author: FENDER, Chief Justice.

text:
    Ronald Ray SMITH, Appellant, v. The STATE of Texas, State.
    Nos. 2-83-428-CR, 2-83-429-CR.
    Court of Appeals of Texas, Fort Worth.
    May 15, 1985.
    Fred C. McDaniel, DeSoto, for appellant.
    Henry Wade, Crim. Dist. Atty. and Constance M. Maher, Asst. Crim. Dist. Atty., Dallas, for appellee.
    Before FENDER, C.J., JOE SPURLOCK, II, J., and HUGHES, Jr., J. (Retired) (Sitting by Assignment).
   OPINION

FENDER, Chief Justice.

Appellant, Ronald Ray Smith, was convicted by a jury of the offenses of burglary of a building, TEX.PENAL CODE ANN. sec. 30.02(a)(1) (Vernon 1974), and unlawful possession of a prohibited firearm, TEX. PENAL CODE ANN. sec. 46.05(a), (b) (Vernon 1974), on November 29,1983. The jury assessed punishment at thirty-five (35) years for the burglary offense (enhanced) and twenty (20) years and a $10,000 fine for the illegal firearm charge.

We affirm.

Appellant raises three grounds of error: (1)the trial court erred in omitting from the charge an instruction on the defense of necessity to the burglary charge; (2) the court erred in omitting an instruction on “traveling” as a defense to the weapon charge; and (3) the evidence was insufficient to support the illegal weapons charge. Appellant’s attorney chose to file separate briefs for the two charges. We will, however, address them in this opinion as if the three grounds had been presented in one brief.

There is little dispute as to the facts. At about 5:00 a.m. on October 3, 1983, Dallas police officers answered a silent burglar alarm at a tavern. The only door into the building had been broken open. A canine unit entered the building while other officers remained outside. Appellant was found hiding under a table with a sawed-off shotgun in his possession. No one else was found in the building.

Appellant argues the defense of “necessity” should have been contained in the Court’s charge to the jury. See TEX.PENAL CODE ANN. sec. 9.22 (Vernon 1974).

We disagree.

Appellant argues he was entitled to the necessity defense because he feared the police were looking for him and he did not want to be caught, especially while carrying the shotgun. These facts do not entitle the defendant to have the jury charged on the necessity defense.

“The first two requirements of Section 9.22 are that the actor reasonably believe the proscribed conduct is necessary to avoid imminent harm, and that the desirability and urgency of avoiding the harm clearly outweigh, by ordinary standards of reasonableness, the harm sought to be prevented by the law proscribing the actor’s conduct.”

Johnson v. State, 638 S.W.2d 636, 638 (Tex.App.—El Paso, 1982 aff'd 650 S.W.2d 414 (Tex.Crim.App.1983). Appellant’s reasons for entering the premises without the owner’s consent failed to invoke the defense of “necessity” since there was no evidence he was in danger of injury or harm. Appellants first ground of error is overruled.

In his second ground of error, appellant asserts the trial court erred in failing to charge on the defensive issue of “traveling” under TEX.PENAL CODE ANN. sec. 43.03(a)(3) (Vernon Supp.1985). Since this statute deals with Promotion of Prostitution, we will assume appellant is referring to TEX.PENAL CODE ANN. sec. 46.-03(a)(3) (Vernon 1974). While this statute may excuse illegal possession of a weapon, it does not excuse the possession of an illegal weapon. We find no merit in appellant’s second ground of error and the argument is overruled.

Appellant’s third ground of error asserts that the evidence was insufficient to support appellant’s conviction for possession of an illegal firearm, that is, a sawed-off shotgun with a barrel length of less than 18 inches. Appellant appears to be arguing a mistake of fact exists under TEX.PENAL CODE ANN. sec. 8.02 in that he did not know the shotgun in question had a barrel length of less than 18 inches. If the appellant had presented evidence of mistake of fact, he would have been entitled to a charge upon that ground. Lynch v. State, 643 S.W.2d 737 (Tex.Crim.App.1983). However, the mistake must be founded upon a reasonable belief about the factual matter. Miller v. State, 666 S.W.2d 564, 566 (Tex.App.—Houston [14th Dist.] 1984 no pet.).

The evidence before the jury was that appellant carried the weapon in his pants pocket under his armpit, indicating a fairly short weapon. Additionally the appellant testified he ran from the police because he was carrying the shotgun. The jury could have inferred from this statement that appellant was aware the weapon was unlawful.

In reviewing the sufficiency of the evidence in either a direct or circumstantial evidence case, we must view the evidence in the light most favorable to the prosecution and consider whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson v. State, 672 S.W.2d 801, 803 (Tex.Crim.App.1984); Houston v. State, 663 S.W.2d 455, 456 (Tex.Crim.App.1984); Wilson v. State, 654 S.W.2d 465, 471 (Tex.Crim.App.1983) (opinion on rehearing). A conviction cannot be sustained if the evidence leaves any reasonable doubt as to the guilt of the accused. Jackson v. Virginia, 443 U.S. 307, 317-318, 99 S.Ct. 2781, 2788, 61 L.Ed.2d 560 (1974). Thus, it follows that a conviction based on circumstantial evidence cannot be sustained if the circumstances do not exclude every other reasonable hypothesis except that of the guilt of the defendant. Johnson v. State, 673 S.W.2d 190, 195 (Tex.Crim.App.1984); Jackson, 672 S.W.2d at 803.

As stated earlier, there was circumstantial evidence from which the jury could infer the appellant was aware the shotgun had a barrel of less than 18 inches. Additionally the mistake of fact alleged to have existed was one capable of simple verification — the appellant could have measured the weapon and discovered its true length. See Miller 666 S.W.2d at 566. Because we find the evidence sufficient to support appellant’s conviction. for possession of an illegal weapon, we overrule appellant’s final ground of error.

The judgment is affirmed.


source: Caselaw Access Project

author: JORDAN, Justice.

license: Public Domain

text:
    In the Matter of J.R.R.
    No. 2-85-003-CV.
    Court of Appeals of Texas, Fort Worth.
    May 15, 1985.

      Gossom & Cotton, and Thomas C. Cotton, Wichita Falls, for appellant.
    Jeanmarie Baer, Wichita Falls, for appel-lee.
    Before FENDER, C.J., and ASH-WORTH, JORDAN and HOPKINS, JJ.
   OPINION

JORDAN, Justice.

Appellant, J.R.R., fourteen years of age at the time, was on November 5, 1984, adjudicated a child engaged in delinquent conduct and was found to be in need of rehabilitation, but was granted probation. This court is confronted with two issues: (1) whether a fifteen-year-old participant in the offense charged is an accomplice, and (2) if he is, was his testimony at trial sufficiently corroborated. Our answer to the first question is yes and to the second question it is no.

We accordingly reverse and remand.

By his first seven points of error appellant contends that there is insufficient evidence to support the trial court’s finding that appellant was guilty of theft of three bicycles, and, next, that there is insufficient evidence to corroborate the testimony of an accomplice who was fifteen years old at the time.

On July 25, 1984, appellant, then a juvenile fourteen years of age, along with two other minors, was stopped about 5:00 a.m. by Wichita Falls police officers when the three minors were discovered riding three bicycles on a service road of an expressway. After checking with the manager of a store, it was discovered that three bicycles and some other items were missing, and the three minors were then arrested.

An adjudication hearing was held by the court on November 5, 1984. The two officers, Don Ewen, manager of the bicycle store, and T.S., one of the minors involved in the offense, testified. It is appellant’s position, with which we agree, and with which the State on oral argument agreed, that, except for T.S.’ testimony there is a complete lack of evidence connecting appellant to the theft of the bicycles on July 25, 1984.

The testimony of T.S., the fifteen-year-old participant in the offense, named appellant as one of the minors who took the bicycles from the store, knowingly and intentionally and without the effective consent of the manager, Don Ewen.

It is the State’s contention that T.S. is not an accomplice, because as a fifteen-year-old juvenile, he could not be prosecuted as he is under seventeen years of age and the Juvenile Court of Wichita County had not waived jurisdiction and certified him for criminal prosecution in a district court. The State then says that since T.S. was not an accomplice, no corroboration was required. The trial court found as a fact and as a matter of law that T.S. was an accomplice. The court also found as a fact that there was sufficient evidence to corroborate T.S.’ testimony.

In support of this proposition the State cites three cases: Carnathan v. State, 478 S.W.2d 490, 491 (Tex.Crim.App.), cert. denied, 409 U.S. 866, 93 S.Ct. 160, 34 L.Ed.2d 114 (1972); Boutwell v. State, 653 S.W.2d 100, 103 (Tex.App.—Austin 1983), rev’d on other grounds, No. 711-83 (Tex.Crim.App., April 24,1985) (not yet reported); Carmona v. State, 670 S.W.2d 695, 697 (Tex.App.—Texarkana 1984, pet. granted).

The State’s reliance on Carnathan is misplaced. See Carnathan, 478 S.W.2d 490. The court there held that one of two eight-year-old boys allegedly fondled by Carnathan was not an accomplice because under the evidence he had no complicity or involvement in the specific incident made the basis of the prosecution. Id. at 492. The statement in Carnathan with respect to the fact that the two eight-year-old boys were too young to be criminally responsible or to be classified as accomplice witnesses was pure dicta. See id. The court’s decision, as seen above, was not based on that feature. See id.

Boutwell, also relied on by appellant, did hold that a juvenile too young to be prosecuted was not an accomplice, but in so holding, the court relied on Carnathan. See Boutwell, 653 S.W.2d at 103-04. As we have seen, Carnathan did not hold that a minor incapable of being prosecuted could not be an accomplice. See Carnathan, 478 S.W.2d at 492.

Carmona did, as the State asserts, hold that a thirteen-year-old boy, not subject to prosecution, was not an accomplice witness. See Carmona, 670 S.W.2d at 697. We do not agree with that holding and refuse to follow it.

TEX.CODE CRIM.PROC.ANN. art. 38.-14 (Vernon 1979) states:

A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense.

An accomplice witness is one who has participated with another before, during or after commission of a crime. Villarreal v. State, 576 S.W.2d 51, 56 (Tex.Crim.App.1978), cert. denied, 444 U.S. 885, 100 S.Ct. 176, 62 L.Ed.2d 114 (1979); Skelton v. State, 626 S.W.2d 589, 592 (Tex.App.—Texarkana 1981, no pet.). Generally speaking, it is true that one who cannot be prosecuted for the same offense for which the accused is being tried, is not an accomplice witness. Villarreal v. State, 576 S.W.2d at 56; Chambers v. State, 630 S.W.2d 413, 417 (Tex.App.—Houston [14th Dist.] 1982, no pet.).

