author: HAYES, Judge.

text:
    Byrd E. DAUGHERTY, as Ancillary Administrator of the Estate of Lula Daugherty Roach, Deceased, Appellant, v. E. Michael RUNNER, Appellee. E. Michael RUNNER, Cross-Appellant, v. Byrd E. DAUGHERTY, as Ancillary Administrator of the Estate of Lula Daugherty Roach, Deceased, Cross-Appellee.
    Court of Appeals of Kentucky.
    Nov. 3, 1978.
    Rehearing Denied Feb. 16, 1979.
    Discretionary Review Denied June 5, 1979.

      Gary L. Gardner, Gary L. Gardner & Associates, Louisville, for appellant and cross-appellee.
    William S. Bowman, Stiles & Miller, Louisville, for appellee and cross-appellant.
    Before HAYES, HOGGE and HOWARD, JJ.
   HAYES, Judge.

This appeal is from a judgment entered pursuant to a jury verdict which exonerated the appellee, an attorney, from the charges of legal malpractice. The charges of the legal malpractice claim arose from a medical malpractice cause of action on behalf of the deceased, Lula Daugherty Roach. This type of action is commonly referred to as a “suit within a suit.” The basis for the legal malpractice claim is that appellee Runner, while representing the deceased Roach for injuries sustained in an automobile accident, failed to pursue a medical malpractice claim by the estate of Roach against the hospital where Roach was treated for her injuries after her accident and against the doctors who treated her, until her claim was barred by the statute of limitations.

The jury found for Runner on the legal malpractice claim and additionally found that the appellant would have recovered on the medical malpractice case, if suit had been timely filed, in the amount of $146,-123.75. Both parties appealed.

The appellant contends that the trial court erred in submitting the issue of Runner’s negligence to the jury and in failing to instruct the jury properly.

Appellee’s cross-appeal is of a protective nature wherein it is contended that if we reverse the trial court based on appellant’s assignments of error, then appellee believes the jury verdict awarding appellant $146,-123.75 on his medical malpractice claim is erroneous because of improperly admitted evidence.

We will not reach the claim of appellee on cross-appeal since we affirm the judgment of the lower court.

On February 22, 1972, Mrs. Roach and her husband Russell were involved in an automobile accident near Richmond, Kentucky. After receiving emergency medical treatment in Richmond, Mrs. Roach was transferred to St. Joseph Hospital in Lexington, Kentucky. She was admitted on February 22, 1972, under the care of an orthopedic doctor, George Gumbert, Jr. Mrs. Roach died in the hospital on March 17, 1972. The official cause of death listed on the certificate of death was bronchial pneumonia due to, or as a consequence of, generalized peretonitis and bacterial endo-carditis. On the date of Mrs. Roach’s death, her husband Russell, individually and as executor of the estate of Mrs. Roach, entered into a contract with attorney Runner to the effect that Runner was to “institute a claim for damages against any and all responsible parties as a result of injuries received upon the 22nd day of February, 1972.” The contract was a standard contract approved by the Louisville Bar Association.

A later contract, dated July 28, 1973, was entered into between James Russell Roach and another attorney, whereby this “second attorney” was to represent Roach, individually and as administrator of the estate of Lula Roach, in the medical malpractice claim. James Russell Roach was a nonresident, so the present appellant, Byrd E. Daugherty, was appointed ancillary administrator.

Suit was filed on August 1, 1973, in Fa-yette Circuit Court on behalf of Daugherty by his present attorney, against St. Joseph Hospital and others based on the medical malpractice claim. The trial court in that case granted a summary judgment against Daugherty and the estate of Lula Roach because the suit was not filed within the period of limitations prescribed by KRS 413.140. The trial court further relied upon the rule of law established in the case of Hackworth v. Hart, Ky., 474 S.W.2d 377 (1971).

Runner testified he was not hired to represent the estate of Lula Roach on a medical malpractice claim; made an investigation of the facts surrounding the auto accident; filed suit on same in Federal Court for the Eastern District of Kentucky at Lexington against the driver of the other auto in the accident, and never suspected the possibility of a medical malpractice claim.

Appellant contends it is what Runner did not do that makes him liable for malpractice. It is asserted he did not examine the hospital records until after the statute of limitations had run on any medical malpractice claim, and that he never advised his client that he did not handle medical malpractice cases. There was also testimony on behalf of appellant that Russell Roach, who had died prior to the trial, had telephoned Runner in January, 1973, inquiring of Runner the status of any medical malpractice investigation Runner was conducting. Runner denied ever having such a conversation. It is uncontradicted, however, that appellant hired the “second attorney” on March 15, 1973, to represent him in the medical malpractice claim against St. Joseph Hospital and others.

The Fayette Circuit Court had determined that the statute of limitations began to run on the medical malpractice claim “on March 17, 1972, and certainly no later than July 20, 1972, when the record of the decedent’s treatment was fully complete.” From the evidence in the record and the legal briefs filed on behalf of the parties, it is unclear why the second attorney, who accepted a retainer fee, did not file the medical malpractice claim within the period of time permitted by the statute and case law of this Commonwealth.

The appellant contends that the trial court erred in (1) submitting the question of the attorney’s negligence to the jury; (2) allowing an expert opinion to be presented to the jury based upon improper evidence; and, (3) in failing to instruct the jury that the fact that other hired counsel might have been able to toll the statute of limitations was no defense to appellee Runner.

Both parties indicate this is possibly a case of first impression in Kentucky. They refer us to but one Kentucky case, that of Wimsatt v. Haydon Oil Co., Ky., 414 S.W.2d 908 (1967).

Our research reveals that the facts here presented make this case one of first impression; however, we do find the old case of Humboldt Bldg. Ass’n. v. Ducker’s Exr., 111 Ky. 759, 64 S.W. 671 (1901) to be helpful on the law to be applied to these facts.

In Humboldt, the defendant-attorney was employed by the plaintiff-foreign corporation to be its attorney in Kentucky for the purpose of examining and passing upon the validity of titles to real estate upon which the corporation was to make loans of money. The corporation made a loan to one Morrison and submitted the title to the attorney for his examination. He examined and approved it. He failed to advise the plaintiff-corporation of the existence of a materialman’s lien. The end result was, in a foreclosure suit by the subcontractor to enforce his lien, that the plaintiff-corporation lost some $2,800.00, the property lacking that much in value to pay both the lien and the corporation’s mortgage. The plaintiff-corporation then sued the defendant-attorney based upon the negligence of the attorney. The trial court sustained a demurrer to the complaint and the Court of Appeals reversed on appeal.

While recognizing the cases are distinguishable on the facts, the Humboldt case discusses the standard of care owed by the attorney to his client. The standard of care is perhaps the most fundamental factor in attorney malpractice litigation. The court stated, at page 763 of 111 Kentucky Reports and at pages 672, 673 of 64 S.W.:

Many interesting eases have been cited by counsel, and examined with care. From them we feel authorized in stating that, while the rule in England seems to have been that an attorney is liable to his client only in case of gross neglect or gross incompetence, yet in this country a juster rule for the client, and one which the profession can not reasonably find fault with, is that the attorney is liable for the want of such skill, care, and diligence as men of the legal profession commonly possess and exercise in such matters of professional employment. Bank v. Ward, 100 U.S. 195-199, 25 L.Ed. 621. When one seeks and obtains admission to that profession dealing with so many important and involved affairs of men, and holds out his services to be engaged by those standing in need of such, he engages that he possesses to an ordinary extent the technical knowledge commonly possessed by those in the profession, and that he will give to the matters submitted to him such care and attention as is ordinarily given similar affairs by men of this profession. He does not agree, in the absence of special contract to that effect, that he will make no mistake of judgment. On the contrary, the law recognizes, in fixing this liability of the attorney, that human judgment is fallible. Courts, as well as lawyers, do disagree concerning the many matters about which each one may have a fairly fixed opinion. The law is a science, it is true, but an imperfect one, for the reason that it depends for exemplification and enforcement upon the imperfect judgments -and consciences of men. Therefore when the attorney has used ordinary care in acquainting himself with the facts, his misjudgment as to the law thereon will not generally render him liable. .

