author: SPURLOCK, Justice.

text:
    SOUTHLAND MOWER CO., INC., Appellant, v. Robert J. JORDAN, Appellee.
    No. 18127.
    Court of Civil Appeals of Texas, Fort Worth.
    Sept. 13, 1979.
    Rehearing Denied Oct. 4, 1979.

      Jearl D. Walker, Fort Worth, for appellant.
    Donald L. Prager, Fort Worth, for appel-lee.
   OPINION

SPURLOCK, Justice.

This is an appeal of a default judgment by a writ of error. Southland Mower Company seeks reversal of the default judgment rendered against it in favor of Robert Jordan on his claim for damages resulting from personal injuries. Southland Mower bases its attack on the default judgment on the fact that no statement of facts is available because no record of the proceeding was made. It also alleges that there is no evidence or insufficient evidence to support the judgment.

We affirm in part and reverse and remand in part.

Robert Jordan was injured while operating a lawnmower manufactured by South-land Mower. Jordan sued Southland Mower, an Alabama corporation not authorized to conduct business in Texas. Southland Mower was served with process by serving the Secretary of State of the State of Texas in accordance with Tex.Rev.Civ.Stat.Ann. art. 2031b (1964). Southland Mower did not answer or appear at the default judgment hearing.

The parties agree that no court reporter was present during the hearing and that no record of the proceedings was made. The trial court rendered a default judgment against Southland Mower for damages. The trial court made extensive findings of fact and conclusions of law in its judgment.

In its writ of error Southland Mower complains that it is denied the right to challenge the sufficiency of the evidence because no statement of facts is available. Southland Mower correctly states the rule, applicable as of the time of the proceedings below, that an appealing party is entitled to a complete statement of facts in question and answer form. Fisher v. First Security State Bank of Cranfills Gap, Texas, 576 S.W.2d 886 (Tex.Civ.App.—Waco 1979, no writ). It claims that it is entitled to reversal of the judgment because the unavailability of the statement of facts is through no fault or lack of diligence of Southland Mower.

We agree that as a general rule if through no fault of his own and after the exercise of due diligence, an appealing party is unable to procure a statement of facts, his right to have the cause reviewed on appeal can be preserved only by retrial of the case. However, Jordan contends that the extensive findings of fact and conclusions of law made by the trial court in its judgment are a sufficient statement of facts. We do not agree.

In Fisher, supra, the transcript contained an instrument entitled “Statement of Evidence”, which recited in narrative form the evidence purportedly heard by the trial court. This was held insufficient. Likewise we hold that findings of fact and conclusions of law made a part of the trial court’s judgment are insufficient as a states ment of facts. The appealing party is entitled to a statement of facts in question and answer form.

Jordan contends that in the event this court reverses this case we should reverse and remand only the portion of the judgment relating to damages. He claims the liability portion of the judgment should be affirmed. Southland Mower claims that the whole cause should be reversed and remanded. It advances the general rule that where, as here, the plaintiff’s claim is for unliquidated damages, the issues of liability and damages are indivisible.

Both parties direct our attention to Tex.R.Civ.P. 434 in support of their positions. Rule 434 states in pertinent part that if it appears to the court that the error affects only part of the matter in controversy and that part is clearly separable without unfairness to the parties, the judgment shall only be reversed and a new trial ordered as to that part affected by such error, provided that a separate trial on unliquidated damages alone shall not be ordered if liability issues are contested. (Emphasis ours.) Thus the question for consideration is whether liability issues in this case are contested.

Jordan contends that the issues of liability were admitted in this case because Southland Mower defaulted. It is well settled that the effect of default is admission of liability upon a cause of action if such a cause is stated in the plaintiff’s petition. Southland Mower, however, claims that it has contested the liability issues by attacking all pertinent findings of fact and conclusions of law in its writ of error by no evidence and insufficient evidence points of error. We do not agree.

The necessity for presentation of evidence in a default judgment case was discussed in Gourmet, Inc. v. Hurley, 552 S.W.2d 509 (Tex.Civ.App.—Dallas 1977, no writ). In Hurley complaint was made of the lack of evidence of jurisdictional facts. In addition to no evidence and insufficient evidence points of error concerning liability, Southland Mower also complains of lack of evidence of jurisdictional facts. We hold that the rule in Hurley concerning evidence of jurisdictional facts is well stated and applicable to liability issues. The rule stated is that even though pleadings are not ordinarily considered evidence, no evidence is necessary to support a default judgment because defendant’s failure to answer is taken as admitting the allegations of the plaintiff’s petition. Proof is required only with respect to damages that are unliqui-dated or not proved by an instrument in writing.

Since we have held that evidence of liability is not required to support a default judgment, an appellant cannot secure reversal of a default judgment by attempting to contest liability through an evi-dentiary point by writ of error. Thus we conclude that, under the facts of this case, the issues of liability are not contested. Therefore, we affirm that portion of the judgment relating to the liability of South-land Mower.

The parties agree that the damages in this case are unliquidated. Because the unavailability of a statement of facts in question and answer form is not due to the negligence or lack of diligence of Southland Mower, it is entitled to reversal of the portions of the judgment relating to damages.

We therefore affirm the portion of the trial court’s judgment relating to liability, and reverse and remand for a new trial that portion of the judgment relating to damages.

So ordered.


source: Caselaw Access Project

author: HUGHES, Justice.

license: Public Domain

text:
    Donald G. BEARCE, Appellant, v. Dr. W. T. BOWERS, Appellee.
    No. 18128.
    Court of Civil Appeals of Texas, Fort Worth.
    Sept. 20, 1979.

      Robert J. Wilson, Burleson, for appellant.
    Cantey, Hanger, Gooch, Cravens & Munn and William B. David, Fort Worth, for ap-pellee.
   OPINION

HUGHES, Justice.

Donald Bearce, a patient, sued Dr. W. T. Bowers alleging malpractice in the treatment of a puncture wound in his foot. At the conclusion of plaintiff’s case, the trial court granted defendant’s motion, withdrew the case from the jury and rendered judgment for Dr. Bowers as a matter of law. The trial judge ruled that Bearce had failed to establish a community standard of care.

We affirm.

Briefly stated, Bearce injured his foot when he stepped on a steel reinforcing rod at work. The rod pierced his boot and foot. It was later shown that the puncture had embedded microscopic particles or foreign matter in his foot. Bearce was taken to a hospital emergency room and treated by Dr. Bowers. The wound was cleansed, antibiotics prescribed, a tetanus shot given and the foot X-rayed. Bearce was then sent home with instructions for follow-up care and told to return to Dr. Bowers in a few days. Before this appointment, the wound became infected. Dr. Bowers had to excise it on two occasions, removing foreign matter. The infection persisted and Bearce went to Dr. William Whitehouse who excised the wound for a third time, removing more foreign matter. The infection then cleared up and the wound healed.

In order for this suit to have reached the jury, Bearce was required to present competent evidence by a doctor of the same school of practice as Dr. Bowers that the treatment complained of was negligence and such negligence was a proximate cause of his injuries. Bowles v. Bourdon, 148 Tex. 1, 219 S.W.2d 779 (1949). Therefore it was necessary for Bearce to establish through a medical expert a professional standard of care so the jury could determine whether Dr. Bowers’ treatment deviated from that standard so as to constitute negligence or malpractice.

In resolving whether Bearce presented competent expert evidence of a standard of care sufficient to escape the instructed verdict, the evidence must be viewed and interpreted in the light most favorable to him, disregarding all evidence and the inferences therefrom favorable to Dr. Bowers. Hart v. Van Zandt, 399 S.W.2d 791 (Tex.1965).

We hold the trial court to be correct in withdrawing the case from the jury on the basis of Bearce’s failure to establish a standard of care. Throughout Dr. White-house’s deposition there was no proper question asked him about the standard of care. Instead the questions were, in effect, “Doctor, . . . what . . . would you have done . . . ?” (Emphasis ours.) Dr. Whitehouse answered one such question, “The usual process here is a drainage in an effort to debride or remove the tissues that are suspect, compatible with the proper function of the foot.”

Bearce hangs his hat on the statement coupled with Dr. Bowers’ testimony as establishing a standard of care.

We have examined the record and hold that it is devoid of any such evidence. Snow v. Bond, 438 S.W.2d 549 (Tex.1969); Smith v. Guthrie, 557 S.W.2d 163 (Tex.Civ.App.—Fort Worth 1977, writ ref’d n. r. e.). What Dr. Whitehouse personally would or would not have done under the same circumstances confronting Dr. Bowers is insufficient to establish the requisite standard. Even viewing Dr. Whitehouse’s testimony in the light most favorable to Bearce, we do not find that it raises any questions about the propriety of the medical practices followed by Dr. Bowers. Bearce’s second point of error is overruled.

Bearce’s first point of error attacks the exclusion of portions of Dr. Whitehouse’s deposition testimony. The excluded portions concerned hypothetical questions which called for the assumption that the treating physician had been informed by the radiologist of the existence of foreign bodies in the wound. Dr. Bowers contends that the evidence clearly shows that he was never informed by the radiologist that foreign matter was imbedded in the foot. He argues that if a hypothetical question assumes facts not in evidence, it is the subject of a proper objection. Bearce asserts that the excluded testimony was based on facts which had been presented in evidence during the course of the trial.

While we are of the opinion that the trial court properly excluded the questions, in view of our holding above the alleged error is harmless. Hence, we overrule Bearce’s first point of error.

The judgment of the trial court is affirmed.


author: STERNBERG, Justice. LUKOWSKY, Justice,

text:
    Robert Clayton WISEMAN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    June 12, 1979.
    Rehearing Denied Oct. 30, 1979.