The test to determine whether a witness is an accomplice is whether a prosecution will lie against him under the indictment by which the accused was charged. Schoenberg v. State, 624 S.W.2d 808, 810 (Tex.App.—Houston [14th Dist.] 1981, pet. ref’d). Whether an individual is an accomplice depends on whether the individual, acting with intent to promote or assist in the commission of the crime, solicits, encourages, directs, aids or attempts to aid in commission of the offense. Albritton v. State, 662 S.W.2d 377, 379 (Tex.App.—Beaumont 1983, pet. ref’d). T.S., the State’s witness against appellant, under the evidence in this case, without question matched all of the criteria for an accomplice mentioned in Albritton. See id.

The Court of Criminal Appeals has apparently not ruled directly on the precise question before us. While, as previously indicated in this opinion, it is generally the rule that one who cannot be prosecuted for the same offense for which the principal defendant is being tried is not an accomplice, we do not believe that rule refers to legal disabilities, such as minority. In our opinion, the rule refers to presence at the scene of the crime and participation with the defendant in the commission of the crime. If he is there, acting and taking part in the commission of the crime, he is a participant and accomplice, even though a minor. The trial court held as a matter of fact and law that T.S. was an accomplice and we think that under these facts the court was correct.

Our interpretation of whether a minor participant in a crime is an accomplice finds support in In Interest of A.D.L.C., 598 S.W.2d 383 (Tex.Civ.App.—Amarillo 1980, no pet.). In this case it was held that a fifteen-year-old appellant’s adjudication as a delinquent must be reversed because the accomplice testimony of two other fifteen-year-old children was not sufficiently corroborated. Id. at 385-86. The trial court had held the two other fifteen-year-old witnesses were accomplices as a matter of law. Id. at 385. The Amarillo Court of Civil Appeals held specifically that under the test laid down in Villarreal, 576 S.W.2d at 56, the trial court correctly concluded that the other two youths were accomplices as a matter of law. A.D.L.C., 598 S.W.2d at 385.

We agree with the A.D.L.C. court and hold that in the case before us, T.S. was also an accomplice, which required that his testimony be corroborated. See id.; see also Matter of M.L., a Minor Child, 602 S.W.2d 550, 553-54 (Tex.Civ.App.—Corpus Christi 1980, no pet.).

Since we have determined that T.S. was an accomplice, we must now decide whether his incriminating testimony against appellant was sufficiently corroborated. To determine the sufficiency of the corroborations, we are required, under the case law, to eliminate from consideration the evidence of the accomplice witness and then to examine the evidence of the other witnesses to see if there is evidence of incriminating character tending to connect the defendant with the commission of the offense. Mitchell v. State, 650 S.W.2d 801, 807 (Tex.Crim.App.1983), cert. denied, — U.S. -, 104 S.Ct. 985, 79 L.Ed.2d 221 (1984); Bradford v. State, 170 Tex.Crim. 530, 342 S.W.2d 319, 323 (1960); King v. State, 653 S.W.2d 913, 917 (Tex.App.—Corpus Christi 1983, no pet.)

Applying this test to the evidence in this case, we have no hesitancy in holding that the other testimony adduced by the State did not sufficiently corroborate the testimony of the accomplice T.S. He was the only witness who in any way connected appellant to the crime. Don Ewen, the manager of the business, testified only that three bicycles and other items were missing. One of the two police officer witnesses testified that he stopped and later arrested three juveniles riding bicycles about 5:00 a.m. on July 25, 1984. He never testified that one of these juveniles was the appellant. Neither the two police officers nor Don Ewen in any way connected appellant with the theft of the bicycles. The required corroborative testimony was insufficient.

Appellant’s first seven points of error are sustained.

In his eighth point of error, appellant maintains that the trial court, in holding that T.S.’ testimony was sufficiently corroborated, erroneously considered pretrial testimony. In view of our disposition of this case, we find it unnecessary to rule on this point, but we should point out that there is no evidence in this record to support such a contention.

The judgment of the trial court is reversed and the case is remanded.


author: ASHWORTH, Justice.

text:
    Richard Louis HINDE and Housesearch, Inc., Appellants, v. Helen Marlene HINDE, Appellee.
    No. 2-84-117-CV.
    Court of Appeals of Texas, Fort Worth.
    May 16, 1985.

      David Westfall, John R. Guittard, Counts, Dodge, Ringer & Mclnerney, Dallas, for appellants.
    Kelsey, Gregory, Holt & Phillips and Richard H. Kelsey, Denton, for appellee.
    Before JORDAN, ASHWORTH and JOE SPURLOCK, II, JJ.
   OPINION

ASHWORTH, Justice.

This is an appeal from a judgment rendered on a divorce settlement agreement.

The judgment is reversed and the cause remanded to the trial court because we find the judgment is not sufficiently definite.

At the time of their divorce, appellant and appellee entered into a settlement agreement. Subsequent to the divorce, the appellee filed two suits on the agreement. One of the suits alleged that there had been a breach of the contractual obligations by appellant, and the other suit sought a declaration of the rights of the parties with regard to the settlement agreement. The two suits were consolidated for trial and the case was tried on a non-jury basis. The judgment rendered was generally favorable to appellee. Appellant has filed ten points of error which generally allege no evidence, insufficient evidence, and deficiencies in the pleadings. We are unable to address appellant’s points of error because we find the judgment rendered to be fundamentally deficient, even though such deficiency has not been alleged by either party.

The judgment in this case provides in part as follows: .

The Court further finds that RICHARD L. HINDE deliberately and willfully cancelled the $200,000.00 face value life insurance policy with Anchor Life Insurance Company which was the property of HELEN MARLENE HINDE. The Court further finds that the value of such policy at the time of such cancellation was $25,000.00. The Court further finds that such -policy might be capable of being reinstated for a fee of $1,721.42.
The Court awards HELEN MARLENE HINDE the sum of $25,000.00 damages for such policy; however, if RICHARD L. HINDE shall cause such policy to be fully and unconditionally reinstated according to its original terms and conditions at his expense, RICHARD L. HINDE shall be credited against the amount of this judgment as a payment thereon the sum of $25,000.00;
Provided further, that if this judgment shall become final without such policy being reinstated, such credit shall not thereafter be allowed.
******
It is accordingly ordered that HELEN MARLENE HINDE have and recover of and from the Defendant, RICHARD L. HINDE the sum of $49,547.11, as damages for breach of contract, less any applicable credit for reinstatement of the Anchor Life Insurance policy.

Examining the judgment itself, it is impossible to determine whether the judgment is for the sum of $49,547.11 or for the sum of $24,547.11. A judgment must be sufficiently definite and certain to define and protect the rights of all litigants or it should provide a definite means of ascertaining such rights, to the end that ministerial officers can carry the judgment into execution without the ascertainment of facts not therein stated. Steed v. State, 143 Tex. 82, 183 S.W.2d 458, 460 (1944); American Casualty and Life Insurance Co. v. Boyd, 394 S.W.2d 685, 688 (Tex.Civ.App.—Tyler 1965, no writ). A purported judgment which leaves undecided a question or issue essential to the determination of controversy between parties is bad for vagueness and uncertainty. Id. at 686. A judgment may not rest upon what may or may not occur after its rendition, and must take its validity from the action of the court and not from what persons may or may not do after the court has rendered the judgment. Roberts v. Brittain, 659 S.W.2d 750, 751 (Tex.App.—Tyler 1983, no writ); Tully v. Tully, 595 S.W.2d 887, 888 (Tex.Civ.App.—Austin 1980, no writ).

If the district clerk of Denton County, Texas were requested to issue a writ of execution on the judgment in question, it would be impossible to issue such writ due to the indefinite amount of the judgment.

Rather than remanding for a new trial, in the interest of justice and judicial economy, the cause is remanded to the trial court for an evidentiary hearing as to whether the life insurance policy in question was reinstated prior to the time the judgment ordinarily would have become final. The judgment should then be reformed and rendered according to the finding at such evidentiary hearing. Since the reformed judgment will constitute the final judgment in this case, if appeal is desired, it must be reinstituted.

The judgment is reversed and the cause remanded to the trial court for the additional procedures specified above.


author: HILL, Justice.

text:
    Sherida Jean Cobb DENT, Appellant, v. Douglas Ray DENT, Appellee.
    No. 2-84-225-CV.
    Court of Appeals of Texas, Fort Worth.
    May 16, 1985.

      Timothy G. Chovanec, Fort Worth, for appellant.
    Robert D. Frye, Fort Worth, for appellee.
    Before BURDOCK, JOE SPURLOCK, II and HILL, JJ.
   OPINION

HILL, Justice.

Sherida Dent appeals from her divorce judgment, urging in her sole point of error that the trial court erred in characterizing the proceeds of an insurance policy as the separate property of her husband, Douglas Dent.

We reverse and remand, because we find that the proceeds of the insurance policy are community property.

The parties stipulated that during the marriage Douglas purchased a life insurance policy insuring the life of his father, C.W. Dent. All premiums on the policy were paid with community funds. The father died prior to the divorce hearing. The trial court characterized the proceeds of the policy as Douglas’ separate property, presuming a gift of the proceeds to have been intended and completed by the death of the insured.

Ordinarily, the proceeds of life insurance purchased with community funds are community property. Brown v. Lee, 371 S.W.2d 694 (Tex.1963). The proceeds of life insurance policies purchased during the marriage on the life of a third person with one of the spouses named as the beneficiary are community property. Hickson v. Herrmann, 77 N.M. 683, 427 P.2d 36 (1967); G. MCKAY, COMMUNITY PROPERTY sec. 487 (2nd ed. 1925); W. DE FUNIAK & M. VAUGHN, PRINCIPLES OF COMMUNITY PROPERTY sec. 79, at 193 (2nd ed. 1971). Douglas bases his claim to the proceeds as his separate property on the exception to the rule as expressed in Brown, to the effect that where the named beneficiary is surviving, a gift of the policy rights to the beneficiary is presumed to have been intended and completed by the death of the insured. Brown v. Lee, 371 S.W.2d at 696. Douglas maintains that since he is a surviving beneficiary, the property became his separate property upon the death of his father, the insured.

We do not find the exception to be applicable in this case because the facts of this case do not justify any presumption of a gift by Sherida of her community interest in the proceeds to Douglas. A husband lacks the authority to give his wife’s interest to himself. See Martin v. Moran, 11 Tex.Civ.App. 509, 32 S.W. 904 (1895, no writ).

