*1 etc., truthfully answered in order party neys, when a has all of his exercised challenges, may peremp- had to utilize exercise his peremptory that a defendant peremptory challenges or more to ex- one tories. jurors who should excused cuse have been engage selecting jurors, in If we are to cause, party peremp- for needed those categories out all of the we should set challenges tory of which he has been de- regard inferring prej- which we bias and prived; that he would have utilized piecemeal. do this udice and not they peremptory challenges been had Commonwealth, Ky., In v. Caldwell party grounds A available. has no ask (1982),we stated that the deter S.W.2d405 challenges who has judge
for more from a juror mination of whether exclude a party challenges cause. We denied the sound discretion of the cause lies within at require do not as a rule best an what wonder efficacy trial court. I about the futility, may in exercise and at worst majority opinion. in Caldwell view arguing judge viewed with the about ruling. I Accordingly, dissent. Rehearing The Petition for should be de- WINTERSHEIMER, J., jоins
nied. The modification rather confuses dissent. Opinion. clarifies the than
STEPHENSON, Justice, dissenting. I majority opinion,
As read the it is based infringing right a defendant’s to exer- peremptory challenges.
cise I do not think reverse
we should a case on that basis. apparently legal
The discussion assumes part on the jurors bias not excused WOODSON, Jr., Marshall B. Executor upon cause. There is reliance Ward v. of the Estate Kenneth C. Ward, my In I Commonwealth. dissent Deceased, Movant, predicted enlarging аutomatic strikes witnesses, etc., relationships to lawyers, be a real It is would troublemaker. here. MANHATTAN LIFE INSURANCE Excusing prospective juror cause con- YORK, OF NEW COMPANY legal preju- stitutes inference of or bias N.Y., Respondent. dice the case. No. 87-SC-247-DG. enlarging This case is presumption beyond effectively of bias takes Ward Supreme Court of away formerly the trial courts the Dec. 1987. recognized juror seating discretion in af- ju- satisfied prospective ter that a qualified juror answers under
ror’s oath and render impartial
to sit a fair and ver-
dict.
The Criminal Code of No. 210 Practice
contemplated implied relationship bias as to victim,
to the accused or the Tradi- etc. have,
tionally, relationship, we aside from
knowledge case, opin- expressed guilt, excusing left
ion as
for cause to the discretion the trial
court. required questions have of fa-
We case, witnesses,
miliarity with the attor- *2 position he Gen-
promotions achieved and Vice-President. Counsel Senior eral 8, 1982, he February was called be- On Kentucky fore the Executive Committee Company told he must Finance resign. sole issue in this case un- continued be covered whether Davis his life insurance therе- der killed the time he was three at after depends upon in turn months later. This evaluating his status Committee meeting his with the Executive 8, content, cir- February so the on meeting of that cumstances and results to the issue. central contested Unfor- were tunately, no there were minutes. Davis And the oth- has been silenced death. witnesses, officials were hostile ers Company a Kentucky Finance which was side on the same of the issue defendant Life, only by a Manhattan released directed verdict.