      Jack E. Farley, Public Advocate, Larry H. Marshall, Asst. Public Advocate, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., Carl T. Miller, Jr., Asst. Atty. Gen., Frankfort, for appellee.
   STERNBERG, Justice.

Robert Clayton Wiseman was indicted by the Boyd County Grand Jury for the murder of his wife, Gloria Wiseman. KRS 435.-010. The crime took place in the early morning hours of March 10, 1974, at the Western Hills Motor Lodge, in Ashland, Kentucky. The police responded to a call from the motel desk clerk and found the appellant clad merely in his underwear, scuffling on the balcony with another guest of the lodge. After they subdued the appellant, they entered his motel room and discovered Mrs. Wiseman’s severely beaten body. Death was attributed to asphyxiation due to aspiration of blood in the trachea and bronchial tubes.

In October 1975 the appellant, with paid counsel representing him, was first tried and convicted of murder. The trial court, however, granted a new trial after determining that the instruction to the jury on the penalty for murder was prejudicially erroneous. The second trial commenced on June 6, 1978. The jury found the appellant guilty of voluntary manslaughter and fixed his punishment at 21 years in prison. Hence, this appeal.

The appellant argues that the trial court erred in not directing a verdict of not guilty at the conclusion of the trial for failure of the Commonwealth to rebut appellant’s evidence that at the time of the commission of the offense he allegedly lacked necessary mental capacity. The appellant’s defense of insanity is statutory. KRS 504.020 provides as follows:

“(1) A person is not responsible for criminal conduct if at the time of such conduct, as a result of mental disease or defect, he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.
(2) As used in this chapter, the term ‘mental disease or defect’ does not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.
(3) A defendant may prove mental disease or defect, as used in this section, in exculpation of criminal conduct.”

At the time the appellant killed his wife he was 24 years of age and she was 21. He was a teacher and athletic coach in the Greenup County High School. On the fateful night Robert and Gloria attended a high school district basketball tournament, in company with several of their friends. Following the game they were invited to, and did attend a party at the apartment of their neighbor, Perry Joe Madden, who lived beneath their apartment. Several people were in attendance; some were listening to music, others were playing cards, and others were watching television. The appellant was playing cards and Gloria was sitting on a couch in an adjoining room. Madden came by and sat down beside Gloria and they engaged in conversation. After awhile the appellant entered the room and asked what they were doing. The evidence does not disclose that Gloria and Madden were doing anything other than talking; nevertheless, the appellant, in what is described as a serious tone of voice, said, “Perry, I’m sorry but I’m the jealous type.” Immediately thereafter, the appellant and his wife left the party and returned to their apartment. Later in the evening they drove to the Western Hills Motor Lodge, where they checked in between 11:00 p. m. and 1:00 a. m. The killing was placed at about 3:00 a. m. Madden testified that the appellant demonstrated no bizarre behavior at the parity, other than his statement of jealousy.

The night clerk at the motor lodge testified that he detected no unusual behavior on the part of the appellant when he checked in for a room. He stated, however, that sometime later he heard someone yelling “Oh Lord” and “Oh God,” so he went outside to see what was happening. He found the appellant on the balcony. He immediately called the police, who responded promptly. Four officers subdued the appellant, handcuffed him, and placed him in the police cruiser. While on the way to jail the appellant beat his head against the wire screen separating the front and back seats of the cruiser. After arriving at the police station the appellant was placed in a strait jacket, appearing wild and hysterical.

Three psychiatrists testified that the appellant lacked substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law. Dr. Francisco Montero, a forensic psychiatrist at Central State Hospital, where appellant was an inpatient from March 28, 1974, to April 25, 1974, diagnosed appellant’s condition as acute schizophrenia, active at the time of the killing but in such remission at the time of his examination as to permit him to stand trial. Dr. Montero described appellant’s symptoms as evidencing religious delusions as to God, evil and the devil, severe depression, crying; mental confusion and potential explosive behavior. Dr. John Thiel and Dr. John A. Schremly both examined the appellant and concurred in the findings and diagnosis of Dr. Monte-ro. The appellant’s father stated that the appellant demonstrated psychotic tendencies in 1968 and was hospitalized for six to eight weeks. He further testified that the appellant’s mother had suffered from some mental illness. The appellant did not testify.

At the conclusion of all of the evidence for both the Commonwealth and the appellant, the appellant moved the court to direct a verdict of not guilty because the Commonwealth failed to rebut clear and convincing evidence that the appellant, at the time of the killing, did not have substantial capacity to appreciate the criminal nature of the act and that he did not have substantial capacity to conform his conduct to the requirements of law. The medical testimony, without equivocation, portrays the appellant as a victim of mental disorder or defect. It is without cavil that the appellant, at the time he killed his wife, was not acting in a normal manner. The status of the law in Kentucky as to the propriety of submitting an issue of insanity to the jury is clearly stated in Edwards v. Commonwealth, Ky., 554 S.W.2d 380 (1977), wherein this court said:

“. . . Although the foregoing discussion disposes of this allegation of error, we feel compelled to point out for the benefit of counsel that the introduction of proof of insanity by a defendant does not place a burden on the Commonwealth to prove him sane; rather, it entitles the defendant to an instruction to the jury that they may find him not guilty by reason of insanity, and thus properly makes the issue of insanity a matter for the jury’s determination.”

As to the quality of the testimony of the expert witnesses, in Tunget v. Commonwealth, 303 Ky. 834, 198 S.W.2d 785 (1947), we held that even though all expert witnesses testify favorably for the accused as to his insanity, where there is any evidence indicative of his sanity, there is presented an issue of fact for a jury determination. It is not necessary that there be a battle between the experts as to the sanity of the accused. Oftentimes, lay witnesses testifying as to the customary conduct of an accused more nearly reflect his mental capacity than the high sounding names tagged to imaginary self-induced complaints.

A review of the record clearly demonstrates that the jury did have sufficient basis for finding the appellant was sane at the time of the commission of the crime. The jury determination cannot be held to be clearly unreasonable; consequently, it must stand. Trowel v. Commonwealth, Ky., 550 S.W.2d 530 (1977).

Next, the appellant charges that he was denied a fair trial when the trial judge included in the instructions to the jury on insanity the statement that the law presumes every man sane. This issue was not brought to the attention of the trial judge for consideration. The trial court not having been afforded the opportunity to consider this issue, it may not be considered by this court. Hamilton v. Commonwealth, Ky., 580 S.W.2d 208 (1979).

The appellant argues that he was denied a fair trial when the trial judge failed to instruct the jury that if it had a reasonable doubt as to the degree of the offense, it should find the appellant guilty of the lower degree. RCr 9.56. The appellant was indicted and tried for the offense of willful murder. At the conclusion of the case, the trial judge instructed the jury on the offenses of murder and voluntary and involuntary manslaughter. Further, the judge instructed the jury that if upon the whole case it had a reasonable doubt as to the appellant’s guilt, it should find him not guilty. Counsel for appellant requested a reasonable-doubt instruction as to the degree of the offense and tendered an instruction in that respect. In Cox v. Commonwealth, Ky., 491 S.W.2d 834 (1973), this court said:

“Included in the instructions of the court were ones for murder, voluntary manslaughter and involuntary manslaughter in the first and second degrees. The court failed to instruct the jury as required by RCr 9.56 that if it had a reasonable doubt as to the degree of the offense which the defendant had committed, he should be convicted of the lower degree. We have held many times that failure to give that instruction is reversible error. . . . It is well established, however, that if the evidence points only to the conclusion that the accused is guilty of but one offense, it is not necessary or proper to give instructions embracing lower degrees. ... It follows that in such instances it would not be necessary or proper to give the instruction relative to finding the accused guilty of the lower degree.”

It is the appellant’s position that the jury should have been permitted to find him guilty of involuntary manslaughter, which is a degree of voluntary manslaughter. Bearing in mind that this case was tried before the criminal code went into effect, we turn our attention to the definitions of voluntary and involuntary manslaughter as understood to be at that time. In Rice v. Commonwealth, Ky., 472 S.W.2d 512 (1971), voluntary manslaughter is defined as follows:

“The offense of voluntary manslaughter is ‘the unlawful, willful, and felonious killing, without previous malice, of another, in a sudden affray or in sudden heat and passion, not in the necessary or apparently necessary self-defense of the slayer.’ Commonwealth v. Mosser, 133 Ky. 609, 118 S.W. 915. See Roberson’s New Kentucky Criminal Law and Procedure, 2d Edition, Section 372, page 495.”

KRS 435.022, in effect at the time of the commission of the crime, defined involuntary manslaughter as follows:

“(2) Any person who causes the death' of a human being by reckless conduct according to the standard of conduct of a reasonable man under the circumstances shall be guilty of involuntary manslaughter in the second degree and shall be imprisoned in the county jail for a term not exceeding twelve (12) months or fined a sum not exceeding five thousand dollars ($5,000) or both.”

The evidence presented at the trial was not sufficient or adequate to support a conviction of involuntary manslaughter. Therefore, it was not necessary to instruct the jury that the appellant could be found guilty of that degree of manslaughter.

The appellant’s fourth allegation of error is that he was denied due process of law by the trial court’s refusal to give the defense-tendered instruction on the presumption of innocence. At the close of all of the evidence, appellant’s trial counsel moved the court to instruct the jury on the presumption of innocence and tendered the following instruction:

“The accused defendant is presumed to be innocent until proven guilty. This presumption continues throughout the trial. This presumption requires the prosecution to prove guilt beyond a reasonable doubt. If the prosecution does not prove guilt beyond a reasonable doubt, then by operation of the presumption of innocence, the defendant must be found (not) guilty.”

The trial judge refused to give this instruction and instead instructed the jury as follows:

“The defendant Robert Clayton Wise-man, is presumed innocent until proven guilty beyond a reasonable doubt.”