What is the level of service demanded from members of the legal profession? The relationship of attorney-client is a contractual one, either expressed or implied by the conduct of the parties. The relationship is generally that of principal and agent; however, the attorney is vested with powers superior to those of any ordinary agent because of the attorney’s quasi-judicial status as an officer of the court; thus the attorney is responsible for the administration of justice in the public interest, a higher duty than any ordinary agent owes his principal. Since the relationship of attorney-client is one fiduciary in nature, the attorney has the duty to exercise in all his relationships with this client-principal the most scrupulous honor, good faith and fidelity to his client’s interest.

As stated by the author in Wade, The Attorney’s Liability for Negligence, 12 Vand.L.Rev. 755, 762 (1959), the standard of care is generally composed of two elements—care and skill. The first has to do with care and diligence which the attorney must exercise. The second is concerned with the minimum degree of skill and knowledge which the attorney must display.

In determining whether that degree of care and skill exercised by the attorney in a given case meets the requirements of the standard of care aforementioned, the attorney’s act, or failure to act, is judged by the degree of its departure from the quality of professional conduct customarily provided by members of the legal profession. Prosser, Law of Torts, § 32 at 161-166 (4th ed. 1971).

As it would be in negligence cases generally, the question of whether the conduct of the attorney meets the standard of care test is one for the trier of the facts to determine. Humboldt Bldg. Ass’n. v. Ducker’s Exr., supra; Hansen v. Wightman, 14 Wash.App. 78, 538 P.2d 1238 (1975); and 45 A.L.R.2d 5.

In Humboldt the court, at page 764 of 111 Kentucky Reports and at page 673 of 64 S.W., put it plainly that “the existence or nonexistence of these actionable facts, as well as of those constituting the defense, are such as properly should be found by a jury under appropriate instructions, or by the trial court if a jury is not demanded.”

Having determined that the standard of care an attorney owes his client is not that of a “reasonable man” under the circumstances, but is that care and skill as men of the legal profession commonly, or ordinarily, possess and exercise under the circumstances, and having determined that this is generally a question for the trier of the facts, we look now at the facts of the instant case.

The appellant Daugherty contends the trial court erred in submitting the negligence of appellee Runner to the jury. He in effect is saying he, Daugherty, was entitled to a directed verdict on this point because Runner was negligent as a matter of law.

Under the authority of the landmark decision of Maryland Casualty Co. v. Price, 231 F. 397 (4th Cir. 1916), appellant was required to prove in the legal malpractice suit (1) that Runner was employed by appellant; (2) that he neglected his duty to exercise the ordinary care of a reasonably competent attorney acting in the same or similar circumstances; and (3) that such negligence resulted in and was the substantially contributing factor in the loss to the client.

The appellant has presented two theories in support of his argument that he was entitled to a directed verdict on the question of Runner’s negligence. The first is that Runner was retained to bring all possible legal actions resulting from the injuries and death of Mrs. Roach, including a medical malpractice action, if appropriate, and that he failed to carry out this duty. This argument is clearly without merit. The written contract between the parties recited that Runner was retained “to institute a claim for damages'against any and all responsible parties, as a result of injuries received upon the 22 day of February, 1972 . .” While there was some testimony about a conversation with Runner regarding a medical malpractice action, the evidence was disputed on that matter, and the question of whether Runner had any duty to handle any medical malpractice case was certainly one for the jury.

Appellant’s second theory in support of his directed verdict argument seems to be that even if Runner was not employed specifically to pursue a medical malpractice action, that he nevertheless had a duty to obtain and examine the medical records of the patient, to investigate the treatment procedures administered to her, and to inform his client that there may have been some question about the medical care and treatment she received, but that he did not handle medical malpractice. Appellee’s contention on this issue is simply that Mr. Runner was not retained under the contract to handle a medical malpractice case, and he therefore had no duties in that regard.

We are not ready to hold that Mr. Runner had absolutely no duties to his client with regard to a medical malpractice action simply because the written contract did not specifically mention a malpractice suit. To do so would require the client, presumably a layman who is unskilled in the law, to recognize for himself all potential legal remedies. An attorney cannot completely disregard matters coming to his attention which should reasonably put him on notice that his client may have legal problems or remedies that are not precisely or totally within the scope of the task being performed by the attorney. Owen v. Neely, Ky., 471 S.W.2d 705 (1971).

On the other hand, we certainly cannot say that Mr. Runner was neglectful as a matter of law. There was considerable testimony concerning Runner’s negligence, or lack of it. There was expert testimony from two attorneys, one for each side.

Runner’s testimony, in summary, was that he was hired to represent the Roaches only for the injuries Mrs. Roach sustained as a result of the automobile collision of February 22nd. He testified that he did not handle medical malpractice claims because he was not competent to do so. He had never processed one. He testified that the fact Mrs. Roach entered the hospital with, according to the hospital admission report, multiple contusions and abrasions, a fractured nose, fractured right shoulder and a compressed fracture of the spine, and that she died in the hospital some thirty (30) days later, did not arouse his suspicion of a medical malpractice claim. He did not review the hospital records until he filed the wrongful death action on behalf of Mrs. Roach in Federal Court in Lexington, Kentucky, on June 9, 1972. Runner’s law associate, who actually reviewed the medical records on June 9, 1972, testified the records were incomplete as there was no autopsy report in the medical records on June 9th.

Runner further testified that no one representing the deceased Mrs. Roach ever called to his attention the possibility of a medical malpractice claim until the “second attorney” previously mentioned contacted, him some few days before the statute of limitations ran on the medical malpractice claim. Runner’s testimony was that he told this other attorney to “go ahead” with the medical malpractice claim.

Appellant offered proof that Runner was contacted by members of Mrs. Roach’s family concerning the medical malpractice case long before the statute ran. They were concerned with what Runner was doing about the medical malpractice case. The appellant produced expert testimony from a local lawyer to the effect that Runner’s failure to inquire into the cause of death of Mrs. Roach and his failure to review the medical records was not consistent with good legal practice and, in fact, was a substantial departure therefrom.

The other important testimony was that the Roach family, including Daugherty, a brother of Mrs. Roach, had discussed, among themselves, the medical malpractice case as early as December, 1972. They had in fact contacted two attorneys in Lexington, who declined the ¿ase. They were aware of the statute of limitations.

The family then proceeded to northern Kentucky, where on March 15, 1973, they employed the “second attorney” to represent the estate in the medical malpractice case. He filed no complaint. Some time after July 28, 1973, he turned the case over to the appellant’s current attorney, who on August 1, 1973, filed a medical malpractice claim in Fayette Circuit Court which was subsequently dismissed as barred by the statute of limitations.

Under these circumstances the question of whether Runner had exercised the degree of care and skill expected of a reasonably competent attorney was a question for the jury to decide. This is true especially in light of the fact that there was disputed testimony concerning whether the possibility of a medical malpractice action had been discussed with Runner.

The issue of Runner’s negligence was submitted to the jury under the following instructions:

4. It was the duty of the defendant, E. Michael Runner, Attorney at Law, in undertaking the legal representation of the Estate of Lula Daugherty Roach, to exercise that degree of care and skill expected of a reasonably competent lawyer acting in the same or similar circumstances about which you have heard evidence, and this general duty, included the following specific duties:
(A) Not to undertake representation in a legal matter in which he knew or should have known he was not competent without associating with himself a lawyer that was competent to handle it;
(B) Not to undertake representation in a legal matter without preparation adequate in the circumstances.
5. The Jury will answer the following interrogatory:
Do you believe from the evidence that the defendant, E. Michael Runner, failed in one or more of the duties imposed upon him by instruction number 4, and such failure was the substantial factor in the Estate of Lula Daugherty Roach not recovering the award set out in instruction number 3 and incorporated in Verdict A?

