*1 843 The alimony each cellor did not abuse a sound discretion. determining amount of amply supported by Mc is the record- particular facts. award rest its : case must McCoulf, Ky. 212 307 S.W.2d Coulf v. will dis-1 The Chancellor’s decision not be Alexander, Ky., S. 284; v. Alexander clearly turbed unless erroneous. Petrie v. encompass controlling facts 494. The W.2d Petrie, Ky., 262 182. S.W.2d ability estate, age, and the husband’s Ky., Young, Young money. v. earn opinion judgment should is our undenied that In this it is 253. case S.W.2d be affirmed. years age, a former appellant is county County, former Rowan sheriff of approved opinion by the is Court rendition of judge, and at the time of judgment is affirmed. employee alimony award was an salary of Department Highway at State pay month, a take-home per with
$440 fairly dis approximately This would $300. abili man
close that he is a of considerable appellee
ty, average. The is far above age been a house years and has life, un
keeper of her untrained and all gainful employment.
skilled Dalton, Ky. v. 200 S. COLEMAN, Infant, Dalton K. his father friend, George and next W. Cole 469, the W.2d Court said: man, Appellant, alimony allowing is there no fixed “In within the matter standard. The BAKER, John Baker Electric Com d/b/a sound discretion of the chancellor pany, Appellee. regulated cir- a number of properly enter into cumstances Appeals Kentucky. Court consideration, size of such as the June 1964. estate, productiveness, his its husband’s Rehearing earning age, Denied 1964. capacity, Nov. income labor, ability age, health and ability earn
health and of the wife to particular
something and the cause for granted
which the divorce was
wife.” Gann,
See cited cases therein and Gann
Ky., S.W.2d Chancellor, providing that' installments, monthly alimony paid in
recognized property earning capacity enabling him to
but had an
pay per support di month for of his probability
vorced wife. In all he had determining
mind the one-third rule in payment. The
amount and method of payable per $3,000,
award month
thirty months is not excessive. The Chan- *2 Shop.” to it as Electric
ferred the “Baker admitted that he had conducted the operation put but until said that he *3 “some” of men on an his con- January 1, 1960, tractor basis and rest of them on 1960. The date June the accident was at which June Pikeville, Lowe, Page, E. T. Charles Jack subsisting time he had contracts with at appellant. for workmen, said, which, least two one of he Burke, Pikeville, Runyon, A. for F. M. J. had been to writing reduced and the other appellee. signed which he get was unable to until July (though 1). it was dated These June PALMORE, Judge. agreements, two both dated one with June and Coleman the other with Junior appellant, Gary 16-year a The Thacker, were introduced in The evidence. injured by a boy, old was run over and person having other he identified as battery-powered mine motor while 3000-lb. contract, had such a allegedly dated Janu- building in he was a used for the manufac- uary 1960, was the witness Columbus assembly He ture and of such motors. Hall, who quit working prior him to for against brought damages this for suit the accident. The Hall contract was not appellee, Baker Electric Baker John d/b/a produced in evidence. Company, theory premises on the manufacturing operation were under agreement Under the terms of the form management of Baker and control unspecified space shop Baker rented in the negli- the accident resulted from per to the individual workman for month. $1 gence employes. Appeal of his is taken Baker was parts necessary to furnish all to judgment di- from a entered on a verdict the manufacture of mine motors in rected favor of defendant at the close workman pay was to build and to all them plaintiff’s evidence. electricity, acetylene bills for oxygen. The issues to be decided are: For completed agreed each unit Baker pay plus the workman as reim- enough 1. Was there evidence of a mas- electricity expense. bursement for It was relationship ter-servant between Baker and provided further the workman would premises a workmen on raise responsible “be any damages by for caused jury question? his any may workers and they accidents persons have may or that outside have on neg- enough 2. Was there evidence of premises.” about the ligence question? to raise a in- that both he and the Baker testified contributorily Gary 3. Was procured accepted dividual workmen (or, put way, negligent another He orders for construction of the motors. risk) as assume a matter law? shop said that he about visited the once any parts. week to see if needed His pertinent ques- The evidence to the first (and apparently principal place of home substantially tion was as follows: business) Grundy, Virginia, in where- building in which shop place the accident oc- as the which the accident took curred was constructed Baker County, Kentucky. in 1954 was located Pike property 1955on owned erroneously objection father-in- court trial sustained law. Since that time it has been used as to he had shop elsewhere, Baker as shops a machine to build mine mo- similar avowal but no chargers, tors made, scope and the re- witnesses so we do not know the 15-year of the accident a old' At the time arrangements operations or what Baker’s working Thacker was on' performing named any, persons, other had with premises question, a ditch. digging him. similar work He said he had also worked within se- made no social Testimony building cleaning up trash. He had been withholding deductions tax curity or by Baker. hired was not workmen payments made to the from Ba- checks A series of contradicted. we are unable Under evidence dates and showed ker to Junior say the written contract introduced as amounts follows-: *4 arrange in evidence reflected the actual or, Baker and the workmen ment between — $80.90 June so, question if that it was conclusive of the — notation, 45.90(with $20.