference that the Appellants’ slag storage facility in the vicinity was the cause of the damage sustained by Bays. There is no evidence of any positive relationship between the slag dump and resulting sludge and the flood water. This truck was trapped in the narrow highway surface above the slag dump. There is no evidence that the slag pile and sludge dump contributed to the miring of the truck.

There is no direct causal connection between the maintenance of the slag dump, the resulting sludge and the injury sustained by the Plaintiff/Appellee.

The judgment of the trial court is reversed with instructions to enter a judgment in favor of the Appellants, pursuant to their motion for a directed verdict and a judgment notwithstanding the verdict.

All concur.


text:
    KENTUCKY OAK MINING COMPANY, Appellant, v. Hermit GRIGSBY and Geneva Grigsby, Appellees.
    Court of Appeals of Kentucky.
    Feb. 18, 1977.
    Harold Garland Wells, Hazard, for appellant.
    J. W. Craft, Hazard, for appellees.
    Before WINTERSHEIMER, LESTER and WILHOIT, JJ.
   WINTERSHEIMER, Judge.

The Appellees, Hermit and Geneva Grigs-by, filed their complaint in the Knott Circuit Court on May 30, 1973, claiming damages in the amount of $20,000.00 against the Kentucky Oak Mining Company for causing and allowing great quantities of earth, rock and other debris to slide down, upon and over the land of the Appellees. A jury rendered a verdict of $6,000.00 in favor of the Appellees. Judgment was entered on September 18, 1973, and a notice of appeal was filed October 8, 1973. On October 8,1976, the Supreme Court of Kentucky transferred this case to the Court of Appeals. This Court affirms the judgment of the trial court.

Questions presented are:

1. Did the trial court commit reversible error in overruling the Appellant’s motion for directed verdict at the close of the Plaintiffs/Appellees’ evidence and at the close of all of the evidence?
2. Was the verdict excessive and a result of passion and prejudice?

The Grigsbys, Plaintiffs/Appellees, owned a tract of land in Knott County but had moved from Kentucky five years before the alleged trespass. Testimony was admitted establishing the ownership of the property and the fact that the Kentucky Oak Mining Company was responsible for the earth slides. Although the testimony was hearsay, no objections were ever made by the Defendant/Appellant to the testimony, and no motion to strike any of it or to admonish the jury was ever made. The Appellees also presented a witness who established the identity of the Kentucky Oak Mining Company as the party causing the damage. There was some element of hearsay in this testimony, but once again no objection was properly raised by the Defendant/Appellant. The witness, Elmer Ray Combs, said he saw the men working in the mining operation and the same men were wearing basketball shirts with the name of Kentucky Oak, and that he also saw check stubs, which were with the name of Kentucky Oak Mining Company, in the possession of such men.

The Appellees introduced Ova Short to establish the monetary loss of the Appellees resulting from the mining operation. Although such testimony was not highly sophisticated, it was sufficient in that a proper foundation was presented and the witness presented his opinion as to the property value.

The Appellant attempted to establish the fact that Kentucky Oak Mining was only a holding company and presented several witnesses, including the trial attorney for this matter. It appears that the Kentucky Oak Mining Company was a very active principal in a variety of agency relationships and was charged with the responsibility of removing the coal from the ground.

There is no evidence to support the Appellants’ contention that the verdict was excessive or a result of passion or prejudice. The jury had the opportunity to completely evaluate the testimony of witnesses for both sides in relation to the question of value.

Moreover, the jury viewed the property in question. Evidence of damage presented by the Appellees was in the range of $11,-000.00. The ultimate verdict of $6,000.00, coupled with the other evidentiary material presented, does not provide any basis for claiming that the verdict was excessive or a result of passion or prejudice.

Therefore, the judgment of the trial court is affirmed.

ALL CONCUR.


author: COOPER, Judge.

text:
    Chester KAVANAUGH, the Administrator of the Estate of Donald Trent Kavanaugh, Appellant, v. Lorraine DANIELS and Zada Daniels, his wife, Appellees.
    Court of Appeals of Kentucky.
    April 8, 1977.