A close reading of the case of Brown v. Lee reveals that the rule relied on by Douglas is the rule which is applicable when the insured and beneficiary are husband and wife and the insured has died, leaving the beneficiary as the survivor. In such a case, the courts presume an intention on the part of the deceased to give the benefit of the insurance proceeds to the surviving spouse, a reasonable presumption with just results under those facts. We believe that in the case of such policies, it is natural to assume that a spouse would leave his or her community interest in the property to the surviving spouse. We see no reason under the facts of this case to presume such an intent.

Douglas also relies on the case of Alexander v. Alexander, 410 S.W.2d 275 (Tex.Civ.App.—Houston 1966, no writ). He cites the case as authority for his position that the named beneficiary of a life policy is entitled to receive the proceeds of the policy regardless of the classification of the funds used to purchase the policy. The case actually is authority for the proposition that the named surviving beneficiary is not entitled, as a matter of law, to the proceeds of the policy. The court in Alexander reversed a summary judgment granted by the trial court in favor of the named beneficiary in a suit brought by the deceased’s wife to recover the proceeds of two life insurance policies.

We do not take issue with the holding of the court in Davis v. Tennessee Life Ins. Co., 562 S.W.2d 868 (Tex.Civ.App.—Houston [1st Dist.] 1978, writ ref’d n.r.e.), another case cited by Douglas. This case appears to be a restatement of a line of authority which authorizes a spouse to make arrangements for family members whom they are under a moral obligation to support. The court in Davis held that a wife was not entitled to any portion of a life policy in which the deceased husband had named his mother as the beneficiary. Douglas cites no case which would authorize his providing for himself in this manner.

The case of Pope Photo Records, Inc. v. Malone, 539 S.W.2d 224 (Tex.Civ.App.—Amarillo 1976, no writ), the final case cited by Douglas, involved a creditor of a husband and wife who sought to collect its debt from the proceeds of the husband’s life policy payable to the wife as beneficiary. The creditor asserted that the implied gift to the wife was void under the provisions of TEX.BUS. & COM.CODE ANN. sec. 24.03 (Vernon 1968), which voids gifts as to an existing creditor unless the debtor has enough property in this state at the time of the transfer subject to execution to pay all of the existing debts. The court rejected the creditor’s contention, holding that the controlling date of the transfer was the date of beneficiary designation, and there was no evidence that the husband and wife were insolvent on or before the date the wife was designated beneficiary. We do not find this case to be helpful in determining the question in this case as to the characterization of the proceeds of a policy on the life of a third person with one of the spouses as beneficiary.

Douglas cites no case involving such a policy which would hold that the proceeds become the separate property of the beneficiary spouse.

In view of the recent holding of the Supreme Court in Jacobs v. Jacobs, 687 S.W.2d 731 (Tex.1985), in which the Supreme Court held that a remand may not be ordered only as to a specific portion of the property, we reverse and remand so that the trial court may make a just and equitable division of the property in accordance with this opinion.


author: HOWERTON, Judge.

text:
    OWEN COUNTY RURAL ELECTRIC COOPERATIVE CORPORATION, Appellant, v. PUBLIC SERVICE COMMISSION OF KENTUCKY, Campbell County Fiscal Court, Consolidated Foods Corporation, and the Union Light, Heat and Power Company, Appellees.
    Court of Appeals of Kentucky.
    Jan. 4, 1985.
    Discretionary Review Denied and Opinion Ordered Published by Supreme Court June 5, 1985.

      William M. Sawyer, Frankfort, for appel-lee, P.S.C.
    Beverly Storm, A.J. Jolly, Jolly & Blau, Newport, for appellee, Campbell Co. Fiscal Court.
    Joseph J. Leary, Frankfort, for appellee, Consolidated Foods Corp.
    James R. Poston, James J. Mayer, Cincinnati, Robert E. Ruberg, O’Hara, Ruberg & Taylor, Covington, for appellee, Union Light Heat & Power Co.
    Robert M. Watt, III, Stoll, Keenon & Park, Lexington, for appellant.
    Eugene N. Buehheit, Louisville, James M. Miller, Lizbeth Ann Tully, Holbrook, Gary, Wible & Sullivan, P.S.C., Owensboro, for amicus curiae, Ky. Assoc, of Elec. Coop.
    Before HOWERTON, MILLER and WHITE, JJ.
   HOWERTON, Judge.

Owen County Rural Electric Cooperative Corporation (RECC) appeals from a judgment of the Franklin Circuit Court affirming an order of the Public Service Commission (PSC) which allowed Union Light, Heat and Power Company (ULH & P) to invade or take approximately 40 acres of the RECC’s certified, but undeveloped territory. The RECC argues that the PSC and the Franklin Circuit Court improperly interpreted the certified territory statutes, KRS 278.016-278.020. It also alleges that the PSC improperly failed to follow its own precedents and that the order and judgment violated the U.S. and Kentucky Constitutions by failing to award compensation for the confiscation of its territorial rights. We determine that the PSC made adequate findings of fact which were appropriately applied to the statutes. Accordingly, we affirm the order and judgment.

The Campbell County Fiscal Court (Campbell County) initiated this action by petitioning the commission to authorize ULH & P to supply retail electric service to an industrial park consisting of approximately 77 acres and located adjacent to U.S. Highway 27 in the southern part of Campbell County. ULH & P, the RECC, and Consolidated Foods Corporation (Consolidated) were named as respondents. Consolidated was to be the first tenant in the industrial park, and it, together with ULH & P, filed a response in support of the petition. The RECC responded by pointing out that Consolidated would be in a portion of the park, which presently lies within its certified territory, and that it had the exclusive right to serve the facility.

The certified territories were established pursuant to legislation passed in 1972. KRS 278.016 reads in part that it is:

... in the public interest that, in order ... to avoid wasteful duplication of distribution facilities, to avoid unnecessary encumbering of the landscape ... to prevent the waste of materials and natural resources ... the state be divided into geographical areas, establishing the areas within which each retail electric supplier is to provide the retail electric service as provided in KRS 278.016 to 278.-020....

The boundary between ULH & P and the RECC runs through the middle of the industrial park. The certified territory of ULH & P encompasses all of parcels 1 and 2, and part of parcel 3 of the industrial park. The RECC’s territory encompasses all of parcel 4 and the remainder of parcel 3. Consolidated’s new facility will be located primarily in parcel 4, but its office building will be in parcel 2.

KRS 278.018(1) provides in part, “[i]n the event that a new electric-consuming facility should locate in two or more adjacent certified territories, the commission shall determine which retail electric supplier shall serve said facility based on criteria in KRS 278.017(3).” The criteria set forth in KRS 278.017(3) are:

(a) The proximity of existing distribution lines to such certified territory.
(b) Which supplier was first furnishing retail electric service, and the age of existing facilities in the area.
(c) The adequacy and dependability of existing distribution lines to provide dependable, high quality retail electric service at reasonable costs.
(d) The elimination and prevention of duplication of electric lines and facilities supplying such territory.

The PSC considered the entire industrial park to be an electric-consuming facility which could best be served by one supplier. It found that the park required three-phase electric service, and in applying criterion (a), it found that ULH & P has an existing three-phase, 13.2 KV primary service line on U.S. 27 adjacent to the western boundary of the park. The entrance to the park and its service road connect to U.S. 27. It further found that the RECC has a single-phase 7.2 KV distribution line located just beyond the eastern border of the park and intersecting with the northeast corner of parcel 4. The nearest RECC three-phase distribution line is 2.25 miles south of the park.

In considering criterion (b), the PSC found that the park was part of an 87-acre tract of land previously owned by a family named Trapp. ULH & P has supplied electric service to the Trapp family farm for many years. The RECC has never provided retail electric service to any portion of this tract of land.

Criterion (c) was analyzed in light of the park’s need for three-phase electric service. ULH & P has an existing distribution line which can adequately supply the electrical needs of the park without any additional construction, except for establishing the service within the park territory. Its line is located along U.S. 27, which will facilitate its ability to repair outages. The RECC’s line follows a five-mile route through hilly, wooded terrain. The approval of ULH & P to service the industrial park clearly meets KRS 278.017(3)(d) in that it eliminates and prevents the duplication of electric lines and facilities supplying the territory.

The Franklin Circuit Court affirmed the ruling of the PSC and held that what is necessary for the public’s convenience remains the bedrock on which all utility regulation in Kentucky is founded. It further concluded that the PSC had complied with the statute and that its ruling attempted to avoid wasteful duplication, the disturbance of the landscape, and the waste of materials and natural resources.

The RECC first argues that the PSC and the Franklin Circuit Court improperly interpreted the certified territory statutes. The basis for this allegation is that the PSC interpreted the meaning of a new electric-consuming facility to encompass the entire industrial park. KRS 278.010(8) provides, “ ‘Electric-consuming facilities’ means everything that utilizes electric energy from a central station source.”

The definition does not limit a facility to being a building. The definition is broad enough for the PSC to reasonably interpret it to mean the entire industrial park, which will be served from the central station source. The plot plan of the industrial park reveals that ULH & P is to establish its service entrance, metering and transforming equipment for the park on parcel number 2 approximately 1000 feet from the park entrance on U.S. Highway 27.

The RECC cites cases from other jurisdictions, which generally limit the territorial considerations to serving individual buildings. We find none of the cases to be dispositive of this situation, either on their facts or the statutes applicable to the various states. No Kentucky court has yet ruled on the application of the Kentucky statutes, and especially in a comparable fact situation.

We are concerned with what can be an electric-consuming facility, rather than merely who may be a consumer, as urged by the RECC. We conclude that the PSC appropriately determined that the entire park could be classified as an electric-consuming facility, even though the park operator or developer may purchase and consume very little electricity and be only one of several actual consumers within the park.

After determining that KRS 278.018 w°as applicable, the PSC correctly applied the facts in this case to the criteria set out in KRS 278.017(3). The decision to modify the boundary line and include the park in the territory of ULH & P avoided duplication, and it conserved resources and materials, as well as site space within the park. The lines will be located on the right-of-way adjacent to the service road, which is the only road going to Consolidated’s facility on parcel 4 or to any of the areas within the park. The equipment is also to be located adjacent to the service road, and no other lines and facilities for high-voltage transmission need be established over the industrial sites. The PSC has fulfilled the intent of the statutes in resolving this case.

