author: COOPER, Judge.

text:
    Bonnie Rickman CHURCH et al., Appellants, v. DEPARTMENT FOR HUMAN RESOURCES, Commonwealth of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    April 8, 1977.
    Rehearing Denied June 3, 1977.
    Discretionary Review Denied Oct. 4, 1977.

      Pam E. Goldman, Appalachian Research and Defense Fund of Kentucky, Inc., Pre-stonsburg, for appellants.
    Lynn T. Mitchell, Bureau for Social Services, Dept, for Human Resources, Frankfort, Eldred E. Adams, Jr., Louisa, for ap-pellee.
    Before COOPER, HOGGE and REYNOLDS, JJ.
   COOPER, Judge.

This case is on appeal from a judgment of the Lawrence Circuit Court, which judgment terminated the parental rights of the Appellants, pursuant to KRS 199.600. The issues before the Court are:

(1) what standard of proof is necessary to terminate parental rights pursuant to KRS 199.600, and;
(2) whether substantial evidence existed in the record to support the judgment of the Lawrence Circuit Court.

The infants, Roy Michael Church born January 15, 1969, Vicky Lynn Church born July 23,1971, Robert Walter Joseph Church born April 16, 1973 and William Clarence John Church born June 1, 1974, were born to Bonnie Rickman Church and Leroy Church. The parents of these children now live with their three other children in Boyd County, Kentucky.

As a result of a referral from the Lawrence County Health Department, representatives from the Department for Human Resources, Donnie Martin and Barbara Whites, began visiting in the home of the Defendants, Bonnie Church and Leroy Church in November, 1971. Their home was then located in Lawrence County, Kentucky. Donnie Martin, a case worker for the Department for Human Resources, and Barbara Whites, a homemaker for that agency, visited in the home in Lawrence County, Kentucky, periodically from November, 1971 through May, 1973. During this period of time the Church home was found to be very dirty with a very bad odor. Evidence indicates that it was very poorly heated in the winter time and the situation remained the same during this period of time in spite of offers to help by the homemaker for the Department for Human Resources. As a result of these conditions, the children were committed to the Department for Human Resources by the Lawrence County Juvenile Court in May of 1973. Because of the Church family’s moving to Boyd County, they were then committed by the Department as neglected and dependent children by Order of the Boyd County Juvenile Court. In June of that same year they were placed in foster care by the Department for Human Resources. On August 20, 1973, the children were returned to their parents home under the supervision of Mrs. Sara Dunlap, a Boyd County worker for the Department for Human Resources. After their return in August of 1973, the youngest child, William Clarence John Church, was born on June 1, 1974. The children remained in the Church home for thirteen (13) months, during which period of time Mrs. Dunlap visited many times in the home. She testified at the hearing that she found conditions in the home to be filthy and a bad odor with garbage strewn about the kitchen. She further testified that she had witnessed the children eating only two substantial meals in the entire period of her visit, and she testified that she had been there many times at meal time. She stated that only junk-type food was kept in the house. Mrs. Dunlap testified that medical attention was given to the children only at her insistence and that she freely offered transportation to health facilities, as well as offering to have a health nurse visit the home. These offers were usually refused.

On October 31, 1974, the four youngest children were again placed in a foster care home after a hearing before the Boyd County Juvenile Court. The medical examination revealed that the youngest child was suffering from malnutrition and Dr. Garner Robinson testified that Robert was suffering from chronic malnutrition. Testimony exists which indicates the older children were found to be very dirty with Robert suffering with sores behind his ears, in his nose, as well as suffering from impetigo. There is some evidence that the older children have missed many days of school without explanation.

Mr. Church testified that he works on a poultry farm and makes between $110-$115 per week and also that he brings home approximately three dozen eggs per week from the poultry farm where he works. The family also receives food stamps.

KRS 199.600(1) reads as follows:
In a proceeding involving a neglected or abandoned child as defined in KRS 199.-011, the circuit court may terminate all parental rights of the parents of such child, and declare the child to be a ward of the state, and may vest the care, custody and control of the child in the department, or in any licensed child-caring or child-placing agency or institution, if facilities are available to receive the child, if it is pleaded and proved in a private hearing that the parents have abandoned or deserted the child, or have substantially and continuously or repeatedly refused or being able have neglected, to give the child parental care and protection, or that the child is neglected and that the parents have been adjudged mentally incompetent and such judgment has been in effect for not less than one (1) year.

The Appellant contends that this Court should require that the evidence to support such a termination of parental rights be “clear and convincing”. The legislature, which is charged with the protection of dependent children in the Commonwealth, in writing the statute did not impose upon the trial court a standard of proof in concluding that children have been abandoned, deserted or neglected. Consequently, it is not within the discretion of this Court to impose an artificial standard on the trial court in the absence of a legislative guideline.

This Court is bound by Rule 52.01 which states that “findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses”. In the case of Byerly Motors, Inc. v. Phillips Petroleum, Ky., 346 S.W.2d 762 (1961) at page 765, the Court held “the rule does not require this court to accept findings which are unsupported by the evidence, but it does place upon a party seeking to have such findings vacated the burden to show that they are clearly erroneous conclusions from all the evidence; that is to say, that the findings are not supported by substantial evidence”. As in that case, it is the province of this Court only to find whether or not the judgment of the Lawrence Circuit Court is or is not supported by substantial evidence. As provided in Rule 52.01, this Court must give deference to the trial court’s presence at the hearing and it’s unique view of the evidence. This Court is not charged with weighing the evidence, but ascertaining whether substantial evidence exists to support that judgment. The testimony of the various workers for the Department for Human Resources, the medical testimony of the physicians who have treated the children, and even the testimony of the Appellants themselves convince us that the judgment of the lower court was not clearly erroneous and that substantial evidence exists to support that judgment.

We affirm.

All concur.


source: Caselaw Access Project

author: HOWARD, Judge.

license: Public Domain

text:
    Prebble GREEN, Appellant, v. James ROE, Administrator of the Estate of Patty L. Roe, Deceased, Appellee.
    Court of Appeals of Kentucky.
    May 27, 1977.
    Discretionary Review Denied Oct. 3, 1977.
    David 0. Welch and Gregory L. Monge, Caldwell, Vanantwerp, Welch & Hughes, Ashland, for appellant.
    Henry R. Wilhoit, Jr., Grayson, William R. Redwine, Sandy Hook, for appellee.
    Before HOWARD, LESTER and WIL-HOIT, JJ.
   HOWARD, Judge.

Defendant-Appellant appeals from a judgment of the Elliott Circuit Court wherein the appellee recovered a judgment in the amount of $35,000.00 for the death of Patty L. Roe. The decedent was a daughter of the defendant-appellant and the wife of. the plaintiff-appellee.

l)n February 3, 1972, the decedent went to the home of her parents Mr. and Mrs. Prebble Green. It was early in the morning and she talked to her parents while her mother prepared breakfast. She offered to help her father wash the dishes but he declined the offer whereupon she went into her parents bedroom without comment.

A short time later a shot and a scream was heard. The father, Prebble Green, went to deceased and he found her lying on the mother’s bed wounded in the chest. According to defendant-appellant, the gun was on his wife’s bed pointing towards his daughter. However, another witness placed the gun on the floor, pointing away from the decedent. The decedent was taken to Morehead to the hospital but she died shortly after her arrival. During the trip she stated to her sister not to let her die or words to that effect.

The proof in the case revolved around the question as to whether the decedent’s death was the result of a suicide or an accident resulting from the negligence of Prebble Green.

As to suicide, there was testimony that the decedent had been very depressed prior to her death because of marital difficulties. There was some proof that she had threatened to take her own life and that on one occasion a brother took a .22 pistol away from her as he was afraid she was going to shoot herself.

On the other hand, the proof for the plaintiff-appellee can be summarized to be that the gun was old and that Prebble kept it behind the bedroom door and that it must have fallen in some fashion striking the floor and wounding the decedent. Prebble denies that he kept the gun loaded and there was some strong corroborating evidence by his wife who stated that she always insisted that the gun be unloaded before being brought into the house. Several witnesses who had borrowed the gun in the past substantiated this.

Plaintiff-appellee introduced some opinion evidence that the shotgun could have gone off since it had a hair trigger. There was no testimony as how the gun actually was discharged or as to why, if the gun had fallen, that the decedent was wounded in the chest instead of the lower extremit'

Even assuming that this was an accident instead of a suicide, we do not find that the mere fact that Prebble Green kept a loaded shotgun behind his bedroom door was negligence per se.

The fact that this shotgun went off by some means is not negligence either. While there was some testimony that this gun had a hair trigger, there was none to indicate that it had ever gone off in this manner before. A gun, even if loaded, behind a door is not the kind of dangerous instrumentality or condition that would require a specific warning. We are not prepared in this day and time to declare a homeowner negligent as a matter of law in keeping a loaded shotgun in his home for his and his family’s protection.

We do not think it is necessary, in this case, to discriminate between evidence of suicide and that of accidental death. There is simply no evidence of negligence. The trial court permitted the case to go to the jury even though the plaintiff’s case was based upon guesswork, inferences and speculation. In the case of Hollon v. Greyhound Corporation, Ky., 272 S.W.2d 329 (1954) this point was made:

. while it is true that negligence may be proved by circumstantial evidence alone, yet it usually cannot be presumed and where evidence of negligence is so unsatisfactory as to require speculation, surmise or guesswork as to how the injury occurred, the case is not for the jury but for the court, which should hold as a matter of law that defendant is not liable. Id. at 330-331.

In this case the plaintiff and all his witnesses stated that they didn’t know how the shotgun went off. Therefore, there was no testimony of any probative value to show why Prebble Green would be responsible for his daughter’s injury and death. “It is useless to speculate as to how it happened since there must be evidence upon which to make a reasonable inference and base a conclusion.” Darnell v. Beard, Ky., 296 S.W.2d 743 (1956).

