*1 death, Elam at- father’s 5. After his brothers buy the farm
tempted to these with sisters, in connection referring them letters to efforts he wrote
to “Dad’s farm.” con- farm public sale of 6. At a attempted executors, Elam
ducted farm for induce others to bid on
him, himself. a bid entered death, years father’s before the
7. Two that suggested of his sisters
Elam to one from their fa- buy
she should the farm
ther. evidence
While there was a conflict of facts, some the evidence of the above
for the executors sufficient to warrant true. the facts were the evidence opinion
It is our by Elam and course of conduct showed a wholly inconsistent
his father Elam, and was suf- passing to of title idea ef- presumption of
ficient to overcome Elam’s one- delivery arising from
fective Hood deed. See possession of the
time Nichol, Ky. 34 S.W.2d Sandlin, 195 S.W. Ball v. is affirmed. judgment
The WARE- TOBACCO INDEPENDENT
NEW HOUSE, 3, Inc., Appellant, NO. LATHAM, etc., al., Widow, et P.
Lucille Appellees. Kentucky. Appeals of
Court 17, 1955.
June
Rehearing Denied Nov.
847 Mining Pelfrey, bus Co. v. S. W.2d 847.
The record Latham shows .Mr. at years time his death age was 82 and was an building supervisor, architect and in specializing tobacco warehouses. The company’s selling business was loose leaf tobacco at auction the floors over of its several warehouses and Latham did no work connected with the sale of the to- planned bacco and seems to have and su- pervised building of several ware- the.company. houses for 1952, In March employed Latham was company by through President, its Buckley, L. to John plans draw for a new tobacco warehouse replace to one destroyed which had been by previous fire the December; also, to supervise its construction. competent Mr. Latham was a and fine company in whom the and
man
Mr. Buck-
reposed complete
ley
Buckley
confidence.
had
testified
Latham
worked for him
Miller,
appellant.
Jay
for
Lexington,
I.
years
35 or
for
he never
and
had a
Hancock, Lexington,
ap-
Darrell
B.
contract
formal
his life with Latham
pellees.
and did not have one with him in this in-
subject
stance. Latham was
to the com-
pany’s and Buckley’s orders and instruc-
SIMS, Judge.
and
any
tions
could
been
have
dismissed at
job.
time while on
No
deductions
ap-
question
us on this
The sole
before
against
were made
Latham for social se-
Latham, Sr.,
peal
F.
at
is whether Charles
curity
Lexington payroll
or City
tax,
time of his death
compensation
he
signed
never
reg-
appellant,
employee of
or an
contractor
any
at
time
employ
ister
while in the
Independent Tobacco Warehouse
New
company.
supervised
He
the work of the
(hereinafter
to
Company
referred
as the
building contractors
worked
the same
meaning
company) within the
of Work-
they
days
hours
did five
a week and was to
Act,
Compensation
Chapter
men’s
paid
lump
job,
sum for the
but on a
time basis with Latham keeping his own
expressed it,
As Buckley
time.
“Whatever
Compensation
The Workmen’s
said
we done.”
found Mr.
Board
dependent
his
the max
awarded
widow
September 3,
1952,
On
Latham lost his
Compensation balance,
under the
sum allowed
imum
fell from
building,
the con-
were
act,
earnings
his
sufficient
since
to struction of which he was supervising, and
circuit
that amount. The
court af
a result
justify
of the fall died within thirty
Board
the award of the
and the
or an
minutes
hour
firmed
after he was taken appealed.
hospital.
has
As there is no
con
After his death the company
facts,
the Board’s
trariety
paid
Latham,
Mrs.
administratrix, $3,000
and not of fact and is
representing
review
law
her
wages
one
husband’s
1,
3,
courts.
v. Elkhorn
September
Stout
Coal
able
March
he having
(cid:127)
Ky.