      P. Joseph Clarke, Jr., Danville, for appellant.
    W. R. Patterson, Jr., Thomas M. Cooper, Landrum, Patterson & Dickey, Lexington, for appellees.
    Before COOPER, HOWARD and WHITE, JJ.
   COOPER, Judge.

This is an appeal from a verdict for the Defendant-Appellee rendered in the Gar-rard Circuit Court in action for a wrongful death of a child by drowning. Lorraine and Zada Daniels, the Appellees, owned and operated a seven and one-half acre lake in Garrard County called Lake Lorraine. For the past seven to eight years, a portion of this lake has been marked off and is used for commercial swimming. On June 3, 1973, Donald Kavanaugh, an eleven-year old boy, paid an admission fee and went swimming in the lake. Donald had been diving off the diving board and was noticed by other customers as having trouble keeping afloat. After his co-swimmers had observed him struggling, they attempted to rescue him by diving. The lifeguard on duty and the owners began to drag for the body with grappling hooks. Later the body was recovered by the Garrard County Rescue Squad. There was no rescue equipment readily available to use in attempting a shore rescue.

The issues in this case are:

(1) Do the regulations promulgated by the Kentucky Department of Health concerning swimming pools apply to lake swimming with marked-off swimming areas?
(2) Were the Court’s instructions on “ordinary care” proper?
(3) Was it error for the Court to limit cross examination by use of the Red Cross Life Saving and Water Safety Manual?

This Court does not find it necessary to elaborate in great detail the content of the swimming pool regulations which relate to KRS 211; but it should be sufficient to say that the regulations contemplate a structure of concrete or plastic or some other artificial material and not a lake operation, as in the instant case. Although we are not dealing with statutory specifications, we are concerned with the regulations of an agency of the Commonwealth which have the force of law. It is a reaffirmed principle of this Court that the strict wording of a statute shall be considered to ascertain the purpose of that statute. O’Bryant v. Theobald, Ky., 421 S.W.2d 571 (1967); City of Louisville v. Helman, Ky., 253 S.W.2d 598 (1952). Therefore, we hold that these swimming pool regulations promulgated by the Kentucky Department of Health relating to KRS 211 do not apply to lake swimming operations.

The next issue concerns the instructions of the Court. In the absence of a duty imposed by a law, ordinance, or regulation, the instructions on negligence should instruct on the common law duty of the ordinary care which should be taken to have a facility in a reasonably safe condition. Penn Central Transportation Company v. Skaggs, Ky., 489 S.W.2d 26 (1973). In the instant case we hold that a proper instruction was given concerning the duties of the Defendant to exercise ordinary care in operation of the swimming operation at Lake Lorraine. It was the burden of the Plaintiff to prove by testimony of operators of similar swimming operations that Defendants did not exercise ordinary care.

It is the contention of the Appellant that the Court should have specifically enumerated the duty of the Defendants to maintain certain equipment and take other measures. It is the law in this state that instructions should not give undue prominence to certain facts or issues. Croushorn Equipment Company v. Moore, Ky., 441 S.W.2d 111 (1969). The Court held in that case that a serious error was committed when the instructions became very specific as to the duties of the Defendant. The Appellant cites Bennett v. Parkway Professional Center, Inc., Ky., 507 S.W.2d 694 (1964), in contending that specific duties should have been enumerated. In that case, the Court dealt with violation of a building code in the construction of a stairway. The Court held that the building code of the City of Louisville applied to the construction of that stairway. We hold that health regulations concerning swimming pools do not apply; therefore, the Bennett case, supra, is not dispositive of this issue.

The Appellant also contends that it was error for the Court to limit the Appellant’s use of the Red Cross Life Saving and Water Safety Manual in his cross-examination of the Defendant. It is the holding of this Court that the limitations imposed on the Appellant in using the Red Cross Manual for cross-examination purposes were not prejudicial to the Appellant’s ease in that such testimony would have been a repetition of the testimony of Mr. Lawson, who .adequately testified as to what safety equipment and what personnel should be provided at a reasonably maintained swimming pool.