This case is reversed with directions for the trial court to enter a judgment dismissing the complaint in accordance with the defendant’s motion for judgment N.O.V.

All concur.


author: WHITE, Judge.

text:
    Danny PATTERSON and Charles Gilmore, Appellants, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    June 3, 1977.
    Discretionary Review Denied Oct. 3, 1977.

      Jack Emory Farley, Public Defender, Timothy T. Riddell, Asst. Public Defender, Com. of Ky., Frankfort, for appellants.
    Robert F. Stephens, Atty. Gen., Deedra Benthall, Asst. Atty. Gen., Frankfort, Eddie C. Lovelace, Commonwealth Atty., 40th Judicial Circuit, Albany, for appellee.
    Before WHITE, LESTER and HOGGE, JJ.
   WHITE, Judge.

The appellants were convicted of first degree rape by forcible compulsion and were sentenced to serve ten years in the penitentiary. While both of the appellants are young men in their twenties, one of them, Danny Patterson, is white, and the other, Charles Gilmore, is black.

The prosecuting witness is an 18-year-old white woman. She testified that about 1:00 p. m. on February 1, 1976, while she was walking down Morris Hill Road, she was assaulted by the passenger of a black and white car. She positively identified appellant Patterson as her assailant. Her testimony was that she struggled, but was dragged from the roadside into a wooded area by appellant Patterson with the help of a bearded black man. There the two men raped her.

In court, she identified Gilmore as one of her attackers. Evidence was also introduced to show that Gilmore was the owner of a black and white car and that two other witnesses had seen Gilmore driving a black and white car on Morris Hill Road that day. The appellants, upon being arrested separately, each claimed they had spent the whole day of February 1, 1976, together.

The appellants’ defense was ' alibi and misidentification. Testimony from witnesses for the defense indicated that appellants could not have been on Morris Hill Road at the time of the rape, and that Gilmore did not have a beard at the time of the rape and, therefore, was not involved.

On appeal, Patterson and Gilmore allege prejudicial error in several respects. We will deal with each allegation in turn.

Appellants argue that their sixth and fourteenth amendment rights to a fair trial were violated by the systematic and intentional exclusion of blacks and young persons from the jury. Prior to trial, appellants moved the court to quash the jury panel for this reason, and the motion was denied. It was stipulated in the record that approximately thirty percent of the voter registration list in Wayne County was composed of persons under thirty years of age. Furthermore, it was stipulated that one percent of the voter registration list was composed of black persons.

The defense counsel noted that only two of the seventy people whose names were selected from the jury wheel for the trial of this case were under the age of thirty. Later defense counsel testified that this same small percentage of blacks and young people on the jury panel had prevailed since November, 1973. (emphasis ours)

We agree with the trial court that the appellants have not shown a systematic and intentional exclusion of these groups. As was said in Tinsley v. Commonwealth, Ky., 495 S.W.2d 776 (1973):

Swain [v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759] and Alexander V. Louisiana, 405 U.S. 625, 92 S.Ct. 1221, 31 L.Ed.2d 536, specify in detail the procedure to be followed by defendants asserting systematic exclusion of a group or race from jury panels or invidious discrimination in the selection of citizens to serve as jurors. We cannot presume non-permissible methods of jury selection in this case absent a showing ... in conformity with Swain and Alexander. Such a showing entails a taking of proof from the jury commissioners or a showing of the makeup of jury panels for a period of time so as to make a prima facie case of invidious discrimination.

The mere fact that the representation of young people on jury panels has been disproportionate does not establish a prima facie case of invidious discrimination. This is so because the drawing of the panels from the drum or wheel depends on chance. Gilchrist v. Commonwealth, Ky., 246 S.W.2d 435 (1952). They have not been excluded from the panels, as was made clear in the stipulations and by defense counsel’s testimony. Neither does Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975), afford appellants relief. There the court said at 538, 95 S.Ct. at 702:

It should also be emphasized that in holding that petit juries must be drawn from a source fairly representative of the community we impose no requirement that petit juries actually chosen must mirror the community and reflect the various distinctive groups in the population. Defendants are not entitled to a jury of any particular composition, [citations omitted], but the jury wheels, pools or names, panels, or venires from which juries are drawn must not systematically exclude distinctive groups in the community and thereby fail to be reasonably representative thereof.

We interpret this to mean that the manner in which proof was adduced in Swain and Alexander should also be utilized in an attack upon the composition of the jury, i. e., a taking of proof from the jury commissioners as to the selection of names to fill the jury wheel or drum as per Ky. Rev.Stat. § 29.075 [hereinafter cited as KRS]. Discrimination is based upon what goes into the wheel rather than the composition of what comes out of the wheel. This is not to say that invidious discrimination cannot be proven by exclusion from the jury panels in the proper case. Taylor v. Louisiana, supra; Gilchrist v. Commonwealth, 311 Ky. 230, 223 S.W.2d 880 (1949). Rather, in the present case, the appellants have failed to show a systematic and intentional exclusion.

Appellants’ second contention is that the court erred in denying a motion for mistrial after the commonwealth was allowed to introduce hearsay testimony of an unidentified informant.

Officer Morrow testified that “[u]pon arrival at my informant’s home, he advised me that he saw Charles Gilmore that afternoon going down the street driving the automobile.” This testimony was repeated twice in front of the jury. The court later admonished the jury not to consider the portion of Morrow’s testimony pertaining to information received from an unidentified informant.

A review of the evidence in this trial convinces us that Morrow’s testimony was merely cumulative to the testimony of two other witnesses, Ronnie Bartleston and Allen Duncan. These two witnesses testified they saw Charles Gilmore driving down Morris Hill Road the afternoon of the rape. In light of this evidence, we hold the court’s ruling not to be prejudicial. RCr 9.24.

Appellant Gilmore made motions for a directed verdict which were overruled. Gilmore argues on appeal that there is insufficient evidence upon which to convict him of first degree rape. His argument is based upon the victim’s admission on cross-examination that there was a reasonable doubt in her mind that Gilmore was the black man that raped her. However, in light of her identification of Gilmore on direct examination and upon a review of the circumstantial evidence offered by the commonwealth, there was sufficient evidence to support a conviction. Challenor v. Commonwealth, 248 Ky. 628, 59 S.W.2d 567 (1938).

The appellants next contend that it was error for the trial court to refuse to instruct the jury on the offense of sexual misconduct [KRS 510.140]. We disagree. As the commentary to KRS 510.140 in Criminal Law of Kentucky Annotated (1975), points out, “. . . the basic purpose of KRS 510.140 is to preserve the concept of statutory rape and statutory sodomy.” The commentary notes that “[f]orce is not an element of this offense.”

In the case at hand, the only evidence as to the rape showed that force was used. Furthermore, the victim was eighteen years old at the time of the attack. The trial court was correct in refusing to give an instruction pursuant to KRS 510.-140. Cooper v. Commonwealth, Ky., 550 S.W.2d 478 (1977), 24 K.L.S. 2.

Likewise we find no prejudicial error in the prosecutor’s closing argument. In the first place, the issue of prejudicial argument has not been preserved for review through lack of objection. R.Cr. 9.22. Secondly, we find no prejudicial error in the prosecutor’s statement that “. . . it’s hard for me to tell people of the Negro race apart.” He was merely trying to explain the prosecuting witness’s difficulties in identifying one of her assailants. Neither do we find any error where the prosecutor stated that rape was not conduct befitting a member of the human race.

Appellants’ last contention is that the judgments should be vacated and remanded for resentencing pursuant to the procedures set out in KRS 532.050 and KRS 533.010. There is no indication in the record that a presentencing report was ordered or considered by the trial judge in sentencing as required by KRS 532.050. Neither is there any indication in the record that probation was considered as is required by KRS 533.010. Lastly, the commonwealth conceded error on this point in oral argument.

This court, though fully realizing that appellants were sentenced to the minimum sentence, is constrained under the authority of Brewer v. Commonwealth, Ky., 550 S.W.2d 474 (1977), 24 K.L.S. 1, to vacate and remand. In Brewer the Supreme Court of Kentucky held:

The requirement placed upon a trial court by the statute is mandatory and does not afford a trial judge the privilege or discretion of determining whether the report will be requested, obtained, or considered. It is a “must” and is in fact a prerequisite to the entry of a valid judgment. In view of the mandatory character of this requirement, the record of the proceeding should clearly disclose the fact that the trial court has fully complied with KRS 532.050 by requesting a presen-tence investigation, examining and considering the written report as supplied, and informing defendant or his counsel of the factual contents and conclusions contained in the report and the fact that the defendant either requested or did not request time within which to controvert the factual data contained in the report.

The court also held:

Even though the trial court had discretionary authority under KRS 533.010 regarding the granting of parole or conditional discharge, it was required to consider the feasibility of this procedure. In view of this rule, the record of the proceedings leading up to the entry of the judgment should clearly reflect the fact that the consideration required by KRS 533.010 had been afforded the convicted person before judgment was finally entered.

Finding no other error, the judgment is vacated and the case remanded for resen-tencing after there has been compliance with KRS 532.050 and KRS 533.010.

All concur.


author: WINTERSHEIMER, Judge.

text:
    Dan T. LAWRENCE, Appellant, v. EQUITABLE LIFE ASSURANCE SOCIETY of the United States, Appellee.
    Court of Appeals of Kentucky.
    June 3, 1977.
    Discretionary Review Granted Sept. 13, 1977.
    Earl T. Osborne, Paducah, for appellant.
    Stephen D. Gray, Henderson, for appel-lee.
    Before HOGGE, VANCE and WINTER-SHEIMER, JJ.'
   WINTERSHEIMER, Judge.