In Edwards v. Commonwealth, Ky., 573 S.W.2d 640 (1978), complaint was made that the presumption-of-innocence instruction was not given. The trial court, however, had instructed the jury that “The defendant is presumed to be innocent of the charge herein until his guilt has been established by the proof beyond a reasonable doubt. . . .” This instruction is almost, word for word, identical to the instruction given in the subject action. Edwards is dispositive of the issue in this case. The presumption-of-innocence instruction given in this action was adequate.

Appellant argues that the trial court erroneously instructed the jury on involuntary manslaughter. The involuntary-manslaughter instruction given by the court was substantially the same as one tendered by appellant’s counsel, differing only in phraseology and not in substance. Instructions in a criminal prosecution must have a source within the framework of the evidence produced at the trial. Both the appellant and the Commonwealth’s Attorney objected to the involuntary-manslaughter instruction given by the court; the appellant on the ground that it did not correctly define involuntary manslaughter and the Commonwealth’s Attorney on the charge that there was no evidence which would justify an involuntary-manslaughter instruction. The court instructed that,

“If the jury believes from the evidence in this case, beyond a reasonable doubt, that in this county and before the finding of the indictment herein that the defendant, Robert Clayton Wiseman, struck Gloria Wiseman with his fists and hands, if he did strike her, and that said striking was not reasonably calculated to produce death or that said striking, if any, was without intent on the part of the defendant to produce fatal injury and you further believe from the evidence, beyond a reasonable doubt, that the killing of Gloria Wiseman resulted from striking her by the defendant with his fists and hands and that said striking occurred in this county and within twelve months before the finding of the indictment herein, you will find the defendant guilty of involuntary manslaughter and fix his punishment at any sum not exceeding $5,000.00, in your discretion, or at confinement in the county jail at a period of time in your discretion not exceeding one year, or both, fine and imprisonment of him.”

Stanley’s Instructions to Juries, Vol. 3, Sec. 876. These instructions adequately defined the offense of involuntary manslaughter.

The jury found the appellant guilty of voluntary manslaughter and fixed his punishment at the maximum of 21 years. The jury could have found the appellant guilty of voluntary manslaughter and fixed his punishment at two years, which is the minimum. Had the jury found the appellant guilty of involuntary manslaughter as instructed by the court, it could have fixed his punishment at a fine of not to exceed $5,000 or at imprisonment for a period of one year or by both fine and imprisonment. The verdict returned by the jury fixed the appellant’s penalty at imprisonment for a period of time greater than the maximum authorized by the involuntary-manslaughter instruction. This manifested an affirmative action on the part of the jury to not find the appellant guilty of the lesser offense, but with a positive purpose of finding him guilty of the greater offense and fixing his punishment at the maximum provided by law. This action on the part of the jury in not finding the appellant guilty under the involuntary-manslaughter instruction fails to manifest any prejudice. Shanks v. Commonwealth, Ky., 390 S.W.2d 888 (1965).

The simple answer to appellant’s argument that the court erred in instructing the jury on involuntary manslaughter is that the movant, in the first place, was not entitled to an instruction on involuntary manslaughter. In the second place, movant was not convicted under the involuntary manslaughter instruction and, thirdly, it is irrelevant since movant was convicted of the higher degree of the offense of manslaughter.

Finally, the appellant argues that his motion for a continuance should have been granted, and not having been granted, he contends that he was denied a fair trial. The motion for a continuance was made on June 6, 1978, immediately before the case was called for trial. Counsel contends that his personal anxiety over the uncertainty of his employment as Public Defender for Boyd County interfered with his ability to try the case proficiently. Although the Commonwealth’s Attorney did not object to the continuance, the trial judge refused it. He did, however, recess the trial until the following day. On June 7, 1978, counsel for appellant filed a written motion for a continuance, accompanying it with his personal affidavit in which he stated that his uncertain tenure as Public Defender for Boyd County would deprive the appellant of effective assistance of counsel. RCr 9.04 provides that “The court, upon motion and sufficient cause shown by either party, may grant a postponement of the hearing or trial.” This motion also was denied.

In spite of counsel’s apprehension over his representation of the appellant, the record reflects that he did a good job, even though not securing an acquittal. There was no abuse of the trial judge’s discretion in refusing to grant appellant a continuance.

The judgment is affirmed.

PALMORE, C. J., and CLAYTON, REED and STEPHENSON, JJ., concur.

LUKOWSKY, J., files a dissent, in which AKER, J., joins.

LUKOWSKY, Justice,

dissenting.

Insanity at the time of the commission of an offense is ordinarily a question of fact for the jury. However, in the evidentiary fraternal twin of this case we held that a jury which returned a verdict of guilty arbitrarily disregarded substantial evidence of insanity and that such a verdict must be set aside as flagrantly against the evidence. Deegans v. Commonwealth, 228 Ky. 664, 15 S.W.2d 441 (1929).

Here as there the evidence is all one way and to the effect that the accused was insane. There is no room for reasonable men to differ. The conclusion of insanity is compelled. Any other result is arbitrary and prohibited by Ky.Const. sec. 2 (1891).

The motion for a directed verdict of acquittal should have been granted by the trial judge. State v. Brown, 36 Utah 46, 102 P. 641, 645-646 (1909). I would reverse the judgment and remand the case with directions to do so.

I am authorized to state that AKER, J., joins in this dissent.


author: STERNBERG, Justice.

text:
    Joe SILVERBURG, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    Sept. 11, 1979.
    Rehearing Denied Oct. 3, 1979.

      Jack E. Farley, Public Advocate, Linda K. West, Asst. Public Advocate, Commonwealth of Kentucky, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., Miles H. Franklin, Asst. Atty. Gen., Commonwealth of Kentucky, Frankfort, for appellee.
   STERNBERG, Justice.

On November 21,1977, the Grand Jury of Fayette County, Kentucky, returned an indictment against the appellant charging him with murder and with being a persistent felony offender in the second degree. Trial commenced on April 17, 1978, and the following day, on motion of the appellant, the court declared a mistrial and granted the appellant a continuance. Thereafter, commencing on May 30, 1978, a four-day trial resulted in a jury verdict finding the appellant guilty of being an accessory to first-degree manslaughter and fixing his punishment at confinement in the penitentiary for twelve years. In a bifurcated proceeding the appellant was found guilty of being a persistent felony offender in the second degree, and his punishment was fixed at twenty years in the penitentiary.

First Trial

(April 17, 1978-April 18, 1978)

On February 15, 1978, the appellant filed a discovery motion which, on March 16, was granted in part. The Commonwealth’s Attorney failed to wholly comply with the discovery order and the appellant thereupon moved the court for a continuance. Thereafter, he moved the court to dismiss the indictment. The motion for a continuance was granted, and the motion to dismiss the indictment was denied.

When a trial is continued on motion of the accused, the general rule is that double jeopardy does not attach when the case is again brought on for trial. There is, however, a different rule where a mistrial has been caused by the bad faith of the Commonwealth’s Attorney or the court.

In Commonwealth v. Lewis, Ky., 548 S.W.2d 509 (1977), we said:

“. . . When a trial is aborted at the volition of the defendant himself, the considerations are different from those that prevail when the interruption is precipitated by the prosecution or by the trial court sua sponte. United States v. Dinitz, 424 U.S. 600, 608, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976). Broadly speaking, if there is no bad faith and the choice has not been forced upon the defendant, he is not in a position to cry double jeopardy when the trial is relaunched. . . .”

In United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976), the Supreme Court of the United States said:

“The Double Jeopardy Clause does protect a defendant against governmental actions intended to provoke mistrial requests and thereby to subject defendants to the substantial burdens imposed by multiple prosecutions. It bars retrials where ‘bad-faith conduct by judge or prosecutor,’ United States v. Jorn (400 U.S. [470], at 485, 91 S.Ct. [547], at 557 [27 L.Ed.2d 543], threatens the ‘(harassment of an accused by successive prosecutions or declaration of a mistrial so as to afford the prosecution a more favorable opportunity to convict’ the defendant. . ."

The appellant argues that he was furnished with a fictitious list of witnesses; that the Commonwealth’s Attorney failed to furnish him with the names of the persons used in the identification lineup; and that the Commonwealth’s Attorney failed to furnish him with the results and the report of the lineup.

It is true that the Commonwealth’s Attorney’s list of proposed witnesses contained the names of persons who knew nothing of the incident as well as the names of persons who did know of the facts. It is likewise true that the list did not contain the names of all of the persons who were used in the identification lineup. The appellant argues that such conduct was for the purpose of reducing his investigative time. The record reveals that the time for investigation was not reduced as appellant’s investigator stopped his work short of contacting all of the persons whose names were furnished by the Commonwealth’s Attorney’s office. The Commonwealth’s Attorney attempted to explain his failure to furnish the names of all persons who had knowledge of the case by saying that he furnished the names of all eyewitnesses. He deemed this sufficient. The furnishing of the names of all eyewitnesses and not furnishing the names of other knowledgeable witnesses was not in compliance with the pretrial order, but was not substantial error.

The appellant directs our attention to the fact that he had not been furnished with a copy of the police identification lineup report. There is no obligation on the part of the Commonwealth to permit its records to be examined promiscuously by the accused. The Commonwealth is under no obligation to furnish a writing unless it contains exculpatory evidence, in which event the writing must be furnished to the accused in time for a due investigation to be made. RCr 7.24; Burks v. Commonwealth, Ky., 471 S.W.2d 298 (1971).

The lineup report was furnished to appellant’s trial counsel on April 17, 1978, the day the trial first started. The Commonwealth’s Attorney explained as follows:

“Your Honor, I received this report today. I talked to Jerry Wright and asked him if there was a line-up report. He told me no, there wasn’t. He was the major investigating officer in the case. I did find out today, after asking Jerry Wright to please go through and look at everything in the file, if there is a memorandum, letters, anything, a report, in the case file, dealing with line-up; and he did produce this, which is a report of Mike Moynahan; and I gave it to the defendant, his attorney, right at lunch, at the break, after he left this hearing.”

