*1 tо factual differ- apply due argues juror rell need Zimmerman that one at least. parties’ negligent ences in the nature accept jury agreed had to indicated that the acts, Floyd, supra, any, opinion if the average juror the each was as a verdict Supreme rethink require Court to may our allegation willing this to award. While position in its Burrell. jury, the who disputed by the foreman of to be there no commitment claims that give remand, court the trial will On average, court never sub- by the the bound allowing apportion- jury, to instruction court to to return to poenaed jurors Zimmerman, Mil- among liability ment of If, happened. verify just what Gas, Interna- and Rockwell ler’s Bottled lot, it is invalid and reached verdict was Inter- that Roсkwell tional. To the extent jurors If were not bound their void. any apportionment is assessed national accept average, agreement to but may not recover liability, Zimmerman begin merely way amount, already recov- avеraging since he has total, com- acceptable find Rockwell under workers’ some ered from deliberations Zim- Finally, the extent that pensation. then it is not void. from Miller’s for medical merman recovers suspect, how- is somewhat verdiсt any other losses which have expenses and $17,- ever, jury only awarded because Travelers, Zimmerman paid to been expenses, medical when the un- 262.00 for subrogation. Travelers will be entitled that the total disputed evidence indicаted of the Warren Circuit judgment $36,139.41. we could amount was While REVERSED, is RE- and this case Court is subpoena for the court to remand the case proceedings consist- for further MANDED and make its determination on jurors opinion. ent with issue, viewing totality ap- of this fun- peal, nevertheless determine that we trial.
damental fairness demands a new All concur. Circuit
We direct the Warren Floyd to the case of v.
Court’s attention Co., Ky., 758
Carlisle Construction (1988), substantially has which compa problems created
alleviated negligence, apportionment,
rative indemni
fy, and contribution. The case holds deter
apportionment is to be allowed and feasors, among they all mined tort COMPANY, TRADING EPSILON defendant, a original named as an INC., Appellant, defendant, settled third-party have ex plaintiff. claim To the their CABINET, Jordan, Ky., tent that Nix v. 532 S.W.2d Commonwealth REVENUE Kentucky, Appellee. (1975) Nix v. Floyd, conflict with overruled. Jordan been No. 88-CA-1212-MR. appropriately attempted The trial court Court gave it its rely on Nix v. Jordan when still the apportionment instruction. It was June 1989. How- apportionment at that time. by Court Ordered Published Case ever, old supra, points out that the Floyd, 8, 1989. Appeals Sept. neg- comparative not work under rule does Thе court also relied on Burrell ligence. Franklin, Ky.,
Electric Plant (1984), awarding indem- 676 S.W.2d Bur- to Miller’s. While
nify from Rockwell
peals’ which held certain decision exempt by appellant jet fuel aviation tax. Tax- state sales payer appeals. Company,
Aрpellant, Epsilon Trading corporation (Epsilon), Inc. is Delaware *3 Kentucky and is qualified in to do business Air subsidiary a of Delta wholly owned (Delta). en- company is Inc. The gaged of aviation purchase in the and sale products services jet fuel and related and other airlines. Delta and period from Following an audit for the 30, 1984, through December June (Cabinet) Ep- assessed the Revenue Cabinet deficiency a in amount silon sales tax $432,319.55 of for certain sales of aviation lading. Delta by fuel made it to via bills Epsilon to the appealed this assessment con- Kentucky Board of Tax and exempt tended sales under that the were 139.470(5) grants KRS which com- tax for sold to a by mon which carrier lading by is used carrier and Ken- operation its business outside tucky. held enti- The Board 139.470(5). tled to an under KRS Appellant first contends that the circuit proper stan- by exceeding court erred Ap- dard of review of the Board of Tax peals’ by improperly and substitut- decision ing findings its thоse of the factual for own findings Board and conclu- and sions Board were based on substan- of the conformity tial evidence and were agree. We do law. Brown, Greenebaum, Thomas A. Doll & McDonald, Louisville, Cohen, Helene Z. Al- ap power of of this The review Bird, Keen, and ston & and D. Michael 131.370(3): peal clearly defined KRS Lines, Inc., Air Kelly Jennings, S. may No or additional evidence be new Atlanta, Ga., appellant. except in the circuit court as introduced Cabinet, Dowell, Douglas M. per some to the fraud or misconduct of Frankfort, for appellee. in the of the engaged son administration order, affecting and revenue laws C.J., HOWERTON, and Before award, shall oth ruling or but the court REYNOLDS, JJ. CLAYTON upon the cause the reсord as erwise hear dispose by the board and shall certified REYNOLDS, Judge. manner, in summary cause its being determining Court, judgment, limited to re- review Franklin Circuit Ap- or not: Tax versed (a) parties disagree The board acted or in without excess Herein the оn the powers;
of its
applicable
fol
standard
review to be
appellant
The
lowed
the circuit court.