This appeal is from a jury verdict which awarded the Appellant/Plaintiff no damages in connection with an alleged breach of an employment contract. On September 1, 1974, Lawrence and the Equitable Life Assurance Society entered into a written contract known as a 12th Edition contract under which Lawrence was hired for the term of the contract as an agent to sell life insurance for the Society. Section XII of the contract provided that either party could terminate the agreement at any time by giving the other notice. On July 1,1975, Don Jett, the owner of the agency where Mr. Lawrence was working for Equitable, advised that he was going to recommend that Lawrence be terminated as of June 30, 1975. This recommendation was subsequently confirmed in writing by Jett. Thereafter, Lawrence cleaned out his desk, and on July 2, 1975, applied for unemployment benefits, listing Equitable as his last employer, and stating that his last day worked was June 30,1975. On July 8,1975, Lawrence assigned some of his credits from one customer to a fellow employee. On July 10, 1975, Lawrence wrote a letter to the President of Equitable claiming that they owed him for his work in July and August and referring to his termination as of June 30, 1975. On July 15, 1975, Joseph Wyer of Equitable sent through the regular mail a notice of termination which Lawrence claims he never received. After a one day trial, the jury, replying to three interrogatory instructions by the trial court, found that no letter was forwarded by Equitable on or about July 15, 1975, and that Lawrence accepted the fact of his termination on June 30, 1975 and refused to award any damages.

This Court reverses the trial court.

The question presented here is whether the Interrogatories No. 2 and 3 were so erroneous as to mislead the jury and thereby prejudice the Appellant.

In considering this matter it is necessary to determine if the employment contract was terminated by Equitable according to its terms, and if the contract was breached by Equitable, what damages, if any, was Lawrence entitled to.

Interrogatory No. 1 was not objected to by either party. The finding of the jury under Interrogatory No. 1 is to the effect that no termination letter was sent pursuant to the contract. The combination of the following interrogatories (No. 2 and 3) is defective and misleading so that the final result is prejudicial to the Appellant/Plaintiff herein. Interrogatory No. 2 was premature and perhaps actually out of order, but also erroneous. Any series of correct interrogatories should have included a question as to when notice of termination as required by the contract of employment was given, and if it was ever given. It is clear that notice must be given as a condition of termination.

This Court recognizes that the question of equitable estoppel arises from the conduct and the acknowledgement by the Appellant/Plaintiff of his termination. It is well settled in Kentucky that equitable estoppel applies to a situation where it would be unconscionable to permit one to maintain a position inconsistent with one in which he had acquiesced to the detriment of another who has charge of his position. Hall v. Gayheart, 314 Ky. 432, 235 S.W.2d 1020 (1951). Carrington v. Kentucky Home Mutual Life Insurance Co., 61 F.Supp. 424 (D.C.Ky.1945).

It is further considered that an instruction as to breach of contract by either the employer or the employee should have been given to the jury.

An examination of the law of damages related to this case fails to disclose any authority for the court’s Interrogatory No. 3, which involves the matter of the jury crediting money received by the Appellant from other sources against any damages. Payments received by the Appellant from the Veterans Administration as benefits should not be setoff against any damages Equitable owed under the contract. It is our understanding of the law of damages that the employee should be charged with any wages he has earned, or could have earned, if he had with reasonable .diligence obtained or solicited employment in the same general area. 22 Am.Jur.2d Damages § 70 and 71.

On a new trial the court should inquire when Lawrence was notified by the employer/appellee. Such notice need not be in writing. Conduct by the parties, such as refusal to pay salary and defense of a lawsuit could be considered. Therefore, it is the opinion of this Court that Interrogatory No. 2 was erroneous, and that Interrogatories No. 2 and 3 resulted in a prejudice to the Appellant and that it was erroneous not to have given an instruction or interrogatory on the question of notice. This case is reversed and remanded to the trial court for such action as may be consistent with this opinion.

All concur.


author: GANT, Judge.

text:
    LEXINGTON-FAYETTE URBAN COUNTY GOVERNMENT, Appellant, v. Daniel Evans MIDDLETON, Appellee.
    Court of Appeals of Kentucky.
    June 17, 1977.
    Discretionary Review Denied Oct. 3, 1977.

      James T. Hodge, Commissioner of Law, Charles D. Weaver, Jr., Director, Div. of Litigation, Richard V. Murphy, Corp. Counsel, Donald D. Waggener, Stephen D. Mil-ner, Asst. Corp. Counsels, Lexington, for appellant.
    F. Jerry Anderson, Lexington, for appel-lee.
    Before GANT, HOWERTON and REYNOLDS, JJ.
   GANT, Judge.

Lexington-Fayette Urban County Government appeals from a judgment in the Fayette Circuit Court awarding damages to the Appellee in the amount of $3,122.90, consisting of a $1,500.00 verdict by the jury against the Appellant and a police officer employed by the Appellant, together with $1,622.90 awarded by the court against the same parties for attorney’s fees and costs incurred by the Appel-lee in the manner which will be hereinafter set out.

The facts in the case were in considerable dispute. Appellee testified that at approximately 4:30 in the morning of August 28, 1972, he was at the intersection of Liberty Road and Winchester Road in Fayette County, Kentucky; that when the light turned green he proceeded into the intersection intending to turn right, or eastward, on Winchester Road, and that when he was approximately, half-way into the intersection two cars approached from his left, running the red light at a high rate of speed and appearing to be racing, thereby forcing him off the road and into a filling station. Appellee further testified that these two cars continued on eastward on Winchester Road, accelerating as a light changed some distance on down the street and that at the intersection of Industry Road and Winchester Road one of the automobiles turned left and parked in a deserted filling station, the other car proceeding on out Winchester Road.

Appellee testified that the car which turned left and parked was occupied by Officers Gaines and Hargis, and that he pulled into the service station some eight to ten feet from the Hargis vehicle and questioned them about their problem. He testified further than one of the occupants of the Hargis vehicle asked him whether he was a police officer and that he indicated that he was not but that he was a member of the Sheriff’s Association and intended to call the police about their racing and running the red light. Appellee further testified that as this dialogue continued he was aware that he “had a problem” decided not to get involved and drove on off, proceeding northward on Industry Road toward New Circle Road. Appellee further testified that as he proceeded on Industry Road another vehicle came behind him, blinking its lights, and that he pulled over. This vehicle turned out to be the car of Officer Bokal, being the vehicle which had proceeded on when the Hargis vehicle stopped at the service station. Both of these vehicles were private vehicles, owned by the police officers, and all three officers were in uniform at the time. Appellee testified that Officer Bokal placed him under arrest for “reckless driving, had been drinking.”

Appellee further testified that following this the other two officers, Hargis and Gaines, came upon the scene and that both Officers Hargis and Bokal struck him, grabbed him by the hair, and that Officer Hargis charged him with disorderly conduct and impersonating a peace officer.

Appellee further testified that subsequently a cruiser arrived upon the scene, that he was taken to the Municipal Building, booked on these charges and placed in jail. Further testimony by the Appellee and others was that he had a black eye, blood in that eye and Appellee testified that he had some kidney trouble as a result of the kicking.

Officers Bokal and Hargis testified at the trial and their version was quite different. Officer Bokal testified that it was the Ap-pellee who ran the red light, forcing him to apply his brakes; that he did not see Officer Hargis at the first intersection; that he subsequently saw Appellee’s vehicle at the service station with Officer Hargis’s car; that he smelled alcohol on Appellee’s breath at the time of the arrest; that the arrest was orderly and that any damage to the face of the Appellee was caused when Ap-pellee was shoved against one of the vehicles to be frisked prior to placing him in the cruiser. Officer Hargis testified that he placed the charges of disorderly conduct against the Appellee because of his abusive language and threatening at the time of the arrest and that he further placed charges of impersonating a peace officer, testifying that the Appellee claimed he was a member of the Sheriff’s Department, not the Sheriff’s Association. Both Hargis and Bokal denied any striking of the Appellee; both denied racing, and both denied running the red light.

This action was brought by the plaintiff-Appellee, Daniel Evans Middleton, against Officers Hargis and Bokal and against the City of Lexington, for which Lexington-Fa-yette Urban County Government was subsequently substituted. Three general grounds were alleged in the complaint, these being malicious prosecution, assault and battery and false arrest and imprisonment. Only the Appellant, Lexington-Fa-yette Urban County Government, appeals from the judgment herein, and there is no cross-appeal.