Nine of the jurors answered the question in the negative. While we may have found differently had we sat as jurors in this case, we believe there is sufficient evidence to support this jury’s verdict, and we therefore will not disturb it. Based upon the conflicting evidence, we fail to see how Runner was negligent as a matter of law.

As authority for his contention that the trial court erred in submitting Runner’s negligence to the jury, appellant cites Christy v. Saliterman, 288 Minn. 144, 179 N.W.2d 288 (Minn., 1970). The case does not support appellant’s position. It was a “suit within a suit” as we have in the instant case. The attorney, Saliterman, was hired for the purpose of instituting a medical malpractice claim. He did not file the claim until the statute of limitations had run, and was sued by Christy for legal malpractice. The questions of medical malpractice and legal malpractice were both submitted to the jury, which found both the doctor and lawyer negligent in their respective duties. In that case, under facts much more indicative that the attorney had been employed to bring a malpractice action, the appellate court was faced not with whether a directed verdict should have been granted on the question of employment, but with whether the jury’s finding of employment was supported by the evidence. The appellate court found that it was. On appeal, no allegation was made that a directed verdict should have been granted to the plaintiff on the issue of employment.

Appellant further contends that the trial court erred in refusing to give the following tendered instruction:

You are further instructed that it is no defense to the Defendant, E. Michael Runner, Attorney at Law, that the Plaintiff employed, or attempted to employ, an Attorney who might have been able, by taking appropriate action, to avoid the damage to Plaintiff’s decedent’s estate, but failed to do so.

Plaintiff contends that Wimsatt v. Haydon Oil Co., supra, supports this tendered instruction.

In Wimsatt, a 5-2 decision, one Carrico was the owner and operator of a motor vehicle involved in an accident on December 13, 1962, in Washington County, Kentucky. His wife, a passenger, died as a result of injuries sustained in the accident. Mr. Car-rico was also injured and his car was demolished. The facts of the case as reported do not spell out the employment contract of the attorneys; nevertheless, attorneys Dean and Wathen filed suit on behalf of Carrico on July 20, 1963. The complaint did not include a demand for damages suffered by Mr. Carrico as a result of the personal injuries he sustained.

It was discovered, on a deposition taken of Carrico in February, 1964, that he had sustained personal injuries. He fired Dean and Wathen, and his new attorney filed an amended complaint setting up Carrico’s personal injury claim. The trial court dismissed the amended complaint as being barred by the one-year statute of limitations. The suit proceeded on the original complaint, and after recovering on the death and property damage claims, Carrico brought suit against Dean and Wathen for their failure to include a claim for his personal injuries before it became barred by the statute of limitations. The attorneys presented a defense that the trial court had erred in dismissing the personal injury claim and that the dismissal should have been appealed. The trial court, apparently accepting this defense and another, gave judgment for the attorneys on the pleadings. On appeal from this later judgment, the Court of Appeals decided, by a split decision, that the amended complaint should have related back under CR 15.03 and was therefore dismissed erroneously. The appellate court held, however, that the failure of the second attorney to appeal from the erroneous decision dismissing the personal injury claim did not bar a suit based in negligence against Dean and Wathen.

Wimsatt, supra, does not require or suggest that an instruction similar to that tendered by the appellant must be given. It merely held that the failure of a second attorney to pursue the perfect course of legal action which would or may extricate the plaintiff from a bar to his legal claim could not be the basis for a judgment on the pleadings in favor of the first attorney in a negligence suit against him. In other words, the court determined that the alleged negligence of the second attorney was not, as a matter of law, a superseding cause. The appellant’s argument, in effect, is that the jury in this case should have been instructed that the possible negligence of the second attorney was not a superseding cause of the plaintiff’s damage. The case of House v. Kellerman, Ky., 519 S.W.2d 380 (1974), holds to the contrary. House set forth a rule of law, then new to Kentucky, that the question of whether an undisputed act was a superseding cause is a legal issue for the court, and is not a fact issue for the jury:

Only when (1) an act which is claimed to have taken place would be a superseding cause as a matter of law, and (2) there is an issue of fact as to whether it happened, should there be an instruction mentioning it .
If there is no issue as to whether the act or event actually occurred, whether it constituted an independent cause superseding and eliminating the alleged negligence of the defendant as a legal cause should be determined by the court. If it was, the defendant is entitled to a directed verdict. If it was not, or if reasonable minds could differ on the question, the case should be submitted to the jury under the usual instructions, leaving it to the lawyers to argue in their summations to the jury whether the event in question played such a major role as to exclude the defendant's negligence from being a “substantial factor” in causing the accident.
In short, only when an intervening force would constitute a superseding cause as a matter of law should it be singled out as the subject of an instruction, and then only if it is necessary to determine whether in fact it took place. House, supra at 383.

Under the authority of Wimsatt, supra, the possible negligence of the second attorney in this case is not, as a matter of law, a superseding cause to the plaintiff’s damage. Furthermore, the facts concerning the employment of the second attorney were not in dispute. Hence, the trial court’s denial of the defendant’s motion for a directed verdict and submission of the question of causation to the jury, without special instructions concerning the second attorney, was entirely proper.

We note that the trial court’s instruction mistakenly required the jury to find that Runner’s breach of duty, if any, was “the” substantial factor in the plaintiff’s failure to recover. The instruction should have read, “a” substantial factor. House v. Kellerman, supra; Restatement (Second) of Torts, § 431 (1965). However, the trial court was not made aware of the error by objection, and it has not been raised on appeal, nor could it be, CR 51(3). For this reason we are not able to review the question. In any event, it does not appear to be so substantial as to have caused the plaintiff any prejudice.

The appellant next contends that the trial court erred in permitting the expert attorney witness to testify on behalf of appellee because his testimony was based on improper evidence in the form of a hypothetical question.

First we would point out that the expert witness’s testimony was lengthy and, in fact, the hypothetical question consumes some four pages of the transcript of evidence. Appellant doesn’t specifically state what his objections are to the expert testimony other than to say the trial court’s ruling on the admissibility of certain evidence, upon which the hypothetical question was based, was erroneous. However, the admissibility of this evidence was properly ruled on by the trial court, was before the jury, and formed the basis for the expert’s opinion. We find no error by the trial court. As the court stated in Christy v. Saliterman, supra:

An appellate court will not interfere with the exercise of the trial court’s discretion with reference to the form and content of such a question unless such discretion has been abused or wrongfully exercised . Id. 179 N.W.2d at 303-04.

See also 31 Am.Juf.2d 54 to 57 for a discussion on this subject.

After reading the transcript of the testimony of attorney Ballentine, we cannot find any abuse of discretion by the trial court.

In conclusion, we would add that we do agree somewhat with a statement appellant makes in his well-written brief. Appellant states thusly:

Perhaps the issue that is involved in this case is far beyond the instant action, and must be laid at the doors of the Bar as a whole and more specifically, appellee. Maybe we, as a profession, have not discharged our responsibility to inform the public as a whole, and more specifically, Mr. Roach, that we specialize and limit our practice. However, in the end result, the effect on the client is the same; the public expects, and has the right to demand, that their legal affairs will be approached with expertise and initiative and anything short of that is a violation of the trust and confidence reposed in a member of our profession.

To that, we would simply repeat that all the evidence in this case was submitted to a jury of twelve citizens of this community, nine of whom found for the attorney. Even though we may have found differently had we sat as jurors in this case, we cannot disturb their verdict, as it was sufficiently supported by the evidence.

The judgment of the Jefferson Circuit Court is affirmed.

All concur.