(b)
order, decision,
or award was
asserts that
the trial court should have
fraud;
procured
findings
examined the
and conclusions of
(c)
order, decision,
or award is not in
merely
the Board
to determine whether
law;
conformity to the
supported by
were
substantial evi
(d)
issue,
findings
If
fact are
meanwhile,
Appellee
argues
dence.
support
whether such
of faсt
evidentiary
since the
facts of this case
order,
decision or award.
undisputed
question
and the
issue
(d)
Subsection
of the statute limits re- presented
interpretation
concerned an
question:
view of the board’s action to the
law,
аpplication the Board’s decision
“findings
support
Whether such
of fact
fully
appeal
reviewable on
to the cir
order, decision, or award?” Under this
*4
thus,
subject
cuit court and
was not
to the
provision,
legislature
the
intended to limit
clearly erroneous or substantial evidence
of orders of
ap-
review
the board of tax
rule.
fact,
peals
findings
ap-
of
inas most
agree
appellee’s argument
We
and
peals
agen-
from orders of administrative
conсlude
appeal
that the resolution of this
cies,
determining
to
whether the
appli-
centered around the
and
construction
supported by
of fact are
substantial evi-
139.470(5)
given
cation to be
to KRS
dence. CR 52.01. Trimble County Board
light
undisputed
of the
factual circumstanc-
Mullikin,
Supervisors
Ky.,
438
of
presented in
es
this case. We hold that the
(1969).
S.W.2d
It is well settled that a
appeal
ques-
the
to
circuit court involved a
reviewing
may not
court
substitute its
such,
tion
Board’s
of law
as
order
judgment for that оf an administrative
fully
subject
was
reviewable and was not
board as a finder of fact. Paramount
to the substantial evidence rule. The cir-
Foods,
Burkhardt, Ky., 695
Inc. v.
S.W.2d
accept
legal
cuit court
not
bound to
(1985). However, the substantial evi-
conclusions of the Board and it did not err
pertains only
questions
dence test
of
in the standard of
law. Brown v.
questions
not
review.
Y.W.C.A.,
(1987).
Ky.App., 729 S.W.2d
Next, appellant contends that both it and
require-
fully complied
Delta have
with the
application
An erroneоus
of the
139.470(5)
therefore,
are
ments of KRS
by
by
an administrative board or
statutory
exemp-
entitled to the
sales tax
clearly
by
is
reviewable
circuit court
agree.
tion. We do not
Also,
body
an administrative
Court.
where
facts,
misapplied
legаl effect of the
has
139.470(5),
KRS
which allows for
legal
accept
courts are not bound
exemptions
from
sales
certain
body.
conclusions of the administrative
tax, provides as follows:
Commonwealth, Department
High
computation
аre excluded from the
There
Cardwell, Ky., 409
ways
imposed by this
amount of taxes
Therefore,
(1966).
judicial re
the role of
chapter:
Kentucky Board
by
of a decision
view
(5)
receipts
tangible
Gross
sales
determining
is that of
of Tax
carrier,
pеrsonal property to a common
of law.” Revenue
“questions
propriety
purchasing
shipped by the seller via the
Resort, Inc., Ky.App.,
Moors
Cabinet v.
lading,
carrier under a bill of
(1984). Whether a decision
fornia statute its court
reaching a decision herein. judgment of Franklin Circuit Court
is affirmed.
HOWERTON, J., concurs.
CLAYTON, J., dissents.
CLAYTON, Judge, dissenting: respectfully
I dissent and would reverse judgment of the Franklin Circuit Court reasoning
based on the
Board of Tax found in its conclusions of law and order. *6 Grey Appellant,
Elizabeth DAVIS DAVIS,
Fred Executor of the Estate of Appellee.
Frank Marshall Davis DAVIS,
Fred Executor of the Estate of Cross-Appellant,
Frank Marshall Davis Grey Cross-Appellee.
Elizabeth DAVIS 87-CA-207-MR,
Nos. 87-CA-145-MR.
Court of
Aug. 1989.