The case was submitted to the jury under instructions consisting of six interrogatories as follows:

INSTRUCTION NO. 1: The Court instructs the jury to answer the following questions.
Question No. 1: Does the jury believe from the evidence in this case that the plaintiff Daniel Evans Middleton drove his automobile in a reckless manner, at or about the intersection of Winchester and Liberty Roads and in the presence of the officer, Edward Bokal, or that the officer Edward Bokal had reasonable grounds to believe and did in good faith believe that the plaintiff did so in his presence?
Answer “yes” or “no”.
Question No. 2: Does the jury believe from the evidence in this case that the plaintiff Daniel Evans Middleton committed disorderly conduct in the presence of the officer, Thomas Stephen Hargis, by engaging in violent tumultuous or threatening behavior or making unreasonable noise or in a public place using abusive or obscene language with intent to cause public inconvenience, annoyance or alarm or recklessly creating a risk thereof; or that the officer Thomas Stephen Hargis, had reasonable grounds to believe and did in good faith believe that the plaintiff was so doing in his presence.
Answer “yes” or “no”.
Question No. 3: Does the jury believe from the evidence in this case that Officer Edward Bokal used more force than was necessary or appeared to him in the exercise of a reasonable judgment to be necessary, in order to affect (sic) the arrest of the plaintiff.
Answer “yes” or “no.”
Question No. 4: Does the jury believe from all of the evidence in the case that Officer Thomas Stephen Hargis used more force than was necessary or appeared to him in the exercise of a reasonable judgment to be necessary in order to affect (sic) the arrest of the plaintiff.
Answer “yes” or “no”.
If your answer to either question No. 1 or question No. 2 is “no” or if your answers to either questions No. 3 or question No. 4 is “yes” then proceed to answer question No. 5 and question No. 6.
Question No. 5: The Court instructs the jury that the Officers Edward Bokal and Thomas Stephen Hargis were acting within the scope of their employment as police officers of the City of Lexington, if you believe from the evidence that at the time and place the plaintiff was arrested, they were acting in furtherance of the purposes for which they were employed. If you believe from the evidence that at the time and place the plaintiff was arrested, the said officers, or either of them, were acting to accomplish some private purpose of their own not related to the purposes for which they were employed, then, such officer was not acting within the scope of his employment by the City of Lexington.
Does the jury believe from the evidence in this case that the officer Edward Bokal was acting within the scope of his employment by the City of Lexington at the time he arrested the plaintiff Daniel Evans Middleton?
Answer “yes” or “no”.
Does the jury believe from the evidence in this case that the officer Thomas Stephen Hargis was acting within the scope of his employment by the City of Lexington at the time he arrested the plaintiff Daniel Evans Middleton?
Answer “yes” or “no”.
Question No. 6: What amount of money does the jury believe from the evidence will fairly and reasonably compensate the plaintiff Daniel Evans Middleton for the mental and physical pain and suffering indured (sic) by the plaintiff to date as a direct and proximate result of the injuries, if any inflicted upon him by the Officer Edward Bokal?
Insert then the amount, if any.
What amount of money does the jury believe from the evidence will fairly and reasonably compensate the plaintiff Daniel Evans Middleton for the mental and physical pain and suffering indured (sic) by the plaintiff to date as a direct and proximate result of the injuries, if any, inflicted upon him by the Officer Thomas Stephen Hargis?
Your total verdict shall not exceed the sum of $30,000.00, the amount claimed in the complaint.

The jury found that neither of the two officers had reasonable grounds to believe nor did they in good faith believe that the Appellee had committed the offense of reckless driving or disorderly conduct; they found that neither of the officers used more force than was necessary or appeared to them to be necessary in order to effect the arrest; they found that both of the officers were acting within the scope of their employment; and they found damages against each of the two officers in the amount of $1,500.00.

Appellant urges as its first grounds for reversal that the trial court refused to submit to the jury the question of whether the arrest for false impersonation constituted a defense to the entire action. The evidence on this question was rather sparse. Of course, the Appellee denied ever stating that he was a member of the Sheriff’s Department, saying that he merely said that he belonged to the Sheriff’s Association and was going to call the police. Officer Hargis testified very briefly on this subject that the Appellee “stated he was with the Sheriff’s Department” and “that he could put us in jail for speeding.” The testimony further was that the Appellee made no effort to get out of his car; made no statement that the officers were under arrest and, in fact, drove off leaving the two officers at the filling station. Hargis further testified that after Bokal had stopped him the Appellee made a further statement that “he could still put us in jail” and “that he was an associate member of the Sheriff’s Association of Kentucky.”

The applicable section of the statutes urged by the Appellant is Ky.Bev.Stat. 434.-060(l)(d), which states as follows:

(1) Any person who fraudulently represents or personates another, and in such assumed character does any of the following acts, shall be confined in the penitentiary for not less than one (1) nor more than five (5) years:
(d) Do any other act in the course of any action, by which the person so perso-nated or represented purports to be made liable, in any event, to the payment of any debt, damages, costs or sum of money, or his rights or interests are in any manner affected.”.

Appellant urges that the wording of this is broad enough that by representing himself to be a member of the Sheriff’s Department in the manner indicated would affect the rights of the Sheriff by subjecting him to damage suits, tainting his reputation, and undermining his standing as an elected official of the community. With this we do not agree, and, although all statutes are ordinarily liberally construed in the Commonwealth of Kentucky, such construction simply cannot be carried this far when applied to the facts of the instant case.

The second ground urged by the Appellant is that the trial court erred in entering its judgment on the basis of an ambiguous and confusing jury verdict in answering these interrogatories. The law concerning false arrest and assault and battery in the course thereof is clearly stated in the case of City of Lexington v. Gray, Ky., 499 S.W.2d 72 (1973). This case states as follows:

The burden of establishing justification was on the officer, who therefore had to persuade the jury that he had reasonable grounds to believe and in good faith believed that Mrs. Gray was committing a misdemeanor in his presence and that he used no more force than was reasonably necessary, or so appeared to him in the exercise of reasonable judgment, in order to effect the arrest. Goins v. Hudson, 246 Ky. 517, 55 S.W.2d 388 (1932).

This case went on to set out a model instruction to be used on retrial. It is the opinion of this Court that the interrogatories propounded by Judge Barker in the lower court were far superior to the Gray instruction as the Gray instruction, standing alone, would seem to place the burden of proof on the defendant when the burden of proof is always on the plaintiff. However, once the plaintiff meets his burden and establishes his case, if the defendant attempts justification of his conduct, then the burden does shift to him to establish both that he had reasonable grounds and in good faith did believe those grounds for making the arrest and that he used no more force than necessary. The absence of either of these, not both, will make him liable in an action for false arrest and imprisonment and any resulting injury therefrom. In other words, if the officer did have reasonable grounds for making the arrest but used more force than necessary he would be liable and, if he only used necessary force in effecting the arrest but there were, in fact, no reasonable grounds for the arrest, he will also be liable. The latter example is appropriate in the instant case. The jury held that, although neither of the officers used more force than was necessary in effecting the arrest, they had no reasonable grounds for making the arrest and this clearly renders them liable under the laws of this Commonwealth.

Relating to the amount of damages, the Appellee actually furnished two grounds. First, he stated that he was grabbed by the hair, struck in the face, which striking resulted in a black eye and a bloody eye, and he further testified that he was taken in a police cruiser, booked at the Police Department and thrown into jail. This composite clearly justifies the verdict of the jury. In the case of Louisville & N. R. Co. v. Mason, 199 Ky. 337, 251 S.W. 184 (1923), we find the following language:

The only basis for the contention that the verdict is excessive is that there was no evidence that appellee suffered any humiliation, bodily pain, or mental anguish for which the jury allowed $3,000.00, as the instructions authorized them to do.
It is true that the appellee did not, in her testimony, say in so many words that she was humiliated or otherwise hurt, either mentally or physically, as alleged in her petition, by the acts complained of, but such was not only the necessary consequence thereof, but the only reasonable inference from her testimony, and in our judgment this contention is wholly without merit.

Thus we find that even in the absence of testimony concerning mental pain and anguish, a verdict may award such mental pain and the interrogatory No. 6 was proper. We also feel that even though the jury held that there was no excessive force used, the Appellee was entitled to be compensated for any physical pain or suffering, as well as “mental pain,” as a result of this arrest and assault because of the fact that there were no reasonable grounds for the arrest itself.

The third and fourth grounds urged by the Appellant for reversal relate to the damages awarded by the jury and the court. As previously indicated, the jury awarded $1,500.00 against both Officer Hargis and Officer Bokal. The court set aside the $1,500.00 awarded against Officer Hargis for reasons which we are unable to ascertain. The testimony was that Hargis hit the Appellee in the mouth and further that Hargis arrested the Appellee and charged him with reckless driving and impersonating an officer. Had the Appellee cross-appealed, the court would feel constrained to reverse the lower court on this point as we feel that there was as much evidence against Officer Hargis as there was against Officer Bokal, but this question is not before us.

Additionally, the sum of $1,622.90 was awarded for attorney’s fees and court costs incurred in the defense of the three charges, those being reckless driving, disorderly conduct and impersonating an officer. These expenses were properly proven, being the attorney’s fees and cost of transcripts in the lower court, in the amount heretofore set out.

The law in Kentucky is probably best set out in the case of Ross v. Kohler, 163 Ky. 583, 174 S.W. 36, 41 (1915):

The rule applying in such cases is that the successful plaintiff is entitled to compensation for all natural and probable consequences of the wrong .

The Court is not materially assisted by the annotations in 32 Am.Jur.2d False Imprisonment or in 35 C.J.S. False Imprisonment, as both of these merely indicate that those jurisdictions which have decided this question at all are fairly equally divided. This is a case of first impression in the Commonwealth of Kentucky and there are simply no Kentucky cases which are of material assistance on this problem. Apparently, Florida and Alabama have adopted the rule that they will distinguish between false arrest and imprisonment and malicious prosecution and have held that damages are recoverable only to the extent that they are expended to secure the party’s release from confinement or the illegal restraint. On the other hand, Vermont has held that the actual restraint does not end until the prosecution against him is ended and that expenses incident to the defense of the suit are the natural and proximate result of the wrongful act.

It probably should be pointed out at this juncture that in instances involving officers of the law there is simply no distinction between false arrest and false imprisonment. False imprisonment is always the result of a false arrest, since the individual is placed under restraint by the false arrest and there can be no imprisonment without arrest by a peace officer. The reference books have even abandoned a separate title for False Arrest and all of these cases are indexed under False Imprisonment.

It seems to this Court that retaining an attorney and acquiring a transcript of the proceedings for the purpose of defense or appeal are “natural and probable consequences of the wrong.” The fact that the person wronged is actually released from jail by posting a bond or even by a recognizance does not end his problems, as he must sooner or later clear himself of the false charges placed against him and he is under some restraint from his movements as he is answerable to summons of the court and required to appear in court on the trial date for the purpose of exoneration. It is therefore the holding of this Court that reasonable attorney’s fees and costs incurred in defending himself from the wrongful charges are natural and probable consequences of the wrong and recoverable in a civil action for false arrest where there is a finding that the false arrest and imprisonment were without reasonable grounds. We would not award such damages in those cases where reasonable grounds did exist but excessive force was used. In the former case, the wrong was the arrest and imprisonment without reasonable grounds and this wrong is the basis of the action. In the latter, the wrong was the assault and battery committed by the arresting officer, even though he had reasonable grounds.