The RECC next claims that the PSC’s interpretation of the certified territorial statutes is contrary to its previous rulings. In support of this argument, it cites Berea College Electric Department v. Bluegrass Rural Electric Cooperative Corp., PSC Case No. 5773, and Jellico Electric System v. Cumberland Valley Rural Electric Cooperative Corp., PSC Case No. 6637. It also cites Secretary of Agriculture v. U.S., 347 U.S. 645, 74 S.Ct. 826, 98 L.Ed. 1015 (1954), and Ohio Fast Freight, Inc. v. U.S., 574 F.2d 319 (6th Cir.1978), for the proposition that an administrative agency may not depart from its prior norms without giving reasons. The RECC argues that this case involves an extreme departure from the precedents of the prior cases and that the PSC gave no explanation.

The Jellico case is not proper for citing, CR 76.28(4)(c), and the Berea College case is distinguishable. It did not require an application of KRS 278.017 and 278.018. The Berea College case merely held that a customer may not choose its electrical supplier by a unilateral placement of a meter.

The RECC finally argues that the order of the PSC and the circuit court violated its constitutional rights by confiscating a valuable property right without just compensation. The RECC did establish that its territorial rights are valuable, but we decline to require an award of compensation for two reasons. First of all, the RECC had never developed anything in the territory and had made no investment. ULH & P is taking no equipment or current income from the RECC. If it was taking either of those items, it would have to pay for them. The second and primary reason that no compensation is due is that KRS 278.018 provides an exception for modifying territorial boundaries. The PSC acted within the statutory procedures and criteria. The PSC established the original line as it was required to do, and it properly modified the boundary before the RECC made any investment in the territory. No compensable property or property rights were taken in this instance.

We acknowledge the filing of a brief by the amicus curiae, Kentucky Association of Electric Cooperatives, in support of the RECC’s position. In addition to reiterating the RECC’s arguments, the KAEC brief primarily argues that the prevention of duplication of facilities is not a major goal of the certified territorial statutes. It contends that the PSC and the Franklin Circuit Court relied too heavily on this factor. The KAEC also argues that territorial lines should not be changeable in order to minimize disputes. While some disputes may be minimized by an inflexible application of the statutes, other disputes will surely arise. Furthermore, there are several goals of the statute, and we find no error in those considered by the PSC. The statute’s reference to minimizing disputes does not anticipate that disputes will be totally eliminated by any interpretation or application of the statutes.

The PSC is the trier of fact, and our court’s scope of review is limited. American District Telephone Co. v. Utility Regulatory Commission, Ky.App., 619 S.W.2d 504 (1981). We find no clear error in any of the findings by the commission, and we concur with the applications it made of the statutes.

The judgment of the Franklin Circuit Court affirming the order of the Public Service Commission is affirmed.

All concur.


author: CLAYTON, Judge.

text:
    Jim GREENE and W. Ray Anderson, Appellants, v. J.D. COFFEY and Lois Coffey; Samuel Rice, Pat Rice, Joe David Brown, and Linda M. Brown, Individually, and d/b/a Poor House Farm, a Kentucky General Partnership, Appellees.
    Court of Appeals of Kentucky.
    Feb. 15, 1985.
    Rehearing Denied April 5, 1985.
    Discretionary Review Denied and Opinion Ordered Published by Supreme Court June 4, 1985.

      William Colvin, Greensburg, Patricia Ann Thomas, Burkesville, for appellants.
    John S. Cary, R. Fred Capps, Law Offices of John Sam Cary, Burkesville, for appellees.
    Before CLAYTON, COOPER and HOW-ERTON, JJ.
   CLAYTON, Judge.

This is an appeal from a summary judgment of the Cumberland Circuit Court by Jim Greene and W. Ray Anderson as lessees under an oil and gas lease determined by the trial court to have expired of its own terms as of midnight, October 23, 1982. Greene and Anderson argue that the trial court erred in entering such judgment as genuine issues of material fact existed. The record is uncontroverted as to the material facts. As a matter of law, however, we conclude that the lessor-property owners, the Coffeys, Rices, and Browns, were not entitled to summary judgment. Given the definition of “production” found in Hutchinson v. Schneeberger, Ky., 374 S.W.2d 483 (1964), Greene and Anderson’s well hole number one was under production on the final day of the primary term of the lease so as to prevent its expiration. Accordingly, the judgment of the Cumberland Circuit Court is reversed with instructions that summary judgment be entered in the appellants’ behalf as to the question of the expiration of the lease with further proceedings to be had on the appellants’ counterclaim.

The material facts are neither complex nor controverted. Greene acquired his interest in the lease in August of 1982 from the original lessee, a Texas corporation. Anderson subsequently purchased a working interest from Greene in the early months of 1983. The proper drilling permits were acquired and a first well hole was sunk in mid-August of 1982. On August 31, 1982, some 40 barrels of oil were then removed from the hole and sold to Oil Purchasing, Inc. of Albany, Kentucky. Due to mechanical and financial difficulties, no further oil was pumped from the well hole until March of 1983, approximately five months after the October 23, 1982, expiration date found in the parties’ lease. The appellants continued to remove oil from the well until November 19, 1983, removing in total some $8,220 worth of oil.

The lease upon which this controversy centers is a standard form oil and gas lease. Contained in the body of the lease is a printed habendum clause providing for a one-year primary term of duration from October 23, 1981, “and as long thereafter as oil or gas, or either of them, is produced from said land by the lessee.” At the bottom of the lease, the following typewritten language has been inserted,

In the event the lessee does not have production at the expiration of the primary term, the lease may be extended for an additional year upon payment of $15,000 rental.

The appellees maintain that this language expresses the intent of the lessors that the lessees actually be pumping oil from the well on October 23, 1982, in order to continue the term of the lease absent a $15,000 payment. To interpret the inserted language otherwise would supposedly do nothing more than erroneously equate it with the printed language of the standard habendum clause mentioned above. In the appellees’ view, the critical language is the phrase “at the expiration of the primary term,” which under Thompson v. Fairleigh, 300 Ky. 144, 187 S.W.2d 812 (1945), they interpret as requiring production on the final day of the primary term of the lease, October 23, 1982.

We have no misgivings about the appel-lees’ argument as to the critical date for production; it is persuasive and well written. However, an unstated, but important question is left unanswered. Specifically, “what acts, operations or conditions constituted ‘production’ on October 23, 1982?” On this question, the lease is silent. The deposition of the original lessor, J.D. Coffey, gives no indication of what he intended to constitute production on October 23. Although he apparently intended that there be production on that date, he gives no clear indication of what he or the original parties exactly intended that term to signify. The appellees’ brief apparently defines the term to mean the pumping of oil from the well hole into a storage tank. Hutchinson, however, indicates to us that this definition of production is far too narrow, absent some contrary expression of intention by the parties as found in the body of the lease. Under Hutchinson, “production” is broadly defined to include not only its obvious denotation, the pumping of oil, but also the discovery of oil during the initial term of the lease coupled with the exploitation and removal of the discovered oil within a reasonable time thereafter. Id. at 486-87.

The facts in Hutchinson are strikingly similar to those of the present appeal. In Hutchinson, the lessee held a leasehold interest for oil and gas exploration, under a lease providing for a fixed term of duration for two years, expiring on December 9, 1957, unless, in the language of the standard habendum clause, “and as long thereafter as oil or gas, or either of them, is produced from said land by the lessee.” In November of 1957, the lessee discovered oil at the 150 foot level in “Maxam Sand,” but instead of removing the oil, he elected to drill deeper into “Weir Sand.” With the onset of winter, the lessee shut down operations until June of 1958 at which time he began pumping oil from the “Maxam Sand” at a rate of three barrels a day.

Kentucky’s highest court was then faced with, in its own words, the question of “whether there was production within the intent of the lease on December 9, 1957, the date on which the term expired unless there was production.” Id. at 486. After discussing the above facts, the Court determined:

... that as a matter of public policy which looks to the facilitation of development work in oil, gas, and other minerals, a lessee who in good faith is prosecuting work for development [of the discovered oil] with reasonable diligence will be protected against cancellation of his lease. We therefore hold that there was production under the provisions of the lease and within the intention of the parties and the lessee in good faith was prosecuting work for development with reasonable diligence, (citations omitted). Id. at 487.

Appellees contend that Hutchinson, supra, is inapplicable since it deals only with the language of the printed habendum clause and does not address the situation of a specially inserted clause such as the one presently involved. However, we note that both the standard habendum clause and the parties’ inserted typewritten clause use the term “production” when discussing the expiration of the lease. It is also argued that applying Hutchinson to the present appeal does nothing more than equate the language of the parties’ inserted clause with that of the printed habendum clause. We disagree. The typewritten clause affords the lessors the benefit of receiving $15,000 for a single term, one-year extension of the oil and gas lease in the event that the lessees had failed to discover and exploit any oil. Absent this inserted language, the lease would have automatically expired on October 23, 1982, had there been no oil discovered and exploited. Thus, the typewritten clause is not rendered mere sur-plusage by our application of Hutchinson, supra. Indeed, to have adopted the appel-lees’ view would have meant that even had Greene and Anderson been pumping 100 barrels of oil a day from the well during the entire duration of the lease, they still would have lost their leasehold interest, absent a $15,000 payment, had oil not been flowing on October 23, 1982. Under the appellees’ interpretation, a single mechanical failure could have stripped the appellants of their interest had it happened to have fallen on the wrong day.

We do not believe such an unusual and harsh construction of the inserted language is warranted either by the language of the lease or by the parties’ expression of intention. Moreover, such an interpretation “flies directly in the face” of Hutchinson and the public policy as expressed by it. Absent a clear expression of intent by the parties to adopt such a restrictive construction, we are bound by Hutchinson, supra, to conclude that production as expressed under the language of the lease was in effect on October 23, 1982.

Accordingly, we reverse the judgment of the Cumberland Circuit Court with instructions that a summary judgment be entered in the appellants’ behalf as to the issue of the expiration of the lease with further proceedings to be had on the issues raised by the appellants’ counterclaim.

All concur.


author: HOWERTON, Judge. COMBS, Judge,

text:
    RABBITT HASH IRON WORKS, INC., and Uninsured Employers’ Fund, Appellants, v. Ronald E. STRUBEL, Commonwealth of Kentucky, Department of Labor, Workers’ Compensation Board, Appellees. and UNINSURED EMPLOYERS’ FUND and Rabbitt Hash Iron Works, Inc., Appellants, v. Ronald E. STRUBEL and Commonwealth of Kentucky, Department of Labor, Workers’ Compensation Board, Appellees.
    Court of Appeals of Kentucky.
    March 1, 1985.
    Discretionary Review Denied and Opinion ordered Published by Supreme Court May 15, 1985.