Davis’ Estate claims that when he was salary killed he on a six months contin- absence, uation leave albeit leave, during he which remained covered Shouse, Deener, Larry C. Land- Weldon supported by employee. claim Patterson, rum, Lexingtоn, Shouse & W.R. resignation February letter of contents of Landrum, Patterson, Jr., Shouse & Patter- Committee, prepared by the Executive Louisville, son, for movant. signed, resigned which which Davis Jr., Stoll, Keenon & Cassidy, J. Peter “any positions as officer and Park, Lexington, respondent. director,” or but Further, employee. his other duties LEIBSON, Justice. Curtin, Secretary/Treasurer Robert movant, the Estatе of Kenneth C. Finance, Kentucky a member of Execu- individ- claims that he was person in charge tive Committee and group life of a insur- ual under the terms payroll, used the term “sever- the executive Kentucky policy issued to Finance ance point giving one testimo- leave” at ance Company by the Specifically, status. ny to describe Davis’ York, Company of New at Life Insurance Davis was on a “sever- testified that Curtin estranged was killed the time Davis months, for six leave” with May on 1982. wife August 8.1 acknowl- be to Curtin would $500,000, $1,000,000 for with for Davis was edged company was committed that the indemnity. double regular salary pay Davis’ continuing to 8, 1982, ap- period February during and for as with Prior to this six months’ including years, regular employee, em- Davis had been salaried proximately other taxes, savings plans, Kentucky Company, ployed by Finance deductions premiums, etc.2 lending principal its offices institution with life monthly premium Manhattan Life was due Lexington, After various description this six months’ continua- as "leave” 2. We note that Curtin testified this 1. later provision period coincides with the tion a "mistake." ) covering (quoted for a of absenсe infra period up to six months. accepted by key language remitted to and is that there is an Com- exception to “cessation of active work” as pany at the time of Davis death. This fixing employ- the date of termination of monthly salary was then discontinued after the individual is absent from ac- death, which is consistent with his “if tive work because of leave of absence employee status as an but which added.) temporary lay-off.” (Emphasis prom- would be inconsistent if Davis was *3 respondent argues vehemently that payment. ised a fixed sum as a severance both “leave of absence” “lay-off” Manhattan Life Insur- only temporary qualify be under must Company, claims that Davis lost his exception, apply this that it does not to a status as a covered individual at this Feb- terminal leave. But “leave” is quali- ruary meeting 8 in which the Executive “temporary” fied the word is the resignation; Committee demanded his that “lay-off.” policy language case with termination of his com- was type makes no distinction in the there; plete then and and that at the time nor does it exclude terminal leave. May despite killed on continua- The trial court submitted the case to the premiums paid tion of life insurance jury requiring jury under an instruction received, coverage. Davis had no to decide whether Davis’ Davis’ option included the 8, 1982,” February “terminated on group convert to an individu- granted whether he “was then a leave of policy, al but he and his were employee Kentuсky absence as an Fi- continuing group policy arrangement approved by nance which was the Execu- rather undertaking option. than It tive Committee thereof and was on such was obvious that both Davis and the re- leave of absence at the time of his death.” sponsible company thought official jury decided that the decedent’s status Davis was still a emрloyee, absence, at least was leave of and found for the until after he appealed. was killed. claimant. Manhattan Life Appeals Court of reversed. The Court of Section 6 of the policy, entitled provid- decided clause “[t]he “Termination of Individual’s Insurance” exceptions to automatic discontin- enumerates four upon events which the uance of benefits because of leave of ab- automatically insurance “shall cease.” The temporary lay-off only sence or becomes particular applicable event to this case is operative when the ‘absence’ is rea- (d), subsection under which insurance ceas- permanent son other than termination.” еs “on the date of employ- termination of There is no such language restrictive so Policyholder.” ment with the Subsection limiting term “leave of absence” in the (d) then states: Therefore, policy. we reverse the “Termination of employment, pur- Appeals and affirm the trial court. pose hereunder, of life insurance means sharp This is a case where thеre is dis- Policy- cessation of active work for the agreement facts, as to the and even more provided holder as 1 Section hereof disagreement as to what inferences from “Definitions”, except entitled appropriate the facts deciding are status at the time he was killed. Manhat- (ii) in case of the absence of an Individu- tan Life insists that the evidence is conclu- al from active work because of sive that Davis was terminated on Febru- temporary lay-off, absence or employ- ary pointing testimony to the trial may, purposes of his life Kentucky various Company Finance offi- hereunder, insurance be deemed to con- prove cials to this conclusion. But Davis tinue until Policyhold- terminated points to the evidence that we have re- beyond er but in no case expiration Opinion ferred to earlier in this as suffi- period of six months prove date employee cient to his status as an such leave of lay-off absence or com- placed who had been in menced.” appeal status for six months. On from a Estate, is, urges Movant that the facts established