      . While the trial court may have erroneously concluded that the statute of limitations ran on March 17, 1973, one year from the date of Mrs. Roach’s death, that judgment was never appealed.


source: Caselaw Access Project

author: WINTERSHEIMER, Judge.

license: Public Domain

text:
    C. R. WINN, d/b/a Meade Farmers Supply, Appellant, v. FIRST BANK OF IRVINGTON, Citizens Bank of Elizabethtown, Gwendolyn Roe, and Jeffrey Roe, Appellees.
    Court of Appeals of Kentucky.
    Dec. 8, 1978.
    Rehearing Denied March 2, 1979.
    Discretionary Review Denied June 5, 1979.
    Danny E. Darnell, Stone & Darnell, Brandenburg, for appellant.
    J. Henry Gibson, Gibson & Miller, Har-dinsburg, for appellees, Gwendolyn and Jeffrey Roe.
    Wade F. Richardson, Richardson & Richardson, Brandenburg, for appellee, First State Bank of Irvington.
    Thomas P. O’Dell, Bondurant, Whitlow, Scott & O’Dell, Elizabethtown, for appellee, Citizens Bank of Elizabethtown.
    Before COOPER, GANT and WINTER-SHEIMER, JJ.
   WINTERSHEIMER, Judge.

This appeal is from a summary judgment entered March 23, 1978, which required that a check must have been physically delivered to the payee thereof, in order that the payee may recover from a collecting bank for payment of a forged endorsement.

In January 1976, appellee Jeffrey Roe owed the appellant, Meade Farmers Supply, the sum of $16,000.00. Gwendolyn L. Roe, mother of Jeffrey Roe, drew a check on her account with the First State Bank of Irv-ington, in the amount of $5,000.00, making the check payable to the order of Meade Farmers Supply. Appellee Gwendolyn Roe maintains that the check was a loan to her son. Appellant, upon discovery that the check had been made payable to its order, but had not been delivered, visited Gwendolyn Roe and her husband in April or May of 1976, to inquire about the check.

A notation on the left-hand corner of the check in question states “fertilizer, seed and herbicides on Jeff Roe account.” Instead of taking the check and applying it to the debt owed to the appellant, appellee Jeffrey Roe took the check to the Radcliff branch of the Citizens Bank of Elizabethtown, where he endorsed the check “Meade Farm and Supply”, opened an account in the name of the said endorsement and deposited the check therein. Appellee, Citizens Bank of Eliza-bethtown, by the testimony of its employee-teller, accepted the endorsement made by Jeffrey Roe and deposited the check to the new account. Suit was filed against the Citizens Bank of Elizabethtown for damages for having paid the check upon the forged endorsement. The matter was submitted to the trial court on the motion of each of the parties for summary judgment. The motion of Citizens Bank was sustained, the motion of Meade Farmers Supply was overruled and all claims of all parties against all other parties were dismissed with prejudice. The costs of this action were adjudged against Meade. This appeal followed.

Appellant sets out the following questions:

1) Did the trial court commit reversible error when it ruled that there must be a delivery of the check to the payee before the payee has the capacity to sue a collecting bank for payment of same on a forged endorsement, pursuant to KRS 355.3-419(c)?
2) Was the finding by the trial court that the check in controversy was drawn by Gwendolyn L. Roe and delivered to her son for the purpose of making a loan or advance to him erroneous based on the evidence?
3) Was it error for the trial court to deny the plaintiff/appellant’s motion for summary judgment?
4) If appellee Citizens Bank of Eliza-bethtown is liable for paying the check over a forged endorsement, is appellant entitled to damages, not only compensatory but punitive, and for the appellant’s expenses incurred due to said conversion?

Appellee Citizens Bank of Elizabethtown maintains that the summary judgment issued by the trial judge should be affirmed because a payee to whom a check is never delivered has no cause of action against the collecting bank. It also contends that even if the summary judgment is reversed, appellant is not entitled to a summary judgment because of the existence of several issues of material fact associated with the defense provided by KRS 355.3-419(c)(3).

Appellee First State Bank of Irvington, the drawee bank, argues that the summary judgment should be affirmed because the appellant makes no claim which can be sustained against the Irvington Bank. Irving-ton maintains that the finding by the trial court that the check was drawn by Gwendolyn L. Roe, delivered to her son for the purpose of making a loan to him and was paid by the drawee bank in accordance with her wishes, is based on the evidence, and therefore, should be upheld. Gwendolyn Roe made no complaint to the drawee bank concerning the payment of the check.

Gwendolyn Roe states that only one of the arguments set out by the appellant has any application to her, and she believes that the finding by the trial court that the check in controversy was drawn by her, and delivered to her son for the purpose of making a loan or an advance to him, is correct and based on the evidence. She contends that the controversy is actually between the appellant and the appellee banks.

This Court believes that the distinguishing issue in this case is whether a payee must have physical possession of a check in order to have standing to sue when the check is paid by a collecting bank over a forged endorsement.

This Court affirms the judgment of the trial court.

There appears to be a division of authority in the United States as to the question presented by this case. California and lili-nois have ruled that delivery of a check to the payee is a prerequisite to the right of suing thereon. Alabama and Indiana have held to the contrary. No Kentucky case has been found directly on point. See : 100 A.L.R.2d 681.

Appellant does not have standing to maintain this action because he does not have a substantial interest. In the circumstances presented here, it appears that the Kentucky rule should be that it is necessary for physical delivery of a check to the payee before it would have the capacity to sue a collecting bank for payment of a forged endorsement.

In order to support an action, the interest of the party plaintiff must be present or 'substantial interest, as distinguished from a mere expectancy. 59 Am. Jur.2d, Parties, § 28. A party plaintiff must have a real, direct, present and substantial right or interest in the subject matter of the controversy. 67 C.J.S. Parties § 6 [1950 ed.]. Here, appellant had, at best, an expectancy. It was contingent upon the delivery of the instrument, as well as its negotiation.

There is a difference between capacity to sue, which is the right to come into court, and standing to sue, which is the right to relief.

The appellant is not the owner of the instrument as contemplated by KRS 355.3-804 because he did not have physical possession of the instrument at any time.

The Uniform Commercial Code must be interpreted as a whole, and an analysis of the Code in Kentucky, and the United States generally, convinces this Court that the situation presented here was not one that would be directly addressed by the Code itself. Here, the payee of this check, as distinguished from a holder of another type of instrument more frequently treated by the Code, is not given relief because he can generally have the alternative of suing on the underlying obligation of the check. Here, nothing precludes the appellant from doing just that.

A reasonable application of the Uniform Commercial Code to the situation presented here persuades us that there was no reason to directly include the appellee, as a creditor, in the banking episode. The evidence is clear that appellee Gwendolyn Roe did not make the appellant her agent, nor was she obligated in any way to the appellant. It is in the record and it is both natural and obvious that the mother, Gwendolyn Roe, did not complain about her son’s activities with the check. Here, the appellant-payee never became an integral part of the transaction. The mother’s action did not confer standing upon the appellant-creditor. She clearly disavowed any desire to benefit the appellant and quite naturally strongly asserted a position entirely favorable to her son, the forger.

In the absence of physical delivery, the payee cannot come into the ordinary channel of commerce so as to give it standing to sue.

The trial court’s denial of the appellant’s motion for summary judgment will not be disturbed since it is entirely consonant with its decision to grant the motion for summary judgment of appellee Citizens Bank.

No evidence regarding the reasonable commercial standards with regard to handling checks was introduced by any of the parties before the trial court. The record does indicate the alleged special treatment accorded to appellee Jeffrey Roe by the teller at the Citizens Bank, but nothing was presented to demonstrate that reasonable commercial banking standards had been violated.

It further appears to us that the contention regarding punitive damages and attorney fees was properly disposed of by the trial court.

Therefore, the judgment of the trial court is affirmed. It is the holding of this Court that a check must have been physically delivered to the payee thereof in order to permit the payee to recover from a collecting bank for the payment of a check over a forged endorsement.

All concur.


text:
    Howell Thomas BIGGERS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Jan. 12, 1979.
    Rehearing Denied March 9, 1979.
    Discretionary Review Denied June 5, 1979.
    Jack Emory Farley, Public Advocate, M. Gail Robinson, Kevin Michael McNally, Asst. Public Advocates, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., Patrick B. Kimberlin, III, Asst. Atty. Gen., Frankfort, for appellee.
    Before GANT, WHITE and WINTER-SHEIMER, JJ.
   WINTERSHEIMER, Judge.