      Donald Roney, Asst. Atty. Gen., Paul Rehm, Asst. Atty. Gen., Frankfort, for appellant, Uninsured Employer’s Fund.
    Nick Benson, Walton, for appellant, Rab-bitt Hash Iron Works.
    Michael McMain, Florence, for appellee, Strubel.
    Before COMBS, HOWERTON and LESTER, JJ.
   HOWERTON, Judge.

The Iron Works and the Uninsured Employers’ Fund filed separate appeals from a judgment of the Boone Circuit Court affirming an opinion and award of the Workers’ Compensation Board which granted Strubel benefits for permanent, partial disability. The two appeals involve the same issue and have been consolidated for our decision. The sole issue is whether the board erred in determining that Strubel’s injury was work related under the principles enunciated in W.R. Grace & Co. v. Payne, Ky., 501 S.W.2d 252 (1973). We conclude that the law was incorrectly applied to the facts in this case and reverse and remand the case for further proceedings.

Strubel was employed by Rabbitt Hash Iron Works, Inc., to perform general maintenance, carpentry and mechanical duties. He had no set hours for working, and he was not required to work any minimum number of hours. Instead, he was paid only for the time it took him to perform whatever work was assigned to him. Stru-bel testified that he was paid only for that time during which he was actually working for the iron works and that he received no compensation for time which he spent on the employer’s premises waiting for work to be assigned to him. During these off-duty times, however, he was permitted to use the company’s equipment for personal tasks such as building bird houses or, as he was doing in this case, constructing a stool for his home.

His injury occurred on January 22, 1982, when he severely cut two fingers on his right hand while working with a cable saw. There is no dispute about the fact that he was using the saw for his personal benefit to make a stool for his wife and that he was not being paid by the company during the time he was involved in this activity. He filed his claim for benefits, and the Uninsured Employers’ Fund was joined, as the employer had not yet secured compensation insurance. The board determined that Strubel’s injury was work related under the holding in W.R. Grace & Co., supra. The employer and the fund appealed to the Boone Circuit Court, which concluded that the board had made no errors of fact or law. It affirmed the award.

Our review of the record indicates that the findings of fact determined by the board are supported by substantial evidence. Some of the factual issues were in dispute, but we will accept the findings of the board and must therefore base our decision upon whether the board properly applied the law to the facts.

All parties agree that the guidelines set forth in W.R. Grace & Co., supra, provide the proper test for determining the work relatedness of Strubel’s injury. Injuries are held to be work related and com-pensable if: (1) the injury occurred during working hours, (2) the injury occurred on the employer’s premises, (8) the injury occurred during a period in which there was a lull in the work to be performed for the employer, and (4) the employer had acquiesced in the employee’s use of his tools during such periods. We conclude that the board and trial court erred as a matter of law in determining that Strubel’s injury was work related and compensable under the facts in this case.

The primary missing element is that the injury did not occur during work hours. In reaching this conclusion, we rely upon the guidance to be found in 1A Larson, Workmen’s Compensation Law, § 27.31(b) (1984), which also served as the source of much of the court’s reasoning in W.R. Grace & Co., supra, at 253. Along with setting forth the four-pronged test of work relatedness, that treatise also indicates that each of these four elements must be present to establish liability and, more importantly, it states that purely personal work done after hours on the employer’s premises cannot be work related.

Strubel’s own testimony established that he was paid only for that time when he actually performed tasks for the benefit of his employer. On the day of the accident, this amounted to approximately 20 minutes of general maintenance work. Having completed that task, Strubel chose to remain on the premises to engage in personal activities for which he knew he would not be compensated. Unlike the situation in W.R. Grace & Co., supra, where the claimant was injured during his normal, set work hours but during a lull period for which he was being paid, Strubel was off duty, off the payroll, and working solely for his own benefit.

The judgment of the Boone Circuit Court is reversed, and this case is remanded for entry of an order consistent with this opinion.

LESTER, J., concurs.

COMBS, J., dissents with separate opinion.

COMBS, Judge,

dissenting.

I respectfully dissent from the majority. The facts in this case are basically the same as those in the case of W.R. Grace & Co. v. Payne, Ky., 501 S.W.2d 252 (1973). The finding of the Board and the ruling of the trial court are in accordance with the principles which were so succinctly stated by that court, wherein it was said:

We are persuaded by the reasoning of those decisions which allow coverage under facts such as are presented here, i.e., the activity occurs on the employer’s premises, during work hours, is a common practice in which the employer acquiesces, and fills a slack-time period. We believe an accident occurring in such circumstances has sufficient employment connection to be considered to arise out of the employment.

For that reason I would affirm the action of the Board and the trial court.


author: LESTER, Judge.

text:
    Mayme Marie Riley WYNN, Appellant, v. George WYNN and His Wife, Smarie Wynn, Appellees.
    Court of Appeals of Kentucky.
    March 8, 1985.
    Discretionary Review Denied and Opinion Ordered Published by Supreme Court June 5, 1985.

      Larry H. York, App. Res. & Def. Fund, Somerset, for appellant.
    Joseph E. Lambert, Lambert & Lambert, Mount Vernon, for appellees.
    Before HOWARD, LESTER and WHITE, JJ.
   LESTER, Judge.

This is an appeal by the natural mother of an infant from a judgment granting custody of the child to his paternal grandparents.

This case involves the custody of Jimmy Wynn who is now thirteen years old, and is the son of Elijah Wynn and the appellant Mayme Wynn. Elijah and Mayme were separated from August of 1972, when Jimmy was about a year old, until the divorce, which became final in 1977, granting Elijah custody. Jimmy spent the first three years of his life with his mother and her two sons-by a previous marriage. Since 1974, he has resided in Rockcastle County with his father and the appellee grandparents.

In September 1982, Elijah died in an automobile accident. His parents immediately took Jimmy into their home and instigated this action to be granted permanent custody of their grandchild. Mayme responded demanding that she be awarded custody pursuant to KRS 405.020(1) which provides:

The father and mother shall have the joint custody, nurture and education of their children who are under the age of eighteen. If either of the parents dies, the survivor, if suited to the trust, shall have the custody, nurture and education of the children who are under the age of eighteen. The father shall be primarily liable for the nurture and education of his children who are under the age of eighteen.

The trial court, in interpreting the above section, looked to the numerous cases applying KRS 405.020(1) and cited McDaniel v. Garrett, Ky.App., 661 S.W.2d 789 (1983), in finding that the appellant was not “suited to the trust.”

McDaniel, supra, set out the following factors to be used by the court in determining “suitability” of the parent for custody of the child. Those standards included:

moral fitness and habits, surroundings, age, financial ability, interest and affection for the child, and any circumstances, which would be prejudicial to the best interests of the child, including breaking up of ... present relations... McDaniel, supra, 661 S.W.2d at 790.

The trial court rendered what we consider to be a thoughtful and well-reasoned decision in this ease. Considering the applicable factors, the court below concluded that the removal of Jimmy from his present home, where he has almost exclusively resided since he was two years of age, would be prejudicial to his best interests. While it is not within the province of this Court to make findings of fact, we note that several of the factors identified in McDaniel, supra, favor granting custody to the grandparents.

It cannot be disputed that the mother did not see her child for two and one-half years prior to the appellees’ filing of this petition. Regardless of any explanation for this absence, we agree with the trial court that the separation would have some effect on the relationship and could be properly considered as one of the factors in the determination of suitability.

The trial judge heard all of the evidence, judged the credibility of the witnesses, considered reports of case workers and interviewed the child. On appeal, his findings of fact will not be disturbed unless they are clearly erroneous. Combs v. Combs, Ky., 471 S.W.2d 715 (1971). Such is not the case here as the record supports the findings and judgment below.

The judgment of the Rockcastle Circuit Court is affirmed.

All concur.


author: COOPER, Judge.

text:
    John Calhoun WELLS, Secretary, Labor Cabinet (Special Fund), Appellant, v. Hagan DAVIDSON, Martin’s Department Store and Workers’ Compensation Board, Appellees. MARTIN’S DEPARTMENT STORE, Appellant, v. Hagan DAVIDSON and Workers’ Compensation Board, Appellees.
    Court of Appeals of Kentucky.
    April 5, 1985.
    Discretionary Review Denied and Opinion Ordered Published by Supreme Court June 4, 1985.
    Cyril Shadowen, Labor Cabinet, Louisville, for Special Fund.
    Alva A. Hollon, Jr., Hazard, for Davidson.
    A.P. Gullett, III, Hazard, for Martin’s.
    Before HAYES, C.J., and COOPER and GUDGEL, JJ.
   COOPER, Judge.

These are separate, consolidated appeals from an order of the circuit court affirming an opinion and award of the Workers’ Compensation Board. That opinion found the appellee/employee to be permanently and totally disabled, and assessed all liability for his disability against the appellant, The Special Fund. On appeal, the principal issue is whether the circuit court acted correctly in ruling that the opinion and award was supported by substantial evidence of probative value and in accordance with the provisions of KRS Chapter 342. In a separate appeal, the appellant/employer argues that the Board erred in ordering it liable for all of the appellee’s present and future medical expenses. Reviewing the record below, we reverse and remand.

The facts relative to this action are as follows: On September 9, 1980, the appel-lee, Hagan Davidson, experienced pain in his lower back during the course and scope of his employment as an appliance salesman with the appellant, Martin’s Department Store (hereinafter Martin’s). The ap-pellee continued working until September 21, at which time he was hospitalized. He was subsequently diagnosed as suffering from multiple myeloma, a form of cancer.

Subsequent to a hearing and the presentation of evidence, the Board ruled that the appellee was totally, occupationally disabled and that such was attributable to the arousal into disabling reality of a dormant, non-disabling disease or condition. KRS 342.120. Specifically, it ruled that the ap-pellee’s myeloma was “aroused or brought into disabling reality by reason of the injury at work ...” It assessed all liability for such injury against the Special Fund. It is from this opinion and award that the appellant now appeals.

As stated by the circuit court, the issue before this Court is whether the Board erred in ruling that there was substantial evidence to support a finding that the ap-pellee’s myeloma was a disease or condition aroused into disabling reality as a result of the work-related event of September 9, 1980.

The relevant medical testimony presented to the Board was as follows: Dr. Claude Farley, the internist who had treated the appellee since February of 1981, diagnosed his condition as multiple myeloma, defining it as follows:

... a malignancy of a kind of blood cell that we call a plasma cell. The malignant cell itself is a derivative of that plasma cell. It involves the bone marrow, the cortical bone itself, and as a result of being able to produce an abnormal protein, as that protein collects in the body damage to internal organs can occur, specifically the kidneys are a sensitive organ sensitive to that protein.