The last ground for reversal urged by the Appellant is that Lexington-Fayette Urban County Government should not be held liable for the false arrest and damages resulting therefrom. We are mindful of the language contained in City of Louisville v. Louisville Seed Company, Ky., 433 S.W.2d 638, 641 (1968), in which the court said:

With rare exceptions, private business carries on no function as hazardous or exacting in detail as the work of a city fire or police department. These activities are so inherently dangerous that private business would hesitate to undertake them. . . . And it can be readily appreciated that the imposition of broad standards of tort liability upon them might be extremely burdensome and could possibly force their curtailment or even abandonment to the detriment of the general public. For this reason some reasonable compromise must be reached — one that will permit the isolated citizen to recover for grievous injustices imposed upon him by a negligent society, yet protect that society from what could culminate into ruinous claims.

Appellant points out that in the cases of City of Lexington v. Yank, Ky., 431 S.W.2d 892 (1968), and City of Lexington v. Gray, supra, the court has held the city liable for assaults by police officers. Appellant seeks to distinguish the instant case by saying that in those cases there was an intentional and wrongful assault and that in this case there was a “good faith” determination to arrest in carrying out the public safety function of law enforcement. However, the jury held to the contrary and held in this case that there was not a good faith determination to arrest. For this reason, we feel that those cases are indistinguishable and that where there was a lack of reasonable grounds for making an arrest the city must suffer the damages.

It has long been held in regard to the liability of the master for the action of his servant that the doctrine is founded upon the principle of agency. This doctrine is probably best set out in the case of Continental Ins. Co. of New York v. Buchanan, Ky., 108 S.W. 355 (1908), in which the court said:

Where one of two parties must suffer, he should bear the loss who sends out the agent, rather than he who innocently deals with him.

This seems particularly appropriate in the ease of police officers. The Lexington-Fa-yette Urban County Government has adequate opportunity for screening those persons whom it hires as police officers for this government. These persons can be given tests, evaluated by psychiatrists, subjected to polygraph examinations, reviewed by boards, and their records of performance are subject to scrutiny from time to time by the employer. The public which deals with these police officers has no such opportunity-

For the reasons above stated, the case is affirmed.

All concur.


author: MARTIN, Chief Judge.

text:
    Max A. LADT, a citizen, resident and taxpayer of the County of McCracken, Kentucky, Individually and as a representative of all citizens, residents and taxpayers of said County, Appellant, v. COUNTY OF McCRACKEN, Kentucky and Lourdes Hospital, Inc., Appellees.
    Court of Appeals of Kentucky.
    July 22, 1977.

      W. David King and Burton A. Washburn, III, King & Washburn, Paducah, for appellant.
    Samuel Carlick, Paducah, Jo M. Ferguson, Harper, Ferguson & Davis, Louisville, W. Pelham McMurry, McMurry & Livingston, Paducah, for appellees.
    Before MARTIN, C. J., PARK and GANT, JJ.
   MARTIN, Chief Judge.

The County of McCracken has agreed to help the Lourdes Hospital in Paducah expand its facilities and refund original construction bonds by issuing revenue bonds under Chapter 103, as amended, Kentucky Revised Statutes. The circuit court in a declaratory action brought by a taxpayer upheld the procedure. We affirm.

The issue on appeal is the validity of refunding public project revenue bonds issued under Chapter 58, KRS 58.010-58.440, by using revenue bonds issued under Chapter 103, KRS 103.200-103.260 (as amended, 1976 Supp.).

In 1969 the Fiscal Court of McCracken County took preliminary steps to prepare for the construction of a new hospital in Paducah. The resolution authorizing the project was adopted on June 24, 1969, and acknowledged that the County had some responsibility “for providing, or for assisting in the provision of, medical facilities for its population.” The resolution concluded that the Fiscal Court could best achieve this goal by leasing hospital facilities to a nonprofit corporation. The charitable, nonprofit corporation chosen was Lourdes Hospital, Inc.

The construction of the hospital was financed by the County issuing $7,500,000 “County of McCracken Hospital Revenue Bonds — Series of 1970.” These bonds were issued under the provisions of KRS 58.010 through 58.150. The bonds and interest were payable solely from the proceeds of a lease to Lourdes Hospital which pledged operating revenues of the hospital to retire the bonds. The County did not undertake to make any payments from its own funds, directly or indirectly. The bonds were sold at a time when interest rates were relatively high. The term bonds, which constituted the bulk of the bond issue, bore an interest rate of 8V4%.

The operation of the hospital since the completion of construction has been very successful, both financially and medically. The need for its services has been so great that an expansion of the number of beds and of its supporting facilities has been deemed necessary. It is estimated the cost of this expansion will be close to two million dollars. In addition to the need for more space, there has been at least one major problem in the operation of the hospital. This problem is the covenant in Section 703 of the 1970 Lease whereby the hospital agreed to maintain medical malpractice insurance covering the activities of all physicians and other employees working within the hospital. This covenant has turned out to be financially oppressive in the light of present costs of malpractice insurance. Therefore, when hospital authorities sought expert advice on the financing of the facilities, they were advised by investment bankers to obtain their new money in a “package” with a refunding of the old bonds. The investment bankers advised that the refunding of the old bonds would result in a saving to the hospital, while at the same time permit the negotiation of a new and more realistic lease agreement.

The method of refunding recommended was the so-called “full-defeasance” method. The entire amount of money required to pay principal and interest on the 1970 bond issue, together with the call premium, would be placed with the Trustee for those bonds. This action would conform to Section 9 of the 1970 Bond Resolution which provides:

That bonds which have been duly called for redemption as provided in Sections 7 and 8 hereof, or with respect to which irrevocable instructions to call for redemption at the earliest redemption date have been given to the Trustee in form satisfactory to it, and for the payment of the redemption price of which moneys shall be held in a separate account by the Trustee in trust for the holders of the Bonds to be redeemed, shall not thereafter be deemed to be outstanding under the provisions of this Resolution.

Thus it was proposed by bond advisers to the County that all restrictions contained in the 1970 Resolution be eliminated by the “filling-up” of the 1970 Sinking Fund so that the 1970 bondholders would have no further claims against the County or against Lourdes Hospital. To fully fund the 1970 Sinking Fund the County would have to issue a greater principal amount of revenue bonds than the principal amount presently outstanding, as future interest payments must be funded in advance. Proceeds from that portion of the 1977 bond issue designed to refund the old bonds would be delivered to the trustee to be held in trust for the 1970 bondholders. However, inasmuch as this money would not yet be due to the 1970 bondholders under the terms of their contract, it could be invested in obligations of the government or guaranteed by the government for the period prior to the due date of the bonds and interest coupons. The interest from these invested sums would, in effect, be sufficient to pay off the excessive principal amount of the new bonds to be issued. The other part of the new bonds issued for refunding would rely on the income from the hospital, now relieved from its obligation to the old bondholders, and projected increased hospital revenues would support the new bonds issued for expansion.

The provisions of Chapter 103, KRS 103.200, Revenue Bonds for Miscellaneous City or County Projects; Industrial Buildings for Cities and Counties, were not available when Lourdes Hospital was originally constructed. The only bonding vehicle available to the hospital in 1970 was provided by Chapter 58. However, in 1972, the legislature amended the Industrial Buildings for Cities and Counties Act, Chapter 292, Acts of 1972, to include within its provisions hospitals and health care facilities. The theory of the legislature, as stated in the preamble to the Act, was that hospitals do constitute an industry giving employment to numerous people, and that consequently the establishment or the expansion of a hospital would tend to promote employment just as the location of a new industry would promote employment. The original statute had been upheld in Faulconer v. City of Danville, 313 Ky. 468, 232 S.W.2d 80 (1950). On the basis of the testimony given in the present case it is apparent that the new hospital facilities would immediately require the employment of 20 to 25 additional people. No attempt was made to submit testimony as to indirect effects, but it is readily apparent that the hospital has been and is a major employer in the community. Appellant has made no real attack on this aspect of the case other than to contend that employment has been so bad in McCracken County that this proposal would be inadequate to accomplish the purposes of the Act. Because the proposed project will produce employment, the purposes of Chapter 103 are accomplished to the extent of the new employment. The court below, in paragraph 3 of its Conclusions of Law, found that the proposed facilities will constitute “an industrial building” as that term is defined by KRS 103.200, as amended. This conclusion supports the authority of the County to issue bonds under this statute.

Both Chapter 58 and Chapter 103 contain provisions for the refunding of pri- or issues of bonds. It is conceded that the refunding language in both statutes is stated in terms of bonds already outstanding under that particular statute. In Kentucky, however, it would not have been necessary to specifically provide for refunding in the statute at all. Kentucky is one of the states which has very clearly recognized for many years that any statute conferring the authority to issue bonds contains, by implication, the authority to refund bonds. Cook v. City of Louisville, 260 Ky. 474, 86 S.W.2d 157 (1935); State Highway Commission of Kentucky v. King, 259 Ky. 414, 82 S.W.2d 443 (1935). This authority exists even in the case of voted or general obligation bonds. Jones v. Fiscal Court of Fulton County, 275 Ky. 619, 122 S.W.2d 510 (1938). In many of the older cases, the court speaks of “substitution” of the new refunding bond for the old bond. If there is a true substitution, which was often the case fifty years ago, the bonds themselves contain the language to the effect that the new bonds must be issued on the same terms, except for interest rates, as the old bonds. This makes no sense in the case of revenue refunding bonds which are sold to an entirely new set of bondholders who were not privy to the original contract. If the issuer can make a better arrangement for itself in something more than the rate of interest, why should it not do so? This is nothing more than the “good business practice” which is a controlling factor in the issuance of revenue bonds, as distinguished from general obligation bonds. Hemlepp v. Aronberg, Ky., 369 S.W.2d 121 (1963).

