121 Ky.

Volume 121 — Kentucky Reports

110 opinions

121 Ky. 1Agricultural & Mechanical College v. Hager (1905)Reversed
1. Schools — Appropriation—Constitutionality—Const., sec. 184, provides that the bonds of the Commonwealth issued in favor of the *Board of Education and a specified amount of the stock of the Bank of Kentucky shall be held inviolate for the sustenance of the common school system; that no sum shall be raised for education other than in common schools until the question of taxation is submitted to the voters, and the majority of votes cast shall be in favor of such taxation, provided that “the tax now imposed for educational purposes and for the endowment and maintenance of the Agricultural and Mechanical College shall remain until changed by law,” Acts 1904, p. 288, chap. 120, appropriated a sum of money for the benefit of the Agricultural and Mechanical College, no part of the appropriation being derived from the bonds and stock mentioxxed in the Constitution, and the question of the appropriation not having been submitted to the voters. Held — That as it appeared that at the time the constitutional provision was adopted the college was being maintained by the State through appropriations of public funds, such college was xxo part of the common school system, and that the constitutional convention intended the proviso to apply to the college, and, at nearly every' session of the Legislature since the adoption o’f the Constitxxtion appropriations had been made for the college, the act of 1904 was valid. 2. Aid to Interpretation — Debates in Constitutional Conventions— An aid to the interpretation of this section is a reference to the debates of the constitutional convention, which show that when this section was reported from the committee of education without the proviso it was objected to upon the grounds that it might he construed to prevent further appropriations to the very institutions which have been named, including appellant, when members of the convention, including the chairman, a distinguished citizen and lawyer, disclaimed such a purpose and defended the report by the assertion that it could not properly be so construed, and which, after debate, culminated in the adoption of the proviso. 3. Contemporaneous Construction — Another aid to its interpretation is its contemporaneous practical construction by all the other departments of the State government, including the Legislature, by which every one of these institutions has been sustained by annual appropriations at nearly every session since the adoption of the present Constitxxtion, which have been approved by the chief executives of the State. 4. Doubtful Constitutionality — The final canon of construction is, where there may be doubt after all sources of aid have been resorted to, whether -the act violates the Constitution', the doubt is resolved in favor of its constitutionality. 5. Levying Taxes — This appropriation is not xxpheld on the ground that it is not a levying of taxes. If an object can not have a tax levied for it if deemed necessary by the proper power, then no appropriation of public money can be made to it. Where the Constitution fox-bids the levying of a -tax for a given purpose it must be held that it also withholds the power of making appropriations for that purpose unless there is something in the Constitution which particularly and unmistakably authorizes an appropriation, which is not the case here.
121 Ky. 16Hall v. Wright (1905)Reversed
Case 2 — ACTION BY W. H. HALL, &c., AGAINST JOHN W. WRIGHT FOR CONSTRUCTION OF DEED. Appeal from Letcher Circuit Court. M. J. Moss, Circuit Judge. Judgment for defendant. Plaintiff Appeals. 1. The contention of appellants is that the word “children” is a word of purchase and not a word of inheritance as contended for by appellee. 2. Intention must of course be deduced from the entire deed in order to determine the estate created, and this intention once expressed must govern any subsequent mention where the intention is the question in issue, it being concerning the same subject-matter. 3. The warranty in the deed is made to “Joseph Hall and his children forever,” showing the use of the word “children” in its proper sense. 4. We submit that nothing is shown in the context of this 'deed which would prevent the words “his children” talcing their usual and technical meaning. CITATIONS. Ridgeway v. Lamphear, 99 Ind., 255; Page on Wills, p. 653; Williams v. Knight, 18 R. I., 336; Annable v. Patch, 3 Pick., 360; 3 Am. & Eng. Ency. Law, 231, note 1; 232, note 1 (2d Edition); Turner v. Patterson,- 5 Dana, 295; Melchremer v. Gross, 58 Pa., 412; Wolford v. Merganthal, 91 Pa. St., 30; Davis v. Hardin, 80 Ky., 672; Smith v. Smith, 27 Ky. Law Rep., 365. AUTHORITIES CITED. The word “children,” in the deed under consideration, is synonymous with the word “heirs.” (Lachland’s Heirs v. Downing’s Ex’rs, 11 B. M., 34; Dunlap v. Shreve’s E&c’rs, 2 Duv., 334; Moran v. Dillehay, 8 Bush, 434; Hood v. Dawson, 98 Ky., 285; Williams v. Duncan, 92 Ky,, 125; Sloan, &c. v. Thornton, &c., 102 Ky., 443; Harrington v. Gibson, 109 Ky., 752; McFarland v. Hatchett, 26 Ky. Law Rep., 276.
121 Ky. 33Supreme Lodge Knights of Pythias v. Hunziker (1905)Affirmed
Case 3. — ACTION BY LOUISA HUNZIKER AGAINST THE SUPREME LODGE KNIGHTS OP PYTHIAS ON A POLICY OP INSURANCE. Appeal from Pulton Circuit Court. E. J. Bugg, Circuit Judge. Judgment for plaintiff. Defendant appeals. There are many reasons why sec. 679 of the Ky. Stats, has no application to the contract sued on. The mention of any one of the few that we shall name is sufficient to convince the court, in our judgment, that this section of the statute did not in any way affect Hunziker’s contract, viz.: 1. The statute in express terms limits its application to policies or certificates issued subsequent to its enactment. 2. The statute does not apply to cases like the one at bar, because there is no way pointed out in the statute by which the by-law of 1896 could have been “attached” to and made to “accompany” the certificate of Hunziker. 3. The statute is promotive of justice and not injustice. It can not be used by Hunziker’s beneficiaries to prevent the carrying out of his express contract with his brothers. 4. The statute can not apply to by-laws of old line companies enacted subsequent to the issuance of their policies, because such by-laws can not alter or affect existing policies of such companies. To make it apply alone to fraternal beneficiary societies would be discriminative. 5. The statute can not apply to after-enacted by-laws of fraternal societies, enacted subsequent to the issuance of the benefit certificate, because it could serve no good purpose by such application of the statute. Such laws are made by the members for their own benefit, while the purpose of the statute is to protect the member against secret by-laws. The by-laws made by the members themselves are not secret. The members know what they are. 6. The statute can not apply to the contract at bar because it would impair the contract made in 1888 between Hunziker and his brother members. 7. The statute can not apply to the case at bar because it is promotive of justice and public good, whereas to give it the construction in this case claimed for it by appellees would be .to make it the instrument to give Hunziker an advantage over his thousands of brothers with whom he contracted, and rob them against his express will for the benefit of his beneficiaries. 8. In cases of this kind the statute must be construed so as to promote the purposes and intentions of the contracting parties, and not to heap injustice upon the many in order to do an act of injustice to the wishes of one member by giving the money of the many beneficiaries of the one, in violation of the contract. 1. Whether or not the court erred in sustaining a demurrer to paragraphs 3, 4, 5 and 6 of appellant’s answer can not be considered by this court, because in the motion for a new trial no complaint was made about said ruling, and we submit that only the errors assigned and relied on in a motion for a new trial can be considered by the court. 2. The questions attempted to be raised by the paragraphs to which a demurrer was sustained are res adjudicata, having all been determined in this case against the appellant on the former appeal of this case. 3. It is a universal principle of law that statutes and laws affecting the remedy as existing in the jurisdiction of the forum will be administered regardless of what the law is affecting the remedy at the place of the execution, delivery or performance of the contract. AUTHORITIES. 25 Ky. Law Rep., 1510; Ky. Stats., sec. 679; 19 Ky. Law Rep., 186, 1783; 46 Am. State Rep., 439; 91 U. S. Rep., 406; 24 Ky. Law Rep., 984, 1787; 26 Ky. Law Rep., 343.
121 Ky. 42City of Dayton v. Hirth (1905)Affirmed
1. Action — When Commenced — Failure to Verify Petition — Where a petition for personal injuries was filed against the city by one who was injured by falling into a hole in the sidewalk and a summons was issued thereon and served, the action was begun, although the petition was not verified until after twelve montas from the date of receiving the injury. 2. Delay in Prosecution — Filing Away Petition — Redocketing—Discretion of Court — The fact that a petition had been filed without verification on which summons was duly issued, remained on the docket about three years after it was filed and then was filed away, it was in the discretion of the court to redocket the case on motion of the plaintiff, and to allow an amended petition to be filed, and this court will not disturb the action of the lower court in matters of discretion unless it be made . clearly to appear that it abused that ’discretion. The plea of the twelve months’ statute of limitations’ to such petition was properly overruled. 8. Personal Injuries — Negligence of City — Excessive Verdict— Where it is shown by the evidence that a pedestrian in passing along on a sidewalk of a street of a city was severely injured by .falling into a hole on the sidewalk six feet deep, of which she was not aware and which was known to the city officials or by the exercise of ordinary care could have been known by them in time to have repaired it before the accident, considering the nature and permanency of the injuries, a verdict for $3,550' was not excessive.
121 Ky. 48Commonwealth v. Woelfel (1905)Affirmed
1. Criminal Law — Inquiry as to Sanity of Defendant — Upon an inquiry before a jury as to a defendant’s sanity where he is under an indictment charged with crime, his wife is not a competent witness for him for the reason that the 'result of -the inquiry may be to protect the husband from trial and punishment. 2. Same — The rule in a proceeding of this character is whether the accused is sufficiently sane to appreciate the situation and act advisedly in informing his counsel and to intelligently conduct his case as to secure him a fair and impartial trial.
121 Ky. 53McLemore v. Sebree Coal & Mining Co. (1905)Eeversed
Case 6. — ACTION BY NANCY B. MIcLBMORE AND OTHERS AGAINST THE SEBREE COAL & MINING CO. FOR-CAUSING THE DEATH OF THOS. J. McLEMORE, &e.— Appeal from Webster Circuit Court. James W. Henson, Circuit Judge. Prom the judgment dismissing tbe petition the plaintiffs appeal. SUMMARY AND AUTHORITIES. The widow and heirs may bring suit upon the administrator’s refusal to do so, he being made a party defendant, the reason being stated in the petition. (Civil Code, sec. 24; Brunk v. Means, 11 B, Mon., 217; McChord v. Fis-he-r, 13 B. Mon., 194; Roberts’ Adm’r v. Bales, 10 Ky. Law Rep., 360; Loyd v. Loyd’s Adm’r,'46 S. W., 485; Lusk v. Anderson’s Adm’r, 1 Met., 428; Payne y. Pusey, 8 Bush, 564; Baxter v. Knox, 17 Ky. Law Rep., 489; Gibson v. Higdon, 15 B. Mon., 205; Ky. Stats., s’ec. 6; Constitution oí Ky., sec. 241; Am. & Eng. Enc. of Law, vols. 23 and 27; 13 B. Mon.; 66 S. W.) SYNOPSIS. 1. The right of action, its nature and extent. The right of action is purely statutory; the widow and children can not sue, as the right is rested in the personal representative; they have no legal interest in the action. 2. The statute, sec. 6, Ky. Stats., must he strictly construed. 3. The rule ought not to be changed in this case. 4. Appellant’s premises are founded on faulty allegation's of their petition; it contains no sufficient statements of facts. 5. Appellants’ authorities distinguished. 6. Appellants have other remedies open to them, which do not involve a change in law and precedent, and should pursue these remedies. 7. The petition does not state a cause of action for the death, and, therefore, appellants can not complain of the action of the court in sustaining the special demurrer, as the action would not lie, even if brought by a proper plaintiff. AUTHORITIES CITED. Sec. 6, Ky. Stats:; sec. 241, Constitution; Gregory v. I. C. R. Co., 26 Ky. Law Rep., 76; L. & N. R. R. Co. v. Taafe’s Adm’r, 21 Ky. Law Rep., 64; L. & N. R. R. Co. v. Kelley’s Adm’r, 19 Ky. Law Rep., 77; L. & N. R. R. Co. v. Eakins’ Adm’r, 20 Ky. Law Rep., 736; Van Yactor’s Adm’r v. L. & N. R. R. Co., 66 S. W. R., 4; Parker v. Providence & S. Steamship Co., 14 L. R. A., 415-418; Thomas’ Adm’r v. Miaysville Gas Co., 23 Ky. Law Rep., 1879; sec. 3882, Ky. Stats.; Lexington v. Lewis, 10 Bush, 680; Gregory v. I. C. R. Co., supra; L. & N. R. R. Co. v. Jones, 34 So. R., 246; Kinkead on Torts, vol. II, secs. 468, 470, 471; 3 Blackstone’s Commentaries, p. 327; Ockendon v. Barnes, 43 Iowa, 615; Century Dictionary; Black’s Law Dictionary; Myer, &c. v. Dupont, 79 Ky., 424; Bliss on Code Pleading, 3d Ed., secs. 210, 211, 212; Jackson v. Rowell, 4 L, R. A., 638; Southal v. Farrish,, 1 L. R. A., 642; sec. 24, Civil Code; Act of February 23d, 1846; Acts 1846, pt. 1, p. 53; Rountree v. Stephens, 8 Ky. Law Rep., 433; Davis v. Davis’ Adm’r, 7 Ky. Law Rep., 42; Cook v. Farmers Bank, 16 Ky. Law Rep., 286; L. & N. R. R. Co. v. Sanders’ Adm’r, 19 Ky. . Law Riep., 1941; lánck’s Adm’r v. L. & N. R. R. Co., 21 Ky. Law Rep., 1097.
121 Ky. 59Ayles v. Southern Railway (1905)Reversed
Action for Damages — Transfer to Federal Court — Separable Action — In this action the petition alleging that the Southern Railway in Kentucky and others were agents and servants of the Southern Railway, the Virginia corporation, the owner of the road and its equipments, and they were the agents whose duty it was to keep in repair the cars and appliances of appellee, and that they had assured appellant that the engine upon which he was placed was in good repair and safe condition, when at the time they knew such engine and appliances were not in good repair, and that by reason thereof he sustained the injuries complained of. In view of these facts the action was not separable and it was error for the lower court to transfer the case to the Federal court.
121 Ky. 67Board of Trustees v. Postel (1905)Affirmed
1. Trusts — Following Trust Funds — Sale of Void Bonds — Right of Bondholders — The holders of void bonds issued by a school district in violation of Constitution, sec. 157, may obtain relief, under the doctrine that equity follows a fund, on showing that the proceeds of the bonds were used exclusively in procuring a lot, schoolhouse thereon, and school furniture. 2. Same — Statutory Provisions — Ky. Stats. 1903, sec. 2353, providing that, when a deed shall be made to one person and the consideration shall be paid by another, no trust shall result, but this shall not apply to a case where a grantee takes a deed in his name without the consent of the person paying the consideration, does not affect the equitable doctrine, that equity follows a fund and compels a restitution, as long as it can be identified. 3. Appeal — Harmless Error — Judgment—'Wlhere bonds issued by a school district are void, and the proceeds are used in the erection of a schoolhouse, that the judgment in favor of the holders of the bonds in a suit to follow' the proceeds thereof provides for a conveyance to them of the property, instead of a sale thereof, is not prejudicial, where the property is not of more value than the fund derived from the bonds. 4. Parties — Real Party in Interest — The holders of bonds illegally issued by a school district stand in the place of the original purchasers of the bonds, and may maintain a suit in their name as the real party in interest to recover from the proceeds of the property purchased by the proceeds of the sale of the bonds the amount due them.
121 Ky. 77Continental Casualty Co. v. Jasper (1905)Reversed
Case 9. — ACTION BY CYNTHIA JASPER AGAINST THE CONTINENTAL CASUALTY CO. ON AN ACCIDENT INSURANCE POLICY. Appeal from Greenup Circuit Court. James B. Harbeson, Circuit Judge. Judgment for plaintiff. Defendant appeals. To constitute a waiver the circumstances of the case, or the acts 'and 'declarations of the parties, must have indicated such an intent; and whether in the case at bar such an intent existed was a question of fact to be decided by the jury and not by the court. The only question of law involved in the question of waiver must relate to the legal definition of the word. For example, the jury in the case at bar might properly have been instructed as a matter of law that a waiver must be voluntary, and that it implies the knowledge of the right, claim, or thing waived; but whether the waiver was voluntary and whether the appellant had knowledge of the right or thing waived were certainly questions of fact to be submitted to the jury. Now, I submit that there was no waiver because the company refused to accept the money; that the receipt of the paymaster was unauthorized by the company. His receipt of the money not being the act of the company, there was no waiver by it, much less any voluntary waiver, -especially as the company had no knowledge of the 'acts of the paymaster until the money was sent to the home office, whereupon it promptly repudiated them. AUTHORITIES CITED. California Southern Hotel Co. v. Claendar, 94 Cal., 120, Am. St. Rep., 99; Dubignon v. Loud, 7 Rich. L. (S. Car.), 193; Fitch v. Woodruff, &c., Iron Works, 29 Conn., 82; Fox v. Harding, 7 Cush. (Mass), 520; Okey v. State Ins. Co., 29 Mo. App'., Ill; Traynor v. Johnson, 1 Head (Tenn.), 41; Hill v. Hobart, 16 Me., 164; Hale Mfg. Co. v. American Saw Co., 43 Mich., 250; Chapman v. Colby, 47 M!ich., 46; Franklin F. Ins. Co. v. Updegraff, 43 Pa. St., 350; Coursln v. Pennsylvania Ins. Co., 46 Pa. St., 330; Phoenix Ins. Co. v. Munday, 5 Coldw. (Tenn.), 551; Farlow v. Ellis, 15 Gray (Mass.), 232; Smith v. Dennie, 6 Pick. (Mass.), 266, 17 Am. Dec., 368; Fiskback v. Van Dusen, 33 Minn., 118; Osborn v. Gantz, 60 N. Y., 540. POINTS AND CITATIONS OF AUTHORITIES. 1. Contract as to whether obligation given by insured for payment of premium shall be enforcible must be reciprocal. (Bane v. Travelers Ins. Co., 85 Ky., 679.) 2. Testimony of witness Rurich as to notice to insured not competent. (Civil Code, sec. 606.) 3. The giving-by the insured of an obligation in payment of premium, accepted by the insurance company in lieu of payment, which can be enforced, and secures insurance company in its premium, is a payment of the premium. (Bank of Kentucky v. Sanders, 3 A. K. Mar., 185; Curie v. Beer, 3 J. J. Mar., 170; Bane v. Travelers Ins. Co., 85 Ky., 679; Montgomery v. Phoenix Ins. Co., 14 Bush, 51; Johnson v. Southern Mut. Ins. Co., 79 Ky., 407; Moreland v. Union Cent. Life Ins. Co., 104 Ky., 129.) 4. The law of Kentucky does not favor forfeitures in life insurance policies. (Mutual Benefit Life Ins. Co. v. First. Nat. Bank, 24 Ky. Law Rep., 583.) 5. Application and statements in paymaster’s order, other than as to statements with reference to payments, not a part of the contract of insurance. (Ky. Stats., secs. 656 and 679; Provident Savings Life Assurance Society of New York v. Beyer, 23 Ky. Law Rep., 2460.) 6. As to effect of nonpayment of installment of premium without fault on the part of the insured. (Lyon v. Travelers Ins. Co., 55 Mich., 141; a. c., 20 N. W. Rep., 829.)
