*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 133 P.2d 698. Comm., 56 court the case circuit remand fact, testified, matter of "As Buckley we the' Board for an order consistent with own keep his own time set let him his opinion. price.” idea negatives employee. The fact was a salaried *4 working supervised every the construction MILLIKEN, J., dissents. every day merely shows wprking

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,