If a refunding can be undertaken in Kentucky without specific statutory authority, there can be no reason why Chapter 58 bonds cannot be refunded as a part of a Chapter 103 project. This is especially true where there is no essential difference between the relationship of the issuer and the lessee in the two cases, and no essential difference in the actual security backing up the bonds. Both bond issues are dependent wholly upon the revenues which constitute the rent payable under the lease agreement. Chapter 103 is designed to accommodate the type of bond issue which is based upon a lease agreement between the issuer and the lessee, a private corporation. Lourdes Hospital is a private corporation, even though it is not a for-profit corporation and is specifically covered as an eligible party under KRS 103.200. It has special privileges under federal tax laws, because it is a charitable corporation, but it is nonetheless “private” in its relationship with the issuer of these bonds in the same manner as an industry seeking the advantages of financing a new factory.

As stated in City of Bowling Green v. Board of Education of Bowling Green, Ky., 443 S.W.2d 243 (1969), at page 246:

There are other examples wherein public bodies have a free choice of proceeding under one set of financing statutes or another. For example, a city may finance a water system either under the provisions of KRS 58.010 et seq., or under the provisions of KRS 96.350 et seq. Similarly, a city may finance a sewer system under KRS 58.010 et seq. or under KRS 94.160, and there is a free choice between them.

The Court is aware that Haney v. City of Somerset, Ky., 530 S.W.2d 377 (1976), denied the use of Chapter 103 in a bond issue for the purpose of constructing a gas transmission pipeline. However, that case was decided on the specific issue of how the bonds were to be sold and did not reach the issue of whether the project could be financed with industrial revenue bonds. In the present case the statutes, KRS 103.200-260, have been followed and the County of McCracken may issue the proposed bonds. The other issues raised by appellant are without merit. Hemlepp v. Aronberg, supra.

The judgment of the circuit court is affirmed.

All concur.


author: HOGGE, Judge.

text:
    Charles SCOTT, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Aug. 26, 1977.

      Jack Emory Farley, Public Defender, Kevin M. McNally, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., William H. Mohr, Asst. Atty. Gen., Com. of Kentucky, Frankfort, for appellee.
    Before HOGGE, PARK and WINTER-SHEIMER, JJ.
   HOGGE, Judge.

This is an appeal from an order of the Cumberland Circuit Court denying, without an evidentiary hearing, an RCr 11.42 motion to vacate a judgment of conviction for rape.

On March 20,1975 appellant was arrested on a charge of first degree rape; on March 25, 1975 he was indicted and on April 1, 1975 the trial court accepted his plea of guilty to the charge, and sentenced him to twenty years confinement. On March 26, 1976 appellant filed his RCr 11.42 motion to set aside that judgment of conviction, and the court on July 23,1976 entered an order denying the motion which is here on appeal.

Appellant, in this appeal, urges that the judgment of conviction be set aside for the following reasons: 1) the guilty plea was not made knowingly and voluntarily, and there was no record of a guilty plea proceeding; 2) failure to conduct a competency hearing when there was reasonable doubt as to appellant’s competency to enter a plea of guilty; 3) denial of effective assistance of counsel; and 4) failure of court to follow mandatory sentencing procedure of KRS 532.050 and KRS 533.010.

This record contains the judgment complained of and is as follows:

JUDGMENT
This cause coming for trial and the defendant being personally present in Court and being represented by counsel appointed by the Court, the Hon. Harlan E. Judd and the Hon. John Sam Cary, and defendant after having been advised by his counsel, appeared in open Court and entered a plea of guilty and a jury having been waived by the defendant expressing no valid reason why judgment should not be pronounced against him, and the Court being sufficiently advised in the premises, it is the judgment of the Court that the defendant Charles Scott, be and is hereby adjudged guilty of Rape in the first degree (as charged in Indictment No. 1033) and is sentenced to Confinement in the state reformatory for a period of twenty (20) years and upon the recommendation of the Commonwealth and the County attorney and the prosecuting witness, it is recommended by the court to the Bureau of Correction Department of Probation and Parole that the defendant immediately upon confinement, be given a brain scan and complete psychiatric evaluation, and such treatment as such evaluation may indicate.
Although the defendant did not ask for probation, the Court is of the opinion that probation should not be granted in this case in as much as the defendant appears to have criminal tendency.
Given under my hand as Judge of the Cumberland Circuit Court, this the 1st day of April 1975. signed Jas. C. Carter Jr., Judge.

RCr 8.08 requires a trial judge, before acceptance of a plea of guilty, to determine that the plea is voluntary.

In addition, Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) placed more stringent requirements on a trial court before accepting a plea of guilty. In Hartsock v. Commonwealth, Ky., 505 S.W.2d 172 (1974) the court in discussing Boykin said:

Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), held that one who enters a plea of guilty waives three basic constitutional rights, viz., (1) the privilege against compulsory self-incrimination (2) the right to trial by jury and (3) the right to confront one’s accusers. Boykin held that the record of the trial [court] must affirmatively show that the waiver of those rights was voluntary and that the prisoner understood what he was waiving. It was held that waiver could not be presumed from a silent record.
Boyin places a duty upon the trial judge, before accepting a plea of guilty, to canvass the matter with the accused to make sure that the accused has a full understanding of what the plea connotes and of its consequences and states that when the trial judge discharges that function he leaves a record adequate for any review and forestalls the spinoff of collateral proceedings that seek to probe murky memories. Id. at 173.

In this case, there is little indication in the judgment that the trial court complied with either RCr 8.08 or Boykin. Without a hearing on the RCr 11.42 motion the trial court attempted, by order, to cure this defect, by relating, apparently from his own memory, what took place. In that order the following appears:

As to Paragraph 4 of Movant’s Motion, in which it is alleged that the plea of guilty must be voided in that it was accepted by the trial court without any affirmative showing that it was voluntarily and intelligently made, is without merit. Not only did the Court inquire as to the voluntariness of his plea, and advised him of the penalty that might be imposed, his able attorneys advised him privately concerning same, and in the presence of the Court, advised him of the effect of his plea of guilty, and the possible sentence that might be imposed.

This recitation of what took place in connection with this plea of guilty, if it recites all that transpired, still falls short of meeting the requirements of Boykin. The record contains no other enlightenment on this subject, except the statement in the judgment that “defendant after having been advised by counsel” — advised of what?

There is no showing that the trial court, before accepting the plea of guilty, canvassed the matter with the appellant to make sure he had a full understanding of what the plea connoted and its consequences. Not only did the trial court initially fail to make an affirmative record to show a valid waiver of his constitutional rights on his plea of guilty, the trial court’s attempt to correct that record in its order denying relief on the RCr 11.42 motion also failed to show a valid waiver.

It is further urged by the appellant that the trial court further erred by not complying with RCr 8.06 which requires a postponement of the proceedings, and a determination of the issue of insanity as provided by law, when there are reasonable grounds to believe that a defendant is insane, and by not following the mandate of Via v. Commonwealth, Ky., 522 S.W.2d 848 (1975). It is required that an evidentiary hearing be held to determine competency to stand trial when the trial court has reasonable grounds to believe that the defendant is not mentally competent to stand trial.

It is true as pointed out by the ap-pellee, that there is no record of what facts were known to the trial judge that would give him reasonable grounds to believe appellant was not mentally competent to stand trial. However, in its judgment the trial court said:

. and upon the recommendation of the Commonwealth and the County Attorney and the prosecuting witness, it is recommended by the court to the Bureau of Corrections Department of Probation and Parole that the defendant immediately upon confinement, be given a brain scan and complete psychiatric evaluation, and such treatment as such evaluation may indicate. [T.R., p. 4]

From this statement, it is obvious the trial court was aware of some facts that led him to conclude that the appellant was in need of psychiatric evaluation and treatment. By making this recommendation, the court revealed that he had grounds to feel further inquiry was required.

Appellant also alleges ineffective assistance of counsel. Based on the foregoing deficiencies in the proceedings, appellee, again, concedes there should also be a hearing on whether he did, in fact, have effective assistance of counsel.

There is no doubt that the appellant was accorded his constitutionally guaranteed right to a speedy trial. He was arrested, indicted, convicted, and sentenced to twenty (20) years confinement, within eleven days of the date of the alleged crime. However, there are serious questions as to whether he was accorded the same protection of his other constitutional rights. The appellee concedes that he is entitled to an evidentia-ry hearing on all of these very serious questions: 1) voluntariness of the entry of plea of guilty; 2) whether the trial court was aware of sufficient facts to necessitate a hearing on appellant’s competence to stand trial; 3) whether appointed counsel rendered effective assistance. It further concedes that appellant was entitled to an evi-dentiary hearing on his RCr 11.42 motion' which was denied.

The question is now posed as to whether the suggested remedy of hearings will adequately cure the admitted defects. Ordinarily it would. Although Boykin reversed the Alabama trial court and permitted the defendant to plead anew, in Roddy v. Black, 516 F.2d 1380, 1384 (6th Cir. 1975) the Court of Appeals said:

If the discussion between defendant and trial judge at the time of a plea’s acceptance leaves doubt as to whether a plea was in fact voluntary and intelligent, however, a defendant is not automatically entitled to a reversal of his conviction. Rather, in that circumstance if a defendant argues in a post-conviction proceeding that his plea was entered without his consent or without an understanding of the plea’s nature and consequences, Boy-kin places a burden on the State to prove the contrary. A habeas court may not “presume a waiver of [a defendant’s] federal rights from a silent record.”