121 Ky. 82Levi v. Fidelity Trust & Safety Vault Co. (1905)Affirmed
1. Wills — Power of Wife to Dispose of Husband’s Estate Under— Construction of — Under a provision in the husband’s will, devising all his property to his wife and providing “that previous to her death she may_wUljor_ distribute to her relations and to my relations any property, real or “personal, as she may choos_e or desire them to ’ have,” she had the power to dlstrfBute the estate of 'her husbancT according to her 'discretion to such of her relations and his relations as she might select. 2. Same — Having the right to distribute any part of the estate during her life, or by will, to such of her relations and his relations as she might choose, it follows that her selection of the objects of her bounty from among her own and her husband’s relations can not be interfered with. 3. Relations — The use of the word “relations” by the husband was not intended to confine the distribution of the estate devised to his wife to those who were directly of kin, hut was- used as meaning blood kin of any degree, and she had the right to give to the children of her sister instead of the sister, or the nieces or nephews of her husband instead of his brothers. 4. Same — It follows, therefore, that a conveyance from the Fidelity Trust and Safety Vault Co., which she constituted trustee to sell her property in a will carrying out the above provision of her husband’s will, constituted a good and sufficient title.
121 Ky. 92Moody v. City of Williamsburg (1905)Reversed
Case 11. — PROHIBITION PROCEEDING BY WILLIAM MOODY AGAINST THE CITY OF WILLIAMSBURG, &c., TO TEST THE VALIDITY OF A CITY ORDINANCE FIXING THE COMMISSIONS ON FINES OF THE CITY ATTORNEY.— Appeal from Whitley Circuit Court. M. fj. Jarvis, Circuit Judge. Judgment for defendants. Plaintiff appeals. A city council can pass no ordinance unless clearly permitted and authorized by the charter. It is the policy of the law to require of municipal corporations a strict observance of their powers-; any doubt or ambiguity arising out of the terms used by the Legislature in making a grant of power must be resolved in favor of the public, and a power can not he exercised, where it is not clearly comprehended within the words of the act, or derived therefrom by necessay implication. AUTHORITIES CITED. Ky. Stats., sec. 3637, sub-secs. 1 to 9; Am. & Eng. Eticy. of Law, vol. 15, p. 1041; Kniper v. City of Louisville, 7 Bush, 599; Henderson, &e. v. City of Covington, 14 Bush, 312. 1. Sub-sees. 5 and 7, sec. 3G37 of the Ky. Stats., confers upon the general council of cities of the fifth class the power to impose fines and penalties for any and all violation of ordinances, etc.; to fix the penalty by fines or imprisonment, or both, and to do and perform any and all acts and things necessary and proper to carry out the provisions of this chapter. 2. It is provided in sec. 3623, Ky. Stats., “that the city attorney shall receive at stated times a compensation, to be fixed, by ordinance by the city council.” Sec. 133, Ky. Stats., provides that “in all transactions before any police magistrate, when the county attorney is present and prosecuting the offender, he shall receive from the State treasury 30 per cent., etc., of fines, which shall be in lieu of all taxed fees and perquisites — except when the judgment is for less than $10, a fee of $5 shall be taxed as costs and belonging to him.” 3. Under these provisions we contend that the general council has power to pass an ordinance directing the police judge to tax an attorney’s fee against the offender when the punishment is fixed at less than $10. This does not place upon him more than should the county attorney prosecute the case.
121 Ky. 97Commonwealth v. Moore (1905)Affirmed
1. Criminal Law — 'Indictments—It appearing in defense of his house from robbery by defendants, the owner accidentally shot and -killed an innocent bystander, the demurrer to the indictment which charged appellees with the murder of the bystander was properly sustained and the indictment property dismissed. 2. Same — In order tlxat one may be guilty of homicide he must do the act actually or constructively, that is, he must do it, or it must be done by some one acting in concert with him.
121 Ky. 103Commonwealth v. Wills (1905)Affirmed
Case 13. — PROSECUTION AGAINST JAMES WILLS POR PER- * MITTING A MINOR TO PLAY ON A BILLIARD TABLE.— Appeal from Clark Circuit Court. J. M. Benton, Circuit Judge. Defendant acquitted and Commonwealth appeals. We submit that the jury are not required to believe that at the time of the alleged playing the owner of the table must have known that the player was under 21 years of age. The law makes it incumbent on the owner to know that those offering to play, and playing, are laboring under no disability. (Ulrich v. Commonwealth, 6 Bush, 400.)
121 Ky. 105Alexander v. Aud (1905)Reversed
1. Taxation — Lien — - Enforcement Against Land — Injunction Against Revenue Agent- — Joinder of Plaintiffs — 'An action by a taxpayer to enjoin a revenue agent of the State from enforcing the State’s lien on his land for taxes duly assessed against him, is a separate action-, and several taxpayers can not jointly prosecute such action. 2. Same — Lien on All Property — Where a tax is duly assessed on the property of a taxpayer, it thereby becomes a lien on all his property of every description, and while the statute contemplates a sale first of the personalty, it does not release the realty from the lien. 3. Act of Officer — Pleading Attacking — Sufficiency—A pleading which attacks the validity of an official act, is bad, unless it shows affirmatively that the act was not done or that some essential was omitted which goes to the validity of the act. 4. Same — 'Presumptions—'Public officers who are required to discharge an official duty, and to make a certificate or return thereof, are presumed to have truly done all that is certified, and all they were required to do to make the certificate true.
121 Ky. 119City of Bardstown v. Hurst (1905)Affirmed
1. Annexing Territory to City — Publication of Ordinance — Petition Objecting to Annexation — -Where it is apparent that the city council knew of the filing of the petition in the circuit court remonstrating against the proposed annexing of territory to the city when the final ordinance was enacted by it, and that it was filed before the publication of the ordinance in four issues of a weekly newspaper, such ordinance was prematurely enacted and was illegal. 2. Same — The filing’of a petition objecting to the annexing, of territory before the passage of the final ordinance, and before there had been four publications as- provided by statute, interposed a legal barrier to further action on the'part of the city council until the circuit court had passed upon all questions raised in the petition. 3. Same — While the ordinance will not be declared void because it was not published in a weekly newspaper in each of the four weeks following its enactment, the city, after taking-two months to publish the ordinance, will not be heard to complain that the petition was not filed within thirty days next after the enactment of the first ordinance by which the boundary of the territory was defined. 4. Proper Remedy — Prohibition is the proper remedy, where a city seeks to prosecute one for an offense committed in territory not legally annexed to the city.
121 Ky. 129Craft v. Barron (1905)Affirmed
1. Pleading — The rule appears to be well settled in this State . that a general plea of fraud in an answer is good without specifying the facts constituting the fraud. 2. Contract — Fraud—In an action to recover upon a contract, the defense being that -it was procured by fraud, an instruction in substance that if the representations alleged to have been made were untrue and by reason of them the defendant was induced to make the contract which he would not have otherwise made, they should find for the defendant, was proper, as was also an instruction to the effect that if the agent in making the representations made them not as matters of fact, but of opinion, they should find for plaintiff. 3. Witnesses — Impeachment — Reputation — .Evidence that the reputation of a witness for truth and veracity was bad at places where he had resided some time before trial is admissible in connection with similar testimony as to his reputation at a place where he resided at the time of trial, but for only a short time before.
121 Ky. 138Illinois Central Ry. Co. v. Allen (1905)Reversed
1. Carriers — Duty to Passenger — Performance of Contract of Carriage — The 'duty of a carrier of passengers is to attend to the comfort and safety of all its passengers alike, but not to, furnish especial attention to any one in particular, unless under exceptional circumstances, such as sickness en route; but, if a carrier voluntarily accepts a helpless passenger without an attendant, it will assume the additional care commensurate with his needs. ‘¿. Same — 'Duty to Receive Passengers — Infirm persons — A blind man, 77 years of age, applied to a railway agent for a ticket for a journey necessitating the changing of cars two or three times. When he applied for the ticket, he was accompanied by an attendant. He frequently took short trips involving no change of cars-, and on these trips some one would assist him getting on and off the train. On taking a trip involving a change of cars, he depended on the assistance of chance acquaintances, or the employes in charge of the train. Held — That the carrier was justified in refusing to sell him a ticket unless he secured an attendant. 3. Same — Rules of Carrier — Validity—A rule of a railway company forbidding the sale- of tickets- to persons physically unable to take care of themselves, unless accompanied by an -attendant, is only for the guidance of its servants, and can not limit its responsibilities to the public, unless the rule can be justified by the principles governing the duties of carriers-.
121 Ky. 147Smith v. Nones (1905)Affirmed
1. - Wills — Construction of — Power of Trustee to Improve Estate— Where one by will devised his estate in trust for his daughter, directing that the trustee could sell any part of it with the daughter’s consent and invest the proceeds in stocks, bonds, or real estate, and change with like consent said investments from time to time as thought best, and providing for its 'descent to her heirs upon her death, and vesting like large powers with the daughter’s consent in the trustee, the latter, with the daughter joining in the conveyance, had the power under the will to convey a lot in consideration of improvements made on a piece of land which connected it with an important city park, materially 'enhancing its value. 2. Same — While the ordinary expense of maintaining an estate must be borne by the life tenant, yet where the expenditure is out of the ordinary and enhances the value of the estate as a whole, the tendency of modern authority is to divide the outlay equitably between the tenant and the remainder-men. '
121 Ky. 158Commonwealth v. Redman (1905)Reversed
1. Liquor License — Notice of Application for — Power of County-Court to Revoke License — If the notice required by the statute upon application for a liquor license was not given, the county court was without power to grant it, and having granted the license, it had the power to revoke it. 2. Same — The notice herein not having -been posted properly and being a sham, intended to defeat the purposes of the statute, the county court, upon proof of this, properly revoked the license it had granted.
121 Ky. 164Commonwealth v. Woolfolk (1905)Reversed
CASE 20. — PROSECUTION AGAINST WALLACE WOOLFOLK FOR FELONIOUSLY BREAKING AND ENTERING A DWELLING HOUSE. Appeal from Hopkins Circuit Court. J. F. Gordon, Circuit Judge. From an acquittal by a jury under peremptory instructions the Commonwealth appeals. We submit that where a tenant of a dwelling house left it temporarily, leaving his trunk therein, with the intention of returning in a few days, it was a dwelling house in the meaning of the law, and any one breaking into such house with intent to steal therefrom is guilty under Ky. Stats., sec. 1162.
121 Ky. 170Hobbs v. Upington (1905)Affirmed
1. Municipal Corporations — -Board. of Aldermen — Election—Term of Office — -Determination by Board — Where there was a short term to be filled in one of the offices of the board of aldermen of a city at an election, caused by the resignation of a former member, and at an election of five members of the board, consisting of eight, by an oversight it was not indicated which of them was to fill the short term, and the mistake was not discovered until all of them had been elected, when all claimed a full term, none of the members so elected was competent to vote in the determination of which of them took the short term, under a provision of the city charter that the board should determine the election and qualification of its members. 2. Constitutional Law — Vested Rights — Public Office — The power lodged in the board of aldermen of a city to determine the election and qualification of its members does not authorize them to take from a member without right an office into which he has already been inducted under a previous board, and to which he has a vested right. 3. Municipal Corporations — Board of Aldermen — Election—Term of Office — Determination—Power of Mayor — -Where five aldermen of a city were chosen at an election, and by an oversight it was not indicated which of them was to fill the unexpired term of a member who had resigned, the mayor of the city had no authority to determine the matter. 4. Same — Remedy-Casting Lots — Where five- members of a city council were chosen at an election, and' by an oversight it was not indicated which of them was to fill an unexpire'd term, the proper way of 'settling the dispute as to which should take the short term was to cast lots. 5. Same — Estoppel—Where one of the members of a board of aldermen, in order to settle a dispute as to which of five members chosen at an election should take a short term arising from a vacancy, agreed to take such term if he wa,s elected president of the board, and thereby prevented the question being determined by lot, he was estopped, after the expiration of the short term, to claim the long one. 6. Same — Public Policy — -Five members of a board of aldermen having been elected without designating which of them was to fill a short term, an agreement between them by which one of their number consented to take the short term in consideration of being appointed president of the board was not contrary to public policy.
121 Ky. 177Bevis v. Vanceburg Telephone Co. (1905)Reversed
1. Telephones — Poles ancl Wires — Rights in Highways — Permits —‘Jurisdiction of County Court — Under Ky. Stats. 1903, secs. 4306, 4679a, authorizing telegraph companies to use highways on certain conditions, and declaring that the fiscal court of each county shall have general charge of the public roads and bridges, and shall prescribe rules and regulations for repairing and keeping the same in order, etc., the county court had no jurisdiction to grant a permit to a telephone company to construct its poles and wires along a public highway in the county, hut application must be made to the fiscal court. 2. Same — Obstructions—Nuisance—Injuries—Questions for Jury— Where a telephone pole was 'erected in a highway out of line with the other poles, and 'so that it left only 16 feet of the traveled way free for vehicles, and plaintiff was injured by the buggy in which she was riding being 'driven against the pole at night, whether such pole was a nuisance, and unauthorized by Ky. Stats. 1903, sec. 4679a, authorizing the maintenance of telegraph lines along highways in such a manner as not to obstruct the same, was for the jury. 3. Negligence — ‘Contributory Negligence of Driver of Vehicle— Imputation to Occupant — Where plaintiff was invited to ride to a village at night as the guest of a friend, and was injured by her friend’s 'driving the vehicle against a telephone pole which was improperly located in the highway, the negligence of the driver, if any, was not imputable to plaintiff.
121 Ky. 187Shirley v. Southern Ry. Co. (1905)Affirmed
1. Eminent Domain — Proceeding's — Appeal •— Trial De Novo— Under the statute requiring that, where there are exceptions and an appeal to the circuit court from the judgment of the county court in proceedings to condemn land, the appeal shall be tried de novo, tbe circuit court on appeal properly submits to the jury the whole question of damages, though no exceptions were filed to so much of the commissioner’s report as ascertained the amount of the damages to the land not taken. 2. Same — Evidence—Admissibility—In proceedings by a railroad company to condemn land for a right of way, 'evidence offered by the owner of the land of the number of children composing his family was properly excluded. 3. Appeal — Objections not Made in Lower Court — Where no objection was made to the testimony of witnesses who gave their opinions as to the damage accruing to the owner of land by reason of a railroad acquiring a right of way through it, the court on appeal will not review the court’s ruling as to its competency. 4. Eminent Domain — Railway Right of Way — Public Use — That citizens of a county, as an inducement to a railroad company to build a road, agree to furnish the right of way, does not affect the fact that the land is to he obtained for a public purpose and is necessary therefor. G. Same — Elements of Compensation — The jury, in awarding compensation for the taking of land for a railway right of way, should award to the land owner the reasonable value of the land proposed to be taken, determined by considering its productive capacity and its relation to the remainder of the land, together with the reasonable cost of fencing made necessary by the building of the road, the depreciation in the market value of the' whole or any part of the land by reason of the separation of the land into parcels, the depreciation in the market value of the land not taken because of any reasonable apprehension of danger of fire resulting from the prudent operation of the road, the inconvenience that the owner will suffer by reason of crossing over the road from one part of the land to another, and the discomforts in his residence by smoke, etc., produced by locomotives on the track, that are properly equipped and prudently operated.
121 Ky. 194Commonwealth v. Ingalls (1905)Affirmed
1. Taxation — Assessment Against Wrong Person — Payment—Reassessment — Ky. Stats. 1903, sec. 4023, provides that the holder of the legal title and the holder of the 'equitable title and the claimant or bailee in possession of property shall he liable for the taxes thereon. Sec. 4024 provides that all 'estate, real or personal, shall be assessed for taxation, and the taxes paid, by the owner thereof. S'ec. 4049 provides that real estate shall be listed in the county or district where situated against the owner of the first freehold estate therein. Held — That, where a tax on land has been assessed to and paid by another than the true owner, the State can not again assess the land for the same year in the name of the true owner and compel him to also pay the taxes thereon. 2. Same — Railroads—Ownership of Property — Ky. Stats. 1903, sec. 4023, provides that the holder of the legal title and the holder of the equitable title and the claimant or bailee in possession of property shall be liable for the taxes thereon. Sec. 4024 provides that all estate, real or personal, shall be assessed for taxation, and the taxes paid by the owner thereof. Sec. 4049 provides that real estate shall be listed in the county or district where situated against the owner of the first freehold estate therein. 'Sec. 4096 requires the president of a railroad to return to the Auditor of Public Accounts a sworn statement of the length of the railroad, the average value per mile thereof, and a list of the depot grounds and improvements and other real estate of the railroad and the value thereof. Held — That railroads are 'assessed for taxation as entireties, all their property, whether owned or leased, used in the 'operation of the road, being deemed for the purposes of assessment one piece of property, and the taxing officer is not required to see whether each parcel of land occupied and operated by a railroad is owned by it or is merely, leased, but the railroad will be considered as the owner, for purposes of taxation, of all the property which it uses in its business. 3. Same — Powers of Taxing Officer — Property Wrongfully Held— Taxing officers are not intrusted with the power of passing on the question whether a railroad owns property not necessary or proper for its use and which it is not authorized to own by its charter or the laws of the State.
121 Ky. 203L. & N. R. R. v. Sights (1905)Reversed
1. Railroads — Crossings—Warning by Flagman — It is the 'duty of a flagman at a railroad crossing to give the driver of a team such warning of the approach of a train as wil(l enable him to stop his team at a point where an ordinarily well-brolten and gentle team would not become dangerously frightened, or where, if his horses were not ordinarily well-brohen and gentle, he would have time to turn around and drive to a point of safety. 2. Damages — Personal Injuries — The measure of damages for personal injury is the expense of plaintiff's cure, the value of the time lost by him -during his disabilities, and a fair compensation for his bodily and mental suffering caused by the injury, as well as for any permanent reduction in his earning powers. 3. Same — Instructions—The term “permanent inability to labor,” in an instruction as to measure of damages for personal injury, is not the precise equivalent of “permanent reduction in his power to earn money;” and allowing remuneration for “inconvenience” suffered is too latitudinous. 4.-Negligence — Contributory Negligence — Instructions — An in'struction assuming that, to entitle defendant to the benefit of the rule of contributory negligence, it must have been entirely free of negligence, is contrary to the theory of contributory negligence. 5. Railroads — Crossings—Operation of Train — A railroad company has the right, as against one -approaching a crossing with a team, to operate its engine and cars in the usual and ordinary way, and. to make such noises or movements as are usually and necessarily made by trains in motion under similar circumstances.
121 Ky. 211Miller v. City of Pineville (1905)Affirmed
1. Municipal Corporations — Detachment of Territory — Liability for Debts — In the absence of statutory’ or constitutional, provisions to the, contrary, property within the territory placed beyond the limits of a city, on the boundaries thereof being changed as authorized by Ky. Stats. 1903, sec. 3483, is not subject to taxation for the payment of bonds issued by the city while the territory was within its limits. 2. Same — -Alteration of Boundaries — Statutes — Validity — Ky. Stats. 1903, sec. 3483, authorizing the changing of- the boundaries of cities by reducing the limits thereof, etc., is not invalid because only the taxpayers in the territory proposed to be stricken off can make a defense, and 'because the defense is limited to a showing that the change will impose unjust burdens on them, the Legislature having the power to reduce the limits of municipalities and to limit the defense to a proceeding therefor. 3. Same — Detachment of Property — Agreement to Pay Debts — Effect — Where territory was placed beyond the limits of a city in proceedings to reduce its limits, the taxpayers living within the territory cut off are not subject to taxation to .pay the bonds issued while the territory was within the limits of the municipality, though theyi agreed with the ¡municipal officers'to pay their share of the debts, authority to levy taxes not being the subject of agreement, but being a power vested in the Legislature alone.