On the second day of the trial the court sustained the appellant’s motion to set aside the swearing of the jury and to continue the trial. In doing so, the judge said:

“The Court sustains the defense motion to set aside the swearing of the jury and to grant a continuance. It appears to the Court that certain information was promised to the defense counsel concerning the statements made by the defendant. Although the law is clear that the Commonwealth is not bound to give that to you, nevertheless, they voluntarily agreed to do that. The Court also reverses its ruling on your prior motion to set aside the swearing of the jury, due to insufficient discovery responses by the Commonwealth, timely made, and will set a new date for the trial; and you’ll need to come down to my office for that.”

The record reveals that appellant’s investigative time was not reduced and although the appellant charges that he was thereby prejudiced, he has not shown any prejudice. We must bear in mind, however, that the criterion is not prejudice; it is purely and simply bad faith action on the part of the court or the .Commonwealth’s Attorney so as to afford the prosecution a more favorable opportunity to convict. That is the criterion. The Commonwealth’s Attorney is under as great an obligation to comply with the order of the court as anyone. As a matter of fact, his duty as an officer of the court compels him to be more concerned with complying with the court’s order.

It is not claimed by the appellant that he was forced into a mistrial so as to afford the Commonwealth a more favorable opportunity to convict. As a matter of fact, it would appear that the continuance, if anything, was more helpful to the appellant in allowing him more time, if needed, in the preparation of his defense. He had the report of the lineup identification and, even if it contained exculpatory evidence, which is doubtful, he had over thirty days to investigate it. The Commonwealth’s Attorney objected to the continuance; however, we are of the opinion that the trial judge acted properly in setting aside the swearing of the jury and granting a continuance. It is not shown that the Commonwealth was in any way benefited by the continuance or that the appellant was caused to be jeopardized in his defense. Although the conduct of the prosecuting attorney was not beyond criticism, we cannot conclude that the trial judge was in error in failing to find such bad faith on the part of the Commonwealth’s Attorney as would justify a holding of a violation of the protection clause of the Fifth Amendment (double jeopardy) in his subsequent retrial.

Second Trial

(May 30, 1978-June 2, 1978)

Next, the appellant argues that the trial court erroneously admitted into evidence appellant’s admission. The appellant voluntarily appeared at the Lexington police station in the early evening of October 18, 1977. He was advised of his Miranda rights and was questioned by Detective Jerry Wright. Following the interrogation, the appellant voluntarily submitted to a polygraph examination and, thereafter, was advised by Officer Wright that he had failed the test. The appellant was then placed under arrest and again advised of his Miranda rights. The appellant made the following statement as to his relationship to the case, “what if I was close to it, I wasn’t in the place but I heard what two dudes was planning.” He argues that since he was informed that he had failed the polygraph examination his confession was involuntary.

We see no improper influence which would constitute a coercive effect by being advised that he had failed the polygraph test. The polygraph examination was properly administered; the appellant had the mental capacity to voluntarily submit to the test; he did so and failed it. There is no evidence which would justify the appellant's contention that his statement was not voluntarily made.

The appellant charges that the trial court erred by refusing to give an instruction on second-degree manslaughter and reckless homicide.

The evidence is not supportive of any inference that the homicide in this case was anything but intentional. Consequently, the appellant was not entitled to an instruction on manslaughter or reckless homicide. See Wiseman v. Commonwealth, Ky., 587 S.W.2d 235 (rendered June 12, 1979).

Prior to the trial of being a persistent felony offender (June 2, 1978), appellant’s trial counsel unsuccessfully sought to have the charge dismissed on the grounds that even though the appellant had previously been convicted of a Class D felony (perjury), the sentence of one year which had been imposed on the conviction had been modified to a sentence of ten months in the county jail, a misdemeanor not a felony.

The judgment and sentence on the perjury conviction was entered by the trial judge on May 14, 1976. Purporting to act under the authority of KRS 532.070, the trial judge on June 21, 1976, entered an order modifying the perjury sentence. KRS 532.-070 does not define the time within which the judgment complained of may be set aside or modified. Where the Criminal Rules do not provide a time, the Civil Rules shall apply. RCr 1.10. CR 59.05 provides that a judgment may be altered, amended or vacated within ten days after the entry of the final judgment. The order of June 21, 1976, was entered 38 days subsequent to the May 14,1976, judgment. The court had lost jurisdiction of the case and the entry of the order modifying the sentence is void.

The trial court did not err in denying appellant’s motion to dismiss.

The judgment is affirmed.

All concur.


author: LUKOWSKY, Justice.

text:
    BUDGET MARKETING, INC., James Watson, Richard Prochnow, Movants, v. COMMONWEALTH of Kentucky, ex rel., Robert A. STEPHENS, Attorney General, Respondent.
    Supreme Court of Kentucky.
    Sept. 11, 1979.
    Rehearing Denied Oct. 30, 1979.

      Robert C. Ewald, Wyatt, Grafton & Sloss, Louisville, for movants.
    Robert F. Stephens, Atty. Gen. by Ruth H. Baxter, Asst. Atty. Gen., Consumer Protection Litigation Unit, Frankfort, for respondent.
   LUKOWSKY, Justice.

The question presented is whether the legislature can constitutionally require nonresidents engaged in the business of soliciting orders, via interstate telephone, for magazines on a subscription basis, the delivery of which is contingent on a future event, to register in each county in the Commonwealth in which they solicit. The trial court and the Court of Appeals answered the question yes. We affirm.

Budget Marketing, Inc. is an Iowa corporation which has no certificate of authority to transact business in this Commonwealth. Watson is the sole proprietor of Budget Marketing of Dixie, located in Memphis, Tennessee, and a franchise of Budget. Prochnow is the sole proprietor of Budget Marketing of the South, located in Atlanta, Georgia, and a franchisee of Budget. Mov-ants are engaged in the business of soliciting magazine subscription sales through the use of interstate telephone lines. Movants use telephone operators to call into Kentucky communities over some twenty-one wide area telephone service [WATS] lines to solicit orders for magazine subscriptions. When telephone calls result in an order, subscription sales contracts and payments are transmitted back and forth by mail. Thereafter magazines are delivered by mail.

Budget has maintained strict control over its franchisees. It designates territories, manages the subscription service, accepts or rejects each subscription sale contract solicited, and receives a thirty-two per cent commission on sales. We do not find it difficult, therefore, to conclude that the franchisees represent Budget as they engage in the business of subscription sales solicitation in the Commonwealth.

Analysis of the case requires the construction of KRS 367.510-367.515. Movants argue that the statutory provisions are susceptible to such distortion as to allow an arbitrary application. It is the duty of this court to “draw all inferences and implications from the act as a whole and thereby, if possible, sustain the validity of the act and expound it.” Folks v. Barren County, 313 Ky. 515, 519-20, 232 S.W.2d 1010, 1013 (1950).

By its terms KRS 367.513 only applies to “solicitors,” a word which the legislature has narrowly defined as “any person engaged in the business of soliciting orders ... in any county in this state.” The word “person” may of course include a corporation as well as an individual. KRS 446.010(26) (Supp.1978); See Kentucky State Bar Assoc. v. Tussey, Ky., 476 S.W.2d 177 (1972); KRS 367.110(1). Further, the language does not apply to the physical activity of soliciting orders for printed materials. Instead, the statute is couched in terms which apply it to those persons engaged in the business of soliciting orders, such as the movants, but not to each telephone operator of the solicitor. The statute would not apply to publishers seeking to sell their own product because they are in the business of publishing not soliciting. On the other hand, a person engaged in the business of solicitation cannot escape the reach of KRS 367.510-367.515 merely because of a collateral business venture.

The statutory definition is further narrowed to apply to such persons soliciting orders for the subject materials “on a subscription basis. . . .” KRS 367.510. The statute looks to a continuing relationship brought about by the solicitation. Individual sales of books, magazines, and the like are not included. This continuing relationship through a subscription is restricted by the language that “the delivery of which magazines ... is contingent upon a future event, such as a down payment or one or more instalment payments . . .” KRS 367.510. Therefore, even where a continuing relationship has arisen the “solicitor” appellation will not apply if the printed material is delivered before payment is required or C.O.D.

It is also evident that KRS 367.510 must be read with KRS 367.513 and 367.515. Indeed, both the registration provisions and the definition section were originally parts of the same act of the legislature. 1972 Kentucky Acts, ch. 55. Read together it is clear that the registration plan also extends only to solicitations conducted in person or by telephone. The statute is directed at face to face or tongue to ear confrontations. The statute does not apply to solicitations through the use of the mails or the advertising media. The statute, by requiring identification of solicitors, is designed to hopefully prevent, or at least insure a meaningful local remedy for, the fraud which may result from the pressure inherent in a conversation with a hard selling and well-rehearsed salesman.

The statute provides the consumer with a means to determine at the outset whether the solicitor actually is who he claims to be by checking the registration receipt number of the solicitor with the local county clerk. The consumer has available this means of readily checking the credentials of personal solicitors because of the minimal registration requirements of KRS 367.513 and the accompanying requirements of KRS 367.515 that the solicitor identify himself before the solicitation begins by displaying the registration receipt or by reciting over the telephone its number to the target consumer.