In Caldwell v. Commonwealth, Ky., 503 S.W.2d 485 (1972), the court on its own motion ordered a remand for hearing to determine whether the plea of guilty was voluntary and whether the requirements of Boykin had been met. A hearing revealed that Boykin requirements had been met and the trial order constituted a contemporaneous record of it having been done.

A remand for hearing was directed in Hartsock, supra. This case differs from Hartsock in that the appellant here received the maximum sentence and is incarcerated, whereas, in Hartsock he received the minimum and was probated, which the court said was indication that the record was not altogether silent on voluntariness.

Here the record shows that the trial court failed to meet the Boykin requirements on a plea of guilty, both as to valid waiver of rights and affirmative record of that waiver. The record also indicates that the trial court did not comply with RCr 8.06 and the mandated procedures of Via. Appellant’s other assignments of error are also very compelling. Considering all these factors, we do not feel that a remand for hearings would meet the ends of justice.

In Stone v. Commonwealth, Ky., 456 S.W.2d 43 (1970), the court said:

However, we said in Davis v. Commonwealth, 290 Ky. 745, 162 S.W.2d 778 (1942), that “An appellate court ought to be sensitive to the realities, and if it believes there may have been a miscarriage of justice it should use its extraordinary power and reverse a judgment that there may be a fuller development of the facts so that the guilty of the accused, if he is guilty, may be more certainly determined.” RCr 9.26 states that “A conviction shall be set aside on motion in the trial court, or the judgment reversed on appeal, for any error or defect when, upon consideration of the whole case, the court is satisfied that the substantial rights of the defendant may have been prejudiced.”

In absence of any evidence in the record, it can still be determined from the voids in the record that there has been an apparent miscarriage of justice in this case and substantial rights of appellant have been prejudiced. This appellant should be given the right to plead anew. This will allow for a full development of the facts so that the guilt of the accused may be more certainly determined.

Accordingly, the order denying the RCr 11.42 motion is reversed, and this case is remanded to the trial court with directions that it enter an order granting the motion to set aside or vacate the judgment of conviction and grant the appellant a new trial.

All concur.


author: VANCE, Judge:

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF TRANSPORTATION, et al., Appellants, v. CENTRAL KENTUCKY ANGUS ASSOCIATION et al., Appellees.
    Court of Appeals of Kentucky.
    Aug. 26, 1977.

      Phyllis L. Robinson, Ed W. Hancock, Dept, of Transp., Frankfort, for appellants.
    James F. Clay, Clay & Clay, Danville, for appellees.
    Before MARTIN, C. J., and HOGGE and VANCE, JJ.
   VANCE, Judge:

The issue on this appeal is whether certain billboards erected by appellees within 660 feet of the right-of-way of U.S. Highway # 27 in Garrard County fall within the prohibition of advertising devices set forth in KRS 177.841. The billboards in question advertised to the motoring public: (1) the location of Central Kentucky Angus Association and the date of its next sale; (2) the location of the Gerrobin Farm with a listing of some items offered for sale there; (3) the location of the Red Gate Fishing Camp; and (4) the location of Bryant’s Camp with some advertising material for Chrysler Outboard Motors.

The trial court determined the signs were not advertising devices as defined in KRS 177.830(5) but were directional signs and permanently enjoined the Department of Transportation from removing the signs pursuant to KRS 177.870.

KRS 177.830(5) defines an advertising device as any billboard, sign, notice, poster, display or other device intended to attract the attention of motorists but excludes “directional or other official signs or signals erected by the State or other public agency having jurisdiction”.

The exclusion provided by statute is limited to official signs erected by the State or other public agency and does not exempt signs erected by private individuals, directional or otherwise.

The Bureau of Highways is required by KRS 177.073 to erect official directional signs pertaining to both privately and publicly owned natural wonders, scenic attractions, etc. under regulations promulgated by the Commissioner of Highways. Nothing in the statute grants authority to private individuals to erect and maintain such signs while waiting for the Bureau of Highways to take action under the statute.

The constitutionality of KRS 177.830-177.890 (The Billboard Act) was upheld in Moore v. Ward, Ky., 377 S.W.2d 881 (1964).

In our opinion these statutes envision a program under which only carefully selected signs, deemed by an administrative agency to be in the interest of the travel-ling public, shall be erected. There is no authorization for the agency or the courts to exempt certain private signs from the prohibition of the act even though the signs may, in some instances, announce the presence of an outstanding attraction which would merit notice to the travelling public under the guidelines established by the statutes and regulations thereunder.

Owners of private attractions who desire the erection of highways signs advising the motoring public of those attractions are required to proceed under KRS 177.073.

The judgment is reversed. A new judgment shall be entered which dismisses the appellees’ complaint.

All concur.


author: PARK, Judge.

text:
    JEFFERSON COUNTY, Kentucky, By and Through its Fiscal Court, Louis HOLLENBACH, Glen McDonald, Bob Kirchdorfer, and Tom Helm, Appellants, v. SOUTH CENTRAL BELL TELEPHONE COMPANY, Appellee.
    Court of Appeals of Kentucky.
    Aug. 26, 1977.

      Lively M. Wilson, T. Kennedy Helm, III, Stites, McElwain & Fowler, Louisville, William S. Connolly, Gen. Atty., South Central Bell Tel. Co., Louisville, for appellee.
    Charles I. Sandmann, Asst. County Atty., Louisville, for appellants.
    Before HOGGE, PARK and WINTER-SHEIMER, JJ.
   PARK, Judge.

The defendant-appellant, Jefferson County, appeals from a judgment of the Jefferson Circuit Court awarding the plaintiff-ap-pellee, South Central Bell Telephone Company, the sum of $53,378.43 as reimbursement for the cost of relocating certain telephone facilities. The relocation was required when the Louisville and Jefferson County Metropolitan Sewer District improved the Upper Mill Creek drainage basin. The Metropolitan Sewer District was acting as an agent of Jefferson County in the construction of the project. Both the sewer district and the telephone company claim easements across the same property. The easement of the sewer district is admittedly prior in time to the telephone company’s easement. The trial judge agreed with the telephone company’s contention that the sewer district was liable for the cost of relocation under the provisions of KRS 76.-120.

The plan of Lynn Lea Subdivision (Section 2) approved by the Louisville and Jefferson County Planning and Zoning Commission in 1954 provided for a 40 foot drainage easement along the southern boundary of the subdivision. This easement encompassed an existing ditch formed by Upper Mill Creek which was used for drainage purposes by the sewer district. As it existed in 1954, the drainage ditch did not take up the entire 40 foot drainage easement.

In 1961, the telephone company constructed certain facilities along the north side of Upper Mill Creek within the 40 foot drainage easement. Prior to constructing these facilities, the telephone company obtained easements from the owners of the lots subject to the drainage easement, but not from the sewer district or the county. In 1971 as a part of the Upper Mill Creek drainage basin improvement project, the sewer district as agent for the county widened and straightened the existing ditch within the 40 foot drainage easement. The project necessitated relocation of the telephone company’s facilities at a cost of $53,-378.43. Two issues are presented by this appeal. First, did the sewer district under the common law have the right to require the relocation of the telephone facilities at the sole expense of the telephone company? Second, if under the common law the sewer district was not liable for the cost of relocating telephone facilities, was the expense of relocation imposed upon the sewer district by the enactment of KRS 76.120?

As a result of the dedication on the plan of the subdivision, the sewer district acquired a 40 foot drainage easement across the rear of the lots along the southern boundary of the subdivision. However, the rights of the sewer district were not exclusive. The owners of the lots subject to the drainage easement had the right to use the land in any way which did not interfere with the sewer district’s use of the easement. Central Kentucky Natural Gas Co. v. Huls, Ky., 241 S.W.2d 986, 28 A.L.R.2d 621 (1951). The owners right to use the land within the drainage easement included the right to grant additional easements so long as the new easements did not constitute an unreasonable burden upon the sewer district’s existing easement. Delph v. Daly, Ky., 444 S.W.2d 738 (1969).

When the telephone company placed its facilities along the north side of Upper Mill Creek in 1961, the telephone company did not interfere with the use of the sewer district’s drainage easement. However, the telephone company’s right to use land within the 40 foot drainage easement was subject to the future needs and requirements of the sewer district. In Higdon v. Kentucky Gas Transmission Corporation, Ky., 448 S.W.2d 655 (1969), the court refused to enjoin an owner from building a concrete mobile home pad within the right of way of a gas pipeline transmission easement. However, the court did hold that any lessee of the mobile home pad would take the lease subject to the burden of removing the mobile home from the pad upon timely notice in the event the pipeline company needed to make repairs in the area.

In City of Pasadena v. California-Michigan Land and Water Company, 17 Cal.2d 576, 110 P.2d 983, 133 A.L.R. 1186 (1941), the City of Pasadena owned a five foot easement for water mains. In holding that the city was not entitled to an injunction prohibiting a private water company from laying its pipes within the city’s easement, the California Supreme Court stated:

“It is possible that the city may, at some future time, be faced with the necessity of expanding or changing its present system, and on its behalf it is asserted that the presence of defendant’s pipes may seriously hamper the reasonable use of the city’s prior easement under such circumstances. But if, in the reasonable use of its prior easement the city requires the space occupied by the pipes of the defendant, its paramount right must prevail.” 17 Cal.2d at 582, 110 P.2d at 986, 133 A.L.R. at 1193.

See also Thompson v. Smith, 59 Wash.2d 397, 367 P.2d 798 (1962).

We conclude that, under the common law, the maintenance of the telephone company’s facilities within the boundary of the drainage easement was subject to the future needs of the sewer district. Unless the rights of the parties were modified by statute, the telephone company was required to relocate its facilities at its own expense when its use of the area within the drainage easement came into direct conflict with the current needs of the sewer district to expand the Upper Mill Creek drainage system.