121 Ky. 218City of Covington v. Pullman Co. (1905)Reversed
CASE 27. — ACTION BY THE PULLMAN CO. AGAINST CITY OF COVINGTON TO ENJOIN THE CITY PROM COLLECTING TAXES ON SLEEPING CARS. Appeal from Kenton Circuit Court. W. McD. Shaw, Circuit Judge. Judgment for plaintiff. Defendant appeals. AUTHORITIES CITED AND POINTS DISCUSSED. 1. Appellee’s cars come within the designation of- property taxable by the. city of Covington. (Secs. 3174, 4021, Ky. Stats.) 2. To constitute double taxation the property must be twice taxed within the same jurisdiction. (Whitaker v. Brooks, 90 Ky., 08; Western Assurance Co. of Toronto v. Halliday, 120 Fed., 295.) 3. The doctrine of mobilia sequunter personam has no application to matters of taxation, and the term within the State means actually situated therein; also on question of double taxation, see Coe v. Errol, 116. TT. S., 517; American Refrigerator Transit Co. v. Hall, 174 U. S., 70, [Col.]; Denver & R. G. R. R. Co. v. Church, 17 Col., 178, Pac., 468; R-ieman v. Sheppard, 27 Ind., 288; Standard Oil Co. v. Combs, 96 Ind., 179; City of St. Louis v. Wiggins Ferry Co., 40 Mo., 581; Curtis v. Wlard, 58 M!o., 295; City of New Albany v. Meelron, 3 Ind., 481; Hall v. The City of Madison, 21 Ind., 335; City of Baltimore v. Hussey, 67 M!d., 112; City and County of San Francisco v. Mackey (O. C.), 22 Fed., 602; Sayings & Loan Co. v. Multnomah County (C. C.), 60 Fed., 31; Territory v. Delinquent Tax List, 24 Pac., 182; Gpldgart v. People, 106 111., 25; Dykes v. Lockwood Marty Co., 2 Kan. App., 217; Barber Asphalt Paving Co. v. The City of New Orleans, 41 La. Ann., 10-15; London & Globe Insurance Co. v. Board of Assessors, 44 La. Ann., 760; Clason v. The City of New Orleans, 46 La. Ann., 1; Common Council of the City of Detroit v. Assessors of the City of Detroit, 91 Mich., 78; The State v. Earl, 1 N. Y., 394; Mumford v. Sewall, 11 Or., 67; South Nashville St. Ry. Co. v. Morrow, 87 Tenn., 406; Wm; Redmond, &c. v. Corns, of Rutherford, 87 N. C., 122; Albany v. Powell, 2 Jones Eq., 51; Adams v. Adams, 21 Vt., 159; Hoyt v. Corns, of Taxes, 23 N. Y., 224; AVarner v. Jaffray's, &c.,~96 N. Y., 225-226; Hardisty v. Fleming, 57 Tex., 395; Palmer v. Carwith, 3 Chand., 297, 3 Penn., 267; Commonwealth v. Gaines, 80 Ky., 489. 4. The right of a State to tax extends to all persons and things within its jurisdiction. The State, having jurisdiction of the person, may, if it so desires, utilize the fiction of mobilia sequunter personam to extend itsi taxing powers. (Adams v. Adams, 21 Vermont, 159; Story on'Conflict of Laws, p. 19; Hoyt v. Com. of Taxes, 23 N. Y., 224; Western Assurance Co. v. Halliday, 126 Fed., 257; Matter of Whiting, 150 N. Y., 31; Matter of Bronson, 150 N. Y., 17; Blackstone v. Miller, 188 U. S., 189; New Orleans v. Stempel, 175 U. S., 309.) a. The cases of Wren v. Boske, Sheriff, 24 Ky. Law Rep., 780; Boske, Sheriff v. Security Trust and Safety Vault Co., &c., 22 Ky. Law Rep., 181; Thq City of Covington v. Wayne, 22 Ky. Law Rep., 826; Gates v. Barrett, 79 Ky., 296; City of Louisville v. Shirley, 80 Ky., 71, only support appellee’s contention that our State has employed the fiction of mobilia sequunter personam to a certain extent. In these cases it was only utilized in order to make a choice between two possible situses, the person and property being within the State. These cases are also commented upon as being in error in fixing the domicile of a resident owner as the place for taxing his property. 5. Actual situs should be the place of taxing personal property within the State. (Ky. Stats., secs. 4023, 4033, 4047, 4052, 4058.) a. The facts alleged in this case show that appellee’s cars have a situs within the city. G. The abiding place or place of rest of rolling stock of railroads is the place where the same is taxable. (Atlantic and Pacific R. R. Co. v. Lesireur, 2 Ariz., 428; City of Dubuque v.Illinois Central R. R. Co., 39 Iowal., 82; Carlisle v. Pullman Palace'Car Co., 8 Col., 320.) The average number of cars may be taken as basis of assessment. (Am. Ref. Tran. Co. v. Hiall, 73, 82; Pullman P. C. Co. v. Com. of Penn., 25, 26; approved in TO R. Transit Co. v. Lynch, 177 U. S., 428.) 7. The appellants have the right to distrain appellee’s cars for its taxes. (Sec. 212, Ky. Constitution; sec. 814, Ky. Stats.) 8. The appellants have a right to recover their taxes in thi; action. (William Clark, Sheriff v. Louisville Water Co., 90 Ky., 515; Louisville Water Co', v. Commonwealth, 89 Ky., 244.) POINTS AND AUTHORITIES. 1. Nb Legislature of any State in this Union has ever deliberately applied the antagonistic doctrine of mobilia sequuntur personam and actual situs to the same class of property, whether the owner be resident or non-resident. 2. No court (where the question has been presented to its attention) has ever construed a statute as intending that both doctrines shall apply to the same class of property. 3. While one State is not hound to recognize the policy of taxation of another State, and does not, and while this disregard often leads in actual practice to double taxation, nevertheless each State intends to enact as nearly .as possible a uniform, just and consistent scheme of taxation, one which avoids, in theory at least, double taxation and oppression. And with this purpose in view one State presumes that the other State's adopt the same scheme. 4. No State ’has ever applied one doctrine to its citizens.and the other to citizens of sister States. (1 Rev. Stats., N. Y., 387, sec. 1; Wilson v. Miayor of New York, 4 E. D. Smith, 682; Hoyt v. Corns, of Taxes, 23 N. Y., 224; 1 Rev. Stats, Ind., 187C, p, 73; Herron, Treasurer v. Keeran, 59 Ind., 472; Standard Oil Co. v. Bachelor, 89 Ind., 4; City of New Albany v. Meekin, 3 Ind., 482; Eversole v. Cook, 92 Ind., 224; The State v. Collector of Rah-way, 24 N. J. L., 56; The State v. Ross, 23 N. J. L., 522; Over-field v. Sutton, 1 Metr [Ky.], 621; Lee v. Forman, 3 Met. [Ky.], 114; Johnson v. Offutt, 4 Met. [Ky.], 19.; Pennington v. Woolfolk, &c., 79 Ky., IS, 19; Act of February 23, 1837, 3 Stats. Law, 511; Commonwealth v. Hays, 8 B. Mon., 1; Act of 1848, Session Acts, p. 80; Act January 9, 1852; Act May 17, 1886, chap. 92, Gen. Stats.; Whitaker, Auditor’s Agent v. Brooks', 90 Ky., 75; Act of November 11, 1892, chap. IOS, Ky. Stats.; secs. 2730, 2731, 2734, Rev. Stats. Ohio, 1890; People v. Insurance Co., 29 Cal., 534; State ex rel Dunica v. County Court, 69 Mo., 454; Valle v. Ziegler, 84 Mot, 214; People v. Gardner, 51 Barb., 252; In re Hoffman, 153 N. Y., 329; In re Merriman, 141 N. Y., 479; In re Swift, 137 N. Y., 77; In re Bronson, 150 N. Y., 1; Blaokstone v. Miller, 188 U. S., 189, 206.) 5. Under the laws of Kentucky the situs of personal property of every description, for purpose of taxation, is the domicile of the owner. (Secs. 4020, 4022, Ky. Stats.; I Cooley on Taxation, 3d Ed., 45; Osborn v. N. Y. & N. H. R. R. Cot, 40 Conn., 494; Commonwealth, &c. v. Un. Refrigerator Transit Co., 26 Ky. Law Rep., 23; Boske, &c. v. Security Trust, &c. Co., 22 Ky. Law Rep., 181; Covington v. Wiayne, 22 Ky. Law Rep., 826; Wren v. Boske, &c., 24 Ky. Law Rep., 1780; Langdon-Creasey Co. v. Trustees, &c., 25 Ky. Law Rep., 823; McM'akin v. Commonwealth, 25 Ky. Law Rep., 2195; O’Callaghan’s Ex’or v. City of Owensboro, 111 Ky., 765; Board of Councilmen v. Scott, 101 Ky., 615; L. & N. R. R. Co. v. City of Barbourville, 105 Ky., 174; Phelps v.' Thurston, 47 Conn., 477.) 6. This court has correctly construed sec.. 4020, Ky. Stats. (Sams, &c. v. Sams’ A'dm’r, 85 Ky., 396; Commonwealth v. Reynolds, 89 Ky., 147; 'Bird v. Board Commissioners, 95 Ky., 195; Commonwealth v. EPalli’dy, 98 Ky., 616; Endlich on Int. Statutes, sec. 295; Covington v. McNichles’ Heirs, 18 B. Mon., 286; Barbourville v. City of Louisville, 83 Ky., 95; Sedgwick on Statutory Construction, 361.) 7. The collection of the tax sued for would be a violation of the Bill, of Rights and the 14t'h amendment. (Bill of Rights Ky., sec. 2; 14th amendment Constitution United States; Scott v. MicNeal, 154 U. S., 45; Cooley on Taxation, 3d Ed., 62; Railroad Tax Cases, 13 Fed., 722; Cooley’s Const. Limitations, 7th Ed., 744, 747.) 8. Rolling stock of railroads have no taxable situs in the city of Covington. (Secs. 4096, 4098, 4102, 4103, Ky. Stats.; Pullman Palace Car Co. v. Commonwealth of Pa., 141 U. S., 23; Union Refrigerator Transit Col v. Lynch, 177 U. S., 149; Adams Express Co. v. Ohio, 165 U. S., 194, 166 U. S., 185; Carlisle v. Pullman Palace Car. Co., 8 Col., 320; Marye v. Railroad, 127 U. S., 117.) 9. Ministerial officers can not distrain rolling stock used in operation of railroads. (Elizabethtown & P. R. Co. v. Trustees, &c., 12 Bush, 239; L. & N. R. 'R. Co. v. Hopkins County, 87 Ky., 614; Louisville Water Co. v. Commonwealth, 89 Ky., 248; Commonwealth v. City of Louisville, 20 Ky. Law Rep., 893; secs. 3176, 3187, Ky. Stats.; secs. 182, 212, Constitution of Ky.)
121 Ky. 226Doores v. Commonwealth (1905)Reversed
CASE 28. — PROSECUTION AGAINST J. T. DOORES POR A. VIOLATION OP THE LOCAL OPTION LAW Appeal from Barren Circuit Court. Samuel E. Jones, Circuit Judge. Defendant convicted and appeals. SYNOPSIS OP THE CASE. 1. The 'denmrrkiv to statement should, have been sustained. (Sec. 11 of Criminal Code; sec. 1141, Ky. Stats.; L. & N. R, R. y. Commonwealth, 23 Ky. Law Rep., 1900.) 2. The court erred to the prejudice of appellant in admitting the testimony of Joe Ellison and Brent Dickinson. 3. The court erred in refusing to give to the jury a peremptory instruction to find defendant not guilty. (James y. Commonwealth, 19 Ky. Law Rep., 1045; Russell v. Commonwealth, 11 Ky. Law Rep., 576; 2 Kent, 492; Keller v. State, 87 S. W., 669.) 4. The court erred in giving to the jury as the law of the case instructions Nos. 1, 2, 3, 4 and 5. 1. The settled policy of the law, and the sole purpose of the statute, is to prevent vendors of spirituous liquors from going into and selling, or by any method selling, in any local option territory, their goods and to reach all shipments into such territory. 2. If there is any evidence tending to 'show the guilt of the accused, this court can not, under' sec. 353, Crim. Code provision, reverse on account of the insufficiency of the evidence. It was the province of the jury to determine and weigh the testimony and determine of the real truth of the transaction. And under any instructions that might have been asked or given to the jury, the fact that the appellant, through the facile agency of the telephone and express company, was not only guilty of the offense charged, but had been for more than one year a “walking blind tiger” in Barren county. AUTHORITIES CITED. Rush v. Commonwealth, 20 Ky. Law Rep., 775; Doores v. Commonwealth, 25 Ky. Law Rep., 459; Rowe v. Commonwealth, 24 Ky. Law Rep., 974; Penner v. Commonwealth, 23 Ky. Law Rep., 774; Griffin v.' Commonwealth, 23 Ky. Law R'ep., 1992; Adair v. Commonwealth, 21 Ky. Law Rep., 1819; Teal v. Commonwealth, 22 Ky. Law Rep., 350; Smith v. Commonwealth, 17 Ky. Law Rep., 416; Crigler v. Commonwealth, 27 Ky. Law Rep., 920; Henkle v. Commonwealth, 23 Ky. Law Rep., 1981; Ky. Stats., secs. 2557b and 2570; James v. Commonwealth, 19 Ky. Law Rep., 1095; Crim. Code, see. 353.)
121 Ky. 235Mivelaz v. Genovely (1905)Affirmed
CASE 29 — ACTION BY W. S. GENOVELY AGAINST MARY A. MIVELAZ TO ENFORCE A MECHANIC’S LIEN. Appeal from Jefferson Circuit Conrt, Chancery Branch. (2d Division.) Samuel B. Kirby, Judge. Judgment for plaintiff. Defendant appeals. POINTS AND AUTHORITIES. 1. In a suit by a subcontractor against the owner of property to enforce a mechanic’s lien, thereon the contractor,, who is the debtor of tbe subcontractor, is- a necessary party, and it is reversible error to overrule a special demurrer for want of such •proper party. (Ky. Stats., sec. 2471; Phillips on Mechanics’ Liens, sec. 397.) a. A subcontractor having knowledge that his 'debtor, the contractor, is about to collect the balance due him from the owner for the construction of a house, and having agreed to accept the contractor’s notes in payment of the amount due him, which arrangement is carried out, is afterwards estopped to assert a mechanic’s lien on the property. (Hall v. Alford, 105 Ky., 6G4; Paper of H. O. Taylor, in 3 Ky. Law Rep., 61; Vrooman v. Turner, 69 New York, 280; Herman on Estoppel, pp. 1047, 1055, 1069, 1075, 897; Phillips on Mechanics’ Liens, p. 966; Grainger & Oo. v. Patterson, 24 Ky. Law Rep., 2387.) b. Although ordinarily the mere acceptance of a promissory note by a mechanic does not operate as a waiver of his lien, it will have that effect if accepted as an absolute payment. (Phillips 'on Mechanics’ Liens, pi. 456; Clement v. Newton, 7S 111., 427.) 2. A subcontractor contracting with his debtor with reference to his personal 'security alone, and having no intention of claiming a mechanic’s lien for his security, is not entitled to- such lien. (Stephens v. Ward, 11 B. Mon., 337; Phillips on Merchants’ Lien's, sec. IS.) 3. The six months allowed by the statute in which a mechanic may file his statement of lien in the county clerk’s office begins to run from the.substantial completion of his contract, and is not extended by the mechanics thereafter doing “extras” which were not a part of his contract, and for which an additional charge is made. (Phillips on Mechanics’ Liens, secs. 18, 322, 327; Ky. Stats., sec. 2468; Hardin v. Marble, 13 Bush, 358; Am. & Eng. Ency. of Law, 2d Ed., vol. 20, -pp. 398-400; Fay v. Muhlker, 1 Misc. [N. Y.], 321; Noye Mfg. Co', v. Flouring Mills Co., 110 Mich., 161; Frankovitz v. Smith, 34 Maine, 403; Schulenburg v. Vrooman, 7 Mo. App., 133; Scott v. Cook, 8 Mo. App., 193; Mc-Kelvey v. Jarvis, 87 Pa. St., 414; King v. Ship Bid. Co., 50 O. St., 320; Hart’h v. Richardson, 91 Maine, 424; Baker v. Fessenden, 71 Maine, 192; Congden v. Kendall, 53 Neb., 387; Avery v. Butler, 30 Oregon, 287; Berry v. Turner, 45 Wis., 105; Sanford v. Frost, 41 Conn., 617; Dayton v. Minn. R. & I. Co., 63 Minn).', 48; Dunn v. McKee, 37 Tenn., 657.) 4. The statute gives a mechanic’s lien 'only to those who labor or furnish, materials “by contract with, or by the written corusent of, the owner,” etc., and a subcontractor who labors for a contractor under an implied contract only is not entitled to a lien. (Ky. Stats., sec. 2463; Rudd v. liittell, 20 Ky. Law Rep., 158; Phillips on Mtechanies’ Liens, 'sec. 120.) POINTS AND AUTHORITIES. 1. The lien of the mechanic is not affected by talcing a note without security. (Ky. Stats., 1903, p. 956, notes to (sec. 2467; Graham v. Holt, 4 Ben M(on., 61; Laviolette v. Redding, 4 Ben Mon., 81; Gere v. Cushmg, 5 Bush, 304; Norton v. Hope Milling Company, 19 Ky. Law Rep., 382.) 2. The Kentucky Statutes must be regarded as containing all the statute law on the subjects indicated by the title, and the chapter on mechanics’ liens is all the law on that subject in Kentucky. (Broadus v. Broadus, 10 Bush, 2991.) 3. Requisites of estoppel are all wanting in this case. (Bigelow on Estoppel, p. 570, as follows: a. There mubt have been a false representation or concealment 'of material facts. b. The representation must have been made with knowledge, actual or virtual, of the facts. c. The party to whom it was made must have been ignorant, actually and permissibly, of the truth of the matter. d. It must have been made with the intention, actual- or virtual, that the other party should act upon it).' e. The ’other party must have been induced to act upon it. (Ware v. Cowles, 24 Alai: Rep., p. 449; Andrews v. Aetna Life Ins. Co., 85 N. Y. Reps., 334; Winergar v. Fowler, 82 N. Y. Reps., 315; Simonson v. Staebleweiry, 82 Wis., 338; 11 Am. & Eng. Ency. of Law, p. 436; Blodgett v. Perry, 97 Mo;.’, p. 267.) 4. A mechanic is entitled to lien for work done and materials furnished, -and has the whole of the six months in which to file his statement of lien. (Ky. Stats. 1903, sec. 2463; _Ky. Stats. 1903, 'sec. 2468; 20 Am. & Eng. Ency. of Law, 2 Ed., 390.) 5. Mechanics’ lien law ils constitutional and the subcontractor is entitled to his lien, although purchase made in name of contractor or work done for contractor’, and although the owner has paid the contractor for the work. (Stewart v. Gardner, 24 Ky. Law Rep., 1216; Hodges v. Arvidson, 23 Ky. Law Rep., 2078; Browinski v. Pickett, 24 Ky. Law Rep., 305; Nelson Mfg. Co. v. Mann Brothers, 24 Ky. Law Rep., 1549.) 6. The law of mechanics’ liens i's fully treated in 20 Am. & Eng!., Ency. of Law, 2 Ed. 7. Completion of the work is a question of fact in each case. (20 Am. & Eng. Ency. of Law, 2 Ed., pp. 395, 396, 398, 399.) 8. A mechanic’s lien is a creature of law and not of contract,, and it is not necessary the work should be done with the intention of claiming the lien. (20 Am. & Eng. Ency. 'of Law, 2d Ed., r. 349; also pp. 345 346 and 347.) 9. ‘The fact that Barnes was not made a party, if an error, is one which did not and could not prejudice the substantial rights of appellant, and the Code provides in such cases that the judgment 'shall not be reversed or affected by reason of such error or defect. (Carroll’s Civil Code for 1900, sec. 756; Carroll’s Civil Code for 1900, sed. 338; Carroll’s Civil Code for’1900, last sentence of sec. 134.)