The itinerant salesman was with us prior to the Reformation. Ever since there have been continual governmental attempts to protect citizens from the unscrupulous members of this trade. In Breard v. City of Alexandria, 341 U.S. 622, 71 S.Ct. 920, 95 L.Ed. 1233 (1951), the police power of the state to prohibit both solicitors and pedlars from plying their trade without the prior invitation of the occupant was upheld with the comment “Unwanted knocks on the door by day or night are a nuisance, or worse, to peace and quiet.” The invention of the automatic dialing telephone and the maintenance of telephone service by almost all Americans would permit the expansion of the quoted language to include “unwanted calls on the telephone, by day or by night.” It is apparent from the type and number of electronic facilities leased by movants that their telephonic intrusion into each county in which they choose to solicit is systematic, comprehensive and exhaustive.

However, the statute involved here does not attempt to ban uninvited solicitations. It simply seeks to provide easy access to the identity and address of the personal solicitor for the benefit of the consumer. The utility of the Kentucky long arm statute, KRS 454.210 (Supp.1978), is negated if the consumer who is the potential plaintiff in an action involving the solicitation contract cannot identify or locate the subscription solicitor who knocks on the door or rings the telephone today and then is seen or heard no more. See Murphy v. Erwin-Wasey, Inc., C.A.1st, 460 F.2d 661 (1972).

The burden imposed by the statute is light. The solicitor need only annually supply his name, social security number, his mailing address, telephone number and identity of any organization he may represent. If he uses an automobile to solicit, he must identify it. If he uses a telephone, he is to give its number. There are no onerous or forbidding qualifications imposed on the solicitor. The solicitor need not share the cost of maintaining a central registration system which would make such information available statewide. Registration is required only in the counties in which solicitations are to be made.

The importance of local notification by filing has been recognized frequently by the legislature. For example, security interests in consumer goods under article nine of the UCC must be filed in the office of the clerk of the county in which the debtor resides, the place where the property would most likely be found. KRS 355.9-401 (Supp.1978).

It is certainly clear as well that the $5.00 service fee imposed by KRS 367.515 is not a revenue measure but is only adequate to cover the cost of maintenance of the local notification procedure. See California v. Thompson, 313 U.S. 109, 61 S.Ct. 930, 85 L.Ed. 1219 (1941) where a $1.00 license fee for transportation agents was found not to be a revenue measure. It is a sad commentary, but we must note, that the ravages of inflation have made a 1941 dollar at least the equivalent of five 1979 dollars.

Finally, it is obvious that this statute applies to both resident and nonresident solicitors. The statute’s scope is measured only by the number of counties in which any solicitor wishes to engage in his business. He need only register in the counties which comprise the territory in which he intends to solicit. The clerical and financial impact of the required registration bears a rational relationship to the breadth of the business conducted. Consequently, this statute does not discriminate against nonresidents. See California v. Thompson, supra.

Movants argue that the statute requiring registration of solicitors violates the commerce clause of the federal constitution. In view of the foregoing construction of this statute we find no violation.

The United States Supreme Court recently restated the guiding principles to be followed where a state’s regulatory interest touches interstate commerce:

“Although the criteria for determining the validity of state statutes affecting interstate commerce have been variously stated, the general rule that emerges can be phrased as follows: Where the statute regulates evenhandedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. If a legitimate local purpose is found, then the question becomes one of degree. And the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and whether it could be promoted as well with a lesser impact on interstate activities.”

Raymond Motor Transportation, Inc. v. Rice, 434 U.S. 429, 441-42, 98 S.Ct. 787, 794, 54 L.Ed.2d 664, 675 (1978) (quoting Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 847, 25 L.Ed.2d 174, 178) (1970) (citations omitted).

The statute here is a valid exercise of the police power of the Commonwealth in the protection of its citizens which “does not infringe the national interest in maintaining the free flow of commerce and in preserving uniformity in the regulation of the commerce in matters of national concern.” California v. Thompson, supra, 313 U.S. at 116, 61 S.Ct. at 934, 85 L.Ed. at 1223. Budget Marketing, Inc. and its franchisees, James Watson and Richard Prochnow, are solicitors within the meaning of KRS 367.-510. Each must comply with KRS 367.513 and 367.515 in each county in which he chooses to solicit.

The decision of the Court of Appeals is affirmed, the judgment of the circuit court is affirmed in part and reversed in part and the case is remanded to the circuit court for further proceedings consistent with the opinion of the Court of Appeals.

All concur.

      . KRS 271A.520(2) provides in part:
      “Without excluding other activities which may not constitute transacting business in this state, a foreign corporation shall not be considered to be transacting business in this state, for the purposes of this chapter, by reason of carrying on in this state any one or more of the following activities:

      (f) Soliciting or procuring orders, whether by mail or through employes or agents or otherwise, where such orders require acceptance without this state before becoming binding contracts; . . . ”
      The authority of Budget to transact business in this Commonwealth is not questioned. Consequently, Michigan Wisconsin Pipeline Co. v. Commonwealth, Ky., 474 S.W.2d 873 (1972) is inapposite.

      . SUBSCRIPTION SALES OF PRINTED MATERIAL
      367.510. “Solicitor” defined. — As used in KRS 367.513 to 367.530 unless the context requires otherwise, “solicitor” means any person engaged in the business of soliciting orders for magazines, periodicals, encyclopedias, books, Bibles, or other printed matter or material on a subscription basis and payable on instalments or on a cash basis or by contract or note, the delivery of which magazines, periodicals, encyclopedias, books, Bibles, or other printed material is contingent upon a future event, such as a down payment or one or more instalment payments in any county in this state.
      367.513. Registration of solicitor of subscription sales of printed material — Information required. — Beginning July 1, 1974, every solicitor shall register annually with the county clerk of the county in which such solicitations are to occur and shall furnish to the county clerk the following information: (1) Whether solicitations shall be made in person or by telephone, and if made in person, shall give an adequate description, including state of issue and license number, of any motor vehicle to be used in soliciting sales of printed material, or the telephone number from which telephone solicitations shall be made;
      (2) His name and social security number;
      (3) The mailing address and telephone number of his permanent residence; and
      (4) The name, address and telephone number of the company or organization he represents, if any.
      367.515. Registration fee — Display of registration receipt — Exceptions.—(1) Upon registration, every solicitor shall pay the county clerk a five dollar ($5.00) service fee and the county clerk shall issue the solicitor a numbered receipt to be effective for a period of one (1) year from the date of registration.
      (2) Prior to actual solicitation, the solicitor shall display to the potential purchaser the registration receipt issued by the county clerk of soliciting in person or cite to the potential purchaser the number of registration receipt if soliciting by telephone.
      (3) The provisions of KRS 367.513 to 367.-530 shall not apply to minors soliciting orders for articles mentioned in KRS 367.510 when such sales are made for the sole purpose of obtaining funds for a school band, club or other organization and such sales are approved in writing by the superintendent of the school system at which the minors are students. The written approval of the superintendent shall identify the product or products being sold, the solicitors to be involved and the duration of sales and shall be filed with the county clerk.

      . See Generally Emert v. Missouri, 156 U.S. 296, 15 S.Ct. 367, 39 L.Ed. 430 (1895) for an overview of the regulation of transient sellers with references to statutes from the time of Henry VIII.

      . The Kentucky cases cited by movants involving attempts at regulation and taxation by municipalities are inapposite. See, e.g., Olan Mills v. City of Elizabethtown, Ky., 269 S.W.2d 201 (1954).


author: PARK, Judge. WINTERSHEIMER, Judge,

text:
    Edward L. MACKEY, Committee for Laura B. Clark, an incompetent, and Robert Edward Clark, Appellants, v. GREENVIEW HOSPITAL, INC., N. K. Kirby, L. Jack Scott, Richard F. Grise, and John P. Blackburn, Appellees.
    Court of Appeals of Kentucky.
    Feb. 2, 1979.

    Rehearing Denied May 11, 1979.
    Discretionary Review Denied Oct. 23, 1979.

      Edward M. Post, Taustine, Post, Berman, Fineman & Kohn, Louisville, for appellants.
    Maxey B. Harlin, William J. Parker, Har-lin, Parker & Rudloff, Bowling Green, for appellees Greenview Hospital, Inc. and Hospital Corporation of America.
    John T. Ballantine, Ogden, Robertson & Marshall, Louisville, Joseph R. Huddleston, Bowling Green, for appellees Richard F. Grise and John P. Blackburn.
    William 0. Guethlein, William P. Swain, Boehl, Stopher, Graves & Deindoerfer, Louisville, for appellees N. K. Kirby and L. Jack Scott, and Kirby & Scott, P.S.C.
    Before PARK, VANCE and WINTERSHEIMER, JJ.

      The decision of the panel was made prior to January 1, 1979, but the opinion was not rendered until this date.

   PARK, Judge.

This is an appeal from a judgment entered on a jury verdict for the defendants in a medical malpractice case. During the course of a breast biopsy, Laura Clark suffered cardiac arrest. Massive and irreversible brain damage ensued from the cardiac arrest. The plaintiffs-appellants are Mrs. Clark’s committee and her husband who has asserted a claim for loss of consortium. The biopsy was performed at the defendant-appellee, Greenview Hospital. Mrs. Clark’s surgeon was the defendant-appellee, Dr. Richard F. Grise. Her anesthesiologists were the defendants-appellees, Drs. N. K. Kirby and L. Jack Scott. The remaining defendant-appellee, Dr. John P. Blackburn, was sued only is his capacity as a partner of Dr. Grise.

After a trial involving thirteen sessions between February 20 and March 9, 1976, the jury returned a verdict for all of the defendants. On this appeal, the appellants have raised the following issues: (1) that the trial court erred in failing to sustain three challenges for cause during the voir dire examination of the jury; (2) that the trial court erred in instructing the jury on contributory negligence of Mrs. Clark; and (8) that the trial court erred (a) in its instructions on the duties of the physicians, (b) in allowing six peremptory challenges to the physicians, and (c) in allowing improper closing argument.