Co., 289
160 S.W.2d
Colum-
during
period.
drawn
When
weekly wages,
fact
45. The
Latham’s
asked
what
has no
awfully
hard
at
discharged
could be
time
would
“It
replied,
Buckley
***
upon
the na-
bearing
We
his status
view
wage.
weekly
to establish a
ability
work,
generally
his
since it
his
to ture of
man
expect a
wouldn’t
*3
* *
may
than,
acknowledged professional
be
say,
a week.
men
for less
work
completed.
work is
pay
discharged
him
before their
expectation to
more.”
was
It
'óur
appear
Appellant
engaged
business
was
in the
the full Board
and
The referee
had
selling
Latham
Latham
finding that
of
loose leaf tobacco.
their
to have based
tobacco,
was
that he
connection
but rather
the fact
no
with
employee- on
was .an
supervisor of
Buckley and a
and
consulting
of
architect
the orders
worked under
contemplated
discharged
is
It
company;
that he could
construction.
the
engaged in
shall be
upon the
a servant
342.005 that
obligation
no
any
at
time with
his
occupation
“same
or
as
pay;
that he the
business”
company future
bis
employer. Lackey
Commis-
v. Industrial
the contractors
hours as
worked the same
Colorado,
112,
249 P.
job
and sion of
Colo.
paid on a
basis
80
not
and he was
a
implication
The
is that when
working under
obvious
the
employed none
men
,
,
company
:
that
hires
do work
a
to
specialist
.
him.
foreign
employer’s
is
to
or busi-
the
trade
of Sam Horne
In the
recént case
very
ness,
independent
the
con-
workman is an
Inc.,
Co.,
Implement
Gregg,
v.
Motor &
If
tractor.
the
had servants
had
755, appears,a.full discus
Ky., 279 S.W.2d
capable
the
designing
supervising
and
sion,
is
one
an'
question
of whether
the
warehouse,
erection of the
Latham would
independent
employer
contractor.
or an'
not have been hired.
opinion
from the Restatement of
The
lifts
of the
Agency
220(2) nine
the Law of
§
rule is
general
The
the services
significant factors
be considered
most
to
man,
professional
lawyer,
doc
a
such
a
one is an
determining whether
tor,
engineer are
supervising
architect or
independent
an
will not
We
or
contractor.
independent contract
rendered under an
necessary
time and
to
consume the
space,
relationship
the
rather
than under
to
these factors or
discuss
again set out
Morgan,
and
Lewis
master
servant.
v.
will,
them,
those
only refer to
which
but
252
(accountant);
691
Ass
S.W.2d
at
on the case
hand.
bear
Corp.
Indemnity
Ac
v. Industrial
ociated
Comm.,
Cal.App.2d 804, 133 P.2d
cident
56
,The
determining
test
primary
(lawyer); Metcalf &
Mit
Eddy
698
v.
workman,
whether
the
aof
the status-
chell,
514,
172,
269
46
70 L.Ed.
U.S.
S:Ct.
contrpl over the
right of
employer
the
has
engineer).
present
(.consultant
384
In the
n
Buckley
present case
and
the
(In
worker.
pro
case Latham was -hired because
his
daily
concerning
conferences
had
Latham
There is
fessional
no evidence in
skill.:
gave
This demonstrates
work.
.Latham
presumption
record
this
to rebut
These
than received them.
the orders r.ather
independent
he
hired as
contractor.
merely represented the
daily conferences
n
work
see that the
to
company’s right
employment
The
is an
duration
plans and
according
to
progressing
important
in determining
factor'
the status
against
does
militate
not
specifications and
a workman is hired
of a workman. When
independent contractor.
was an
idea
particular job
Latham
it is indicative of
to do one.
E. R. Co.
H. &
independent
onville
contract.
Madis
Servants
are
421. Whose
S.W.
Owen,
usually
a continuing
hired for
character of
Latham fol
specifications was
plans and
assigned
numerous tasks during
work
-
represented
Thus,
By
His own.
lowing?
employment.
their
these standards
company only as
the re
to
will
servant.
Latham
a
not
and not as -to
means'
work
of his
sult
any
“Generally,
specialized
accomplished.
'pro
Har
or
was.
by which-it
to
Baker,
services rendered other
Tie
fessional
than
Co.
Woolf
mount &
hired
a fixed
it
at
obvious Latham was
hours
for fixed
engaged
one
compensa- as an
of his
contractor because
within
recompense
supervise
particular
design
skill
Com-
Workmen’s
tion act.”
Schneider
construction of this tobacco warehouse.