This appeal arises out of the same circumstances treated in 78-CA-452-MR. The purpose of the supplemental brief by the appellant is to request this Court to clarify the procedure in an appeal from an in forma pauperis order of the circuit court which grants the appellant the right to proceed on appeal in forma pauperis to a limited extent. An additional purpose, as stated by the appellant, is to bring to this Court’s attention two recent cases decided by the Kentucky Supreme Court, which required that the appellant be permitted to proceed on appeal without payment of any costs.

It appears to this Court that the procedure outlined in Gabbard v. Lair, Ky., 528 S.W.2d 675 (1975), is the one that should have been used, and was used, in the present case. It appears to this Court that the proper procedure for appealing an order related to the litigant’s indigent status is abundantly clear from the Gabbard, supra, case.

It is our opinion that the trial judge did not abuse his discretion in requiring the appellant in the present case to pay $100.00 per month to the circuit court clerk for the transcription of his appeal.

We do not believe that the cases cited by the appellant, Salyers v. Cornett, Ky., 566 S.W.2d 418 (1978), and Tolson v. Lane, Ky., 569 S.W.2d 159 (1978), are applicable in this situation, and they do not overrule the decision in Gabbard, supra.

Therefore, the judgment of the trial court is affirmed.

All concur.


author: VANCE, Judge:

text:
    The MEDICAL PROTECTIVE COMPANY OF FORT WAYNE, INDIANA, Appellant, v. Jacqueline Marie DAVIS, Guardian of the Estate of Clifton F. Davis, Jr., and Jacqueline Marie Davis, Appellees. Jacqueline Marie DAVIS, Guardian of the Estate of Clifton F. Davis, Jr., and Jacqueline Marie Davis, Cross-Appellants, v. The MEDICAL PROTECTIVE COMPANY OF FORT WAYNE, INDIANA, Cross-Appellee.
    Court of Appeals of Kentucky.
    Feb. 23, 1979.
    Discretionary Review Denied June 5, 1979.
    John G. Crutchfield, Louisville, for appellant and cross-appellee.
    Edward M. Post, Louisville, for appellees and cross-appellants.
    Before HOWERTON, REYNOLDS and VANCE, JJ.
   VANCE, Judge:

The question is the extent of the liability, if any, of an insurance company which has offered to defend a malpractice action under a reservation of rights when the insured refuses to accept the conditional defense and sustains a default judgment because of failure to answer an interrogatory.

The appellant, The Medical Protective Company of Fort Wayne, Indiana, issued its policy covering malpractice to Dr. Benjamin Jackson. In July 1970, Clifton Davis, Jr., while hospitalized under Dr. Jackson’s care, suffered a serious brain injury. Suit was instituted against Dr. Jackson on July 6, 1971. On July 21, 1971, Dr. Jackson’s wife reported the claim to the company. The company representative stated that some forms would be sent to Dr. Jackson but that he need not consider himself sued until served with summons. The summons was not served until October 8, 1971.

On October 8,1971, the appellant notified Dr. Jackson that it would take the necessary steps to protect his interests but only upon a strict reservation of its rights and defenses under the policy. Dr. Jackson was informed that the company admitted no duty to defend or to pay any judgment obtained against him.

The appellant contends that Dr. Jackson breached a duty imposed by the policy to cooperate in the defense of the claim. Dr. Jackson did refuse to allow a defense by the lawyers engaged by the company and did refuse to cooperate with the company in the defense of the action.

Prior to the time that the company sent its reservation of rights letter on October 8, 1971, Dr. Jackson had not been served with summons. The only suggestions of noncooperation on his part up to that time were: (1) that he had not personally reported the claim, but it was admitted that his wife did report it and no contention is made that the report was not timely; (2) that Dr. Jackson had settled another unrelated claim without reporting it to the company, but it is not suggested how this would in any way relieve the company of the duty to defend and or pay this claim; and, (3) that he had failed to return the forms sent to him by the company, but it is admitted that Dr. Jackson was told not to consider himself sued until he was served with summons.

We think as a matter of law that none of the above listed items were sufficient to avoid the policy in any way. As of the date that the reservation of rights letter was forwarded to Dr. Jackson, he had not failed to cooperate with the company. That he failed to do so thereafter will not relieve the company if the subsequent failure to cooperate was justified.

We elect to align ourselves with those jurisdictions which hold that an insured is not required to accept a defense offered by the insurer under a reservation of rights. National Battery Co. v. Standard Accident Insurance Company, 226 Mo.App. 351, 41 S.W.2d 599 (1931); Taylor v. Safeco Insurance Co., Fla.App., 361 So.2d 743 (1978); Butters v. City of Independence, Mo., 513 S.W.2d 418 (1974); Norton v. Farmers Automobile Inter-Insurance Exchange, 40 Cal.App.2d 556, 105 P.2d 136 (1940).

The reason for this is evident. When the insurer has the obligation to pay the judgment, it surely is entitled to control the defense of the claim. But when the insurer reserves a right to assert its nonliability for payment there is little or no reason to require the insured to surrender defense of the claim to a company which asserts that it has no obligation to satisfy the claim. Under such conditions the insured has the right to refuse the proffered defense and conduct his own defense.

That is what Dr. Jackson did in this case. The correspondence between the various parties leaves no room for question that Dr. Jackson refused to accept a defense conditioned on a reservation of rights (although he may have been prompted to refuse the defense for other reasons as well).

Dr. Jackson undertook his own defense without assistance of counsel. In so doing he failed to comply with the rules of civil procedure and his pleadings were stricken and default entered. There is no suggestion, however, that the default was the result of any collusion or attempt to defraud the insurer. Dr. Jackson attempted to defend himself as well as he could and to that end prosecuted an appeal from the judgment.

That an insured may seek to defend himself without counsel after refusing to accept a defense offered under a reservation of rights is one of the risks an insurer must take when it elects to offer a defense under a reservation of rights. If it is correct in its position that the policy does not afford coverage or has been breached in some way, then it prevails regardless of whether the insured accepts the defense— but it offers such a defense at its peril, because if the insured refuses to accept it and elects to defend himself, the company is found by the result, in the absence of fraud or collusion, unless it can establish that the policy did not afford coverage or was breached by the insured.

In this case the insured refused to accept the qualified defense, he elected to defend himself, and the insurer did not establish noncoverage or that the insured had breached some duty it owed to the company. The company therefore became obligated to the extent of the policy limits of its liability and appellees were entitled to a directed verdict. The determination that a directed verdict should have been granted to appellees makes it unnecessary to discuss the various alleged trial errors.

The judgment obtained by Jacqueline Davis against Dr. Jackson was for $325,000.00. The policy limit was $200,000.00, and appel-lees were awarded judgment in that amount. The appellees attempted to amend their complaint to allege an assignment by Dr. Jackson to appellees of all claims that Dr. Jackson had against appellant and also to allege entitlement to bring the action as a creditor of the estate. By the amendment the appellees sought to recover the amount by which their judgment exceeded the policy limits and also the sum of $1,000,000.00 for mental suffering and anguish caused to Dr. Jackson by appellant. The amendment was not permitted and a cross-appeal was prosecuted from that ruling.

We affirm the ruling of the trial court. Although amendments to pleadings should be freely allowed, the trial judge is nonetheless allowed considerable discretion in controlling the course of the trial. In this case the proffered amendment in this already complex case sought to bring in several new issues and sought recovery of some items at least which very clearly were unrelated to the original claim for malpractice. Under these circumstances we do not think the trial judge clearly abused his discretion in disallowing the amendment.

The judgment is affirmed on both the appeal and the cross-appeal.

All concur.


author: GANT, Judge.

text:
    John Kevin LOMAX, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    March 9, 1979.
    Discretionary Review Denied June 5, 1979.