- June were servants or mo-' on 00 advance building contractors. was owned tor”) under Baker and the business was conducted —25 60.90 June Company. the Electric Un name of Baker — July 2 45.90 accident, very unques shortly til the before — July 50.00 tionably operated it was on a master-serv payment ant basis. That the method of was of be noted that no combination It will changed salary job (if, rate in any apparent relation- figures hears these deed, really changed) it was is not of dis- $175, price ship for each the “contract” positive significance. is The ultimate test ad- explained that he would unit. Baker the control the reserved exercised pay per week and vance each man about $50 employer, and even if there a written is completion the motor the on of balance due contract, practice may actual under it out process manufacture. Travis then in provisions.1 weigh its A.L.R.2d Cf. 53 Coleman, men, attempted to ex- one the reasonably -may 185. If different inferences plain payments did not come out that respect drawn with to the true relation they sometimes to an even because $175 ship parties, pre jury question However, he ad- did “extra work.” Agency sented. 1 2d Restatement of § was done mitted that this extra work ,56 c.; comment Master and Servant C.J.S. persons Baker and. their own for other than 92; p. (Master and § 35 Am.Jur. pass through money did not it Servant, 600)... opinion our § he" also that Baker’s hands. He admitted would not be unreasonable for a acety- electricity pay did not bills for conclude, facts, on these had there by' lene, paid expenses but that these were relationship been change no real in the be pay- contract Baker and deducted from the prior tween workmen Baker.and ments. accident. Hence first must answered in the affirmative. were Travis Coleman Both respect to the contents confused with turn now to the circumstances bear-' We. in- produced for copy until a was contract causation, ing negligence, on the issues the rental first said spection. Baker at contributory negligence or assumed said yer year, and then amount was $1 risk. advance, agree- whereas paid in was $12 has been may gathered from what Travis only paid. As was ment recites far, Electric at Baker the work was said thus the rental Coleman testified operation. large On Shop not a was per year. rigidly followed, it could particular visions had contract case been 1. In this itself, not, ques light of the re- very be determinative sheds little itself lationship pro- law. as a matter of Hence even its of control. tion
£¡47 Q. going workmen started motor “Who of the accident afternoon (cid:127) Coleman, do- who was forward?” were present Gary building, and welding ing some Larry A. “I think was Thacker. Thacker, the out- digging a ditch on standing He was there beside of it.” Lar- brother younger Thacker’s side. present. age, ry, years Q. “Larry the closest companion, Coleman, appellant, Gary to it?” one old, years went to also 16 Dean A. “Yes.” purpose riding mo- for the boys in the They young Q. and other “How old is -Larry tors. Thacker?” been allowed neighborhood theretofore A. “Thirteen.” will, at both in and out do almost at Appellant that on building. testified Q. “Now, what kind run of motor when of the numerous occasions least one you, was over it the four wheel or the shop (at inside the which he had been three wheel ?” however, time, not on one of A. “Three wheel.” not present machines) Baker was *5 n tellhim to stay out. occasion On the Q. run “Whereabouts did it over only the the accident Travis you by you?” or scene, says the grown man on the he told A. “The back wheel crossed over they stay ma- boys off the that didn’t my hips.” question they get killed. chine in would Appellant the clear that Travis Coleman went on work operation and made denied of the machine. this, but in attempt Appellant, event prevent about it is immediately [*] Q. “Now, you [*] before [*] were you [*] sitting were hurt?” [*] . on it [*] experiences previous who reason of his A. “Yes.” place of the same nature in the same Q. “And it started in motion with proficiency handling attained a in the speed you such force or that it threw motors, got these on and drove one of them off?” building, it in to the a reverse end of the feet, distance of some 50 and then forward A. “Yes.” position, stopped starting to its where he Larry Cole- nor Dean Neither Thacker description mishap ensuing it. His man testified. is as follows: Thacker, the the besides only present others “Well, motor appellant, A. I was Hence driving not see accident. did the pulled it up the —I had then show conducing backed evidence just stopped up appellant’s and I was that back it cause was statement motor, sitting it and out Larry it started Thacker started thinks forward, person off—it it went I fell when because closest is real I fell off standing started out fast and next to it. This evidence justify thin, yet enough concrete an and it hit we it is backwards think it himself and knocked in reverse and inference that floor Larry not start the machine I top back over me before come probably did. way.” get could out probability is all that Reasonable Q. sitting “You were on the back (cid:127) support a required is of evidence in order to you it?” before was knocked off .1099, 1101 factual 20 conclusion.. Am.Jur. “Yes, 1248, 1250). A.' sir.” rea- (Evidence, “Evidence §§ 848 facts, prove