121 Ky. 241Aultman & Taylor Co. v. Meade (1905)Affirmed
1. Judgment — Confession—Validity—A nialier of a note, who, before the filing of a suit thereon, signs an answer entering his appearance and confessing judgment, gives in effect a power of attorney to confess judgment, which is void under the express provisions of Ky. Stats. 1903, sec. 416,. 2. Execution — Sale—Validity—A sale under a judgment rendered without service of process or other appearance by 'defendant, than an answer, signed before the filing of the suit, entering his appearance and confessing judgment, is void. 3. Mortgages — Conversion by mortgagee — Defense—In a suit to enforce a mortgage lien on land given to secure notes, an answer alleging a conversion by the mortgagee of other property included in the mortgage by selling the same under a void judgment in an action on the notes sets up is not merely a counterclaim connected with and growing out of the transaction or cause of action sued on, within the express provisions of Civil Code Pl'ac., sec. 96, but a defense, as well. 4. Same — Liability—A mortgagee, foreclosing, the mortgage by virtue of the express stipulation to that effect, hut in violation of Civil Code of Prac., sec. 375, forbidding the foreclosure of a mortgage, does not occupy; a better position than if he had enforced his lien in court, and must account to the mortgagor for the actual! value of the mortgaged property. 5. Same — Sale by Mortgagee — Liability—A mortgagee, selling mortgaged property on default of the mortgagor under power of sale, is hound to conduct it so as to produce the best price, and he is required to account to the mortgagor for the actual, instead of the selling, value of the property. 6. Same — Where a mortgagee, by virtue of his mortgage, takes the mortgaged property and fails to apply it on the debt, the failure is a matter of defense in a suit to recover the balance of the debt. 7. Limitation of Actions — Operation on Defense — The statute of limitations applies alone to plaintiff’s cause of action, and, so long as the courts will hear plaintiff’s case, time can not bar the 'defense. 8. Mortgages — Enforcement—Defenses—Accord and Satisfaction —A mortgagee in a mortgage covering a sawmill and real estate took the mill under the provisions of the mortgage and sold the same for $700, while it w.as worth $1,200. The mortgagee brought suit to enforce the mortgage on the land for the balance of the 'debt. The mortgagor set up a counterclaim for the conversion of the mill. Held — That the defense was equivalent to a plea of accord and satisfaction. 9. Estoppel — A mortgagor, who stands by and permits, without objection, the mortgagee to sell the property under the mortgage illegally, and who afterwards assists the purchaser in removing the property, is not estopped from assailing the validity of the sale as against the mortgagee.'
121 Ky. 250Garrett v. Creekmore (1905)Affirmed
Case 31 — PROCEEDINGS BY DAVID GARRETT TO OBTAIN RELIEF FROM AN ASSESSMENT. THE COUNTY COURT EXONERATED GARRETT AND ORDERED THE TAX CHARGED TO A. W. CREEKMORE AND SUBSEQUENTLY SET ASIDE THE LAST ORDER, AND GARRETT APPEALED TO THE CIRCUIT COURT, WHICH DISMISSED .HIS APPEAL FOR WANT OF JURISDICTION, AND HE AGAIN APPEALS. 'Appeal from Madison Circuit Court. J. M. Benton, Circuit Judge. From tlie judgment plaintiff appeals. 1. Under sec. 4250, Ky. Stats., the county court has jurisdiction to hear complaints of erroneous assessments, no matter how much is involved, and the right of appeal from its judgment to the circuit court is secured by the same section, and the circuit court had no right to dismiss the appeal for the want of jurisdiction. 2. But after exonerating the appellant from the assessment the county court had no- jurisdiction, more than a year later, to set aside its first finding and list the property against appellant on some supposed matter of contract between appellant and appellee. The county court had no jurisdiction to hear any matter pertaining to contract. The only thing it could hear was, “who was the owner of the property?” 1. It is contended by appellant that the county judge had no right to hear proof in regard to any agreement between appellant and appellee in regard to this list. Such a contention would set aside 'every agreement made if it did not comply with the letter of the lawt The Commonwealth does not care who pays the tax on the small farm, but we do think the Commonwealth' Would be in favor of making appellant stand to his agreement. 2. We fail to see from sec. 4250, Ky. Stats., that the appellant .has a right of appeal from the decision of the county court, where the amount in controversy is less than $50. 3. in our view of the law this court has no jurisdiction over this controversy because the amount in controversy is less than $200.
121 Ky. 256Commonwealth v. Gregory (1905)Affirmed
Case 32. — SUIT BY THE COMMONWEALTH AGAINST R. EGRBGORY TO RECOVER A PENALTY POR DOING BUSINESS AS AGENT FOR AN INSURANCE COMPANY WITHOUT A LICENSE. Appeal from Franklin Circuit Court. R. L. Stout, Circuit Judge. Judgment for defendant. Plaintiff appeals. DISCRIMINATION. Ky. Stats., secs. 635 and 697, provide that all insurance companies are made subject to all the penalties and are entitled to all the benefits of this law the same as if organized thereunder. Hence we say that, notwithstanding the State may prohibit any company which it 'desires so to -do- from entering thel State, yet after it has once been admitted, its agents can not be discrimianted against by requiring them to pay a license fee, which is not required of agents of domestic companies. This contention is clearly sustained by the case of Simrall v. City of Covington in 29 Am. State Rep., 398, and the authorities therein cited. AUTHORITIES CITED. Ky. Stats., chap. 32, art. 4, secs. 617 to 762; Gen. Stats. 1888, Appendix, p. 44, sec. 38 (Act of March 10, 1870); Simrall v. City of Covington, 29 Ami State Rep., 398. If it is the law that a domestic -insurance company is required to procure a license for each of its agents, the Commonwealth has been thirty-five years in discovering this fact; for the statute has existed this length of time in substantially the same form as it now exists on this subject, and never until within the last few months has the State ever demanded that an agent of a 'domestic insurance company take out a license for doing business in Kentucky; but it has been the construction of the law; by both the State, through its officers and by the insurance companies- operating under the law, that while the statute required a foreign insurance company to procure a license for each of its agents doing business in Kentucky, yet that this requirement did not apply to a domestic insurance company. authorities cited. Harrison v. Commonwealth, 83 Ky., 162; Barbour v. City of Louisville, 83 Ky., 95; Clark’s Run, &c., Turnpike Co. v. Commonwealth, 96 Ky., 525; United States v. Pugh, 99 U. S., 269; Louisville Tobacco Warehouse Co. v. Commonwealth, 106 Ky., 171; P.aul v. Virginia, 8 Wall., 168; New York Life Ins. Co. v. Cravens, 178 U. S., 401; Philadelphia Fire Association v. New York, 119 U. S., 110; Bank of Augusta v. Earle,. 13 Pet., 519, 598; Lafayette Ins. Co. v. French, 18 How., 404; Liverpool Ins. Co. V. Massachusetts, 10 Wall., 566; Doyle v. Continental Ins. Co., 94 U. S., 535; Cooper Mfg. Co. v. Ferguson, 113 U. S., 727; Ducat v. Chicago, 10 Wall., 410.
121 Ky. 266Jones v. Commonwealth (1905)Affirmed
Criminal Law — Detaining Woman for Purpose of Carnal Intercourse — Evidence—Evidence on a prosecution, under Ky. Stats. 1903, sec. 1158, for detaining a woman against her will with intent to- have carnal knowledge of her; that as she was driving on a highway defendant got on his horse and came facing her; that he pulled into- the middle of the road and she pulled off to the side; that as she pulled off he pulled toward her; that she kept pulling off till .she got clear off the road and he still pressed toward her, and that when she got in front of him and ran her 'horse he wheeled and galloped after her till she came in sight of her home, warrants a conviction, though he did not touch her or attempt to touch her or her horse.
121 Ky. 274Commonwealth v. Walker (1905)Reversed
Case 34. — PROSECUTION AGAINST J. El. WALKER FOR FRAUDULENTLY ISSUING WAREHOUSE RECEIPTS.— Appeal from Anderson' Circuit Court. L. C. Willis, Special Judge. Prom a judgment sustaining a demurrer to and dismissing tlie indictment the Commonwealth appeals. 1. An indictment is sufficient which charges in plain terms that appellee was a 'distiller with a bonded warehouse; that he issued the receipt for the five barrels of whisky 'designated by the serial numbers as mentioned in the indictment; that it was to secure the payment of a debt then due and owing to the Wlinfrede Coal Co.; that the receipt stated and represented that that whisky was then in existence and in distillery bonded warehouse No. 16, Eighth District of Kentucky, and entered into bond .and subject to the order of appellee. Such is- the substance of the charge, plainly made, and it is clearly charged that said whisky had not been made, did not then exist, and of course was pot in the warehouse at the time of the issuance of the receipts. It is plainly charged that these facts were known to appellee. The language of the statute is followed in charging .guilty knowledge, and in fraudulent purpose and intention. 2. It is not essential that the indictment should say that he was a “warehouseman,” because if he were a “distiller” with a “bonded warehouse,” and as such claimed to have the whisky in storage therein, he is included in “other persons,” and the rule in Mechanics Trust Co. v. Dandridge, 18 Ky. Daw Kept., 625 (in effect that one act of receipting for goods does not contitute a person a warehouseman), does not apply. AUTHORITIES CITED. Ky. Stats,, sec. 2572a; secs. 4771, 4772,' 4775; Mechanics Trust Co. v. Dandridge, 18 Ky. Law Rep., 625; Commonwealth v. Tanner, 68 Ky. (5 Bush), 316; Davis v. Commonwealth, 76 Ky. (13 Bush), 316; Mitchell v. Commonwealth, 10 Ky. Law Rep., 910. 1. The grounds relied upon in support of said demurrer in the lower court were two, to wit: •a. That the accusatory part of the indictment does not describe offense charged. b. That the indictment does not charge either a statutory offense or an offense at common law. 2. The indictment was obviously intended to be drawn under sec. 4772, Ky. Stats. To be guilty under this statute it is nec'essary that the appellee (a) be a warehouseman; (b) that he issue-a warehouse receipt or voucher (c) to some person, or corporation (d) as security for money loaned or other indebtedness at su tim.e when (e) the whisky so receipted for was not the property of the warehouseman and actually in store and under his control. AUTHORITIES CITED. Ky. Stats., sec. 4772; Criminal Code, sec. 122; Criminal Code, sec.. 124; Commonwealth v. Slaughter, 12 Ey. Law Rep., 893; Daviess Gravel Road Co. v. Commonwealth, 14 Ky. Law Rep., 312; Ky. Stats., sec. 4768; White v. Commonwealth, 72 Ky. (9 Bush), 180; Jane v. Commonwealth, 60 Ky. (3 Met.), 18; Commonwealth v.. Macuby, 33 Ky. (3 Dana), 70; Commonwealth v. Turner, 8 Bush, 2; Connor v. Commonwealth, 13 Bush, 781; Rambold v. Commonwealth, 111 Ky., 434; Brooks v. Commonwealth, 98 Ky., 143.
121 Ky. 281Whitaker v. Swanner (1905)Affirmed
Case 35. — ACTION BY HENRY M. WHITAKER AGAINST GEO. W. SWANNER AND OTHERS FOR A MANDATORY INJUNCTION TO COMPEL THE CLERK OP THE LAUREL COUNTY COURT, TO PLACE PLAINTIFF’S NAME UNDER THE “LOG CABIN” AS THE REPUBLICAN NOMINEE FOR SHERIFF OF LAUREL COUNTY. Appeal from Laurel Circuit Court. H. C. Faulkner, Circuit Judge. Judgment for defendants. Plaintiff appeals. There are two reasons, as we think, stated in the petition why the clerk- should not be allowed to place the appellee, Swanner’s, name upon the ballot: £1. According to the petition he obtained Ms certificate of nomination by the use- of money and wMsky. 2. He stands, confessing that he is guilty of bribery, and if guilty of bribery, under our statute, he is excluded from office and suffrage. To hold that this petition is not good would be, 'in effect, saying that one who desires to run for office could obtain his certificate of nomination wholly by the use of money and other corrupt means, and the voter would be compelled to vote for such person, or vote under some other device. (Ky. Stats., seps. 1586, 1587; Constitution, sec. 151; 97 Ky., 27; 23 Ky. Law Rep., 1104.)
121 Ky. 287Cooper v. McKee (1905)Affirmed
1. Bills a-nd Notes — Pleading—Recital of Note — A petition on a note must allege that by the writing defendant promised to pay plaintiff a certain sum of money at a certain time, or must contain a copy of the note, so that it will show on its face the contract relied on-. 2. Pleading — Conclusions of Law — Allegations in a petition that 'defendant “became indebted” to plaintiff “and executed to him a mortgage” are mere conclusions -of law. 3. Chattel mortgages — 'Enforcement by action — Pleading—In a suit to enforce a chattel mortgage, the mortgage should be copied -in the petjtion, or the effect of the instrument should be set out, as in the case of a note. 4. Pleading — Waiver of Defects — Where defendants file answers which cure defects in the petition, and judgment is rendered on the merits, the defects in the petition are not available on appeal. 5. Chattel Mortgages — Construction—Rights, of Mortgagor — Sale of Property — A chattel mortgage authorizing the mortgagor to exchange any horse covered by the mortgage for another horse or horses, and providing that any horse so received in 'exchange should be subject to the- mortgage as if originally embraced therein, 'did not authorize the mortgagor to sell the horses. 6. Same — Unauthorized Sales — 'Bona Fide Purchasers — The fact that a purchaser of horses subject to a chattel mortgage bought them at a sale stable does not add anything to his title. 7. Same — Enforcement Against Purchaser — 'Judgment—In a suit to enforce a chattel mortgage against a purchaser of the montgaged property, a judgment directing the purchaser to deliver the property to the court’s commissioner, if it was to be had, and, if not, that he pay its value, which was fixed at a certain sum, was mot substantially prejudicial to him.
121 Ky. 294Carson v. Beliles (1905)Reversed
Case 37. — ACTION BY J. A. BELILES AGAINST DAISY CARSON TO SET ASIDE A CONVEYANCE. Appeal from Butler Circuit Court. John M. Galloway, Circuit Judge. Judgment for plaintiff. Defendant appeals. 1. Said conveyance is evidenced by a written assignment of' J. A. Beliles, which is in words and figures! as follows!: “The commissioners herein having filed their report allotting a part of the land herein to me, W. T. Ricketts, commissioner to make deeds herein, is hereby ordered to make deed of part allotted to me, to my sister MaTgaret M. Summerville, she having bought same from me for a sufficient consideration, this September 26, 1898. “J. A. BELILES.”' 2. X A. Beliles alleges in his petition that he deeded the land to his sister to- hold in trust for him, and that she promised to deed it back to him upon his) demand. But the said deed "and assignment shows- that Mrs. Summerville had bought the land for a sufficient consideration, and is an absolute deed and not a deed of trust. The plaintiff seeks to show by his own evidence that Mrs. M. -M. Summerville never paid any consideration for-said land, -and upon this- point he is not corroborated by any witness, -and the deposition of Beliles should not be- considered upon this point, as he is testifying against a -dead person and also-infants. 3. In this case neither the infants nor their guardian have testified, and J. A. Beliles has no right to testify about any transaction or conversation had with the deceased, Mrs. Summerville, or the infants. When we take Beliles’ deposition out upon this point there is no longer any question about who owns- the land in suit. AUTHORITIES CITED. Sec. 606, 'subsec. 2 of Civil Code of Practice; Hardin, Adm’r v.. Taylor, 78 Ky., 593; Hurry v. Kline, 93 Ky., 358; Munford v. Green, Adm’r, 103 Ky., 140; Holtheide v. Smith, 24 Ky. Law Rep.* 2535; Vansant, &c. v. Runyon & Manard, 19 Ky. Law Rep., 1981. The authorities referred to by Willis, guardian for Summerville,, do not apply to a case of this kind. In those cases there was a contract of- 'sale between the parties and consideration paid, and no allegation of fraud or mistake. In- this case there was no contract of sale made between Beliles and Margaret Summerville, but Beliles ordered the deed made to her without her knowledge or consent and without consideration, and she agreed to reconvey -same to hi-m. And according to the authority laid down in 5 Bush, 47, she held said land in trust for the -real owners, and must convey it to them o-r pay fo-r same. In this case there was no creditor of Beliles defrauded, but the proof shows that he paid; all of bis 'debts, and there is no principle of equity that would allow Summerville or his children) to hold said land without paying Beliles for his one-half interest in same, there having been no fraud practiced on any of his creditors. And while the written authority given by Beliles to the commissioner -to make the deed to. his sister, 'says for a sufficient consideration, it does not say it was paid, or that it ever was paid, but the evidence shows that no consideration was ever paid by the vendee, Margaret Summerville. AUTHORITIES CITED. 5 Bush, 47; 8 Bush, 241; 2 Ky. Law Rep., 276.