      David A. Lambertus, Louisville, for appellant.
    Robert F. Stephens, Atty. Gen., Nancy S. Marksberry, Asst. Atty. Gen., Frankfort, for appellee.
    Before GANT, WHITE and WILHOIT, JJ.
   GANT, Judge.

This appeal is founded upon a denial of a motion pursuant to RCr 11.42 to vacate judgment on the grounds of ineffective assistance of counsel on appeal. The record divulges that appellant was convicted of first degree robbery in May, 1976, and received a sentence of 20 years. After conviction, appellant filed the required notice of appeal but withdrew this notice upon consultation with his retained counsel, who advised him that there were no reversible errors in the trial of his ease and that a retrial with the same witnesses would inevitably result in conviction.

Subsequently, in February of 1978, this Court reversed the conviction of an accomplice of the appellant, one Barry Bequette, who was charged with complicity in the crime by having possession of some of the drug paraphernalia taken in the robbery. The alleged accomplice denied the complicity and testified that the material was placed at his home without his consent or participation. His conviction was reversed because of an illegal search and because of introduction of evidence following an illegal arrest.

At the time of the reversal, and in March, 1978, after learning of the good fortune of his co-defendant, the appellant inquired about his right to appeal and, of course, was informed that inasmuch as 21 months had elapsed since his conviction no appeal was possible. He was further informed that the withdrawal of his appeal some 19 months previously would also affect his right to appeal.

This frivolous appeal is based, apparently, on three grounds: (1) That his attorney was ineffective because he did not inform the appellant that he could not appeal his conviction at any time he wanted to, even almost two years later; (2) That appellant had nothing to lose by appealing since he had received the maximum sentence; and (3) That the fact that the alleged accomplice was freed due to an entirely disassociated cause is proof of the fact that his attorney was ineffective.

In his unsubstantiated affidavit in support of his motion pursuant to RCr 11.-42, appellant admits that he knew of his right to appeal and abandoned this right after his counsel advised him that the evidence against him was such that conviction would inevitably result and that, in counsel’s opinion, there was no reversible error in the appellant’s case. This voluntary abandonment on the advice of an attorney about whom the appellant had never complained prior to the reversal of his co-defendant’s conviction, would not, per se, indicate ineffective assistance of counsel under the standards set out in Wahl v. Commonwealth, Ky., 396 S.W.2d 774 (1965); Lay v. Commonwealth, Ky., 506 S.W.2d 507 (1974); King v. Commonwealth, Ky., 387 S.W.2d 582 (1965), or in any federal decisions. There must be some point at which attorneys are protected from irresponsible hindsight by their clients. Once this appeal was withdrawn under the circumstances herein, we find no grounds for vacating judgment, certainly, or even extending the time for appeal on the naked assertion by the appellant that he meant to appeal later.

The assertion by appellant that he “had nothing to lose” is an affront to this Court. To imply that all convictions in which the maximum sentence was given should be appealed to avoid the charge of „ ineffective assistance of counsel is patently offensive to the criminal justice system, already overburdened. The true test is whether there is anything to gain. When the attorney who is totally familiar with the case, its issues and procedures, either by representing the defendant at trial level or by competent research of the record thereafter, determines that the appeal is futile, this Court will not condemn the failure to appeal or the withdrawal of an appeal merely because the defendant received a maximum sentence.

The bald assertion that the ultimate acquittal of a co-defendant on his appeal is grounds for vacating a judgment for ineffective assistance of counsel is equally without merit. In his affidavit, appellant shows no grounds that his conviction related in any way to that of appellant. In fact, an examination of the records of the case involving the accomplice discloses that the grounds for reversal were peculiar to the accomplice.

In the case before us, the record clearly shows that the appellant was advised of his right to appeal, began the appellate process and withdrew his appeal from advice that it was futile. We would not only fail to condemn such procedure but would encourage it under these circumstances.

The judgment is affirmed.

All concur.


text:
    Frances Jones MILLS, Treasurer of the Commonwealth of Kentucky and Custodian of the Uninsured Employers’ Fund, Appellant, v. Lova VAUGHN, Dependent of Willis Vaughn, Deceased, George Frye, Workmen’s Compensation Board of Kentucky, Appellees.
    Court of Appeals of Kentucky.
    April 27, 1979.

      Robert F. Stephens, Atty. Gen. by Donald F. Roney, Asst. Atty. Gen., Frankfort, for appellant.
    Terill A. Wilson, Russell Springs, William F. Moore, Jr., Monticello, for appellees.
    Before GANT, COOPER and HOWARD, JJ.
   GANT, Judge.

This is an appeal from the Franklin Circuit Court affirming the award of $28.00 a week to the dependent mother of a worker, William Vaughn, who died of a heart attack in a work-related accident. The death of Vaughn was found by the Workmen’s Compensation Board to have occurred while he was engaged in a logging operation. The Board ,. determined that while Vaughn was chasing a mule, “Old Belle,” which had walked off while Vaughn was otherwise engaged, he had suffered a heart attack which proved to be fatal. Although the exact sequence of these events were in some dispute, such a finding was clearly supportable by the evidence presented to the Board. As was said in Moore v. Square D Company, Ky., 518 S.W.2d 781 (1974), “the medical evidence is not to be exclusively determinative but the board shall make the factual determination, from the totality of the circumstances, of whether there was a work-connected event.” Although the exact cause of death was never determined by an expert medical autopsy, there was sufficient corroboration from medical personnel to sustain the findings. Hunt v. Fuqua, Ky., 224 S.W.2d 917 (1949).

The problem which now faces this Court is whether the Board acted properly when it raised the $13.60 award, which represented 25% of his average weekly wage, to the $28.00 minimum weekly benefit under KRS 342.740(1) and KRS 342.740(2). It is the opinion of the Court that such an increase was improper. Although it may appear inconsistent that the legislators of this Commonwealth would allow a minimum recovery for total disability and yet not allow it in a case which resulted in the death of a worker who supports one or more dependents, they appear to have done so. In the clear statutory language of KRS 342.750(l)(i) as quoted in the appellant’s brief:

In any event, if the present annual income of an actual dependent person, including workmen’s compensation benefits, at any time exceeds the total annual support received by the person from the deceased employee, the workmen’s compensation benefits shall be reduced so that the total annual income is no greater than such amount of annual support received from the deceased employee.

This provision of the death benefit section envisions the time when the dependent may adjust to the loss he or she has suffered and produce enough income to lessen the amount of support donated by the state or employer. Clearly, as this dependent draws closer to the figure of the total annual support received, the benefit amount now paid will decrease. To require that the $28.00 minimum be maintained would go contrary to the apparent purpose of the statute of relieving the state of its benefit burden as the individual comes closer to achieving an independent financial position or at least a position equal to the one he maintained before the death of the employee.

The presence of the minimum in the disability area may evolve from the desire by the legislature to assure that the injured employee retains a minimum income after his injury. In the present case, however, it is a dependent of the employee who is the beneficiary, and he is under no infirmity as to future employment or earnings. As the statutes set a mandatory percentage of wages attributable to the dependent according to the relationship to the deceased, so may it set a reduction of these benefits that may fall below the statutory minimum allowable in a disability case. The language of the statute clearly demonstrates its intentions. However,

[o]ur function in interpreting statutes is limited to analyzing and applying what the legislature has said, and does not extend to psychoanalyzing the legislature and applying what it may have meant to say. Apache Coal Company v. Fuller, Ky., 541 S.W.2d 933, 935 (1976).

This Court feels that this result may lead to situations in which the percentages payable to each dependent are so limited as to be inconsequential to his income available for support. Nevertheless, we must utilize the statutes as enacted by the legislature. Accordingly, we find that the Workmen’s Compensation Board had no right to raise the $13.60 award to the statutory minimum that is applicable in total or partial disability cases, due to the lack of a statutory mandate to support such an order and clear statutory language allowing payments to dependents that could fall below that minimum.