We affirm.

All concur.


text:
    KENTUCKY UTILITIES COMPANY and Davis H. Elliott Co., Inc., Appellants, v. Victor L. JENNINGS and A. L. Jennings, Appellees.
    Court of Appeals of Kentucky.
    April 8, 1977.

      James C. Ludwig, Curtis & Rowes, Louisville, for appellants.
    Richard M. Compton, Georgetown, for ap-pellees.
    Before COOPER, HOWARD and WHITE, JJ.
   COOPER, Judge.

The Appellees, Victor L. Jennings and A. L. Jennings, on April 12, 1971, granted to the Kentucky Utilities Company a written transmission line easement which empowered the grantee to construct, maintain and continue in use an electric power transmission line across the Jennings’ land. Further, said lease granted the Kentucky Utilities Company the unrestricted right of ingress and egress over the Jennings’ land for exercise of the granted easement rights. It was stipulated that whenever practicable the Kentucky Utilities Company would use the established highways or farm roads when in the process of exercising its right of ingress or egress over the Jennings’ land. It was specifically provided that Kentucky Utilities Company would pay the Jennings for all damage caused in going upon the land, subject to a limitation for removal of trees in conformity with specific provisions contained in the easement. The construction work on electric power lines across the Jennings’ property was done by Davis H. Elliott. The work started in October 1971, and ended in February or March, 1972. It entailed the construction of six (6) or eight (8) wooden pole structures and one (1) steel tower.

In the construction of the transmission line the Appellants damaged a water gap on the Appellee’s farm and caused damage to their fences which allowed some Charo-láis heifers to be bred to their father. In addition to general damages, Appellees asked for punitive damages for the willful misconduct of the Defendant-Appellants. The jury granted damages for injury to the water gap and for loss of the use of the fences on Appellee’s farm, as well as punitive damages. On a Counterclaim the jury allowed damages to the Appellant for expenses incurred due to the delays of the work caused by the Appellees.

The Appellants contend that the complaint was insufficient to submit the question of punitive damages to the jury. It is the holding of this Court that the complaint was sufficient. The case of Schulte v. Louisville & Nashville Railroad Co., 128 Ky. 627, 108 S.W. 941 (1908), holds that “exemplary damages may be awarded in trespass or where there is injury to personal property, if it is attended by affirmative acts of aggravation or is the result of willful or reckless or malicious conduct”. The allegation in the complaint of the Plaintiff stated that the conduct of the Defendant was willful and further asked that punitive damages be granted. We hold that the term “willful” used in pleading gives the opposing party fair notice of Plaintiff’s intentions as to punitive damages. In this case, the Defendant was further apprised of the Appellee-Plaintiff’s allegation and intent by the Plaintiff’s request for punitive damages in the complaint.

Both parties rely on United States Bond and Mortgage Corporation v. Berry, 249 Ky. 610, 61 S.W.2d 293 (1933), in support of their positions as to what are or are not general damages. We hold, as stated in that case, that “general damages [are those which] may fairly and reasonably be considered as arising naturally — that is according to the usual course of things . or such as may reasonably be supposed to have been in the contemplation of the parties”. This statement fairly and accurately states the Kentucky law on the question of what are general damages. The Appellants contend that the parties, at the time the easement was granted, did not contemplate that should the fences of the grantor be destroyed the grantor would suffer any kind of injury to his farming operation; and that losses to the farming operation would not arise naturally from the damaged fences. This argument has no merit. Fences are indispensable to a modern farming operation and should they be damaged or destroyed, the owner will certainly suffer injury to his farming enterprise. Further, we hold that the losses sustained by a farming operation, because pastures and fields are less usable, can arise naturally from the damage inflicted on the fences used in that operation.

We affirm.

All concur.