FACTUAL BACKGROUND

Prior to her admission to the Greenview Hospital on October 2, 1973, Mrs. Clark was using the drug Lasix in an amount and with a frequency which is not known. Lasix is a potent diuretic which can deplete the body’s store of potassium. A low level of potassium increases the risk of cardiac arrest during anesthesia. In the event of cardiac arrest, a low potassium level can interfere with the restoration of normal heart function.

For the purposes of this appeal, we can assume that Mrs. Clark’s use of Lasix caused a potassium deficiency. The potassium deficiency was a substantial factor in causing the cardiac arrest and the difficulty encountered in restoring normal heart function. The factual issue in this case is whether the defendants had prior knowledge that Mrs. Clark was using Lasix. If the defendants had knowledge of her use of Lasix, surgery should have been postponed. Such knowledge would also have indicated that the cardiac arrest was attributable to a potassium deficiency which could have been remedied promptly without extensive brain damage. At trial, Mrs. Clark’s committee contended that the defendants knew, or by the exercise of ordinary care should have known, that she was using Lasix. On the other hand, the defendants contended that Mrs. Clark gave a false history to Dr. Scott and to Dr. Kirby with the result that surgery proceeded without any precautions being taken to avoid the risk incident to a low potassium level.

Both Dr. Grise and Dr. Scott testified that they took separate pre-operative histories from Mrs. Clark on the night prior to surgery. According to both doctors, Mrs. Clark failed to inform them that she was suffering from a heart condition or that she was using either Lasix or nitroglycerine. All of the physicians testified that they had no knowledge from any source that Mrs. Clark was using Lasix or suffered from heart disease.

On the other hand, it is undisputed that, upon admission to Greenview Hospital the day prior to surgery, Mrs. Clark informed a floor nurse, Charlotte Reeves, that she was using Lasix. Nurse Reeves completed a Greenview Hospital form entitled “Admission Information and Nursing Care Data.” Under the heading “MEDICATIONS” Nurse Reeves indicated that Mrs. Clark was using Lasix but had left the medication at home. The “Admission Information and Nursing Care Data” sheet was designed by the nursing staff of the hospital for their own use. In addition to numerous items of information which would assist in providing nursing care, the sheet covered items completely unrelated to nursing care. For example, the sheet required the nurse to indicate that she had instructed the patient concerning the television controls and use of the room telephone. Information was included respecting religion and personal clergy. Although designed primarily for the use of the nursing staff, the treating physicians would from time to time refer to the sheet if present in the patient’s hospital chart.

Dr. Grise and Dr. Scott testified that they never saw the “Admission Information and Nursing Care Data” sheet and its reference to Lasix when each obtained a pre-opera-tive history from Mrs. Clark the night before surgery. Dr. Kirby testified that the “Admission Information and Nursing Care Data” sheet was not in Mrs. Clark’s chart which accompanied her to the operating room.

CHALLENGE TO JURORS FOR CAUSE

Mrs. Clark’s committee contends that the trial court erred in failing to strike for cause three prospective jurors. During the voir dire examination, the three jurors in question revealed some prior professional relationship with one or more of the physicians involved in the case. The juror Fisher stated that Dr. Grise had “sutured up one of my youngsters a time or two from small accidents . . . several years back.” Fisher also stated that he respected Dr. Grise as a result of his personal acquaintance. However, Fisher also stated that he would not find it difficult to return a verdict against Dr. Grise if justified by the evidence. The juror Langley stated that she had been a former patient of Dr. Grise five or six years earlier. This juror also stated that she would require no more evidence against Dr. Grise than she woujd respecting any other physician and that her verdict would be governed solely by the evidence. Langley also indicated that she had been treated by Dr. Scott when he first commenced his practice, but she again indicated that the previous relationship would not affect her verdict. The juror Solley had at one time been a regular patient of Dr. Grise. However, in the five or six year period immediately prior to trial, Solley had seen Dr. Grise on only one occasion, approximately eight months prior to trial. She had also been treated by Dr. Grise’s partner, Dr. Blackburn, approximately 5 to 10 years earlier, and by a witness in the case, Dr. McCormick, in 1948. The juror Solley stated that her verdict would not be affected by her acquaintanceship with any of the physicians in question.

The trial court did not err in overruling the challenges for cause to the jurors Fisher, Langley and Solley. There was no current or continuing professional relationship between any of the jurors or members of their immediate family and any of the physicians involved in the case. The jurors were carefully examined by the trial court and the attorneys. All affirmed their ability to render a fair and impartial verdict solely on the basis of the evidence in the case. The relationship between the jurors and Dr. Grise and the other physicians was not so substantial as to require a finding that the jurors were biased and unable to afford Mrs. Clark a fair trial. Whitney v. Louisville & N. R. Co., 296 Ky. 381, 177 S.W.2d 139, 141 (1944).

The juror Fisher also indicated his general antipathy toward medical malpractice actions. He felt that many doctors had been abused in such suits. However, Fisher was very careful to state that his views on malpractice litigation would have nothing to do with the case being tried. He affirmed that doctors should pay for their mistakes. There is nothing to suggest that Fisher had any preconceived notion regarding the merits of this case. Likewise, the record does not suggest that Fisher’s admitted aversion to malpractice litigation would affect his impartiality in weighing the factual issues to be tried. Davidson v. Grigsby, Ky., 451 S.W.2d 632, 634 (1970).

In Peters v. Commonwealth, Ky., 505 S.W.2d 764, 765 (1974), the court stated:

It is elementary that the determination of whether to excuse a prospective juror rests within the sound discretion of the trial judge and ought not to be set aside by a reviewing court unless the error is manifest.

All of the jurors professed their ability to render a fair and impartial verdict in the case. The trial judge was in a far better position than this court to determine whether a juror should be excused for cause even though professing the ability to be fair and impartial. In the present ease, the voir dire examination of the jury was extensive, covering two volumes of the transcript. The trial judge carefully impressed the jury panel with the importance of securing fair and impartial jurors. In fact, the trial judge excused many prospective jurors for cause. We find no abuse of discretion by the trial judge in refusing to excuse the jurors Fisher, Langley and Solley for cause.

PATIENT’S HISTORY: NEGLIGENCE AND CONTRIBUTORY NEGLIGENCE

In this case, the question of negligence of the treating physicians and the hospital is closely related to the question of contributory negligence of Mrs. Clark in giving an incomplete or inaccurate history. The completeness and accuracy of the information furnished by Mrs. Clark is a factor in determining whether the physicians and the hospital exercised ordinary care. In turn, whether Mrs. Clark exercised ordinary care for her own safety in giving her history would be influenced by whether the physicians and the hospital exercised ordinary care in obtaining the history from her.

Whether a physician is negligent in making a diagnosis must be determined in light of the existing circumstances including the facts then known to him, rather than on the basis of facts which are revealed by later developments. Engle v. Clarke, Ky., 346 S.W.2d 12, 17 (1961). The patient’s history is an important circumstance. The failure of a physician to receive a full and accurate history from the patient may provide a basis for finding that the physician was not guilty of malpractice. Johnson v. St. Paul Mercury Ins. Co., La.App., 219 So.2d 524, 528-29, 36 A.L.R.3d 1349 (1969); Amdur v. Zim Israel Navigation Co., 310 F.Supp. 1033, 1036 (S.D.N.Y.1969); Tangora v. Matanky, 231 Cal.App.2d 468, 42 Cal.Rptr. 348 (1974). On the other hand, the physician’s failure to consider the history given by the patient may constitute malpractice. Yorston v. Pennell, 397 Pa. 28, 153 A.2d 255, 85 A.L.R.2d 872, 15 N.C.C.A.3d 419 (1959); Walstad v. University of Minnesota Hospitals, 442 F.2d 634, 640-41 (8th Cir. 1971).

For his own safety, a patient must exercise ordinary care to give an accurate history to his treating physician. He must tell the truth. Otherwise, the patient may mislead the physician, with disastrous results. Because the patient’s self-interest dictates that he tell the truth, the history given to a treating physician is deemed particularly reliable, and it is admissible into evidence as an exception to the hearsay rule. Omberg v. United States Mutual Ass’n, 101 Ky. 303, 19 Ky.L.Rep. 462, 40 S.W. 909, 72 Am.St.Rep. 413 (1897). In determining what constitutes contributory negligence in giving a history, consideration must be given to the special relationship that exists between patient and physician. In Adams v. Ison, Ky., 249 S.W.2d 791, 793 (1952), that relationship was described in the following manner:

The relationship of a patient to his physician is by its very nature one of the most intimate. Its foundation is the theory that the physician is learned, skilled and experienced in the afflictions of the body about which the patient ordinarily knows little or nothing but which are of the most vital importance to him. Therefore, the patient must necessarily place great reliance, faith and confidence in the professional word, advice and acts of his doctor.

The physicians had the primary responsibility for obtaining a complete and accurate history from Mrs. Clark.

In Favalora v. Aetna Casualty & Surety Co., La.App., 144 So.2d 544 (1962), the patient suffered injuries when she fell during an x-ray examination. The court held that the radiologist’s insurer was liable, stating:

It appears reasonably certain from the record that had a clinical history been taken of the plaintiff, it would have revealed that one of the reasons for her examination was to determine, if possible, the cause of her having fainted. Although Plaintiff could have volunteered such information, it is clearly shown that she was not questioned with respect thereto. She was under no duty to reiterate her entire medical history to each of the hospital personnel with whom she came in contact but was entitled to rely upon the skill of her personal physician and the competence of the specialists into whose care and keeping she had been committed for examination. Lacking the specialized training of the hospital personnel, she could hardly be expected to select and communicate to her examiners the pertinent and relevant aspects of her medical history. However, the specialist conducting the highly technical examination involved could reasonably be expected to both know what information was important to the examination and plaintiff’s general welfare as well as elicit same from plaintiff before commencing the tests ordered.