sonably wantonly tending willfully causing essential or in- him indirectly, permis- jury negligence or directly either or or from committing active inference, a and, is sufficient to sustain injury, sible in his resulting if the harm * * * facts judgment. And essential caused gratuitous to the is the licensee re- proved by may evidence circumstantial sult of a natural or artificial condition of necessary is property, possessor in which event not known to the certainty which proof degree property rise to and which he should realize con- every other reasonable will exclude involves an unreasonable to the li- risk jury.” than the one reached censee clusion and has reason believe Company Eggers, Gas Cities Service licensee will not condition discover the or 1114, A.L.R. risk, P.2d the.possessor 186 Okl. realize the li- owes the may (1940). Though a verdict duty censee the to make the condition rea- predicated or conjecture sonably not be “mere safe or to warn him of condi- speculation,” opposite con- (Em- and when two tion and the risk involved therein.” appear probable from all equally phasis added.) clusions can be evidence neither of them that both proved, to have been the fact said opinion is our un evidentiary are theories consistent with supervised boys presence of adolescent necessarily mean does shop, facts not especially boys a machine known to appears equally probable. fairly are If it playing likely to be experimenting probable than other that one is more machinery capable inflicting with in Aetna may Ogilvie conclude. so jury, equivalent dangerous to a condition Co., P. Ins. 189 Cal. respect L. gratuitous and that with to a licen (1922). A.L.R. person premises see the control of the
negligent
permitting
as a
of law in
matter
if he
it
has reason to believe
licensee
might be
to
the
Though wé
inclined
appellant
“will not
or
discover the condition
realize
suspect that
himself started
the
Torts,
motor,
the risk.” Cf.
of
Restatement
342.
jury
believe
§
the
the
was entitled to
Certainly
16-year
appellant
the
had been a
If
old
not.
testimony
he
that
only
person
mature
we
no hesitation
Coleman,
would have
person
16
the
over
Travis
it,
person
Coleman,
in
that
the
holding
premises, did
do
years old
not
on the
charge,
in
no reason
believe
working
had
to
that
Thacker, who was
nor did
appreciate
not
and
the
Therefore,
he would
realize
process
building.
by
the
outside
negligence or horse
injury from
Larry
risk of
the
had
be
of elimination it
to
machinery.
boys
the
play
with
particular
of the other
which
or Dean
and
Cole
appellant and Travis
Certainly the
them was makes
difference.
one of
it
equally cognizant
the condi
of
support a man were
to
sufficient
The evidence was
tion,
presume that an
not
by
law does
but the
was caused
that
accident
finding
the
capacity as
same
interlopers.
person has the
immature
youthful
one of
danger
aof
appreciate the
adult
to
an
right
jury has the
that
known condition.
but
There is no
by a lesser
child’s conduct
judge
“gratuitous
licensee”
awas
care,
is usual
e.,
which
“that
i.
standard of
premises as
in
Restatement
defined
§
age,
by persons of
same
ly exercised
Kentucky & West
held in
of Torts.
It was
like or
intelligence under
experience and
Ky.
Stacy, 291
Virginia Power Co. v.
Kentucky
(1942),
circumstances.”
1
similar
A.L.R.
170
164 S.W.2d
Jones
334
Company, Ky.,
S.W.2d
Utilities
person in control
such licensee
that to
a
Company
Blue Diamond Coal
refraining
(1960);
duty of
property owes “the
of
danger
in
case.
the Jones
equate
case with that
of the
obviousness
not
2. We do
shop,
(1961).
Bush, Ky.,
signed
See
his at the
contracts
long, or more feet five stop and tons. He knew how several speed regulate its it and how to
start stated) (as change gears. He knew “ * * * got it was sub- in motion somebody run over unless it
ject
being controlled.” thus about the
Travis Coleman testified stay
boy: “I didn’t off it— told him if he boys crowd, told the whole if the don’t
I you
stay get killed.” He off-n will it — gave warning the after- stated day
noon of the the accident occurred. evidence,
Under the is difficult for me bar, distinguish ques- the case at
tion Coleman could be contributorily
held negligent, from the
Wright Certainly, cases. the Jones introduced,
under the evidence he had “suf- knowledge
ficient appreciation of dan-
ger driving himself” of the motor.
I would affirm judgment.
I am authorized to state that MONT-
GOMERY, J., joins inme this dissent. SCHWARTZ, Appellant,
Geneva L.
George SCHWARTZ, Jr., Appellee. C. Appeals Kentucky.
Court
Oct.