Associated
pensation Law, 2d Ed.
Accident
Indemnity Corp. v.
Industrial
judgment is
The
reversed
directions
Cal.App.2d
hour of the with which he did his meticulousness MILLIKEN, 'Judge (dissenting). as work; change it his status an does not independent contractor. opinion many majority In the ele- of the necessary employee ments to constitute an Patently, parties will intention of the the relationship mentioned, and the. con- light throw some Latham’s status. clusion of Board thus has evidence of employee. Buckley testified Latham was an support substance to it. The elements However, upon cross-examination he ad- quoted from the Restatement Law sign the workmen’s mitted Latham did not represent Agency analysis of an of com- compensation register; deductions that.no relationships mon law de- an effort in earnings were made for from Latham’s termine, example, for an indi- whether taxes, Security purposes. or Social .These a so the master vidual was servant indicate, company, factors did not treat could made liable for his acts. How- (cid:127) employee. as an .. ever, Compensation laws are Workmen’s $3,000 received from the purpose, employer Mrs. social or it from claim Company released 'and of common master is relieved unlimited law of work done employee by had “on account liability assuming her husband a to his salary.” Appellee argues for" liability regardless and claim himto of fault. limited consequence, this Latham was a salaried em- As a standard for de- shows first'place this ployee. contention termining In an individual an whether is em- by purposes is the fact the failed ployee rebutted of for Workmen’s Com- employee is, be, in that to treat Latham as it pensation much and should more employee applied did not make the standard de- elastic than the standard for' de- Secondly, employer respon- ductions from his checks. there termining whether an is salary, quite is person, no evidence a drew sible' of for acts another which' notéd, contrary. previously by As Latham in turn determined whether that other was, price.” Finally, to “set his own person employee is an axi or n n only Latham drew the six during contractor. company. he worked for the months mind, my reasoning in it is be- With this hardly the conduct of a salaried em- evidence sub- lief that the Board had of ployee. its to- sustain Mr.- stance purposes for Latham was independ person is an “Whether a Compensation Act, that the the Workmen’s to be or not is of course de ent contractor accepted final, as finding should Board’s all a consideration termined and, consequence, that there is no er- as proven in the case circumstances facts and * *." this In this before court. ror law sort Co., Olive Hill Brick White of law does arise an error if of case 185 S.W. - is evidence of we there substance assume But, .findings. applicable to sustain Board’s even considering all the fac- After viewpoint if our difference Gregg, .the tors referred to Horne law, Board be denominated an error we by statute
have been since admonished 342.004, to construe Work- liberally Compensation Act “on
men’s law,
questions distinguished
evidence, requiring rule of and the law deroga-
strict construction of statutes in apply
tion * * *» the common shall not law It seems to me that this amend- Gillenwater, George Ellis, E. James J. Compensation to the ment Workmen’s Act Jr., Glasgow, appellant. for designed just to cover such a case as us, the one before and that court Carter, appellee. Tompkinsville, A. P. should sustain the Board in the case at bar however may much we differ as to whether CAMMACK, Judge. Mr. Latham an employee or an inde- pendent contractor. *5 an appeal pro- This is from an order
viding custody alternate girls, of two infant ages appellant, four five. The Bercie King, granted ap- a divorce from the pellee, Garner, October, 1954, Willard given custody of the children. The appellee given right to take the home, children to his where the children reared, had been for one weekend each Appellant, (Now King), Bercie GARNER parents month. The father lives with his county. out in the v. The mother remarried December She lives in town. GARNER, Appellee. Willard February 5, 1955, On motion Kentucky. Appeals of appellee, the grant- court entered an order Court of ing custody parent each during alter- 7, 1955. Oct. nate months Day, until Motion December appeal is from that order.
Bercie King contends that order does reflect the best interests of children, she, mother, and that as the custody entitled their absence of a showing that she is unfit for such a responsibility. The mandate of KRS 403.070
custody must be governed by the interest welfare the children. Trial courts adapted peculiarly to the fact-finding process, especially in a case this, such as precede application which must of this rule. In absence abuse dis- awarding cretion in custody, this Court will not interfere decision Newby Newby, Ky., chancellor. Price, Price In S.W.2d 924. view of rule,