121 Ky. 303McChesney v. Batman (1905)Affirmed
Case 38. — MANDAMUS PROCEEDING BY THOMAS J. BATMAN AND OTHERS AGAINST H. Y. MoCHESNEY, SECRETARY OF STATE, TO COMPEL HIM TO RECORD IN HIS OFFICE ARTICLES OF INCORPORATION. Appeal from Franklin Circuit Court. R. L. Stout, Circuit Judge. Judgment for plaintiffs. Defendant appeals. 1. We contend that the nine requirements set out in the statutes are necessary steps to the formation and obtaining of powers, of and by a corporation. The following have been held to he conditions precedent to such organization: Filing articles of incorporation with the county cleric (Abbott v. Omaha Smelting Co., 4 Neb., 416); recording articles in the proper county (Childs v. Hurd, 32 W. Va., 66); obtaining authorization of district attorney (Spencer v. Cook, 16 La. Ann., 153); publishing articles of association, and filing articles of same (Biglow v. Gregory, 73 111., 197); publishing articles of incorporation (Fleming v. Adams and Westlake, 81 Ky., 300, under old law). If any one of the nine requirements of our statutes is a condition precedent, then all are; and if so, who had the right to say whether or not these conditions have been fulfilled? It seems to us the only answer is the Secretary of State; and if so, then he certainly has some judicial or discretionary power. 2. Wie submit that the Secretary of State is placed in his office as an agent of the State, to see to it that the party desiring to make a contract with the State shall comply with and conform to the conditions of the law upon which they may contract with the State. 3. If the court should be of the opinion that the duties of the Secretary of State are not purely ministerial, or if held to b'e ministerial, are of 'such a nature and character as permit the exercise of judgment and discretion in their performance, especially in relation to the subject under discussion, then our contention that mandamus will not lie is clearly upheld in a long line of cases by the principles enunciated in the following, of a great many of like import: Secretary v. Mc&arrahan, 9 Wall. (U. S.), 298; Decatur v. Paulding, 14 Peters (U. S.), 497; Commissioner of Patents v. Whitely, 4 Wall. (U. S.), 522; State v. Kendall, 15 Neb., 262, and the court said: “The only actsi which courts can rightfully control are such as are purely ministerial, and with which nothing like judgment or discretion is connected." (Citing U. S. v. Seaman, 17 Htow. [U. S.], 225; U. S. v. Guthrie, 17 Htow. [U. S.], 284; State v. Governor, 22 Wis., 110; People v. Contracting Board, 27 N. Y., 378.) AUTHORITIES AND POINTS. 1. Miandamus defined and procedure. (Civil Code, secs. 477, 474, 444 to 449.) 2. Frishe Distillery Co. Articles conform to statute. (Ky. Stats., sec. 539, and sec. 551 [place of directors election].) 3. Substantial compliance with the requirements- of the statute is all that is necessary. (Mokelumne Hill Canal and Mining Co. v. Woodbury, 14 Cal., 424.) 4. Only provision of ¡statute for formation of business or commercial corporations which in any way refers to secretary of State is sec. 540, Ky. Stats. 5. Provisions of new corporation law as- far -as duties of secretary of 'state aire the same as the old law. (Acts 1891-2-3, chap. 171, art. 1, sec. 3, being the -same as Ky. Stats., sec. 540, Gen. Stats., Bullitt & Feland’s Edition of 1881, chap. 56, secs. 1, 2, 3, 5 and 6.) 6. Neither t'he corporation nor the person dealing with it or its ptoperty, nor any person injured by it, can call in question the legality of its organization 'either under the old corporation law or the new corporation law. (Gen. Stats. 1881, chap. 56, secs. 17 and 18; Ky. Stats. 1903, sec. 566.) 7. Court of Appeals of Kentucky have decided that want of legal organization can not be called in question by persons dealing with the corporation, or injured by it, nor by the corporation itself. (Walton v. Riley, 85 Ky., 413; Portland and Greenwood Turnpike Oo. v. Bobb, 88 Ky., 229; Commonwealth v. Licking Valley Building Association, 26 Ky. Law Rep., 730.) 8. Case of Heinig v. Adams & Westlake Mfg. Co., 81 Ky., 300, 'overruled in Walton v. Riley, 413. 9. Corporation is created from time articles, are recorded in county clerk’s office as far as the right of any one except the State to question legality of itja organization. (Walton v. Riley, • 85 Ky., 413; Commonwealth v. Licking Valley, &c., 26 Ky. Law Rep., 730.) 10. Who can incorporate, what articles shall specify, and how-executed. (Ky. Stats., secs-. 538, 539, 540; sec. 566, Ky. Stats., shows want of legal organization, is not a defense.) 11. Attorney General’s, duty to see corporation conforms to. law. (Ky. Stats., 569.) 12. All general laws relating to corporations repealed by act of April 5, 1893, chap. 171, Session Acts 1891-2-3, sec. 273, p. 734.).,
121 Ky. 308Bloom v. Sawyer (1905)Affirmed
Case 39. — ACTIONS BY MAX BLOOM AND OTHERS AGAINST' J. M. SAWlYER AND OTHERS, AND BY THE SAME PLAINTIFFS -AGAINST WM. SKAGGS, TO QUIET TITLE TO CERTAIN LANDS IN GRAVES COUNTY. Appeals from Graves Circuit Court. R. J. Bugg, Circuit Judge. Judgment for defendants. Plaintiffs appeal. POINTS AND AUTHORITIES. 1. Nature of dower recovered by judgment. (Newell on Eject-' ment, 28, .sec. 15; Hanna v. Gay, 79 Ky., 499; 25 Ky. Law Rep., 1794-6; 10 Amer. & Eng. Enc. of Law, 174-5-6; 39 Amer. St, Rep., 19 33-4-5, note; 14 Cyc., 1002, section E; 6 L. R. A., 371, "373-4; Ereeman on Cotenancy, 2d Ed., secs. 107-8; 100 Ky., 724-5.) 2. Nature of dower tenure. (Reeves on Real Property, secs. 566-7-8-9 and 570; Guthrie v. Guthrie, 25 Ky. Law Rep., 1702; 10 Amer. & Eng. Ency. of Law, 2 Ed., 152, note; 39 Amer. St, Rep., 34-5, note; 5 Dana, 180-1; 3 Dana, 371-4; 100 Ky., 724-5; 'Tiedeman on Real Property, sec. 135.) 3. Nature of tenancy in Common. (Freeman on Cotenancy, 2di .Ed., secs. 8C-7; Reeves on Real Property, sec. 78.) 4. Why the possession is not adverse. 5. Possession can not be adverse as- to one-third of three-fourthS', which is one-fourth, of the whole. (5 Bush, 25, 31-2; 14 Bush, 78, 85; 86 Ky., 240, 245; 105 Ky., 190, 196; 25 Ky. Law Rep., 21-23; Newell on Ejectment, 714, sec. 19; 25 Ky. Law Rep., 1701-2.) 6. Possession of Sawyers, etc., under Anderson-Bolinger-Smith deed. (1 Amer. & Eng. Ency. of Law, 2d Ed., 796-7-8, note 1; 801-2-3-4-5 and note; 8 Dana, 403, 430 et seq.; 94 Am. Dec., 350-358, note; Freeman on Cotenancy, 2d Ed., secs. 229, 230, 241-2; 2 Am. St. Rep., 281-4, note; Newell on Ejectment, 130-4-5, 11, 17, 18; 2 Dembitz, 1405-6, notes 220, 227; Greenhill v. Biggs. 85 Ky., 155; 7 Am. St. Rep., 579; s. c., note.) 7. Law of appellants’ case. (Freeman on Cotenancy, 2 Ed., secs, 439-40, 446-7, 449-50; Overton, &e. v. Woolf oik, 6 Dana, 371-2; Scott v. Scott, 85 Ky., 390.) 8. Williams’ interest. (Freeman on Cotenancy, 2 Ed., sec. 243; 2 Dembitz, 1405-6, notes 220, 277.) 9. Lots excepted. 10. Parties concluded by the old judgment. (Barret v. Co-burn, 3 Metcalfe, 510, 515.) 11. Smith-Anderson-Bolinger dicker. (Guthrie v. Guthrie, 25 Ky, Law Rep., 1702; 10 Amer. & Eng. Ency. of Law, 2d Ed., 171, note 5.) 12. Champerty 'statutes! no application to judicial sale nor to possession under executory purchase. (82 Ky., 619, 632-34; 20 Ky, Law Rep., 522-3-4; 85 Ky., 44-6; 5 Ky. Law Rep., 58.) 13. Smith never paid the balance due on the purchase money. AUTHORITIES CITED. 1. Until an assignment of 'dower, there is no kind of estate in favor of the widow in the land in which the right of dower exists, and, consequently, no suspension of the statute of limitation as. against the remainderman or the owner in fee. (52 Amer. Dec., 274; Tompkins v. Foti'da, 4 Page, 488; Richey v. Putnam, 13-Wen'd., 526; 59 Amer. Dec., 473; Lawrence v. Miller, 2 N. Y., 254; Gooch v. Atkins, 14 Mass., 378; 5 A. & E. Ency., 1st E'd., 933; Carey v. Buntain, 4 Bibb., 217; Tucker v. Vance, 2 A. K. Mar., stair p. 4'58; 15 B. Mon., 591, at p. 604.) 2. Book entries are not admissible to prove a negative fact; (11 Bush, 7.) 3. Time, although not sufficient to bair the action, raises a presumption'of payment. (Pomeroy’s Equity, vol. 1, secs. 418 and' 419; 1 Bush, 263; 1 Metcalfe, 519; 24 Ky. Law Rep., 1976; 18 Am. State Reps., 879; 18 A. & E. Ency., 1st Ed., 519.) 4. In actions to remove clouds from title, equity will not encourage laches and aid a stale claim. (11 Ky. Law Rep., 356; 20 Idem, 1670; 21 Idem, 1400; 26 Idem, 774.) In addition to the above, we desire to cite the following authorities upon the various points in this case: 12 Ky. Law Rep., 547; 11 Idem, 301; 22 Idem, 1030 and 1613; 24 Idem, 1033; 8 Bush, 555; 7 Mionroe, 108; 1 Dana, 407; 79 Ky., 499; 88 Amer. State Reps., 707; 18 B. Mon., 113. QUESTIONS MADE AND AUTHORITIES RELIED UPON. 1. Appellant is not entitled to recover the land in controversy, because he failed to establish his own title thereto. (Green v. Wilson, 8 Ky. Law Rep., 601; Davis v. Justice, 8 Ky. Law Rep., 258; Ratliff v. Elam, 14 Ky. Law Rep., 772; Coleman v. Talbot, 2 Bibb., 130; Colston v. McVay, 1 Mar., 251; Thomas v. Head, 1 Mar., 450; Finley v. Humble, 2 Mar., 571; Smith v. Nowells, 2 Littell, 160.) 2. Appellees establish their title, both of record and adverse possession. (Tucker v. Vance, 2 A. K. Mar., 458; Carney v. Buntain, 4 Bibb., 217; 52 Am. Dec., 274; 59 Am. Dec., 473; 5 Ency. of Law, 933.) 3. Purchase of Bamberger, Bloom & Co. champertous. (Ky. Stats., sec. 210.)
121 Ky. 322Western Union Telegraph Co. v. J. B. Corso & Sons (1905)Affirmed
Case 40. — ACTION BY J. B. CORSO & SONS AGAINST THE WESTERN UNION TELEGRAPH CO. FOR DAMAGES FOR PROPERTY LOST BY AN ERRONEOUS TELEGRAM.— Appeal from Jefferson Circuit Court, Common Pleas Branch. (3d Division). Thos. R. Cordon, Judge. Judgment for plaintiffs. Defendant appeals. 1. We submit that the court erred in not sustaining appellant’s motion to strike the second amended petition from the record and in overruling appellant’s demurrer to said amended petition. 2. The court erred in not -sustaining defendant’s motion for a peremptory instruction. 3. The court erred in overruling the appellant’s exceptions to the deposition of Adolph Anderson, and in overruling -its motion to suppress said deposition. 4. The court erred in its instruction to the jury. AUTHORITIES CITED. Munford v. Kevit, 22 Ky. Law Rep., 731; Fogg v. Rodgers, 84 Ky., 562; Postal Telegraph-Cable Co. v." Schaefer, 23 Ky. Law Rep., 344; Code, sec. 582; Daniel v. Toney, 2 Met., 524; Greer v. Ludlow, 7 Ky. Law Rép., 290; Wilson v. Smith, 5 Yerger (Tenn.), •407; Chenowlth v. Chamberlin, 6 B. Mon., 60; Bank of Kentucky v. Garey, 6 B. Mon., 626; Lee v. Buford, 4 Met., 7. 1. The case at bar -does not involve any question relating to the law of sale, but involves only questions of law pertaining to the transmission and delivery of telegrams between principal and agent. But even were the case as conceived by the appellant, involving the relation of vendor and vendee, the appellees were- not bound either to accept or reject the lemon-sT They had the further right of inquiry, and to make complaint, to ask and receive information, and to act according to the directions given and information thus received. 2. As far as the appellant was concerned, the appellees had the right to 'delay receiving until’ they could, through the appellant, ask for and receive certain information, and had the right. to act upon the information thus received; and if the appellant. erroneously transmitted this information, thereby inducing theappellees to act to their damage, the appellant must pay the-loss. 3-, The effect of an employe of the officer in taking the deposition in ’Shorthand is not, as contended by the appellant, to-make the taking of the deposition an unofficial act or the act of a third person unknown to the law. It was as much the act of the officer as though he had written with his own hand the-stenographic notes. 4. It is well established that no objection may be made to-the manner in which a deposition is taken or written, unless it" is made at the time. This is to- prevent a party to an action-' from, by silence, misleading his adversary. AUTHORITIES CITED. .Read v. Randell, 2 Harr (Del.), 501; Cushman v. Wooster, 45' N. H., 412; Kidder v. Prescott, 24 N. H., 267; Stoddard v. Hill,. 38 S. C., 585; Hill’s Adm’r v. Pennsylvania Mutual, 27 Ky. Law-Pep,, 567; Moore v. Smith, 88 Ky., 151; Code, sec. 587.
121 Ky. 332Martin v. Commonwealth (1905)Reversed
1. Criminal Law — Continuance—Criminal Code Practice, sec. 189, provides that on an application in a criminal case for a continuance, based on affidavits ,'stating what the absent witnesses will testify, the attorney for the Commonwealth, to prevent a continuance, may admit that such witnesses would, if present, testify as alleged in the affidavits and the same may be read in evidence. Held — That where the prosecuting attorney 'stated to the jury that 'such an affidavit made by defendant was not evidence, but merely 'the affidavit of defendant, who, was swearing in his own interest, and the court refused to sustain defendant’s motion for an instruction' that the affidavit should be .considered as a deposition of the absent witness, it was error. §. Admission of Affidavit — Effect—When an affidavit is 'so admitted its authenticity is beyond question on that trial. It must be accepted as if it were the duly signed and certified deposition of the identical witness named.
121 Ky. 341Rowland v. Cox (1905)Affirmed
Case 42. — SUIT BY JOHN COX AND OTHERS AGAINST E. C. ROWLAND AND OTHERS TO CANCEL A CONTRACT OF SALE AND RECOVER THE PRICE PAID THEREFOR. Appeal from Lewis Circuit; Court. James P. Harbeson, Circuit Judge. Judgment for plaintiffs. Defendants appeal. 1. The contract herein ’sought to be cancelled is a conveyance of an interest in real estate. It purports .to “bargain, sell, transfer and assign” three-fourths of one-sixth interest in the twenty-year lease in the DeKnight tract of land, containing one-hundred acres, more or less. 2. There was no mistake made as to the terms of the conveyance, or as to the identity 'of the land sold. Both parties knew that the writing purported to convey a definitely described interest in a 'definitely described tract of land; and they all know what tract of land it wa-s that was described in the conveyance. They knew that the writing did not purport to convey any interest in an oil well theretofore discovered. 3. The mistake that was made was simply and only this: Both parties erroneously believed a certain fact to be true which, if true, made the land purchased more valuable. That fact was not true. The buyers would not have bought at the price paid but for their erroneous belief in the existence of this fact. Both parties had -equal knowledge and equal means of information. Both parties recognized the possibility that their belief in the-existence of this fact might, be erroneous. Neither practiced any fraud on the other. Will a court of equity cancel and set aside a deed for land under such circumstances and compel a return of the purchase money? AUTHORITIES CITED. Western German Bank v. Farmers &' Drovers Bank, 10-Bush, 674; 2 Pom. \Equ., sec. 855; Wood v. Boynton, 64' Wi's., 265; 54 Am. Rep., 610; Kowalke v. Milwaukee Ry. Co., 74 Am. St. Rep., 877; Atlantic Delaine Co. v. James, 94 UH S., 207. POINTS MADE AND AUTHORITIES CITED. 1. The lease made by Stein and Bonniville to McCain, Carr and Dr. Wilson invested the lessees with no' present interest in the land. (Donahue on Oil & Gas, 150, 151.) 2. The contract giving the lessee's no present interest in the-land, and the lessees fraudulently “salting” the well to deceive- and defraud the lessors, and assuring them that the well was completed and thereupon ceasing to work on the lease, was a conclusive election on their part to terminate the lease and abandon the contract to 'drill the test well, and they had na right or interest thereafter in the lease to sell. 3. The contract, of record, expressly reserving the lessors;' the unqualified right to purchase the interest of any of the les-, sees at the same price that any one would buy it, and the_ appellants having actual as well as constructive notice of this fact* and in violation of the agreement purchasing the interest of' Carr for $500 without giving the lessors any opportunity to ae-. quire it at that price, the appellants did not by their purchase- and conveyance from Carr acquire an absolute title, but took the interest subject to the right of the lessors to buy it at the $500, and they could not sell and transfer to appellees any greater right or better title than they acquired from Carr, and this was not what appellants sold and conveyed or appellees purchased. 4. The appellants and appellees made the contract of July 10th, or 15th, 1902, upon the mutual belief that the well on the DeKnight tract of land was completed into the oil sand and had found oil therein, and the only uncertain or contingent feature of the enterprise as then contemplated by both parties was the quantity of oil the well might produce when put to pumping. The fraud of MeGain, Carr and Dr. Wilson in “salting” the well was unknown to both the contracting parties, but it was the matei'ial fact that induced the parties to make the contract* and without which it is quite 'evident the contract would not have been made or even thought of. The right of the appellees to a.rescission of the contract under such circumstances, and a return of their money paid them, is undoubted in a court of equity. (Bedell v. Wilder, 65 Vt., 406, 36 Am. St. Rep., 871; Sherwood v. Walker, 66 Mich., 568, 11 Am. St. Rep., 531; Fritzler and Wife v. Robinson, 31 N. W. Rep., 61; Thiving, &c. v. Hall & Ducey Lumber Co., 41 N. W. Rep., 815; 2 Pom'. Eq. Jur., 2d Ed., secs. 852, 853, 854, 856; Fetter on Eq., 124; 1 Story’s Eq. Jur., 12th Ed., sec. 140; Benjamin on Sales, 3d Ed., sec. 415; 1 Mechen on Sales, 'secs. 275, 276; Pollock on Cont., Wald Ed., 482; Clark on Cont., 298.) POINTS AND AUTHORITIES. 1. The mutual mistake of fact as to- the existence of a fruitful or oil producing well on the premises constituted the very basis or essence of the contract. They bargained as to what they supposed to be a vested right, when there was not even an enforceable contingent interest, therefore, the judgment of rescission should be upheld. (Ruffner, &c. v. Ridley, &c., 81 Ky., 1G5; Blustone Coal Co. v. Bell, &c., 18 S. E. Rep., 493.) 2. The test well having actually produced no oil, appellants neither acquired nor transferred to appellees any title whatever, and certainly not such as they mutually contemplated. The consideration was neither good nor sufficient. (Thornton on Oil and Gas, secs. 153 and 130; Venture Oil Co. v. Fretts, 152 Pa. St., 451; Steelsmith v. Gartlan, 45 W. Va., 27; McNish v. Stone, 117 Pa. St., 457; Crawford v. Ritchie, 43 W. Va., 252; Cole v. Taylor, 8 Pa. Sup. Ct. Rep., 19; Ray v. Natural Gas Co., 138 Pa. St., 576; Donahue on Petroleum and Gas, sec. 4 [153]; W&ld’s Pollock on Contracts, 441.) 3. The original lessees had forfeited all rights and privilege's under the lease contract, and their fraudulent transfer to appellants passed no title. There being no privity of contract between said lessees and the appellees herein, the latter had to look to their vendors alone for rescission and restitution. 4. Appellants and appellees made no contract, because the thing they supposed to exist, and the existence of which was indispensable to the institution of the contract, had no existence. There was no subject-matter — no substance. 5. There was at least constructive fraud in the execution of the contract, and it should have been rescinded on that ground. (Prewitt v. Trimble, 92 Ky., 176.) POINTS AND AUTHORITIES. 1. Rescission ’of contract — Equity will rescind a contract if made under a mistake of a fact material to the agreement of the parties. (Pomeroy’s Equity Juris., vol. 11, secs. 852, 856, 867, note, pp. 340, 878, 891; Benjamin on Sales, 390; Lawson on. Contracts, sec. 215; Am. & Eng. Ency., vol. 24, p. 618; Dale, &c., Ex’ors of Fulton v. Roo:sevelt, vol. 5, Johnson Chancery Rep., 174; U. S. v. Charles, 74 Fed. Rep., 142; Allen v. Hammond, 11 Peters, 63, vol. 9, Lawyers’ Ed., p. 633; Stresley v. Powell, 12 B. Mon., 178; Griswold v. Taylor, 1 Met., 230; Robinson v. Bright, 3 Met., 30; Bell v. Truitt, 9 B., 258; Sherwood v. Walker, 66 Mich., 568, 11 Am. Rep., 531; Bedell v. Wlilder, 65 Vt„ 377, 36 Am. Rep., 871; Miles v. Stevens, 3 Penn. St., 21, 45 Am. Rep., 624.)