In attempting to characterize or define a causal relationship between the appellee’s disability and the work-related event of September 9, Dr. Farley stated, in part, as follows:

Well, what I think happened, in looking back over this material, particularly in review of the initial history that we got, the accident probably brought to the fore the existence of this multiple myeloma.

Similarly, Dr. Vernon Humbert, an internist who also diagnosed the appellee’s condition as multiple myeloma, testified that the injury of September 9, merely brought out or made clinically apparent a pre-exist-ing condition:

Q. Prior to the injury event and while Mr. Davidson was working and going about the regular duties of his employment, I suppose that the disease could be classified as a dormant, non-disabling, pre-existing disease condition.
A. He may very well had no symptoms at all from this disease for years before it became apparent.
Q. Would it be your opinion then that the injury event aroused it into disabling reality?
A. If making it clinically apparent is arousing it to disabling reality then yes.

A Board-appointed physician, Dr. O.M. Patrick, testified that in his opinion the appellee’s myeloma was not aroused into disabling reality by the injury of September 9. And, Dr. Kooros Sajadi, an orthopedic surgeon who examined the appellee in October of 1980, diagnosed the appellee as having a 5-10 percent functional impairment to the body as a whole, 5 percent of this disability attributable to the injury of September 9, and 22 percent attributable to the arousal into disabling reality of a preexisting dormant arthritic condition.

In reviewing the medical evidence presented to the Board, it is evident to this Court that there was an absence of substantial evidence to support a finding that the appellee’s disability was attributable to the arousal into disabling reality of a dormant, non-disabling disease or condition. KRS 342.120. On the contrary, the testimonies of Dr. Farley and Dr. Humbert clearly established that although the appel-lee’s myeloma was discovered, or made clinically apparent as the result of the work-related injury, there was no causal connection between the injury and the mye-loma.

In his treatise, Professor Larson states in The Law of Workmen’s Compensation, § 12.21 as follows:

Preexisting disease or infirmity of the employee does not disqualify a claim under the “arising out of employment” requirement if the employment aggravated, accelerated, or combined with the disease or infirmity to produce the death or disability for which compensation is sought.

On the specific problem of finding a causal relationship between a work-related injury and specific types of cancer, Professor Larson states as follows in § 12.24:

Since the rule of law stated at the beginning of this section is so widely accepted, in practice most of the problems in this area are medical rather than legal. Indeed, it is medical controversy that chiefly accounts for the large number of cases in this category. The relation between exertion and coronary thrombosis is a familiar example, with many doctors asserting that there is no connection between the two, and that the man who allegedly suffered a coronary from exertion could just as well have suffered it at home in bed. Similarly, there is controversy on the relation between trauma and the causing or spreading of cancer. Thus, Dr. Carroll J. Beilis has written that “[tjrauma as an inciting or aggravating mechanism does not have a place in cancer development, and schooled pathologists do not include injury as a mechanism by which cancer is initiated or stimulated. It will be found, then, that denials of compensation in this category are almost entirely the result of holdings that the evidence did not support a finding that the employment contributed to the final result.

Although some courts in other jurisdictions have upheld a finding of causation between a specific cancer and a work-related injury, such decisions seem to have been predicated on the fact that the cancer was aggravated by the injury. See Potenza v. United Terminals, Inc., 524 F.2d 1136 (2nd Cir.1975); Parks v. Sheller—Globe Corp., Hardy Div., 177 Ind.App. 498, 380 N.E.2d 110 (1978). Conversely, absent such a finding of aggravation or arousal, the trend of decisions in other jurisdictions has been to deny an award when the cancer is merely exposed by the trauma and is not a dormant condition rendered active by it. See Kress v. City of Newark, 8 N.J. 562, 86 A.2d 185 (1952). In effect, such courts have held that if the injury does not aggravate a pre-existing condition but merely exposes its existence, compensation is not allowed. See Senvisky v. Truscon Steel Div. of Republic Steel Corp., 168 Ohio St. 523, 156 N.E.2d 724 (1959).

In construing the language of the Workers’ Compensation Act prior to the creation of the Special Fund, the courts in this jurisdiction have allowed an award of compensation to lie if a subsequent injury merely “lighted up” a dormant pre-existing condition. See Robinson-Pettet Co. v. Workmen’s Compensation Bd., 201 Ky. 719, 258 S.W. 318 (1924); American Rolling Mill Co. v. Stevens, 290 Ky. 16, 160 S.W.2d 355 (1941). Yet, from the language of such decisions, it is evident that the Courts were using the expression “lighten up” to mean aggravation, rather than mere exposure. Cf. Old King Mining Co. v. Mullins, Ky., 252 S.W.2d 871 (1952).

Given Dr. Farley’s definition of multiple myeloma — a malignancy derivative of the plasma cells in the bone marrow — as well as his statement and that of Dr. Humbert that the work-related event merely brought to the fore or made clinically apparent the underlying myeloma — we find that the circuit court erred in affirming the opinion and award of the Board. Although a different physician may have testified that the injury aggravated or aroused the existing myeloma into disability reality, such is not the case herein, notwithstanding the form of question posed to the physicians and their answers.

Although the appellee relies on the decision of the Court in Yocom v. Gibbs, Ky., 525 S.W.2d 744 (1975), such reliance is misplaced. There, the Court merely held that under the language of KRS 342.120, as amended in 1972, spondylolisthesis could be considered a compensable condition; it did not reach the issue of whether the discovery of the disease, as a result of a subsequent work-related injury, would constitute arousal under the language of the statute.

More on point is the decision of the Court in Young v. McDonald, Ky., 481 S.W.2d 41 (1972). There, an employee’s claim for benefits as a result of pre-existing coronary atherosclerosis was denied, notwithstanding the fact that strenuous activity at work caused his heart disease to become symptomatic or clinically apparent. The Court ruled that if the disability is not caused by a work-related event, or caused by the work itself, it is noncompensable.

The order of the circuit court is reversed, with directions that it enter an order directing the Board to vacate its opinion and award of August 8, 1983, and to dismiss the appellee’s claim. Given this ruling, the issue raised by Martin’s is moot.

All concur.


author: McDONALD, Judge:

text:
    Michael KEITH, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    April 12, 1985.
    Discretionary Review Denied and Opinion Ordered Published by Supreme Court June 4, 1985.

      Christopher P. Rivers, Appellate Public Advocate, Louisville, for appellant.
    David L. Armstrong, Atty. Gen., Susan Guss, Asst. Atty. Gen., Frankfort, for ap-pellee.
    Before COMBS, McDONALD and WIL-HOIT, JJ.
   McDONALD, Judge:

This is an appeal from the order of the Perry Circuit Court revoking the appellant’s probation and sentencing him to serve eight years in the state reformatory. In March, 1983, Michael Keith, the appellant, was indicted and charged with the attempted murder of a female companion and the theft of her automobile. Keith had a history of hospitalization for mental illness, attempted suicide and alcohol-related problems. He was found competent to stand trial and on September 21, 1983, entered a plea of guilty to second-degree assault. The theft charge was dismissed.

Upon the Commonwealth’s recommendation, the trial court sentenced the appellant to eight years, probated for three years on the following conditions: 1) that he not commit another offense; 2) that he avoid “disreputable” persons and places; 3) that he voluntarily commit himself to Eastern State Hospital “for a term of treatment to be so long as the hospital authorities believes that he needs to stay and receive treatment;” and 4) that upon his release from the hospital he report to the Division of Probation and Parole in Hazard, Kentucky. It is clear from the record that the court, the parties and their attorneys anticipated that Keith would be hospitalized for several months.

In conformance with the sentence and order of probation, Keith presented himself to Eastern State Hospital. He was evaluated upon arrival by Dr. Hawthorne, the admitting psychiatrist, who determined that hospitalization was not appropriate for Keith at that time and recommended that Keith continue with chemotherapy and outpatient psychiatric treatment at his local comprehensive care center. Keith thus spent a total of two or three hours at the hospital. He immediately informed his attorney that he had been denied admittance to Eastern State and was advised by the attorney to wait until everything was “straightened out” about the hospitalization before reporting to his probation officer.

Thereafter, on January 1, 1984, the Commonwealth moved the trial court to require the appellant to “show compliance with the terms of the final sentence and judgment of probation.” As grounds for the motion the appellee stated it was its belief that Keith had not complied with the condition that he admit himself to Eastern State Hospital. The matter was set for a hearing on January 25, 1984, but the appellant was too ill to attend although his attorney was present. A transcript of the preliminary arguments heard that day entitled “Hearing on the Commonwealth’s Motion for Revocation of Defendant’s Probation” was served on appellant’s attorney on January 31, 1984. The court continued the matter until February 9, 1984, and also stated that, “I think we need the Probation and Parole officer here to see whether or not he has reported to him

At the hearing on February 9, the probation officer informed the court that Keith had not reported to him until the day before the hearing. A psychologist from Kentucky River Community Care, the local mental health center in Hazard, testified that the appellant had been attending weekly treatment sessions and was, in her opinion, working hard to understand and overcome his problems.

The trial court found that Keith did not “commit” himself to the hospital but merely presented himself for “evaluation.” In this regard the trial court observed that “several people,” including Keith’s parents, could have filed a petition seeking the appellant’s involuntary commitment to the hospital. Finally, the court found that Keith violated the condition that he report to the probation officer. The court revoked Keith’s probation and ordered him to be placed into custody at the Luther Luek-ett Correctional Complex where he currently remains.

On appeal, Keith has raised three issues for our review as follows: 1) that the Commonwealth failed to provide the requisite notice of the hearing, the reasons therefor and the alleged probation violations; 2) that there was no evidence that he failed to comply with the conditions of probation; and 3) that the court failed to enter written findings upon which it relied in revoking his probation.

Having reviewed the entire record we find that there is no evidence that the appellant violated any of the conditions of the probation imposed during the original sentencing. While it is clear that Dr. Hawthorne’s prescribed outpatient treatment did not meet with either the trial court’s or the Commonwealth’s expectations, it is equally clear that Keith did everything he possibly could to comply with the requirement that he admit himself to the mental hospital. Further, it is uncontroverted that he fully complied with Dr. Hawthorne’s recommendation for outpatient treatment. As he was not armed with a court order, he could not require Eastern State to admit him as a patient. The Commonwealth’s argument that Keith could have been “creative” and found some way to get himself committed is patently absurd. It is equally ridiculous that Keith’s parents should have tried to get him involuntarily committed in order for him to satisfactorily comply with the order.