Id., at 550. See also O’Neil v. State, 66 Misc.2d 936, 323 N.Y.S.2d 56, 61 (1971).

Mrs. Clark was under a duty to exercise ordinary care for her own safety in giving her medical history. Whether she exercised such care will be influenced by whether the questions propounded by Drs. Scott and Grise were sufficient to apprise her of the necessity of communicating particular aspects of her medical history. Cf. Post v. American Cleaning Equipment Corp., Ky., 437 S.W.2d 516, 520 (1969). Mrs. Clark was under no general duty to diagnose her own condition or to volunteer information. She could reasonably expect that the physicians and nurses would ask the proper questions. Unless the physicians or nurses exercised ordinary care in obtaining the history, the patient’s failure to communicate a particular aspect of his medical history ordinarily will not constitute contributory negligence.

A different situation may exist if the patient is aware that the treating physician has failed to ascertain some aspect of the patient’s medical history which the patient knows involves a risk of harm to the patient during the course of future medical treatment. In such cases, ordinary care may dictate that the patient volunteer the additional information to the treating physician. Otherwise, the patient may be deemed to have voluntarily and unreasonably encountered a known risk. See Parker v. Redden, Ky., 421 S.W.2d 586 (1967); Houchin v. Willow Avenue Realty Co., Ky., 453 S.W.2d 560 (1970).

To summarize, contributory negligence on the part of a patient in relating medical history is directly related to the care taken by the physician and nurses in obtaining the history. The patient is con-tributorily negligent if a reasonably prudent person would know that the history was false and misleading. When the physicians or nurses are negligent in obtaining the history, the patient is contributorily negligent only if he knows the physician is unaware of a condition which imposes a risk of danger to the patient and his failure to inform the physician of the condition is unreasonable under the circumstances.

So far we have considered the question of medical malpractice solely on the basis of the patient’s history. Although the patient’s history is important, it is not the only factor upon which the physician makes his diagnosis or bases his treatment. Consequently, a physician may exercise ordinary care in obtaining the patient’s history but be guilty of malpractice in some other regard. Would the patient’s contributory negligence in giving a false or misleading history be a bar to recovery if the physician by the exercise of ordinary care should have known of that aspect of the patient’s medical history without regard to the actual history related by the patient? Again, the physician may have actual knowledge of the facts which the patient negligently failed to relate in giving his medical history. In such case, would the patient’s contributory negligence be a bar?

The recent decision of the Supreme Court in Southeastern Kentucky Baptist Hospital v. Bruce, Ky., 539 S.W.2d 286 (1976), suggests that a patient’s contributory negligence in giving a history may not be a bar to recovery in all cases. In that case, the defendants performed a thyroidectomy on the wrong patient. The defendant hospital contended that the patient was negligent in responding to the wrong name prior to surgery. The court rejected this argument. The patient wore an identification bracelet, and the court held that the surgical team in the operating room was under the duty of establishing with “absolute certainty” the identity of the patient.

The Bruce case was not decided until after the trial in this case. In the objections to the instructions, Mrs. Clark’s committee did not raise the issue considered in the Bruce case. The committee offered only three grounds for objection to the contributory negligence instruction given by the trial court, namely: (a) that there was no evidence that Mrs. Clark knew or should have known she had a heart condition; (b) that she was entitled to an instruction on comparative negligence; and (c) that she was entitled to a last clear chance instruction. Under CR 51(3), our consideration of the contributory negligence instruction must be limited to the specific objections made to the trial court.

EVIDENCE OF PREEXISTING HEART CONDITION

The contributory negligence instruction given by the trial court was based upon the dual premise that Mrs. Clark had “a pre-ex-isting heart condition” which was “known” or “should have been known” to her and that she failed to convey this information to the physicians. Mrs. Clark’s committee objected to the instruction on the ground that there was no evidence that Mrs. Clark knew or should have known she had a pre-exist-ing heart condition. In determining whether there was sufficient evidence upon which to base the contributory negligence instruction given by the trial court, we must view the testimony in the light most favorable to the defendants.

There was no direct evidence that Mrs. Clark knew that she was suffering from a pre-existing heart condition. However, there was substantial circumstantial evidence upon which to base the instruction. Approximately two weeks prior to the surgery, Mrs. Clark experienced an episode of severe chest pain and vomiting. She had been sweaty and pale. There was evidence that Mrs. Clark had for some time been taking nitroglycerine for chest pain. Nitroglycerine is prescribed primarily in the treatment of heart disease. Mrs. Clark was admittedly taking Lasix which is a potent diuretic, primarily used in the treatment of heart disease. In the opinion of Dr. Has-brouck, the cardiac arrest was caused by pre-existing heart disease combined with the low level of potassium induced by Lasix.

Dr. Scott testified that he asked Mrs. Clark whether she had been taking any drugs or medication and that she said she had not. He also testified that she specifically denied that she had heart disease. Dr. Grise testified that Mrs. Clark denied taking any medication and that she failed to give any indication of heart disease.

We conclude that there was sufficient evidence of probative value upon which the jury could find that Laura Clark suffered from a pre-existing heart disease, that she knew or should have known of the heart disease, that she misled her physician about the condition, and that her failure to give a true history to the physicians was a substantial factor in the cardiac arrest during surgery.

COMPARATIVE NEGLIGENCE

Mrs. Clark’s committee urges this court to repudiate the common law rule of contributory negligence in favor of a theory of comparative negligence. However, this court is bound to follow the opinions of our Supreme Court and its predecessor court. SCR 1.030(8)(a). This state’s highest court has consistently refused to adopt the theory of comparative negligence. E. g. Williams v. Chilton, Ky., 427 S.W.2d 586, 591 (1968). This court has followed those decisions. Vinson v. Gobrecht, Ky.App., 560 S.W.2d 242 (1977). If the long line of opinions upholding the common law defense of contributory negligence is to be overruled, then that decision must emanate from the Supreme Court rather than this court. See Hoffman v. Jones, Fla., 280 So.2d 431, 433-34 (1973).

LAST CLEAR CHANCE

Mrs. Clark’s committee asserts that the trial court erred in failing to give a last clear chance instruction to the jury. Trial counsel for the committee did not tender a last clear chance instruction, nor did counsel explain to the trial judge in what way any of the defendants had a last clear chance to avoid injury to Mrs. Clark. The record merely contains an objection to the failure to give a last clear chance instruction without further explanation. The doctrine of last clear chance seems more at home on the highway than in the operating room. Nevertheless, we shall consider whether a last clear chance instruction would have been appropriate.

A last clear chance instruction would have been applicable only if the jury found that Mrs. Clark was contributorily negligent in giving a false or misleading history to Drs. Scott and Grise. On this appeal, Mrs. Clark’s committee does not contend that any of the physicians had actual knowledge that she was using Lasix or that she suffered from a pre-existing heart condition. Nor does her committee argue that the hospital was aware that Mrs. Clark had given a false and misleading pre-operative history to both Dr. Scott and Dr. Grise. Instead, her committee argues that, by the exercise of ordinary care, the physicians should have discovered that she was using Lasix and that the hospital should have informed the physicians that she was using Lasix.

In evaluating this argument, it is appropriate to consider the specific allegations of negligence made by Mrs. Clark’s committee against each of the defendants. The committee’s brief on appeal states:

Dr. Grise: Laura Clark’s surgeon. Negligent failure to obtain proper history and learn Mrs. Clark taking LASIX prior to surgery.
Dr. Blackburn: Dr. Grise’s partner. No negligence. Sued in partnership capacity only.
Dr. Scott: Anesthesiologist, responsible for obtaining pre-anethesia drug history including fact Mrs. Clark taking LA-SIX. . Negligent failure to perform responsibility.
Dr. Kirby: Anesthesiologist at surgery. Negligent failure to examine page of hospital record showing Mrs. Clark taking LASIX (assuming page was in hospital record).
Greenview Hospital: Hospital. Negligent failure to place page showing Mrs. Clark taking LASIX in hospital record or otherwise properly inform doctors of that fact.

With the exception of Dr. Kirby, the alleged negligence of each defendant occurred prior to the commencement of surgery.

If Mrs. Clark was contributorily negligent in giving a false or misleading pre-operative history, she was able to correct the misinformation prior to surgery. Until she was unable to communicate because of medication or anesthetics, Mrs. Clark had the opportunity to avoid injury to herself by giving a correct history. There is nothing in the record to suggest that either Dr. Scott or Dr. Grise had a last clear chance to avoid Mrs. Clark’s ultimate injury. There is no evidence that either Dr. Scott or Dr. Grise was in any way negligent after Mrs. Clark was taken to surgery. See Rochester v. Katalan, Del.Supr., 320 A.2d 704, 708 (1974).

Likewise, there is no evidence that the hospital had a last clear chance to avoid Mrs. Clark’s injury. The “Admission Information and Nursing Care Data” sheet was not intended as a pre-operative history. Nurse Reeves was interested only in knowing what drugs or medication Mrs. Clark may have brought with her or left at home. She was completely unaware of the possible effect that the prior use of Lasix might have during surgery. Even if the significance of the use of Lasix had been known to the floor nurses, there is no evidence that they were aware that Mrs. Clark had given an incomplete or misleading history to Drs. Scott and Grise. Any negligence on the part of the hospital involved either the failure of Nurse Reeves to record the information regarding Lasix in the “Nurses’ Notes” where it would have been seen by the physicians or the failure to include the “Admission Information and Nursing Care Data” sheet in the chart which accompanied Mrs. Clark to surgery. Such negligence would not involve a last clear chance.