121 Ky. 349Masonic Life Ass'n v. Pollard's Gd'n (1905)Reversed
1. Evidence — Presumptions—Suicide—'Where the circumstances surrounding a death are such as. tO’ admit of the conclusion either that the death was self-inflicted or not, there is a presumption against suicide. 2. Same — Where the fact that a death was intentionally self-inflicted is proved, and that deceased was ini -a normal condition of mind, there can be no presumption that the act was unintentional, or that the result of that insanity which deprives the mind of its knowledge of the probable effect of the act upon life. 3. Insurance — Life Insurance — Suicide—Insanity—Where an insured intentionally takes 'his life at a time when his mind is so far gone as to render him unconscious that he is taking his life, the death will be regarded as accidental, and not within a provision of the policy exempting the insurer from liability in case of suicide. 4. Same — Though the mind of insured may have been deranged when'he took his life, if 'he had mind enough to know that the act would probably result in death, it is suicide, within a clause of the policy exempting the insurer from liability-in case of suicide.
121 Ky. 355Greene v. Middlesborough Town & Lands Co. (1905)
CASE 44. — ACTION BY LILLIAN E. GREENE AGAINST THE MIDDLESBOROUGH TOWN AND LANDS CO. TO RECOVER DIVIDENDS ON STOCK ISSUED BY THE INVESTMENT CO. OP MIDDLESBOROUGH. Appeal from Bell Circuit Court. M. J. Moss, Circuit Judge. Appellant’s brief on the last trial not being in the record, the-following is inserted from their petition for rehearing (Reporter): It seems to counsel that an opinion which misconceives material-facts of the case and the spirit of the decisions on which the opinion is based, so that the law is applied in favor of a party pleading “ultra vires” and thereby asserting its own guilt or moral turpitude, as against the rights of an innocent third party acting in good faith, should be withdrawn. “The defense of ultra vires by a corporation comes with a better grace before it 'has discovered that it has made a had bargain. The law never ’sustains a defense of this nature out of regard for a ’defendant.” (Wright v. Pipe Line Co., 101 Pa. St.,. 207.) “The executed dealings of corporations must be allowed to stand for and against both parties when the plainest' rules of good faith, so require.” (Parrish v. Wheeler, 22 New York, 508.) “Circumstances may, and often do, exist which estop the offender. of taking advantage of his own wrong. The contract-may he entered into on the other side without any participation lathe guilt, and without any knowledge ’even of the vice that contaminates it. An innocent person may part with value, or otherwise change his situation upon the faith of the contract.” (Big-sell v. Michigan, &c., R. Co., 22 N. Y., 273.) “The amount of benefit, or of trouble, or detriment, or its comparative value, in relation to the promise, is of no importance.”’ (Am. & Eng. Ency. ’of Law, vol. 14, 1133.) “The plaintiff’s rights could not be affected by a subsequent rescission.” (Opdyke v. Pac. R. Co., 3 Dill., 73.) “Corporations are liable for the acts of their servants while-engaged in their employment in the same manner and to the same extent that individual’s are liable under like circumstances. Estoppel in pais presupposes an error or a fault, and applies an act in itself invalid. The rule proceeds upon the consideration that the author of the misfortune shall not himself escape the conse* quences and cast the burden upon another.” “After a great ’deal of litigation, the rule has become established that ’such -a guaranty is -valid, provided it is based on a valuable-consideration, and the consideration is such as the guarantor has power to receive or invest in.” (Cook on Stock and Stockholders, vol. 2, sec. 775.) “Corporations are liable for every wrong of which they are-guilty, and in such cases the doctrine ’of ultra vires has- no appli- ' cation.” (Merchants’ Bank v. State Bank, 10 Wallace, 645.) “The most frequent application of this doctrine is that where a-corporation has entered into a contract which has been fully executed by the other contracting parties, so that nothing remains for the corporation to do but to pay the consideration money, it will not be allowed to set up that the contract was ultra vires.” (Ency. of Law and Procedure, vol. 10, p. 1163.) “If the contract can be valid under any circumstances, an innocent party in such a case has a right to presume their existence, and the corporation is estopped to deny them.” (Louisville, &c., Ry. Co. v. Louisville Trust Co., 174 U. S., 573.) “But whatever under the charter and other general laws, reasonably construed, may fairly .be regarded as incidental to the •object for which the organization was created, is not taken to be prohibited.” (Rhorer v. M. T. & L. Co., 104 Ky., 148.) “If the corporation, itself seeks to avoid its contract on the •ground that it was ultra vire's, this presumption puts upon it the burden of showing that its articles of incorporation did' not authorize the contract.” (Ency. of Law and Procedure, vol. 10, 1156.) The power to make the guaranty, on the facts stated in the original petition, is res adjudicata by the former appeal herein, unless the fact appears affirmatively that the company had not either express or implied power to make the guaranty; and the discretion given to subscribe for Stock in any corporation which, in the judgment of the company, would promote its interests or the interests of the town of Middlesborough, gave the implied power to take the stock and pay for it by the guaranty method. Allegations . stricken from the petition in the lower court, before the former appeal, form no part of the present record, though copied in the transcript. (Rhorer, Receiver v. M. T. & L. Co., 104 Ky., 148; Louisville, &c., Ry. Co. v. Louisville Trust Co., 174 TJ. S., 573-4; Merchants Bank v. State Bank, 10 Wallace [U. 'S.], 645; Cook on Stock and Stockholders, vol. 2, 775; Ency. of Law and Procedure, vol. 10, chap. 1108; Ky. Citizens Building & Loan Association v. Laurence, 20 Ky. Law Rep., 1700; Ky. Live Stock Breeders’ Association v. Miller, 27 Ky. Law Rep., 39; Current Law, vol. 3, p. 917; Humboldt Min. Co. v. Am. Mfg., Min. & Milling Co., 62 Fed. Rep., 356; Greenbay and M. R. Co. v. Union 'Steamboat Co., 107 U. S., 100; Marbury v. Ky. Union Land Co., •63 Fed. Rep., 345; Fort Worth City Co. v. Bridge Co., 14 Sup. 'St., 339; Watts Appeal, 40 Cal., 83; Opdyke v. Pac. R. R., 3 Dill., "73; Todd v. Ky. Union Land Co., 57 Fed. Rep., 53; Chicago, R. I. & P. Ry. Co. v. U. P. R. R. Co., 47 Fed Rep.; Morawetz on Corporations, sec. 362; Parish v. W’heeler, 22 N. Y., 508; Bissell v. "Michigan, &c., R. R. Co., 22 N. Y., 273; Alleghany v. McCluski, T4 Penn., 83; Lestapies v. Ingraham, 5 Barr., 81; Wright v. Pipe Line Co., 101 Pa. [St.], 207-208; Ency. of Law and Procedure, vol. 10, 1155-G-1163; G. F. Wittmer Lumber Co. v. Rice, 23 Ind-App., 586; Am. & Eng. Ency. of Law, vol. 14, 1133; Watson, Ex’or v. McLaren, 19 Wlend., 563.) PROPOSITIONS DISCUSSED AND AUTHORITIES. 1. The contract sued on is ultra vires and void, not being am act within the express or implied powers enumerated in the-articles of incorporation. (Green v. Middlesborough Town and: Lands Co., 22 Ky. Law Rep., 1715;, Gen. Stats., chap. 56, sec. 2; Rhorer v. Middlesborough Town and Lands Co., 19 Ky. Law Rep.,. 1789; Marble v. Harvey, 92 Tenn., 115; Marbury v. Union Land Co., 62 Fed. Rep., 335; Green Bay & M. R. Co. v. Union Steamboat Co., 107 U. S. Sup. Ct., 100; National Salt Co. v. Ingram,. 122 Fed. Rep., 41; Davis v. Old Colony R. R., 131 Mas., 258; Lucas v. White Line Transfer Co., 70 Iowa, 542; Ohio College of Dentistry v. Rosenthal, 45 Ohio St., 183; Elevator Co. v. Memphis- & C. R. R. Co., 85 Tenn., 704; Pittsburg & C. R. Co. v. Alleghany Co., 63 Pa. St., 126; Hood v. N. Y. & N. H. R. R., 22 Conn., 1; Todd v. Ky. Union Land Co., 57 Fed. Rep., 48; Frankfort Bridge-Co. v. Frankfort, 18 B. M., 46; M. V. Monarch Co. v. Farmers & Traders Bank, 20 Ky. Law Rep., 1351; Ky. Citizens Building & R. Co. v. Lawrence, 20 Ky. Law Rep., 1700; Jessamine County v. Swj'kart, 8 Ky. Law Rep., 682; Louisville N. A. R. R. v. Louisville Trust Co., 174 U. S. Sup. Ct., 575; Green’s Brice’s UltraVires, 28 and 29.) 2. A specific designation of a manner in which a power granted i-s to be exercised excludes the authority to exercise the power in any other manner.. a. One -dealing with a corporation must take notice of its charter powers and limitation. (Thompson v. West Jersey R. R., 101 US. Sup. Ct., 71; Lucas v. White Line Transfer Co., 70 Iowa, 542; Maddox & Co. v. Graham & Knox, 2 Met., 72; First National Bank of Covington v. Keefer Milling Co., 15 Ky. Law Rep., 460; Morawetz on Private Corporations, vol. 2, secs. 591-2, and many of the authorities above. 3. A guarantee of dividends, regardless- of whether earned or not, is void. (Thompson on Corporations, vol. 2, sec's. 2236-2237; Green’s Brice’s Ultra Vires, 173 and 252, and many of the authorities above.)
121 Ky. 367Labry v. Gilmour (1905)Reversed
1. Municipal Corporations — Streets — Title of Municipality— Leases — The authorities of a municipal corporation hold the public ways of the city in trust for the public, and a lease by the city to an individual of the streets or public ways of the city confers no authority upon the lessee to appropriate them to his use. 2. Same — Obstruction of Street — Injunction—Remedy of Abutting Owner — Where a structure was erected in a street, the owner of property on the other side of the street, who had no title to the land on which the building stood, could not maintain an injunction for its removal, where he suffered no damages other than those suffered by the general public.
121 Ky. 374Dersch v. Walker (1905)Affirmed
Case 46. — ACTION BY H. Y. WALKER AGAINST HENRY DERSCH AND OTHERS TO RECOVER RENT. Appeal from Kenton Circuit Court. W. McD. Shaw, Circuit Judge. Judgment for plaintiffs. Defendants appeal. 1. The fact that 'security was given in this case, or that it may be given in other cases, is not a controlling consideration in determining the rights of the parties. It is a mere incident, having no bearing on the question involved. The court must construe the effect of the bankruptcy act on contracts of this sort just as if there were no question of surety here. 2. There can be no judgment against appellee Rivard in this case for the rent to become due, even if it i's a legal obligation for which he is responsible. His bankruptcy is a bar to any further proceedings against him. By the act of bankruptcy tha relationship was dissolved, and the contract 'of the surety being to carry out the contract of the principal, and his contract being at an end, they are released from any further obligation under-said contract. AUTHORITIES CITED. Payne, &c. v. Able, &c., 7 Bush, 344; Re Jefferson, 93 Fed. Rep., 948; Bray, &c. v. Cobb., &c., 100 Fed. Rep., 270; Re Hays, Foster & Ward Co., 117 Fed. Rep., 879,; Atkins v. Wilcox, 105 Fed. Rep., 598; Lamson, &c. v. Bowland, 114 Fed. Rep., 639; Re Penneweil, 119 Fed. Rep., 143; Bankruptcy Act 1898, sec. 16, 63b. I. The only consideration which moved H. Y. Walker, the appellee, to sign the lease was that he was assured of getting at least one year’s rent. He contracted for one year’s rent, and not for rent during the tenancy, and the sureties agreed to pay at least one year’s rent. Granting that the bankrupt is exonerated from further payment of rent, yet this does not 'exonerate his sureties, for the U. S. bankrupt law is as follows: “Co-debtors of bankrupt — The liability of a person who is a co-debtor, or guarantor or in any manner a surety for a bankrupt 'shall not be altered by the discharge of such bankrupt.” 2. The contract of the tenant and his 'sureties was for the payment of money, that is, for $60 per month for a whole year. If the contention of the appellant be correct,, then there is no further use for a suretyship. What does their contract mean? When they sign the bond they say in effect that if our principal shall become financially unable to perform his part of the contract we will do it for him. 3. But here- we are presented with a construction of the .bankrupt law to the effect that if the principal is adjudged by a bankrupt court to be financially unable to perform his contract, the contractual relationship between him and those with whom he contracted comes to an end, and, therefore, the liability of the sureties end. The best argument against such a contention is the absurdity it leads to.
121 Ky. 379Mallon v. Buster & Allin (1905)Affirmed
1. Frauds, Statute of — Agreements Concerning Land — Partnership Purchases — A verbal agreement between bidders at a judicial sale of land to buy the land in partnership and divide the same is not within the statute of frauds. 2. Contracts — Legality—Prevention of Competition at Judicial Sale — An agreement between bidders at a judicial sale of land, who each wished but a part of the tract which was being sold, and who had bid against each other to a price above the actual value of the property, to stop competing and to buy the land together, each taking the part of it that ho desired, was not against public policy.
121 Ky. 385Illinois Central Ry. Co. v. Coley (1905)Affirmed
1. Railroads — Public Crossings — Negligence—A railroad which. fails to place a watchman at a busy and much used crossing in a city, or to take some other -precaution commensurate with the danger, at least during hours when numbers of people are using the crossing, is negligent. 2. Same — Negligence of Engineer — An engineer who undertakes ^ to hack his engine in the dark over a busy city crossing,-, at which he knows there is no watchman stationed, should.' 'exercise care in proportion to the danger attending the sitúa*: tion, and should keep his engine under control. 3. Damages — Personal Injuries — Excessive Verdict — A verdict for.-$3,500 for personal injuries, resulting in wrecked and per-; manently impaired health, was not excessive. 4. Railroads — Injuries at crossings — Duties of Railroad — Instructions — In an action against a railroad for injuries sustained in a collision between an engine and a wagon on which plaintiff was riding, where the evidence showed that the crossing at which the collision occurred was one of the most used crossings in a city, that the collision occurred after dark, and that the side tracks at the crossing were so obstructed that the engine could not be seen until it was very close to the crossing, a charge that it was the duty of the railroad, at the place in question, to have some one on the rear part 'of hacking trains to warn travelers of the approach of such trains, and to display lights or give signals at such place as would give reasonable warning of such approach, or to use some other reasonably ’safe means to give the public reasonable warning of the approach of the trains, was not prejudicial to defendant. 5. Same — Nor was a further charge, that it was the duty of the employes of the railroad to give the usual and customary signals of the approach of the engine, by blowing the whistle or continuously ringing the bell, and to keep a lookout for persons and vehicles using or about to use the crossing, and to exercise ordinary care to avoid ’striking or colliding with such persons or vehicles, prejudicial to defendant. 6. Removal of Causes — Diversity of Citizenship — Removal by Co-Party — Under the act of Congress authorizing removal of causes to the Federal court where defendant or defendants are nonresidents of the State, but forbidding such removal where there is a joint controversy and one of the defendants is a resident, an action in which the petition states a joint cause of action against a resident and a nonresident can not be removed to the Federal court by the nonresident by filing a petition for removal which puts in issue the allegations of plaintiff’s petition on the merits. 7. Railroads — Personal Injuries — Persons Liable — Employes — A locomotive engineer, who negligently runs his engine against another and injures him, is personally liable for such injuries, although he does not own the engine and is operating it in the service of a railroad. 8. Railroads — Joint Liability — Parties—A railroad and its engineer, who are jointly liable for injuries caused through the negligence of the latter, may be sued jointly for the injuries. 9. Removal of Causes — Diversity of Citizenship' — Fraudulent Joinder of Resident — Where a petition discloses a cause of action against both a resident and a nonresident defendant, the case may not be removed to the Federal court in order that that court may determine whether the joinder of the resident is fraudulent, and made to defeat the right of the nonresident to remove the cause to the Federal court; but, if that fact appears on the trial in the State court, the latter court 'should forthwith dismiss the action as to the resident and remove the cause to the Federal court as to the nonresident.
121 Ky. 398Louisville & Nashville Ry. Co. v. Morton (1905)Reversed
1. Negligence — Evidence—Precautions Against Recurring Injury —Evidence of the repair or supply of a defect after the occurrence of an injury caused by such defect is not competent on the issue of whether the appliance was reasonably safe before the repair was made, nor for any other purpose. 2. Evidence — Expert Testimony — Experience 'of Witness — In an action for injuries to a servant engaged in loading logs onto a car, persons having experience and skill in the business of loading logs may testify as to the usual and proper way of loading such logs and what are the dangers attending the work; but persons who have not had such experience should not be allowed to give their opinions on the subject.
121 Ky. 403Manufacturers' Land & Improvement Co. v. Cleary (1905)Reversed
1. Corporations — Members and. Stockholders — Right to Control Corporate Affairs — Stockholders of a corporation impliedly agree that the corporation’s affairs shall, within the limits defined by its articles, be controlled by the governing board, and that the corporation 'shall endure for the purpose for which it is organized for the entire period fixed by its articles, unless sooner dissolved by operation of law, and the judgment of the governing body as to matters within the powers of the corporation, although it is unwisely, exercised, is in the absence of fraud committed or threatened against the corporation or the minority stockholders, entirely beyond the control of the stockholders through the intervention of the courts, except in a case where the corporate enterprise is impossible of execution. 2. Same- — Dissolution of Corporation — Failure of Purpose — In order that the business of a corporation may be terminated at the complaint of a stockholder, on the ground that its purpose is impossible of execution, such impossibility must be demonstrated to a certainty, and is not to be determined merely by the weight of the evidence. 3. Same — Grounds of Dissolution — Lack of Success — The fact that a corporation has small chance of realizing its expectations of making money for its 'stockholders, and that its venture has not shown .’evidence of .success within a reasonable time, is not, in the absence of bad faith on the part of the officers or majority stockholders', ground for the premature termination of the corporation’s existence on the-complaint ’of a minority stockholder.