Likewise, the record is devoid of any evidence that the appellant failed to report to the probation office for any reason except his good faith reliance on his attorney’s advice that such was not required until the hospitalization issue was resolved. While this may not have been the best advice the appellant could have gotten, the record clearly indicates that the appellant made every reasonable effort to comply with the conditions imposed upon him in this regard. There being no evidence to support the court’s finding of a breach of the conditions of probation, the court’s decision to revoke appellant’s status was totally arbitrary. The Commonwealth’s argument that such a decision is purely discretionary is not applicable as “[tjhis discretionary aspect of the revocation decision need not be reached unless there is first an appropriate determination that the individual has in fact breached the conditions of parole." Morrissey v. Brewer, 408 U.S. 471, 483, 92 S.Ct. 2593, 2601, 33 L.Ed.2d 484 (1972).

A mental hospital should not be used by the court as a substitute for a prison. Indeed, the decision to place a defendant on probation under any conditions “reflects a determination by the sentencing court that the state’s penological interests do not require imprisonment.” Bearden v. Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983). None of the parties to the sentencing hereto were qualified to know whether the appellant either needed further inpatient treatment or, if he did, how long such treatment would last. If the appellee and the court were of the opinion that Keith was a danger to society and were not truly content to let the experts at Eastern State determine how long Keith needed to stay and receive treatment, the order of probation providing for such should never have been entered in the first instance. However, having conferred that status on the appellant it is fundamentally unfair to deprive him of his liberty for reasons beyond the appellant’s control, that is, because the hospital’s admitting physician did not believe he needed the treatment anticipated by the court. See Bearden v. Georgia, supra.

It is our opinion, therefore, that the order revoking the appellant’s probation be vacated and the trial court is hereby directed to enter an order to secure the appellant’s release from custody and to reinstate him to his probationary status.

In light of our decision on the merits of this matter, the issues raised by the appellant pertaining to the procedural defects are moot. However, we mention, for the benefit of the appellee, that it is not sufficient to serve notice of a hearing to terminate a sentence of probation upon a probationer’s attorney. K.R.S. 533.-050(l)(a) and (b) specifically set out the manner in which notice must be conferred upon a defendant. See also Lynch v. Commonwealth, Ky.App., 610 S.W.2d 902 (1981), and Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973).

The matter is hereby remanded to the Perry Circuit Court for further proceedings not inconsistent with this opinion.

All concur.


text:
    Lori A. SOUTHARD, Appellant, v. Joda HANCOCK, Appellee.
    Court of Appeals of Kentucky.
    May 10, 1985.

      Frank N. King, Jr., Henderson, for appellant.
    William I. Markwell, Henderson, for ap-pellee.
    Before COOPER, HOWARD and WIL-HOIT, JJ.
   COOPER, Judge.

This is an appeal from a judgment for the appellee, plaintiff below, in an action for negligence as a result of a motor vehicle accident involving the parties. On appeal, the principal issue is whether the trial court erred, as a matter of law, in admitting into evidence the medical bills of the appellee, although the bills were paid by her reparation obligor. Reviewing the record below, we affirm.

In July of 1983, the appellee, Joda Hancock, filed this action against the appellant, Lori A. Southard, and David Gibson for injuries she received as the result of a motor vehicle accident occurring on December 12, 1981. The accident occurred when the appellant’s vehicle collided with Gibson’s stationary vehicle which, in turn, collided into the stationary vehicle operated by the appellee.

Subsequent to the filing of the action, a summary judgment was entered dismissing all claims against Gibson. Additionally, the trial court sustained the appellee’s motion for summary judgment on the question of liability alone. In a trial on the question of damages, the jury returned a verdict for the appellee in the amount of $23,111.27. A portion of this verdict — $3,111.27—repre-sented medical expenses incurred by the appellee, although they were paid by her no-fault insurance carrier. The trial court reduced the judgment by this amount, and entered a judgment of $20,000 for the ap-pellee. It is from such judgment that the appellant now appeals.

Principally, the appellant argues that the trial court erred, as a matter of law, in allowing the appellee’s medical bills to be admitted into evidence in that these bills were paid by her reparation obligor. Specifically, she argues that such action constituted reversible error in that the appellee’s reparation obligor, and not the appellee, was the real party in interest concerning any claim for paid-out medical expenses. KRS 304.39-070(3); Hargett v. Dodson, Ky.App., 597 S.W.2d 151 (1979). She also argues that the trial court’s action resulted in undue prejudice to her, resulting in an excessive award of damages. Reviewing the record below, we disagree.

Given the threshold requirements of the Kentucky Motor Vehicle Reparations Act, KRS 304.39-060, in order to pursue her tort action against the appellant, the appellee had to introduce evidence of a permanent injury, as defined by subsection 2(b), or evidence that her medical expenses exceeded $1,000. Failure to do so would have resulted in a dismissal of her action. The appellee did not allege a permanent injury, KRS 304.39-060(2)(b); rather, she alleged that her medical expenses exceeded $1,000. In that the appellant failed to stipulate the amount of such expenses, the appellee had no alternative but to introduce evidence of them.

More importantly, although the reparation obligor was not made a party to the action, the appellee was not allowed to recover twice for her medical expenses. The trial court specifically reduced the amount of judgment by $3,111.27. See Smith v. Earp, 449 F.Supp. 503 (W.D.Ky.1978); Thompson v. Piasta, Ky.App., 662 S.W.2d 223 (1983). Simply stated, although the appellee made a “claim” for her medical expenses, she did not seek a recovery for them.

Although the appellant argues that the trial court’s action unduly prejudiced her, the jury may have been unduly prejudiced toward the appellee concerning the award of damages for her pain and suffering if it had not heard evidence that she incurred some medical expenses. In that the appellant admits she entered no objection to the trial court’s instruction to the jury to award the appellee damages for her medical expenses, we find no merit in the appellant’s argument.

Finally, we reject the appellant’s argument that the trial court erred in allowing the appellee to present a per diem argument with respect to pain and suffering endured by her up to the time of the trial. Such an argument, if supported by the evidence, is permissible in this jurisdiction. See Louisville & Nashville Railroad Co. v. Mattingly, Ky., 339 S.W.2d 155 (1960); Paducah Area Public Library v. Terry, Ky.App., 655 S.W.2d 19 (1983).

And, we reject the argument that the damages awarded to the appellee were excessive. The jury awarded her $15,000 for past pain and suffering, and $5,000 for future pain and suffering. Substantial medical evidence was presented that the appellee had suffered significant pain and suffering since the December 12, 1981 accident, and she was likely to suffer future pain and suffering. We cannot say that under all circumstances it was unreasonable for the jury to have made its award as a result of passion and prejudice. See Davis v. Graviss, Ky., 672 S.W.2d 928 (1984); Lyon v. Prater, Ky., 351 S.W.2d 173 (1961).

The judgment of the trial court is affirmed.

All concur.


text:
    COMMONWEALTH of Kentucky, Appellant, v. Kenneth BYRD, Appellee.
    Court of Appeals of Kentucky.
    May 10, 1985.

      David Armstrong, Atty. Gen., David A. Marye, Sp. Asst. Atty. Gen., Asst. Commonwealth’s Atty., Lexington, for appellant.
    Y. Gene Lewter, Asst. Public Defender, Lexington, for appellee.
    Before CLAYTON, GUDGEL and LESTER, JJ.
   CLAYTON, Judge.

The Commonwealth of Kentucky appeals from an order of the Fayette Circuit Court prohibiting it from calling the wife of Kenneth Byrd, Tina Marie Byrd, to testify against him in a criminal trial arising from his indictment for first-degree robbery and being a second-degree persistent felony offender. Kenneth moved the trial court pursuant to KRS 421.210(1) to assert his marital privilege to exclude all confidential communications between himself and his wife. More specifically, Kenneth moved the Court to prohibit his spouse from testifying at all during his trial. Based on the arguments of counsel and Delk v. Commonwealth, Ky., 285 S.W.2d 109 (1955), Byrd’s motion was sustained. On appeal, the Attorney General argues that Tina Marie should have been permitted to testify at least as to those communications between her and her husband which were of a non-confidential nature. After detailing the communications it believes fall within that category, the state cites us to Richmond v. Commonwealth, Ky., 637 S.W.2d 642 (1982), as authority for the proposition that the Kentucky Supreme Court has recently limited the scope of the spousal privilege. Kenneth counters by referring to the broad definition of “communication” found in Commonwealth v. Sapp, 90 Ky. 580, 585; 14 S.W. 834, 845 (1890). In his view, all of Tina’s knowledge and observation of the events transpiring at the Lexington Hyatt parking lot in early March, 1984, are the result of earlier confidential communications.

According to the agreed statement of the case filed by the parties pursuant to CR 75.15, the testimony of Tina Marie Byrd would be as follows. In July of 1984, Tina contacted the Lexington Police Department concerning questions about spouse abuse. During the course of making a report to an Officer Lyons, the 16-year-old wife mentioned that her husband had committed a robbery in 1984. Prior to committing the robbery, Kenneth informed her [the wife] of his intent to do so. She accompanied him to the Hyatt. Soon thereafter, she saw him sitting on a low concrete wall on High Street by the Hyatt parking lot. After observing a woman walk past Kenneth, Tina saw her husband begin running after the woman. She did not see her husband snatch the woman’s purse or strike her. Upon Tina’s return home, her husband was waiting with a purse. After disposing of the contents of the purse, except for the cash it contained, he told Tina that the woman had struggled and had been hurt. Tina was then instructed to throw away the purse. Instead, she hid it.

After turning over the purse to Officer Lyons in July of 1984, Tina voluntarily recounted the above testimony before the grand jury and indicated her willingness during the September, 1984 hearing arising from Kenneth’s motion to testify at trial to the above events.

Thus we are faced with the question of determining in the context of the above events what acts, knowledge or verbal exchanges constitute confidential communications within the context of KRS 421.210(1). The language of KRS 421.210(1) provides in pertinent part that

(1) In all actions between husband and wife, or between either of them and another, either or both of them may testify as other witnesses, except as to confidential communications between them during marriage, provided, however, that in an action for absolute divorce or divorce from bed and board, either or both of them may testify concerning any matter involved in the action, including questions of property, and provided further, that neither may be compelled to testify for or against the other.

From the face of the statute, therefore, it is readily apparent that a spouse who wishes to take the witness stand cannot be absolutely prohibited from testifying except as to those communications, made during the marriage, which are confidential in nature. In this respect then the order of the Fayette Circuit Court absolutely proscribing Mrs. Byrd from testifying is in error. She may testify as to any and all nonconfidential communications made during the marriage, and for that matter, any confidential communications between the couple prior to or after marriage but not during the marriage. See Wells v. Commonwealth, Ky., 562 S.W.2d 622, 624 (1978) (admitting into evidence the prior testimony of a spouse refusing to testify, where such testimony had been given in a previous trial before the couple’s marriage).