In holding that the sewer district was liable for the cost of relocating the telephone company’s facilities, the trial court relied upon the provisions of KRS 76.120. Metropolitan sewer districts are governed by the provisions of KRS 76.010 to 76.281. KRS 76.120 provides:

“Where railroad tracks, street railroad tracks, gas or water pipes, telephone wires, telegraph wires, electric light or power lines, or conduits, for carrying telephone or telegraph or electric wires, or poles, or other structures of any public service corporation, extend in, along or across any part of the work authorized by KRS 76.010 to 76.210, it shall be and become the duty of the person or corporation owning or using such tracks, pipes, wires, conduits, poles, or other structures, to make such changes in the same at the expense of the district as may be required during the construction of any improvement provided for in KRS 76.010, and to construct or rebuild at the expense of the district its tracks, pipes, wires, conduits, poles, or other structures, over or along the work by KRS 76.010 to 76.210 authorized and constructed, and at its own expense to maintain the same after such work has been completed; Provided, however, such changes of that part of such tracks, pipes, wires, conduits, poles or other structures as may be or extend in a public way, shall be made at the expense of the public service corporation owning or using the same only if necessary to afford the district reasonable use of such public way.” (Emphasis added).

It is the position of the telephone company that this statute renders inapplicable the rule quoted above from the City of Pasade na v. California-Michigan Land and Water Company.

Under the statute, the sewer district does not have to bear the burden of relocation expenses if the facilities of the public service corporation are located within “a public way.” This portion of the statute is an extension of the rule which requires a public utility to relocate facilities in public streets at its own expense when changes are required by public necessity or convenience. Commonwealth, Department of Highways v. Louisville Water Company, Ky., 479 S.W.2d 626 (1972); Southern Bell Tel. & Tel. Co. v. Commonwealth, Ky., 266 S.W.2d 308 (1954). However, we do not consider the drainage easement to be a “public way” within the meaning of the statute. A public way is designed for the passage of people, not the flow of water or sewage. City of Covington v. Schlosser, 141 Ky. 838, 133 S.W. 987 (1911).

KRS 76.120 does not expressly refer to a situation in which the sewer district is expanding its facilities within an existing easement which is prior in time to the easement of the public service corporation whose facilities must be relocated. In determining whether the statute is applicable to this type of situation, it is appropriate to consider the reason for the enactment of KRS 76.120. As a general rule, land devoted to one public use cannot be taken for another public use in the absence of express legislative authority for the taking. Under this general rule, it has been held that property of a public utility cannot be taken for another public use under eminent domain in the absence of express legislative authority. See the cases cited in 26 Am. Jur.2d Eminent Domain §§ 88, 97-98; Louisville & N. R. Co. v. City of Louisville, 131 Ky. 108, 114 S.W. 743 (1908). The power of eminent domain is conferred upon sewer districts by the provisions of KRS 76.110(1). That statute expressly provides that the power of eminent domain extends to property interest held for public use by corporations having the power of eminent domain.

KRS 76.120 is the next succeeding section to the grant of power of eminent domain to sewer districts. See 1946 Ky. Acts, ch. 104, §§ 9-10. We conclude that KRS 76.120 was intended to amplify the rights and duties of a sewer district undertaking to exercise the power of eminent domain over the property rights of a public service corporation. The statute was not intended to apply to a situation in which the sewer district was not required to rely upon the power of the eminent domain. In the present case, the sewer district had the right to expand its Upper Mill Creek drainage facility because of its prior drainage easement. The sewer district had no need to exercise the power of eminent domain. Consequently, the provisions of KRS 76.120 have no application, and it was error for the trial court to impose any liability on Jefferson County and its agent, the sewer district, for the telephone company’s cost of relocation.

The judgment of the Circuit Court is reversed with directions to enter a new judgment dismissing the complaint.

All concur.


text:
    DEPARTMENT OF REVENUE, Commonwealth of Kentucky, Appellant, v. CENTRAL MEDICAL LABORATORY, INC., Appellee.
    Court of Appeals of Kentucky.
    Sept. 2, 1977.

      William S. Riley, Asst. Atty. Gen., William P. Sturm, Atty., Legal Staff Dept, of Revenue, Frankfort, for appellant.
    Robert L. Maddox, Grover C. Potts, Jr., Wyatt, Grafton & Sloss, Louisville, for ap-pellee.
    Before HOGGE, PARK and WINTER-SHEIMER, JJ.
   WINTERSHEIMER, Judge.

Appellee, Central Medical Laboratory, Inc., is a separate non-profit corporation organized for the purpose of establishing a laboratory testing facility for three Louisville non-profit hospitals. The Department of Revenue refused to grant the appellee an exemption from state sales and use taxes because the Department said the appellee did not fall within the constitutional definition of a purely public charity. The laboratory appealed to the Kentucky Board of Tax Appeals which found, in Order No. 4370, dated June 4, 1976, that it was not entitled to a tax exemption. Thereafter, the laboratory appealed to the Franklin Circuit Court which reversed the Board of Tax Appeals, and held that the laboratory was a purely public charity entitled to the tax exemption. The Department of Revenue has now appealed to this Court.

The issue in this case is whether the laboratory is truly charitable in nature so as to be entitled to a tax exemption.

This Court affirms the judgment of the trial court and holds that the laboratory is entitled to tax exemption.

As a separate non-profit corporation, the laboratory performs blood analysis tests for the three member hospitals upon their request. Other non-profit charitable hospitals are eligible for membership in the nonprofit corporation. On several occasions tests have been performed for the other hospitals. The appellee was organized upon the recommendation of the Area Health Counsel for the sole purpose of providing centralized laboratory testing facilities for the hospitals. This has resulted in a significant cost reduction with respect to the laboratory tests. Appellee has been able to reduce the cost of each such test by $5.00 per test, with a total savings to its charitable members of approximately $350,000.00 per year. Appellee has also been determined to be a non-profit organization as defined in Section 501(c)(3) of the Internal Revenue Code. All the member hospitals have Kentucky Purchase Exemption Permits as issued by the Department of Revenue.

The record is very clear that the laboratory testing services performed by the appel-lee for its member hospitals are services which have been previously performed by hospitals. The performance of such services are as an adjunct laboratory to the member hospitals. If these services were not performed by the appellee, they would have to be performed by or contracted for each member hospital as a necessary part of their operational function.

The Kentucky Constitution, Section 170, provides that institutions of purely public charity shall be exempt from taxation. As a general principle, such provisions granting tax exemption must be strictly construed. In this instance, it is abundantly clear that the functions performed by the appellee, if performed by its member charitable hospitals, would be tax exempt. Kentucky’s highest court has examined Section 170 of the Kentucky Constitution on various occasions and determined tax exemptions for charitable and educational institutions. Recently, it has been held that charity includes activities which reasonably better the condition of mankind, and that it is broader than relief to the needy poor. Commonwealth ex rel. Luckett v. I. W. Bernheim Foundation, Ky., 505 S.W.2d 762 (1974). The appellee in this instance obtains no pecuniary benefit or return from its services. The general public is the only beneficiary through much lower laboratory fees for the services rendered by the appellee. The contention that the benefit to hospital participants is indirect, and that the benefit goes to reducing the hospitals’ overall operating costs, is without merit.

The contention that if the appellee is exempt from taxation others must bear the burden is also without merit. If the member hospitals must pay more for the hospital services performed by the appellee, the difference must be made up by the hospitals themselves. It is clear that the operation of the appellee is only an extension of the hospitals themselves. Exemption for adjunct operations is well settled in Kentucky. Commonwealth v. Berea College, 149 Ky. 95, 147 S.W. 929 (1912). Once again it must be realized that if each member charitable hospital performed the functions performed by the appellee, such activities would clearly be within the hospitals’ exemption.

The same reasoning has been followed in the federal system and in various other jurisdictions. It has been held that if services are performed exclusively for a purely charitable organization, then the organization performing those services is also a public charity. Hospital Bureau of Standards and Supplies, Inc. v. United States, 158 F.Supp. 560, 141 Ct.Cl. 91 (1958).

In Michigan, such a venture towards efficiency in administration of hospital service, as would result from a combination of purchasing of general supplies, was approved for tax exempt status. Hospital Purchasing Service of Michigan v. City of Hastings, 11 Mich.App. 500, 161 N.W.2d 759 (1968). The Supreme Judicial Court of Massachusetts granted tax exemption to a laundry association whose function it was to do the laundry for and supply linen to its member charitable hospitals. Children’s Hospital Medical Center v. Board of Assessors of Boston, 353 Mass. 35, 227 N.E.2d 908 (1967).

The Minnesota Supreme Court reached a similar conclusion in Community Hospital Linen Service, Inc. v. Commissioner of Taxation, 245 N.W.2d 190 (1976) in a case involving a consolidated laundry and other hospital services.

The Indiana Appellate Court rejected an attempt by the Employment Security Division of that state to impose a tax on a collection agency which was formed by the charitable hospitals. The court indicated that a variety of functions are necessary in operating any charitable hospital which do not directly relate to the treatment of the sick, but which are vitally necessary to continue a sound operation. Mutual Hospital Service, Inc. v. Indiana Employment Security Board, 138 Ind.App. 333, 213 N.E.2d 912 (1966).

KRS 139.470(1) provides for a constitutional exemption for sales and use taxes. The constitutional provision of Section 170 is clearly applicable to the case at bar.

Here, Central Medical Laboratory, Inc., is a purely public charity as contemplated by the constitution, and thus exempt from sales and use taxes. A tax exemption certificate should be issued by the Department of Revenue.

Therefore, it is clear that there is no substantial evidence to support the Kentucky Board of Tax Appeals decision that the laboratory is not a purely public charity.

The judgment of the trial court is affirmed.

All concur.