121 Ky. 409Commonwealth v. United States Fidelity & Guaranty Co. (1905)Affirmed
1. Taxation — Levy—Specification of Purpose of Tax — Necessity— An order of the fiscal court of a count/ levying a tax for a year, which is silent as to the purpose for which the tax is levied, is void, within Constitution, sec. ISO, providing that every ordinance passed by apy county, etc., levying a tax “shall specify distinctly” the purpose for which the tax is levied. 2. Same — Tax Collector — Bond—Liability for Collection of Illegal Tax — Where the order of the fiscal court of a county levying taxes was void, the surety on the tax collector’s bond was not liable for the collector’s failure to account for the taxes collected. 3. Same — Levy—Constitutional Provisions — Constitution, sec. ISO, declaring that ’every act of the General Assembly an'd every ordinance of any county, etc., levying a tax, shall specify-distinctly the purpose for which the tax is levied, is mandatory. 4. Same — Tax Collector — Surety—Liability —i Estopp el — Where the order of the fiscal court of a county levying taxes was void, the fact that the tax collector paid his premium on his bond signed by a surety company after the - company knew the terms and scope of the bond, did not 'estop the company from denying its liability for the collector’s failure to account for the illegal tax collected. 5. Same — Liability of Surety — Collector’s Bond — Validity of Tax — The liability of a surety on the bon'd of the collector of a tax depends on the validity of the order making the tax levy, and not on the surety’s good faith in going on the bond.
121 Ky. 415Southern Ry. v. Hawkins (1905)Reversed
Case 52 — ACTION' BY W. A. HAWKINS, BY NEXT FRIEND, AGAINST THE SOUTHERN RY. CO. IN KY. FOR DAMAGES FOR BEING WRONGFULLY EJECTED FROM ITS PASSENGER TRAIN. Appeal from Mercer Circuit Court . W. W. Stephenson, Special Judge. Judgment for plaintiff. Defendant appeals. POINTS AND AUTHORITIES. 1. The verdict is excessive. (M. & O. R. R. Co. v. Reeves, 25 Ky. Law Rep., 2239; Annie L. Sloane v. Southern California Ry. Co., Ill Cal., 220, 44 Pac., 320, 32 L. R. A., 193; Howe v. Gibson, 3 Tex. Civ. Ap., 263, 22 S. W., 826; L. & N. R. R. Co. v. Blair, 104 Tenn., 112, 55 S. W., 154; Georgia R. R. and Banking Co. v. Jett, 95 Ga., 236, 22 S. E., 251; Chicago & N. W. Ry. Co. v. Chisholm, 79 111., 584.) 2. Punitive damage instruction should not have been given, there being no evidence upon which to base it. (Ky. Cent. R. R. Co. v. Biddle, Same v. Fern, 17 Ky. Law Rep., 1363; L. & N. R. R. Co. v. Jackson, 18 Ky. Law Rep., 296; McHenry Coal Co. v. Sneddon, ’98 Ky., 684; Atchison, T. & S. F. R. R. Co. v. La’moreux, 5 Kan App., 813, 49 Pac., 152; Smith v. Philadelphia, W. &' D. R. R. Co., 87 Md., 48, 37 Atl., 1072.) 3. Where a cause of action is alleged in tort a recovery can not be had by the plaintiff upon proof of a breach of contract. (Spink v. L. & N. R. R. Co., 21 Ky. Law Rep., 779-780.) (No authorities.)
121 Ky. 423Lucas v. Commonwealth (1905)Reversed
1. Limitations — Commencement of Actions — Issuance of Process, —Under Ky. Stats. 1903, sec. 2524, providing that an action shall be deemed to have been commenced at the date of the first summons issued in good faith, limitations run, a's between the State and a taxpayer, until the issuance of process in good faith on the statement of property liable to assessment filed by a revenue agent in accordance with sec. 4241. 2. Taxation — Assessment of Omitted Property — Compensation of Officer — Under Ky. Stats. 1903, sec. 4241, requiring the officer proposing to have omitted property assessed for taxation to, file a statement containing a description of such property, etc., and providing that “within five years (days) after the filing of 'such statement,” the clerk of court 'shall issue summons against the owner to show cause why such property-should not be assessed, and imposing a 20 per cent, penalty-on the owner, which shall be paid to the officer filing the 'statement, the clerk should issue the summons as -soon as the statement is filed, and if the officer requests him not to do-so, and fails to have the summons issued within a reasonable time, the proceeding may he regarded as abandoned, and another agent may proceed; but a 'short delay in issuing the summons, in 'order to enable the officer who files-the statement to come into the county and attend to the matter in person, does not indicate an -intention to abandon the proceedings, or give another officer the right to appropriate the information contained in the -statement and institute a proceeding on such information, and thus secura the penalty, to the detriment of the officer who prepared the 'statement. 3. Same — Issuance of Summons — Time of Issuance — The provision of Ky. Stats., sec. 4241, requiring the clerk of court to issue a summons “within five years (days) after the filing of” a statement 'of omitted property by a revenue officer, is merely 'directory, and a 'summons issued by him is not void, although not issued within the prescribed time.
121 Ky. 432Commonwealth v. Reed (1905)Reversed
1. Taxation — Listing Omitted Property — Duty 'of County Court— Ky. Stats. 1903, sec. 4241, .in relation to the listing for taxation of omitted property, provides that, if it shall appear to the county court that the property is liable for taxation .and has not been assessed, the court ’shall enter an order fixing the value, and, if not liable, shall make an order to that effect. Held — That the statute plainly means that, if the property is liable for taxation and has not been assessed, it must be assessed by the county court, but, if the property is not liable or has been assessed, an order must be made to that effect. 2. Same — Order of Court — Construction—On proceedings under the statute, an order of the county court to the effect that defendant was not the owner of any personal property, money, notes, or bonds taxable under the law during a certain year, which he failed 'to list or give in for taxation, clearly determined that the property was not liable to assessment. 3. Same — Appeal—Bond-—By the expreás provision of Ky. Stats. 1903, 'sec. 4241, in relation to the listing of omitted, property for taxation, on appeal from the order of the county court no appeal bond is required, where the court decides that the property is not liable to assessment. 4. Same — Pleading—Waiver—Where, in proceedings under Ky. Stats. 1903, sec. 4241, for the listing of omitted property for taxation, defendant moved to have the statement made more specific, but filed an answer before the motion was ruled on, the objection was waived. 5. Same — Order on Appeal — Ky. Stats. 1903, ’sec. 4241, in relation to the listing of omitted property for taxation, provides for an appeal from the order of the county court, and provides that the assessment shall be made by the county court, and be certified to the Auditor, and entered in a book kept by the county clerk. Held — That, if the circuit court on appeal reaches a different conclusion from the county court, the former must remand the case to the latter, with 'directions to enter the judgment indicated. 6. Same — Trial de novo — Under the express provisions of Civil Code Prac., secs. 700, 726, and Ky. Stats. 1903, sec. 4241, on an appeal to the circuit court from the county court in proceedings under the latter 'statute for the listing of omitted property for taxes, the trial is to be de novo.
121 Ky. 439Early v. Rains (1905)Affirmed
1. Intoxicating Liquors — Lochl Option — Town in Two Counties— Ordering Election — Under Constitution, sec. 61, requiring the Legislature to provide a means whereby t'he ’sense of the people of a county, city, town, district, or precinct may be taken on the question whether intoxicating liquors !§hall be sold therein, and Ky. Stat’s. 1903, sec. 2554, providing that, on petition of voters equal to 25 per cent, of the votes cast at the last preceding general election in the territory proposed to be affected, the county court shall order an election in the territory 'specified in the petition on such question, where petition is made for ’such an election in a town lying in two counties, the county court of the county in. which the greater part ’of the town lies has jurisdiction to order it. 2. Same — Failure to Order Special Registration — Under Constitution, sec. 6, requiring all elections to be free and equal; sec. 147, providing that, where registration is required, only persons-^registered may vote; Ky. Stats. 1903, sec., 1486, as amended; by Act 1904, p. 31, chap. 6, requiring voters of all incorporated cities and towns to register before being entitled to vote; sec. 1490, providing that the general registration 'shall be on the first Tuesday in October in each year; and sec. 1495, providing that, when an election -is ordered to be held: in a county containing an incorporated city or town at any other time than the regular November election, the -officer ordering it shall fix a day for registration of the persons entitled to vote at such election — a local 'option election held in an incorporated town in April, without any special registtation being provided for, is void, and may not be sustained by showing that the result was not affected by omission of such registration.
121 Ky. 452Terrell v. McHenry (1905)Reversed
1. Mechanics’ Liens — Contract—Terms—Evidence—Evidence in. a suit to enforce a mechanic’s lien for a roof held to show that it was put on under a contract that it should not be paid for if it leaked. 2. Same — Right of Subcontractors — Under Ky. Stats. 1903, sec. 2463, providing that mechanics’ liens shall not be for more-in the aggregate than the contract price of the original contractor, the subcontractor, as well as the contractor, is not •entitled to a lien for any amount; the contract being to put on a roof to be paid for only in case it did not leak within 30 days, or was thereafter stopped from leaking, and it not haying been made so it would leak.
121 Ky. 458Commonwealth v. Gregory (1905)Reversed
1. Indictment — Following Statute — To render an indictment good' by following the language of a statute, it must contain a Statement of every fact necessary to constitute the offense, and the offense as stated in the statute must be complete in itself. 2. Boundaries — Destruction of Monuments — Indictment — Ky. Stats. 1903, sec. 1228, makes- it an offense for any one to fraudulently and willfully remove or destroy a corner tree or corner stone of a boundary or survey. Sec. 1256 makes it an offense to willfully and knowingly destroy a corner tree. Held — That an indictment charging that defendant did “unlawfully, fraudulently and willfully cut down and destroy a corner tree to a survey and tract of land” belonging to a certain person sufficiently charges an offense under sec. 1228.
121 Ky. 463Commonwealth v. Barbour (1905)Reversed
Case 58. — PROSECUTION AGAINST BEN WALKER BARBOUR FOR SELLING LIQUOR WITHOUT A LICENSE. Appeal from Oldham Circuit Court. R. P. Peak, Circuit Judge. Prom a judgment dismissing the indictment the Commonwealth appeals. 1. The contention of the representatives of the Commonwealth is, that the Legislature has provided two agencies or methods by which the liquor traffic- may be restricted, one providing a penalty for selling liquors, without first procuring a license, and th'e other a penalty for selling in violation of the local option law. 2. As held in Hoke v. Yocum, the local option law is merely another agency for the restriction of the traffic in intoxicating liquors, and the Commonwealth has the right to choose or select the agency it deems best, under the circumstances, to prevent the illegal isales of intoxicant's. 3. By so doing, no hardship or additional burden is put upon the person so offending, for a conviction under the one would operate as a bar to any further prosecution for the same offense. (Commonwealth v~.Powell, 22 Ky. Law Rep., 1932; Hoke v. Yo-cum, 14 Bush, 672.) We submit that on principle it can not be held that two laws, with different procedures and penalties applying to the same act, could be in force in the same territory at the same timé. AUTHORITIES CITED. Commonwealth v. Hoke, &e., 14 Bush, 699; Allen v. Commonwealth, 10 Ky. Law Rep., 280; Wootten v. Commonwealth, 15 Ky. Law Rep., 495; Baker v. Commonwealth, 23 Ky. Law Rep., 898; Locke v. Commonwealth, 25 Ky. Law Rep., 80; Powell v. Commonwealth, 22 Ky. Law Rep., 1933.
121 Ky. 469Cross v. Board of Trustees (1905)Reversed
1. Schools and School Districts — Pupil's—Expulsion—Injunction— Petition — Where, in a suit for a mandatory injunction to restrain the board of trustees of a graded school district from refusing to permit a pupil to attend, the petition alleged that the trustees arbitrarily expelled complainant from school, and refused on request to reinstate him or permit him to return, and alleged that they “now refuse to permit h'im to attend said school, and will continue to do so, unless they are enjoined from iso> doing,” and that he had 'asked the defendants for the privilege of attending school, but had been denied that privilege by defendants, the petition sufficiently alleged that defendants would prevent complainant from attending the school in the future. 2. Same — Right 'to School Privileges — Trustees—Powers—Statutes —Ky. Stats. 1903, see. 4364, defines common schools and provides who may attend; sec 4367 declares that all pupils who may be admitted 'shall comply with lawful regulations, and that willful disobedience, etc., shall constitute ground for suspension or expulsion; and 'sec. 4473 authorizes the trustees to .adopt by-laws and rules for the government of graded common schools in their respective districts, open to the inspection of citizens thereof, etc. Held — ‘That the trustees of a graded school district Lad no right to arbitrarily expel a •pupil from a school which he attended, nor to arbitrarily refuse him the privilege of attending the school in the future-in the district in which he resided. 3.Same — Color—Presumptions—Where, in a -suit to compel trustees of a graded school district to permit complainant to attend school, the -petition alleged that complainant had been arbitrarily expelled from the school in -such district, it would be presumed th-at he- was of the color which properly admitted him -as a pupil, and the complaint was, therefore, not objectionable for the failure to allege whether 'he is white or colored.
121 Ky. 478Fleming County Fiscal Court v. Howe (1905)Affirmed
Case 60. — PROCEEDINGS BY W. F. HOWE, COUNTY JUDGE, AGAINST THE FLEMING FISCAL COURT TO REVIEW AN ORDER APPOINTING SUPERVISORS OF TURNPIKES THAT HAVE BECOME COUNTY ROADS. Appeal from Fleming Circuit Court. Jas. P. Habbeson, Circuit Judge. Judgment for plaintiff. Defendants appeal. (No briefs in the record.)
121 Ky. 483Young's Adm'r v. Louisville & Nashville R. R. (1905)Reversed
1. Administrators of Nonresident Decedents' — When Appointed— Action by — Wrongful Death — Jurisdiction of County Court— Ky. Stats. 1903, sec. 1057, gives the county court exclusive jurisdiction to appoint personal representatives. Sec. '3896 provides that ’the court having jurisdiction shall grant administration to the relatives of a decedent who apply therefor, preferring the surviving husband or wife, and then such others as are next entitled to distribution. Sec. 3897 provides that, if no' such persons apply at the second county court from the death of an intestate, the court may, in its discretion, 'grant administration to a creditor or to any other person. Held — That where a nonresident intestate, having at the time ¡no domicile in the State and- no next of kin, distributee, ’or creditor residing therein, is killed in a county of the State by the negligence of any person or corporation, the county court may appoint an administrator at the first term of the court succeeding the death. "2. Same — Removal of Administrator After Second County Court— Under said sections (Ky. Stats. 1903, secs. 1057, 3896, 3897) the removal of the administrator after the second county court from decedent’s death could be made only for cause,- and decedent’s mother, who was a nonresident and could not qualify herself, had no right to dictate to the court who should he appointed administrator in her stead.
121 Ky. 492Knecht v. Louisville Home Telephone Co. (1905)Affirmed
•1. Appeal — Record—Bill of Exceptions^ — Transcript of Testimony 1 — Civil Code of Prac., sec. 334, authorizes the giving of time to prepare a bill of exceptions not beyond a day in the succeeding term. Ky. Stats. 1903, sec. 4639, provides that the transcript of the testimony taken down by the stenographer shall be filed and used in making up the bill of exceptions. Sec. 4644 provides that the transcript, when attested by the .judge, may be taken to the Court of Appeals. Appellant within the time fixed by the court tendered his- bill of exceptions, which was signed by the judge and filed. The bill did not contain the evidence. At a subsequent term the transcript of the evidence was ordered filed. Held — The transcript was not in the record, because filed after the court had lost jurisdiction. 2. Same — Defective Record — Affirmance of judgment — Where the .pleadings 'support the judgment, and neither the evidence nor the instructions are in the record, the judgment will be affirmed on appeal.
121 Ky. 498Schonbachler's Adm'r v. Mischell (1905)Affirmed
Case 63. — ACTION BY MARY B. SCHONBACHLER’S ADMINISTRATOR AGAINST GEORGE MISCHELL AND OTHERS FOR MONEY AND RENT. Appeal from Daviess Circuit Court. T. F. Btrkhead, Circuit Judge. Judgment for defendants. Plaintiff appeals. CLASSIFICATION OF QUESTIONS DISCUSSED. This case should' be reversed— 1. Because the averments in the amended petition filed February 12, 1904, “that plaintiff’s intestate left debts and no property to pay same, and any gift to the defendants by her was void,” were issuable facts, and were improperly stricken out. (1 Dana, 365, gift fraudulent.) 2. Because the defendants were allowed to testify for themselves, on a claim against a decedent’s estate. (Code, suhsec. 2, see. 606; 79 Ky., 62; 5 Ky. Law Rep., 179.) 3. Because the appellant, Geo. Mischell, failed to prove payment of any part of the ?427 he collected belonging to the estate of Mary B. Schonbachler. 4. The appellant, Mary Froelich, having joined issue with plaintiff, by denying that she conspired with another and overreached and got possession of and received plaintiff’s intestate’s money and applied it to her own use; could not, after it was- proven that she obtained and received the money, set up a claim to it as a gift by the deceased. (Thompson on Trials, sec. 2309.) 5. Because the allegation in the petition, that appellees conspired together and overreached and defrauded plaintiff’s intestate out of her property, is abundantly sustained by the evi-flence. (1 Dana, 34G and 365; 12 Ky. Law Rep., 717.) 1. We submit that where two parties are sued in the same •action by an administrator, on a claim due a deceased person,, while heither of the defendants can testify as to any transaction® he had with deceased, either of them may testify as to transactions which the other defendant had with such decedent; when •such testimony does not tend to support the defense of the other -or make such other party liable. 2. We further submit that the bill of exceptions in the record should not be considered because not filed in time under the Code.
121 Ky. 506Radley v. Commonwealth (1905)Affirmed,
1. Burglary — Indictment—Sufficiency—On a prosecution for burglary, an indictment charging the breaking “with the intent to commit a felony therein, to wit, grand larceny,” was sufficient, without setting forth the facts constituting the felony 2. Separate Trials- — Motion—A motion for a separate trial, made after the swearing of the jury, is too late. 3. Evidence — Competency-—-On a prosecution for burglary, it was proper to refuse to permit defendant to testify that he had received a letter from the owner of the house alleged to have been burglarized, stating that the writer did not know that defendant was F. (defendant’s alias), and that, had he known- , it, he would not have permitted him to be prosecuted, and that the letter contained money and a request that the letter be burned. 4. Instructions — Definition of Breaking — Where, on a prosecution for burglary, the uncontradicted evidence showed a breaking, and the -defense was -an alibi, -it .was not error to fail to detfine what constitutes an unlawful breaking. 5. Appeal — Evidence—Sufficiency—A conviction will not be disturbed on appeal, where it is supported by any evidence.