The judgment of the circuit court is reversed and this case remanded to the Franklin Circuit Court with directions to return the case to the Workmen’s Compensation Board for determination of an award in conformity with this opinion.

All concur.


author: HOWERTON, Judge.

text:
    Sammy WOOD, County Judge Executive, Appellant, v. SHELBY COUNTY, Kentucky, Fiscal Court of Shelby County, Consisting of Roger L. Bailey, James Shaddock, Stewart Demaree, Jack Frazier, Robert Walters, Hubert Gordon, and Edward Masters, Appellees.
    Court of Appeals of Kentucky.
    April 27, 1979.

      John W. Coomes, Coomes, Coomes & Coomes, New Castle, for appellant.
    James Hite Hays, Shelbyville, for appel-lees.
    Before MARTIN, C. J., and HOWERTON and LESTER, JJ.
   HOWERTON, Judge.

Wood appeals from a judgment of the Shelby Circuit Court dismissing his petition for a Writ of Mandamus. Wood argues that mandamus was the proper procedure and remedy, and that the Shelby County Fiscal Court is required by statute to fix his annual salary between certain maximum and minimum limits, and no less than $16,-768.80.

On April 26, 1977, the fiscal court set the county judge executive’s salary for the period of January 1, 1978, through December 31,1981, at $10,800.00. Wood was thereafter elected to that office to serve for that term. On December 20, 1977, the fiscal court passed an order recommending an increase in the county judge executive’s salary when the new fiscal court convened. Wood requested an increase in the salary, but on January 10, 1978, the fiscal court denied the request.

On February 1,1978, Wood petitioned the Shelby Circuit Court for a Writ of Mandamus seeking to force the fiscal court to set his salary in compliance with KRS 67.-705(2)(3)(4). In a lengthy opinion, the circuit court dismissed the petition, concluding that a Writ of Mandamus was improper in this situation.

The circuit court dismissed the petition because:

[Sjerious doubts exist as to whether there is an actual duty on the part of the present fiscal court to set the salary. If a determination must be made as to whether or not this duty exists, then Mandamus would not lie for the reason that the court cannot create a legal duty by Mandamus. Assuming, however, that there can be no doubt that there is/was a duty for the present fiscal court to set the salary, then can it be said that this court did not, in effect, set the salary? By its action of January 10, 1978, the fiscal court refused to raise a salary previously set by the old fiscal court, which clearly shows that it was the intent of the present fiscal court to adopt the salary of $10,800.00 annually previously set by the 1977 fiscal court. In rejecting the request of plaintiff Wood, the fiscal court did act.

We disagree with such reasoning. Every statute is subject to interpretation, but that does not mean that if the court were to interpret the statute as requiring some duty the court would be creating a new legal duty by mandamus. The statute itself is what creates the legal duty.

KRS 67.705(2)(3)(4) provides as follows:

(2) The salary of the county judge/executive shall be set by the fiscal court.
(3) The minimum annual compensation paid to the county judge/executive shall be a sum not less than sixty percent (60%) of the maximum compensation certified under KRS 64.527, except that no fiscal court shall be required under provisions of this section to approve an amount for the compensation of any one official which would exceed six percent (6%) of the county’s total annual general fund receipts including federal revenue sharing moneys.
(4) In no event- shall the county judge/executive, justice of the peace, magistrate, or commissioners who serve on the fiscal court holding office on January 2, 1978 receive less than the total annual compensation received by that official during calendar year 1976.

The provisions were enacted in 1976, but their effective date was January 2, 1978, which coincided with the beginning of the first office for a county judge executive. The fiscal court is required to set the salary within a maximum and minimum range. The maximum amount was determined to be $18,763.20. The minimum could be figured in one of two ways, but no less than $16,768.80, the amount paid to the Shelby County Judge in 1976. KRS 67.705(4). We add at this point that we interpret the term “that official” in subsection (4) to apply to the office or the salary paid to the one holding the office of county judge in 1976. The section does not limit the minimum payment only if “that official” is the same person in 1978 as in 1976, as was argued by the fiscal court.

Appellees contend that to increase Wood’s salary would violate § 161 of the Kentucky Constitution which prohibits any change in compensation of a county judge executive after his election or during his term. KRS 64.530(4) also requires that the official’s salary be fixed not later than the first Monday in May in the year of his election. We are confronted with an apparent conflict. The former Shelby County Fiscal Court did fix the annual salary at $10,800.00 before the first Monday in May in the year of the election. How can any change be made now?

We could discuss effective dates of statutes, conflicts between new and old statutes, and other various facts and points of law. However, the solution to this particular problem lies in the fact that the general assembly established a minimum and maximum salary for the new office. Even though the effective date of KRS 67.-705(2)(3) and (4) was January 2,1978, which would put the burden for fixing the salary on the new fiscal court [in conflict with § 161 and KRS 64.530(4)], the old fiscal court was free to fix the salary anywhere within the limits. Any salary set above or below the limits would be illegal and void.

The salary was set below the minimum required by KRS 67.705(4). Therefore, if the new fiscal court is directed to set the annual salary at $16,768.80 to comply with KRS 67.705(4), there has been no change in the amount of salary required for the office and established prior to the first Monday in May in the year of the election. What had to be done is now about to be done or corrected, and we conclude that there is no actual conflict with either § 161 of the Kentucky Constitution or KRS 64.-530(4). Since the salary was not previously set somewhere above the minimum allowed by law, the minimum becomes the maximum allowable for this term of office.

The circuit court further reasoned that the fiscal court did act by refusing to increase Wood’s salary on January 10, 1978; therefore, mandamus, which requires someone to act, was not proper. In Metcalf v. Howard, 304 Ky. 498, 201 S.W.2d 197 (1947), the court held that the failure of the fiscal court to fix the salaries of the police force in compliance with the statute could be remedied by mandamus, because the fiscal court’s denial of the motion to fix the salaries according to the statute was a failure to perform its statutory duties. Here, the fiscal court has failed to perform its statutory duty by not fixing the county judge executive’s salary within the minimum and maximum limitations as provided in KRS 67.705(3)(4). The fiscal court’s denial of Wood’s motion to increase his salary was a failure to comply with the statute. This denial cannot be considered as an act which would preclude mandamus as a proper remedy.

We hold that the fiscal court has failed to act according to KRS 67.705 in fixing the salary of the county judge executive. This ease shall be remanded to the circuit court with orders that it grant the petition for mandamus and order the fiscal court to set Wood’s annual salary at $16,768.80.

All concur.


author: SEILER, Judge.

text:
    Edward P. BIALECKE et al., and John Alberti et al., Plaintiffs-Appellants, v. Robert BAUER et al., Defendants-Respondents.
    No. 60779.
    Supreme Court of Missouri, En Banc.
    May 17, 1979.
    Sherwood R. Volkman, St. Louis, for plaintiffs-appellants.
    Linda Robinson, Asst. Pros. Atty., Ronald L. Boggs, St. Charles, for defendants-respondents.
   SEILER, Judge.

This appeal is before us because it involves construction of a revenue statute. Mo.Const. art. V, § 3.

Section 137.090, RSMo 1969, provides as follows:

“All tangible personal property of whatever nature and character situate in a county other than the one in which the owner resides shall be assessed in the county where the owner resides, except that houseboats, cabin cruisers and automobile trailer houses used for lodging shall be assessed in the county where they are located and tangible personal property belonging to estates, which shall be assessed in the county in which the probate division of the circuit court has jurisdiction; provided, that no tangible personal property shall be simultaneously assessed in more than one county.”

The question presented is whether the cabin cruisers and houseboats of the plaintiffs, ajl non-residents of St. Charles County, which are moored, docked, or tied up at marinas and yacht clubs in St. Charles County, can be assessed as personal property in St. Charles County under the statutory exception that “houseboats, cabin cruisers and automobile trailer houses used for lodging shall be assessed in the county where they aré located.”