verdict support drawing was there substantial evidence to on terminal Davis’ status in verdict? Conflict reasonable still covered within the terms testimony, ferences to drawn absence,” relate “leave of itself, testimony as well as conflicts in the argues there is and further submitting justify jury. case whether the should be doubt as to Homans, Ky. 191, Murphy v. 150 S.W. way, interpreted this such doubt should (1941). Also, Trаns Penn Central 2d of Movant. There are resolved favor portation Skaggs, v. Ky., Co. 489 S.W.2d argument to this prongs two last Commonwealth, Ins. (1973) and Ohio Cas. Co. construing proper method relates to Dep Hwys., Ky., 479 S.W. t. These are: (1972). appellate 2d 603 The role 1) ambiguity; The doctrine of deciding sort court when issues viewing limited evidence from a *4 2) expecta- The doctrine of reasonаble standpoint prevailing par favorable to tions. Stapleton, Bros. Ky. Lever Co. v. ty. 313 Turning ambiguity principle, to the first 837, (1950). 1002 233 S.W.2d phrase policy key to is 1, points Life us Manhattan to Section a indi- whether the decedent was its the “Definitions” section of vidual at the time he was killed is mean- “cessation of active work” as defines exception employment" to “terminatiоn of per- “discontinuance of the Individual’s of upon “cessation of active work” “in case em- forming of the usual of his duties absence of an Individual from active ployment permanent on a full-time basis at work because of leave of absence.” regular place of Member’s business.” policy of has rewritten the above, quoted in 6 As Section terminаtion limit to leave that antic- temporary to leave upon “cessation of employment of occurs to ipates ending with return active work except Policyholder active for the work ... ending anticipates and to exclude leave that that ... in case of the of an Indi- absence employment. But the with termination active leave of viduаl from work because of regard- status on is the same while leave employment may, his absence ... may bring, return less of what the future hereunder, purposes of his life insurance ” duty to or termination. be deemed to continue period” “a to exceed “six months the date using Appeals erred in The Court of such ... absence commenced.” interpretation. most Because restrictive phrases, “except emphasized that” and one, including are policies, continue,” to establish that there “deemed adhesion,3 recognize the contracts of we exception is an while on leave and ambiguity applicable. This doctrine of performing any employee need not be holds, Wol in doctrine as statеd Wolford to cover- employment duties his retain (1984): 838 ford, Ky., S.W.2d age while this status. be company must “Consequently, principal thrust the Manhattan for the terms strictly held accountable complaint Life’s it was entitled the contract. cited]. [Case is must directed verdict constructions, If the contract has two entirety determine its mean- read in its most to the insured the one favorable that, language ing. problem is absent adopted. If the must be cited]. [Case excluding terminal leave language ambiguous, must it contract whole, exception, read when absence any liberally to resolve construed meaning policy urged by Man- insured. doubts in favor of the [Case is no than the hattan Life more reasonable urged by meaning Davis’ Estate. cited].” bargain” оpportunity over sumer Standardized contract realistic 3. "Adhesion contract. 38). ed., essentially (Black's Dictionary, p. ... form offered to consumers on Law 5th terms affording 'take leave it’ without con- it or basis unqualified absence,” death, term employee’s “leave of with the rather than as ambiguous, if not payable regardless can mean that a fixed sum due pеrson is covered on death, interpretation. movant’s supports including assuming terminal leave. Indeed, But interpretation given this was policy language ambiguous, it by company his status of- interpreted against must be the insurance responsible by ficials as well as company. Davis until death and this after dispute payment. over He was carried and expectations Thе doctrine of reasonable treated as one continued corollary construing is a to the rule for leave status. The evidence ambiguities. In Simon v. Continental In presented contrary Life Co., surance Ky., S.W.2d testifying officials after this (1987), we stated that tool in essential “[a]n dispute arose could do no more than create deciding whether an insurance is am the jury, an issue of fact for an issue which biguous, and consequently should be inter jury resolved favor of Davis’ insured, in favor preted is the so- expectations” Estate. The “reasonable expecta called ‘doctrine of reasonable ” both Davis and the company up to the time As Long’s tions.’ summarized in R.H. killed Davis was were that his status Insurance, Liability The Law 5.10B: § was coverеd if death should gist “The of the doctrine is that occur, as it did. insured is entitled to all the *5 may reasonably expect provided to be appeal On this the Manhat- policy. the Only unequivocally under an Life, questioned tan not has the trial conspicuous, plain and clear manifesta- fairly stating court’s instructions as of the company’s tion to intent exclude issue. There suffiсient evidence in the expectation.” will defeat that support jury’s record to finding that was on of decedent leave absence at The evidence is that Davis was Therefore, time he killed. was the decision paid monthly salary in the same manner the Court is reversed. The always, including deductions, as at the time judgment of the trial court is affirmed. Following he killed. his dеath sala- ry Further, was discontinued. the letter of STEPHENS, C.J., GANT, resignation prepared by company LAMBERT, VANCE and signed by resigns Davis states that he WINTERSHEIMER, JJ., concur. from his duties as an “officer director” company of the but does not otherwise STEPHENSON, J., dissents exclude his status employee. as an The separate opinion. responsible official, company Executive STEPHENSON, Justice, dissenting. Curtin, gave Cоmmittee Member Robert testimony supporting continuing employ- peculiar Because of circumstances relationship: ment surrounding departure Davis salary
“he is on a six month continu- company, this appealing finance is an which August say ation will make it 6th case in to the estate should [cor- August to policy. However, rected as termi- the official recover on the I cannot ‘8’] employee.” as an ignore meaning nation plain of “leave of ab- sence” Life insists that citing pay,” “severance cases to In type policy, all of the testi- receiving pay concerning the effect mony severance and facts events after argu- employment. does not extend permanently left the are irrel- dispute. assumes facts which are in evant. The contract is with The factual issue binding. was whether this was not of the the terms contract are just severance agreed but severance leave. Counsel pay- estate payments The nature of the premiums continuation the insurance after Davis salary including deductions, stopping left and was on terminal leavе did not bind meaning generally give other than words a company. Neither did the insurance meanings. company. understood or the finance other act Davis type group policy, the insurance In this majority ambiguity mentioned company finance looks policy, resulting opinion, is in the premiums on the payment of and relies court, rewriting of the coverage. terms mеaning same as ter- per- Davis had There is no minal leave. company. finance He manently left conspic- Here, “unequivocal, is an there practice of law. had rented an office for uous, manifestation plain, and clear not re- disputed is not that he was It coverage" and intent exclude company's It that he had
turning. is further clear expеcta- of reasonable defeat the doctrine compa- active work the finance ceased tion. clause, By this Davis had terminated ny. ambiguity, majority an had to create coverage. employment and existed, to invoke the doctrine where none escape provided exception clause expecta- of reasоnable and use the doctrine ab- for provision from the above imposing liabili- tion as a further reason temporary layoff. These two ex- sence ty. ceptions terminated if the status lasted I should rewrite insur- do not believe we more than six months. liability. policies impose of usage plain, ordinary I Accordingly, dissent. plain con- absence means a leavе with there at the end the leave notation that company. for the
will be return work temporary layoff meaning plain contemplated there will be a
that it is company.
return to work separation
Layoff means with no temporary Addition of
prospect of return. *6 is contem- plainly means that a return KIRSCHNER, by Christopher An Infant plated. Friend, Gary E. and Next His Father KIRSCHNER, Gary E. Kirschner majority of the fact makes much Kirschner, Individually, and Linda word leave qualified Movants, v. require temporary, To tеm- layoff. as was redun- porary would be dant, six-month as is covered &GAS ELECTRIC LOUISVILLE limit. COMPANY, Respondent. contemplate a return to Both clauses No. 86-SC-1001-DG. If he fit Davis at all. does not work which it was terminal was on Supreme I am absence. leave of is not the same 21, 1988. Jan. language can be English amazed the ma- to the extent done tortured
jority. states that the majority fact that the terminal leave is
policy does not exclude policy does not exclude a
irrelevant. say things. plainly it It does what lot of
includes, plain not fit and Davis does
language of the necessary will to have a
Eventually, it dictionary the court continues
court