Thus the problem is now to determine which of the events Tina recited is a confidential communication subject to exclusion from her testimony. As the appellee points out, Commonwealth v. Sapp, 90 Ky. 580, 585, 14 S.W. 834, 835 (1890), speaks directly to this issue, stating in broad terms that

The word ‘communication’ therefore, as used in our statute, should be given a liberal construction. It should not be confined to a mere statement by the husband to the wife or vice versa; but should be construed to embrace all knowledge upon the part of the one or the other obtained by reason of the marriage relation, and which, but for the confidence growing out of it, would not have been known to the party.

Were this definition to exist without limitation, we might be inclined to accept Kenneth’s suggestion that all of Tina’s testimony concerning the robbery is to be excluded. However, there exists a longstanding and clear limitation to those communications which otherwise fall within the category of privileged marital communications.

Where the subject matter of the testimony given by a spouse involves acts, occurrences or verbal exchanges which may have been known or seen by any person, the privilege under the statute does not apply. Gill v. Commonwealth, Ky., 374 S.W.2d 848, 851 (1964). Therefore, a wife would not be precluded, for example, from testifying that she saw her husband’s truck strike a cow at a high rate of speed. Hughes v. Bates’ Adm’r, 278 Ky. 592, 129 S.W.2d 138 (1939). Nor would it be impermissible for a woman to testify that her husband’s revolver was hidden from view when he put on his coat inside their house. Hall v. Commonwealth, 309 Ky. 74, 215 S.W.2d 840 (1948). In both instances, the occurrences happened such that any person could have observed them. The rationale supporting the rule was simply not present in these situations as the communication was not confidential within the context of the statute.

Applying the limitations of Gill, supra, to the present situation, we first conclude that Kenneth’s statement of intent to commit the robbery apparently made to Tina Marie outside the presence of third parties, is a privileged confidential marital communication which Tina may not testify to during trial. In the same vein, neither may she testify that Kenneth told her that the victim struggled and got hurt. Both these private verbal exchanges run to the essence of the rationale supporting the statute. Absent disclosure of such statements before third parties, they are utterly protected in the context of the present criminal trial. See Clark v. Commonwealth, 269 Ky. 587, 108 S.W.2d 532 (1937); York’s Ancillary Adm’r. v. Bromley, 286 Ky. 533, 151 S.W.2d 28 (1941). While the question may be somewhat closer, we also conclude that Tina Marie may not testify that she watched her spouse rifle the contents of the purse or that she was given the purse to dispose of. These actions occurred in the couple’s home, apparently while they were alone and would not have happened had not the two been married. The Commonwealth suggests that since the purse was snatched in public and was capable of being seen at that time, any subsequent developments between the defendant/appellee and his wife concerning the purse are admissible into evidence, the marital privilege notwithstanding. The first problem with this argument is that the record is devoid of any evidence as to whether anyone did or could have seen the actual robbery or Kenneth’s flight therefrom. We simply have no way of knowing if the purse, once stolen, was visible or capable of being seen by anyone. The second problem with the state’s argument is that the robbery of the purse, and its subsequent rifling and concealment, are two distinct events. That the first occurrence may have been capable of being seen by the public does not mean that the second sequence of events is automatically designated a nonconfidential communication. To the contrary, all the facts contained in the agreed statement indicate that this is not so.

Finally, with respect to any observations Tina made while at the Hyatt, she may testify as to what she personally observed, including the approach of the woman, Kenneth’s presence on the wall and his rapid departure after the woman. These events fall clearly within Gill, supra. By categorizing the above events and exchanges as confidential or nonconfidential communications, we specifically do not expand nor contract the scope of KRS 421.-210(2). Nor do we believe that Richmond, supra, has done so. As it involves facts materially distinguishable from the present appeal, we find it nonpersuasive in the present context.

The order of the Fayette Circuit Court is affirmed as to those communications we have determined to be confidential and reversed as to those communications classified as nonconfidential.

All concur.


author: COMBS, Judge.

text:
    Mary HEFLIN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    May 17, 1985.

      Joseph S. Freeland, Paducah, for appellant.
    David L. Armstrong, Atty. Gen., David A. Smith, Asst. Atty. Gen., Frankfort, for appellee.
    Before COMBS, DUNN and MILLER, JJ.
   COMBS, Judge.

This is an appeal from the judgment of the McCracken Circuit Court which affirmed appellant’s conviction in district court of distributing obscene materials under KRS 531.020.

Appellant’s arrest and conviction arose out of her employment with Beltline News and Arcade Club, Inc., a Kentucky corporation. The club’s “members” enjoyed access to exotic literature, motion pictures, novelties and artifacts, and appellant’s duties included renting or selling the inventory, assisting customers, and admitting new members. Appellant was charged with violating KRS 531.020 after she sold a movie entitled “Craig’s Double Dream” and a magazine called “Swedish Erotica No. 26” to an undercover investigator with the Kentucky State Police.

The prosecution called the investigating officer and the Paducah City License Inspector as witnesses at trial, and their testimony comprised the Commonwealth’s case-in-chief. At that point, appellant moved for a directed verdict on the theory that the state failed to prove she sold the items with knowledge of their content and character, an essential element of the crime under the statute. See Smith v. California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205 (1959). Although the Commonwealth’s evidence was extremely weak, the trial court denied the motion, so appellant took the stand and presented her case.

The jury found appellant guilty, and imposed a $250.00 fine and a thirty-day jail sentence.

The sole issue on appeal is whether the trial court erred in overruling appellant’s motion for a directed verdict at the close of the state’s case. There is no criminal rule in Kentucky dealing with directed verdicts as such, but RCr 13.04 imports the Civil Rules into criminal proceedings to the extent that they are not superceded by or inconsistent with the criminal rules.

CR 50.01 states that “(a) party who moves for a directed verdict at the close of the evidence offered by an opponent may offer evidence in the event that the motion is not granted ... to the same extent as if the motion had not been made.” However, if a party chooses to proceed with his case after the motion is denied, he assumes the risk that his evidence will fill the gaps in his opponent’s case, forfeiting his claim of error. According to Lyon v. Prater, Ky., 351 S.W.2d 173 (1961), “an error in denying such a motion at the close of the plaintiff’s evidence is held to be cured when the defendant by his subsequent testimony has supplied the omission in the plaintiff’s case.”

In this case, the record shows that appellant’s testimony cured any defect in the state’s case, so the lower court did not err in affirming her conviction.

The judgment of the McCracken Circuit Court is affirmed.

All concur.


author: COMBS, Judge. WILHOIT, Judge,

text:
    Mary Katherine PRATHER, Appellant, v. Martha Jean COX, Individually and as Executrix of the Estate of William Thomas Prather, Deceased; Lewis Cox, Reginald Lang Prather, Eilene Prather, William Thomas Prather, Doris Prather, Eleanor June Rolph and Paul Rolph, Appellees.
    Court of Appeals of Kentucky.
    May 17, 1985.
    Frank G. Gilliam, Lexington, for appellant.
    David R. Marshall, Nicholasville, Thomas E. O’Shaughnessy, Versailles, for appel-lees.
    Before COMBS, McDONALD and WIL-HOIT, JJ.
   COMBS, Judge.

This is an appeal from the judgment of the Jessamine Circuit Court upholding the validity of an antenuptial agreement between appellant, Mary Katherine Prather, and her deceased husband. Appellant attacks the contract’s validity and argues that the jury should have been instructed to consider whether the parties abandoned the agreement after their marriage.

The Prathers were married in 1966 when she was 51 and he was 68. Each party had children from a prior marriage, so they entered into a contract to preserve their separate estates for their families. The agreement provided that each party would retain the title, management, and control of his separate property, and each party released his legal and statutory rights in the other’s estate. However, the deceased took control of all the property immediately after the marriage. The Prathers took up residence in appellant’s house while Mr. Prather’s daughter and her family were permitted to live in his house. He invested their separate monies in joint certificates of deposit, combined their tobacco bases and farming operations, and managed their income and expenses through joint bank accounts.

Mr. Prather died testate in 1979. Under the terms of his will he left appellant any automobile owned by him at death and devised the rest of his estate to his children, so appellant elected to take against the will. Appellee, the estate’s executrix, pleaded the antenuptial agreement as a bar to the widow’s statutory rights, but appellant argued that the contract was either void from the beginning or abandoned after the marriage. Although appellant tendered instructions covering both issues to the trial court, the court only placed the question of the initial validity of the agreement before the jury.

We think the trial court erred in failing to submit appellant’s theory of the case to the jury. Abandonment is a recognized defense to the enforcement of an antenuptial agreement in Kentucky, Harlin v. Harlin, 261 Ky. 414, 87 S.W.2d 937 (1935), and a great part of appellant’s proof at trial was directed towards establishing that defense. There was sufficient evidence in the record for reasonable minds to conclude that Mr. Prather had completely violated the agreement throughout the marriage but the trial court withheld that issue from the jury, reasoning that the deceased’s behavior “was only an alteration of the original contract.”

It was improper for the trial court to settle disputed issues of fact. Having invoked her constitutional and statutory right to a jury trial, appellant is entitled to have her case decided by the jury, not the court.

The judgment of the Jessamine Circuit Court is reversed and remanded for a new trial.

McDONALD, J., concurs.

WILHOIT, J., concurs in part and dissents in part.

WILHOIT, Judge,

concurring in part and dissenting in part.

I concur in the majority opinion insofar as it appears to affirm the jury’s verdict; however, I respectfully dissent from its treatment of the abandonment question because I do not believe there was sufficient evidence produced at trial to create a jury question as to the abandonment of the antenuptial agreement. The appellant has referred us to no evidence in the record which shows that the parties intended by their contract to preclude the decedent from managing the appellant’s property and business affairs with her permission. There was no evidence showing that the appellant considered the decedent’s management of her property a.s anything contrary to their agreement. The agreement itself would not seem to preclude the appellant from permitting her husband to act as her agent in the management of her property, and the parties apparently did not interpret it to do otherwise. There was just not enough evidence to establish that the decedent failed to carry out any terms of the agreement with actual or constructive knowledge of their proper interpretation. See Harlin v. Harlin, 261 Ky. 414, 87 S.W.2d 937 (1935).

Even if the majority is correct as to the question of abandonment, the new trial which it orders should be limited to that question alone.