Under the stipulated facts the boats are used only during the boating season of April 1 to November 1. During the boating season the owners use the boats and stay on them occasionally from Friday night to Sunday afternoon. A few use the boats for ten-day cruises up the Mississippi or Illinois Rivers.

Plaintiffs appeal from the judgment of the trial court dismissing their petition seeking to prohibit and enjoin the collection of personal property taxes on the boats by St. Charles County.

Plaintiffs contend the boats are not used for lodging, that the statutory exception applies only to boats used for permanent, not temporary, lodging; that they are not using their boats for lodging because “they are not in them enough to be called permanent.”

Plaintiffs argue that for there to be lodging, there must be an aspect of permanency. The cases they cite, however (State v. Bowdry, 346 Mo. 1090, 145 S.W.2d 127 (1940); Jackson v. Engert, 453 S.W.2d 615 (Mo.App.1970), and State v. Jennie Coulter Day Nursery, 218 N.W.2d 579 (Iowa 1974)) are to the effect that lodging can be temporary as well as permanent. The dictionary definitions say likewise. See Webster’s New International Dictionary 1452 (2d ed. 1935; Webster’s New International Dictionary 1329 (3d ed. 1967); VI The Oxford English Dictionary 395.

Unquestionably the boats here were used for lodging because plaintiffs stayed in them overnight from time to time during the season. Just as clearly this was lodging of a temporary, not permanent, nature.

Did the legislature intend to limit the exception only to houseboats, cabin cruisers, and automobile trailer houses used for permanent lodging?

One difficulty with ascribing this meaning to the statute is that if the owner used the boat as a permanent lodging that very likely would be his place of residence, whereas the statute clearly means to deal with houseboats, cabin cruisers, and automobile trailer houses located in a county different from that of the owner’s residence. There would be no point in the legislature making an exception authorizing assessment of personal property located in the county of the residence. That is already the general rule with respect to the place of assessment of personal property, see 84 C.J.S., Taxation § 316, at 649 (1954), and is the plain implication of the first clause of the statute. The whole scheme of the assessment portion of Chapter 137, RSMo 1969, proceeds on the basis that, in general, personal, property is assessed in the county of the owner’s residence. See §§ 137.115, 137.120. The legislature will not be charged with having done a meaningless act. State ex rel. Thompson-Stearns-Roger v. Schaffner, 489 S.W.2d 207, 212 (Mo.1973). So the legislature must have intended something other by the statutory exception in § 137.090 than to limit its application to cabin cruisers which were used for permanent lodging.

When a houseboat, cabin cruiser or automobile trailer house is being used for lodging, even on a temporary basis, it means that a person or persons are staying in it overnight and using it as a place of abode. In such instances, the legislature may have considered that it was logical for the property to be assessed in the county where it was located and where county services, county roads, county sheriff protection and other county benefits were available to those owners using the boats for lodging. In addition, the taxing authorities in the county where the boat or trailer house is located are more likely to be able to determine whether it is in fact used for lodging than would be the taxing authorities in the owner’s county of residence. This may have been a further reason for the enactment of the exception.

The legislature had to make a choice between assessing such boats in the county where they were located or in the county of the owner’s residence. The legislature chose the former, and went on to make it clear that no boat owner would be assessed twice by adding the final proviso that no tangible personal property shall be simultaneously assessed in more than one county.

Judgment affirmed.

MORGAN, C. J., and BARDGETT, RENDLEN and SIMEONE, JJ., concur.

DONNELLY and WELLIVER, JJ., dissent.

      . There is no provision in the statutes, as there is with respect to motor vehicles, § 301.025, RSMo Supp.1975, requiring the owner of a cabin cruiser, for example, to show that he has paid property taxes on it before it can be licensed or registered.


author: PER CURIAM.

text:
    Melvin POWELL, Appellant, v. STATE of Missouri, Respondent.
    No. 29603.
    Missouri Court of Appeals, Western District.
    Feb. 26, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 30, 1979.
    Clifford A. Cohen, Public Defender, and L. D. Mayo, Jr., Asst. Public Defender, Kansas City, for appellant.
    John D. Ashcroft, Atty. Gen. and Michael Elbein, Asst. Atty. Gen., Jefferson City, for respondent.
    Before HIGGINS, Special Judge, Presiding, PRITCHARD, J., and WELBORN, Special Judge.
   PER CURIAM.

On June 5, 1975, Appellant, by jury, was convicted of first degree robbery with sentence affixed at fifty eight years. Upon motion, sentence was reduced to forty years. Appellant’s conviction was affirmed on direct appeal, State v. Powell, 542 S.W.2d 588 (Mo.App.1976), and reference to that decision makes recitation of the facts herein unnecessary, except where they relate to Appellant’s election to represent himself. On May 17, 1977, Appellant filed his motion under Rule 27.26 requesting an evidentiary hearing and vacating of his sentence. On June 9, 1977, the trial court refused an evidentiary hearing and summarily denied relief.

This appeal followed with Appellant raising two points: (1) Did the trial court refuse to poll the jury? If so, does such refusal constitute grounds to vacate the sentence? (2) Did Appellant knowingly and with intelligent understanding validly waive his right to counsel?

The record shows the trial court made inquiry as to a poll of the jury on two occasions, which produced irrelevant comments by Appellant. Irrespective of whether the trial court’s inquiry of a jury poll was correct or incorrect and in full conformity with Rule 27.01(e), that is not the basic question. There being no violation of Appellant’s constitutional rights, either pleaded or proven, this question should have been properly taken up through a direct, timely appeal and not pursuant to Rule 27.26.

That Rule 27.26 cannot be used as a substitute for a second appeal is found within the rule itself.

“A proceeding under this Rule ordinarily cannot be used as a substitute for direct appeal involving mere trial errors or as a substitute for a second appeal. Mere trial errors are to be corrected by direct appeal, but trial errors affecting constitutional rights may be raised even though the error could have been raised on appeal.”
Appellant’s first point is without merit.

Appellant, in his second point, contends he did not validly waive his right to counsel. The record is replete with the conduct of the trial court, counsel and Appellant himself in establishing Appellant, from the very beginning of the proceedings, was aware of the difficulties and problems of self representation.

Hearing was had outside the presence of the jury with Appellant, counsel for Appellant and the prosecuting attorney, where Appellant was asked about his education and familiarity with court proceedings. During this initial hearing and during the entire trial, Appellant was urged to seek and utilize the advice of counsel. Appellant made the repeated choice to disregard the admonishment of the court and counsel and elected to represent himself. Counsel previously appointed for Appellant was requested to remain during the trial and did remain. Counsel previously appointed for Appellant filed motions during the trial on Appellant’s behalf.

While the waiver of the right to counsel should ever be zealously safeguarded once it is clearly established by the actions of an accused that she or he is freely from any infirmity, duress, influence or any other determining factor brought to the court’s attention which renders such waiver suspect, and the accused knew what he was doing, was made aware of the dangers and disadvantages and the choice was made with “eyes wide open”, then an accused is free to act as his or her own counsel. State v. Quinn, 565 S.W.2d 665 (Mo.App.1978).

As has been pointed out, both the trial court and previously appointed counsel repeatedly questioned and advised Appellant herein on the question of self representation, and both also provided guidance to Appellant throughout the trial.

The conduct of the court in this admittedly “ticklish situation” of self representation did nothing to violate the principles of Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525,45 L.Ed.2d 562 (1975), and further, the actions taken by the trial court in protection of Appellant’s rights were well within the safeguards set forth in State v. Gaye, 532 S.W.2d 783 (Mo.App.1975) and State v. Quinn, supra.

This court is not unmindful of Fields v. State, 572 S.W.2d 477 (Mo. banc 1978), but the Supreme Court of this state has prescribed the requirements of Fields v. State, supra, are prospective only, hence said requirements are not controlling in this case. Appellant’s second point is without merit.

The order of the trial court as to both issues raised by Appellant is affirmed.