With respect to Dr. Kirby, a more difficult problem is presented. Mrs. Clark’s committee alleges that he was negligent during surgery by failing to examine the “Admission Information and Nursing Care Data” sheet and discover that Mrs. Clark was using Lasix. After Mrs. Clark was rendered unconscious by the administration of anesthetics, she became a “helpless plaintiff” who was unable to avoid the ultimate injury. If by the exercise of ordinary care, Dr. Kirby could have discovered Mrs. Clark’s peril, then there would be room for application of the last clear chance doctrine. See Beasley v. Standard Paving & Engineering Co., Ky., 511 S.W.2d 667, 669, fn. 1 (1974); Restatement (Second) of Torts § 479 (1965). If there was evidence that the “Admission Information and Nursing Care Data” sheet was in the hospital chart which accompanied Mrs. Clark to the operating room, a strong case could be made for the application of the last clear chance doctrine.

When Mrs. Clark suffered cardiac arrest and Dr. Grise was unable to restore normal heart function, Dr. Kirby went through Mrs. Clark’s hospital chart page by page looking for some clue to the cause of the cardiac arrest. Dr. Kirby testified that the “Admission Information and Nursing Care Data” sheet was not in the chart. Dr. Kirby then handed the chart to a nurse anesthetist, Ms. Thorn, and had her examine the chart. Ms. Thorn testified that she examined the chart page by page and that the “Admission Information and Nursing Care Data” sheet was not a part of the chart. Other persons in the operating room testified to the page by page examination of Mrs. Clark’s hospital chart by Dr. Kirby and Nurse Thorn.

An anesthesia aide, Ms. Boucher, completed the anesthesia record prior to the administration of anesthetics to Mrs. Clark. Ms. Boucher testified that the “Admission Information and Nursing Care Data” sheet was not in the hospital chart. Her testimony is based upon the fact that she was required to . ask Mrs. Clark regarding her height and weight. If the “Admission Information and Nursing Care Data” sheet had been in the chart, Ms. Boucher would not have asked Mrs. Clark for the information, but would have taken the information from the admission sheet.

On the other hand, Nurse Reeves testified that the “Admission Information and Nursing Care Data” sheet was completed shortly after Mrs. Clark was admitted on the afternoon of October 22. According to Nurse Reeves, she gave the admission sheet to the floor clerk in charge of the records, Robin Moses. Ms. Moses testified that she placed the admission sheet in Mrs. Clark’s hospital chart. Nurses Meador and Huffman completed the pre-operative check list during the early morning hours of October 23. Both testified that they utilized the “Admission Information and Nursing Care Data” sheet in completing the pre-operative check list. According to Nurse Huffman, she did not take the admission form out of the chart when she completed the pre-oper-ative check list around 8:00 A.M.

Although there was evidence that the “Admission Information and Nursing Care Data” sheet was in the hospital chart around 8:00 A.M., there is no direct evidence that the admission sheet was in the hospital chart when Mrs. Clark was taken to surgery around noon. Significantly, the records clerk on duty on the morning of October 23 did not testify. There was also evidence that the “Admission Information and Nursing Care Data” sheet was frequently omitted from the hospital chart which accompanied the patient to the operating room.

After giving careful consideration to the' transcript, we conclude that there was no evidence that Dr. Kirby, by the exercise of ordinary care, should have discovered that Mrs. Clark was using Lasix from an examination of her hospital chart in the operating room. The trial court did not err in failing to give a last clear chance instruction with respect to Dr. Kirby.

In holding that the trial court did not err in failing to give a last clear chance instruction, we do not intend to approve the form of the contributory negligence instruction actually given. The form of the contributory negligence instruction has never been questioned.

EXCESS PEREMPTORY CHALLENGES

The trial court granted the defendants nine peremptory challenges allocated as follows: three to Greenview Hospital, three to Drs. Grise and Blackburn, and three to Drs. Kirby and Scott. Mrs. Clark’s committee contends that the trial court erred in granting six peremptory challenges to the four physicians. The committee contends that the interests of the physicians at trial were not antagonistic.

Multiple defendants are entitled to additional peremptory challenges under KRS 29.290 if their interests are antagonistic. At the time the trial commenced on February 20, 1976, cross-claims had been asserted between Drs. Grise and Blackburn on the one hand and Drs. Kirby and Scott on the other. Even more important, the physicians were charged with independent acts of negligence. As the court stated in Roberts v. Taylor, Ky., 339 S.W.2d 653, 656 (1960):

Where the defendants in a personal injury action are changed with independent acts of negligence . . . the interests of the defendants are most always antagonistic, because each may escape liability or reduce his liability by convincing the jury that the other was solely or primarily responsible. The assertion of cross-claims for indemnity or contribution will merely formalize the antagonism of interest in this regard.

At the time the jury was selected, the interests of the two teams of physicians were antagonistic. The trial court did not err in granting six peremptory challenges to the physicians. It is immaterial that the cross-claims between the two teams of physicians were withdrawn at the end of the trial on March 8, 1976.

INSTRUCTIONS ON PHYSICIAN’S DUTIES

Based upon an isolated statement contained in Johnson v. Vaughn, Ky., 370 S.W.2d 591, 596 (1963), Mrs. Clark’s committee requested that the jury be instructed that the duty of the physicians was to be performed according to the “exigencies” of the case and proportionate to the “dangers to be apprehended and guarded against.” The instructions given by the trial court were based upon the subsequent decisions in Massey v. Heine, Ky., 497 S.W.2d 564, 566 (1973), and Blair v. Eblen, Ky., 461 S.W.2d 370, 373 (1970). With respect to the duty of Dr. Grise, the instruction given by the court provided:

It was the duty of the defendant, Doctor Richard F. Grise, in performing the surgery which he performed on Laura B. Clark and in his treatment of her as a patient, to know and exercise that degree of care, including consideration of hospital records concerning Laura B. Clark, which ordinarily careful, skilled and prudent physicians specializing in surgery know and exercise under circumstances like or similar to those shown in this case. (emphasis added).

The instructions given respecting the duties of Dr. Kirby and Dr. Scott were similar, the only significant difference being a reference to anesthesiology services rather than surgery.

The trial court did not err in refusing to give the tendered instruction. The factors enumerated in the tendered instruction were encompassed within the language emphasized above in the instructions actually given by the trial court. The “exigencies” of the case and the “danger to be apprehended and guarded against” were merely some of the circumstances of the case. A separate instruction was not required. These were matters to be mentioned by counsel in closing argument.

CLOSING ARGUMENT

During the direct examination of Dr. Hasbrouck, senior anesthesiologist at the University of Kentucky Medical Center, the attorney for Drs. Scott and Kirby elicited the information that one of the attorneys for Mrs. Clark had requested Dr. Has-brouck to evaluate the medical chart relating to Mrs. Clark. On this appeal, Mrs. Clark’s committee asserts that the trial court erred in overruling an objection to the following portion of the closing argument of the attorney for Drs. Scott and Kirby:

[H]e tells you that Leibson and Mussler brought this chart to him in August of ’74 and he says there’s nothing wrong. So what do they do? They go shopping for some hired guns out of the east.

The trial court did not err in overruling the objection to this argument.

First, it was not improper to comment upon the failure of the appellants to call Dr. Hasbrouck as a witness. Commonwealth Power Ry. & Light Co. v. Vaught, 191 Ky. 641, 231 S.W. 247, 249 (1921). Second, the argument constituted fair comment on Dr. Hasbrouck’s testimony. Dr. Hasbrouck testified in part as follows:

Q 30 Now, Doctor, you have looked at this chart and the anesthesiology record of Doctor Kirby. Based on your examination of that anesthesiology record, do you feel that Doctor Kirby rendered good care, medical care to Laura Clark?
A. Superb.

The trial court properly overruled the objection to the argument in question.

RULING

The judgment of the circuit court is affirmed.

VANCE, J., concurs.

WINTERSHEIMER, J., concurs by separate opinion.

WINTERSHEIMER, Judge,

concurring.

I concur in the result reached by the majority because I believe the record does not indicate sufficient grounds to overturn the decision reached by the jury as the trier of fact. I do not consider this opinion to be an unqualified endorsement of the course of conduct engaged in by any of the appellees.

      . For convenience, the appellants will be referred to only as Mrs. Clark’s committee.


author: VANCE, Judge.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF TRANSPORTATION, BUREAU OF HIGHWAYS, Appellant, v. Edward W. COMBS, Appellee.
    Court of Appeals of Kentucky.
    May 11, 1979.
    Discretionary Review Denied Oct. 23, 1979.
    Ed W. Hancock, Dept, of Transportation, Frankfort, Russell L. Wilkey, Manchester, Walter T. Collins, Louisville, for appellant.
    r cietus Maride, Manchester, for appel-lee.
    Before HOGGE, LESTER and VANCE, JJ.
   VANCE, Judge.

This is an appeal from an order dismissing appellant’s complaint for lack of subject matter jurisdiction.

The complaint seeks recovery of money “had and received” by appellee from appellant which was alleged to be an excess of workmen’s compensation benefits. In the oral argument it was agreed that appellee was injured while in the employ of appellant; that appellant voluntarily commenced payment of workmen’s compensation benefits, and no application for adjustment of benefits was ever filed with the Workmen’s Compensation Board.

Voluntary payments by appellant continued until November, 1976, when appellant claims to have discovered that appellee returned to work for another employer in March, 1976. Appellant contends the voluntary payments between March, 1976, and November, 1976, were excess payments paid under a mistake of fact.

We think it clear that the Workmen’s Compensation Board is the only forum for determination of benefits due under the Workmen’s Compensation Act. Here the employer acknowledges liability for a given number of weeks but contends that disability ceased in March, 1976, and that he is entitled to recover all sums voluntarily paid after that time. In effect the employer is seeking to litigate in circuit court rather than before the Workmen’s Compensation Board the question of when disability terminated. The trial judge correctly ruled that such a determination was beyond the jurisdiction of the circuit court.

The judgment is affirmed.

All concur.