121 Ky. 510Levy v. Louisville Gunning System (1905)Affirmed
Case 65. — ACTION BY LOUIS LEVY AGAINST THE LOUISVILLE GUNNING SYSTEM FOR AN INJUNCTION. Appeal from Jefferson Circuit Court, Chancery Branch (1st Division). Shackelford Miller, Judge. Judgment for defendant. Plaintiff appeals. CLASSIFICATION OF POINTS AND AUTHORITIES. 1. An instrument in writing, granting appellee the privilege of maintaining a sign upon a wall of a building, executed by the owner of the property, while the premises are vacant, with all the 'solemnity and dignity 'of a lease, for a recited consideration and for a definite, stated period, is what it purports to be — a lease; (O. J. Gudge Co. v. Farley, 58 N. Y. Sup., 1036; Reynolds v.' Van Beuren, 155 N. Y., 120; Willoughby v. Lawrence, 116 111., 11; Van Ohlen v. Van Ohlen, 56 111., 528.) 2. An instrument in waiting from the owner of property, granting to appellee the right 'and privilege 'of painting and maintaining a sign upon the wall of said property, for a recited consideration and for a definite and stated period, whether lease or license, is not revocable at the Will of the lessor. (Jones, &c. v. J. W. Fowler Drug Co., 85 S. W., 721; Pevey v. Skinner, 118 Mass., 129; Lowell v. Strahan, 145 Mass., 1412; Am. & Eng. Ency. of Law, vol. 18, 2d Ed., p. 1144; Rhodes v. Otis, 33 Ala., 578; Batchelder & Hibbard, 58 N. H., 629; Risien v. Brown [Tex.], 10 S. W., 661; McLeod v, Dial, 37 S. W., 306; 63 Ark., 10; Boone v. Storer, 66 Mo., 430; Huff v. McCauley, 53 Pa. St., 206; Davis-v. Townsend, 10 Bark., 232; Willoughby v. Lawrence, 116 111., 11; Van Ohlen v. Van Ohlen, 56 111., 528; Hall v. Boyd, 14 Ga., 1; Morton Brewing Co. v. Morton, 47 N. J. Eg., 158.) 3. Where the owner of property, while said property is vacant, grants to one, by an instrument in writing, the privilege of painting and maintaining a sign upon a wall of -said property, and the lessee, under said privilege, goes upon said wall, and, at great expense, paints a 'sign thereon, the owner of isaid property is es-topped from revoking 'said privilege. (L. & N. R. R. Co. v. Smith, 78 S. W., 160; Jarvis v. Satterwhite, 3 Ky. Law Rep., 190; Dillon v. Crook & Co.,. 11 Bush, 321; Curtis v. Noonan, 10 Allen, 406; 7 Wait’s Actions- and Defenses; pp. 195, 202 and 209.) 4. Where the owner of property, while said premises are vacant, grants to one, by an instrument in writing, the privilege of painting and maintaining -a 'sign upon the wall of -said, property for a recited consideration, and for a definite and stated period, the 'subsequent leasing of the same property to another “as a wholesale and retail liquor house and living rooms -above,” without referring to the prior privilege, does not amount to a revocation of such prior privilege. (Dillon v. Crook & Co., 11 Bush, 321; O. J. Gude Co. v. Farley [Sup.], 58 N. Y. Sup., 1036.)
121 Ky. 518Dupoyster v. Ft. Jefferson Imp. Co.'s Receiver (1905)Reversed
Case 66. — ACTION BY THE FORT JEFFERSON IMPROVEMENT CO.’S RECEIVER AGAINST' REBECCA S. DUPOYSTER ‘ AND OTHERS. Appeals from Ballard Circuit Court. W. I. Cdarke, Special Judge. From the judgment overruling exceptions to the report of the commissioner in the first case defendants appeal. From the judgment in favor of defendants in the case against Jackson and others plaintiffs appeal.. (No briefs in the record.)
121 Ky. 526Illinois Central Ry. Co. v. Houchins (1905)Reversed
Case 67. — ACTION BY J. E. HOUCHINS AGAINST THE ILLINOIS CENTRAL RY. CO. AND ANOTHER FOR DAMAGES FOR PERSONAL INJURIES. Appeal from Muhlenberg Circuit Court. Judgment for plaintiff. Defendants appeal. (No briefs; record out of office.)
121 Ky. 537Commonwealth v. Caudill (1905)Reversed
Omitted Property — County Courts — Appeals—Time—Correction ot Judgment — Appeal from the county court to the circuit court, which must be prosecuted within 60 days from rendition of judgment, being more than 60 days after rendition of judgment finding that defendant had omitted to list his property for taxation, and causing it to be listed, though within 60 days after rendition of judgment on motion to correct the first judgment for clerical misprision, is too late for review of the question of defendant’s liability to be assessed on the omitted property; the first judgment being final, and not being suspended by the motion for correction, or by the presence of the misprision authorizing the correction, proceedings for which, authorized by Civil Code of Prac., secs. 518, 519, are subject to no other limitation than that applicable to an original action for the same cause, fraud or mistake, and the time of appeal from the first judgment not being affected by 'sec. 516, providing that a clerical misprision shall not be ground of appeal till it has been presented to and acted on by the trial court.
121 Ky. 543Equitable Life Assurance Society of U. S. v. Commonwealth (1905)Reversed
Insurance — Rebating Premiums on Life Policy — Liability of Company for Act of Agent — Under Ky. Stats. 1903, sec. 656, providing that' no life insurance company doing business in the State shall make or permit discrimination in favor of individuals between insurants, and that no such company or agent thereof shall allow any rebate of premium, and that every company or agent violating the provisions of the section shall be fined, a company is not so liable for the act of its agent in giving a rebate on a premium, not authorized or assented to by .it, but disapproved by it.
121 Ky. 550Soper v. Igo, Walker & Co. (1905)Affirmed
Parent and Child — Enticing Child From Home — Action by Mother —An action for damages for enticing a minor to leave and remain away from his home can not be maintained by his mother, where the father is alive and reside's with her.
121 Ky. 554Herndon v. McDowell (1905)Reversed
1. Executors and Administrators — Allowance of Claims' — Effect— Prima Facie Evidence of Correctness — Under Ky. Stats. 1903, secs. 1062-1067, authorizing the county judge to make settlements with personal representatives, prohibiting the allowance of disbursements without legal 'evidence to justify the same, and providing that settlements so made shall be prima facie evidence between the parties interested, th-e allowance by the county court of an item in an administratrix’s account without evidence on file in support thereof is not prima facie correct as between the parties. 2. Where, in proceedings by an administratrix for an allowance against the estate of the decedent for the board of decedent for a specified time, the administratrix made affidavit as required' by Ky. 'Stats. 1903, sec. 3870, and introduced the affidavit of a third person supporting the claim, the allowance of the claim by the county court was, under the express provisions of secs. 1062-1067, prima facie correct as between the parties interested; and a petition surcharging the settlement, which only alleged that the claim was unjust for the reason that the administratrix was not a tavern keeper or keeper of a house of private entertainment, was not sufficient to defeat the claim for failing to allege that decedent had made no contract to pay for her board.
121 Ky. 560Bell v. Hatfield (1905)Affirmed
Case 72. — ACTION BY J. R. HATFIELD AGAINST SAM BELL-FOR BREACH OF CONTRACT I-N THE SALE AND DELIVERY OF CATTLE Appeal from ITardin Circuit Court. Weed S. Chele, Circuit Judge. Judgment for plaintiff. Defendant appeals. POINTS AND AUTHORITIES. 1. The petition and amended petition taken together fail tosíate a cause of action, because if the cattle were to be delivered at a time fixed or between two dates there must be an allegation, that they were delivered within the time, and if the purchaser had a right to elect what time between the dates he would receive said cattle, his failure to so elect fixed the lase day of' the period as the day on which the seller must deliver. (Sous-ely v. Burns’ Adm’r, 10 Bush, 87; Chandler v. Robertson, 9 Dana, 291.) 2. If it be contended that the time fixed for delivery was so-indefinite that th-e court can not say when that time expired, then the contract is too indefinite to support an action. (Beach on Contracts, sec. 72.) 3. Instruction on measure of damages is obviously erroneous. POINTS AND CITATIONS. 1. Th-e petition and- amended petition state a contract, and a breach of same, and, therefore, a cause of action. See authorities cit-e,d below. 2. Where notice is a part of the contract notice must be given. (Chxtty on Contracts, star pages 733, 734, 738, 739; Clark on Contracts, p. C67; McNairy v. Bishop, 8 Dana, 150; Newman on Pleading and Practice, pp. 346, 360-1-2.) 3. In the absence of notice (contracted to be given) it was not necessary for plaintiff to b-e present with his cattle at the time and place of delivery. (Turner v. Johnson, 7 Dana, 437; Hardey v. Mason, 9 Dana, 33.) 4. The jury was properly instructed. (Miles v. Miller, &c., 12 Bush, 138; Sedgewick on Damages, 200-1.) If any -error was made, it was harmless, and the judgment-should be affirmed. (People v. Commonwealth, 87 Ky., 500-1; L. & N. R. R. Co. v. T. & D. L. S. C P, 107 Ky, 61; L, H. & St. L. Ry. Co. v. McCune, 72 S. W., 756; Johnson v. 'Williams’ Adm’r,. 63 S. W., 761-2; L. & N. R. R. Co v. Edmond’s Adm’x, 64 S._W.„ 72S; Kentucky Civil Code, sec. 134; .Hoerth, &c. v. Zable, Ex’or,. &c., 92 Ky., p'. 205; Eversole v. White, &e., 65 S. W., 442.)
121 Ky. 567Southern Ry. v. Goddard (1905)Reversed
Case 73. — ACTION BY R. E. GODDARD 'AGAINST THE SOUTHERN RY. IN KY FOR DAMAGES FOR PERSONAL. INJURIES. Appeal from Mercer Circuit Court. W. C. Bell, Circuit Judge. Judgment- for plaintiff. Defendant appeals. POINTS AND AUTHORITIES. 1. The court 'should have instructed the jury to find for the defendant. (a.) The fact that the stock chute, stock pens and adjacent track had been in use for twenty years and no accident had happened demonstrates that there was no negligence in their construction. (Laflin v. B. & S. W. R. R. Co., 106 N. Y., 1S6; 12 N. E., 599; Dougan v. Champlain Transp. Co, 56 N. Y., 1; Loftus v. Union .Ferry Co., 84 N. Y., 455; Burke v. Witherbee, 98 N. Y., 562; Illinois Central R. R. v. Hobbs, 58 111. App., 130; Crocheron v. 1ST. S. Ferry Co., 56 N. Y„ 656.) (b.) The plaintiff, in wandering around premises unknown to him, on a dark night, without carrying a light, was guilty of such contributory negligence as jyevenbs his recovery. (1 Lackat v. Lutz, 94 Ky., 287; Louis vile & Nashville R. R. Co. v. Ricketts, '93 Ky., 116; 96 Ky., 46; Emery v. C. M. & St. P. Ry., 77 Minn., 465; .80 N. W., 627; Bradley v. Grand Trunk Ry., 107 Mich., 243; 65 N. W., 102; M. K. & T. Ry. Co. v. Turley, 85 F. R., 370; Reed v. Richmond & A. R R Co„ 84 Ya, 231 (S. C., 4 S. E., 587); Bennett v. N. Y., N. H. & H. R. R., 57 Conn., 422 (S. G. 18 Atl. Rep., 668); Parker v. Portland Pub. Co., 69 Maine, 173. 2. The ’evidence did not justify an instruction allowing punitive 'damages. (MbH'enry Coal Co. v. Sneddin, 98 Ky., 684; Milwaukee Ry. v. Arms, 91 TJ. S., 495; Crosby v. Bradley, 11 Ky. Law Rep., ’954 (Superior Court); L. & N. R. R. v. Jackson, 18 Ky. Law Rep., 296; K.. C. Ry. v. Biddle, 17 Ky. Law Rep., 1363.) 3. The form of the instruction is prejudicial. (Southern Railway v. Barr’s Adm’x, 21 Ky. Law Rep., 1615.) 4. No instruction should have been given for medical expenses. (Doe v. Perkins, 8 B. M., 201: Shultz v. Morrison, 3 Met., 98.) SYNOPSIS OF BRIEF AND AUTHORITIES. 1. At the time of receiving his injuries appellee was on the premises of the appellant by invitation, not as guest, but as customer, for the mutual interest and advantage of both, and appellant owed to him a duty of active vigilance. (Shelby’s Adm’r v. C., N. O. & T. P. Ry. Co, 85 Ky., 224; Harp v. Cumb. Telephone & Telegraph Co., 80 S W, 511; Wharton’s Negl, secs. 349-352; Indermauer v. Dames, L. R., 1st C. P., 274, 2 C. P., 311; Brosnan v. Sweetser, 127 Ind., 1; Jaggard on- Torts, yol. 2, p. 894, foot note 364; Hendrlcken v. Meadows, 154 Mass., 599; Gordon v. Cummins, 152 Mass., 513; Clop v. Mear, 134 Pa. St., 203; Fred v. Cameron, 4 Rich. Law, 228; O’Callaghan v. Bode, 84 Cal., 489; Campbell v. Portland Sugar Co., 62 Me., 552; Ray’s Negl. Imposed Duties, p. 236; 111. Cent. R. Co. v. Foley, 53 Fed. Rep., 459; Bennett v. L. & N. R. Co., 102 U. S., 577-586; R. R. Co. v. Hanning, 15 Wall., 649; Sweeney v. R. R. Co., 10 Allen, 368; Carlton v. Iron & Steel Co., 99 Mass., 216; Cooley on Torts, secs. 604-607; Corby v. Hill, 4 C. B. (N. S.), 562; Chapman v. Roth-well, 1 El. B. & E., 168; Parnaby v. Lancaster Canal Co., 11 Ad. & El., 230; Gibbs v. Trustee Liverpool Docks, 3 H. & N., 164; Union Pacific R. R. Co. v. McDonald, 152 U. S., 262.) 2. The duty to load the stock, imposed upon appellee by his contract, required him to see that the doors of the car were properly secured, and gave him the right of access to all the premises necessary for that purpose and the proper loading of the-stock. (Shelby’s Adin’r v. C., N. O. & T. P. R. Co., 85 Ky., 224; Ray’s Negl. Imposed Duties, p. 235; Newby v. Chicago, R. I. & P. R. Co., 19 Mo. App., 391.) 3. Though not a servant of the company in the strict sense, appellee was obligated to load the stock, and it was, therefore, the duty of a-ppellant to exercise reasonable care to furnish to appellee a reasonably safe place to ’do this work. (Harp v. Cumb. Telephone and Telegraph Co., 80 S. W., 511; Choctaw, O. & G. R. Co. v. McDade, 191 U S., 65,-48 L. Ed., 96; Texas and Pacific R. Co. v. Archibald, 170 U. S., 665) 4. Appellee being wholly unacquainted with the premises, he had a right to presume, under the circumstancs of this case, that the premises furnished were reasonably safe. (Harp v. Cumb. Telephone and Telegraph Co., supra; Brosnan v. Sweetser, 127 Ind., 1.) 5. It -was proper to show, in rebuttal, that appellee did not receive notice of the dangerous condition of the premises which witness, McGarvey, pretends to have given him. (Am. & Eng. Eng., vol. 29, p. 812; Gray, 3 Litt., 469.) (a) Damages not excessive. Cases compared. (M. & L. R. R. Co. v. Herrick, 13 Bush, 127; L. & N. R. R. Co. v. Moore, 83: Ky., 675; L. & N. R. R. Co. v. Mitchell, 87 Ky., 527; Cogswell v„ Railway Co., 5 Wjash., 46; Galveston H. & S. A. R. Co. v. Wesch, 21 S. W., 313; Morgan v Sou. Pac. R. Co., 95 Cal., 501; Haynes v. Erk, 6 Ind. App., 332, 33 N. E., 637; Town of Fowler v. Linquist (Ind Sup.), 37 N. E., 133; Balzer v. Chicago M. & N. Co., 89 Wis., 257; Flanders v. St. P. M. & O. R. Co., 51 Minn., 193; Ehrmann v. Railroad Co., 131 N. Y., 576.) 6. Under the pleadings in this case appellant is precluded from raising the question of trespass. In the ’second paragraph of the answer the appellant pleads that appellee was on its premises by permission, and after verdict the pleadings must be construed, if by reasonable intendment it can be done, to sustain the verdict. (Covington v. Powell, 2 Met., 230; Commonwealth v. Cook, 8 Bush, 222; Kent v. Deposit Bank, Owensboro, 91 Ky., 70; Bogenschutz v. Smith, 10 Ky. Law Rep., 330; Nesbitt v. Whaley, 10 Ky. Law Rep., 400; Belnapp v. Clark, 10 Ky. Law Rep. 872; Rich v. Sweetman, 15 Ky. Law Rep., 602; Lumber Co. v. Cox, 14 Ky. Law Rep., 143.) 7. Ii appellee, at the time of his injury, was on the premise's of appellant as licensee by the express permission of appellant, it is 'still liable to him for ordinary ^negligence. (Jaggard on Torts, 2d yol., ch^p. 12, p. 892; Bolch v. Smith, 7 Hurl. & N.. 736; Southcote r. Stanley, 1 Hurl. & N., 247; Farrant v. Barnes, 11 C. B. (N. S.), 553.)
121 Ky. 580Amburgy v. Burt & Brabb Lumber Co. (1905)Cross-petitioner’s judgment reversed
1. Parol Agreement — Establishing Boundary Lines — Statute of Frauds — Parol agreements establishing boundary lines between adjoining owners 'have been 'held not to be within the statute of- frauds and are enforcible, first, where the true-line is- in doubt and there is a dispute between the adjoining owners as to its exact location; second, where the parties' have established the dividing line, although in doing so each may have given up some part of 'his land to the other,, and each taking possession up to the agreed line; third, where two tracts held by two parties interfere, the boundary of one overlapping the other, there being a dispute as to the superiority of the titles and as to where the true dividing-line is, an agreed line made, plainly marked, and recognized by the parties for a considerable time will be upheld, 2. Same — But in this case, where there is no claim that there-was a dispute between the adjoining owners as to the true location of the dividing line between them, there is no doubt as to the superiority of the title where it conflicts. There was no mutual concession. There was no marking of a distinct line or otherwise establishing it, so that it could be-visible. A parol agreement on a dividing line falls clearly within the statute of fraud's- and is not enforcible. 3. Cross-petition — Summons—Judgment—Judgment can not . be rendered on a cross-petition where the parties defendant have not been summoned nor answered, and the court erred in having t-he judgment -to -be fixed by the master commissioner.
121 Ky. 588P'Pool's Ex'or v. P'Pool's Ex'tx (1905)Affirmed
Case 75 — CONTEST OVER TWO PAPERS PURPORTING TO BE THE WILL OP OSCAR P’POOL, DECEASED. Appeal from Trigg Circuit Court. Thos. P. Cook, Circuit Judge.- From the judgment the executor appeals. The signature to the first will when it was revoked was dead, and if this is true, it could never have been revived except by a new 'signature, which it is not claimed was done. (Maxwell v. Maxwell, 3 Met., 101; Dougherty v. Dougherty, 4 Met., 25; Stewart v. Mulholland, 88 Ky., 38.) We submit that there are only three ways in which a will can be revoked under our statute, sec. 4833. 1st. By marriage, sec. 4832. 2d. By a subsequent will or writing, declaring an intention to revoke, and executed in the same manner that a will is required to be executed. 3d. By testator, or some one for him, destroying the will. Ky. Stats., sec. 4833: The testator in the second will, of January 15, 1901, in express terms, revokes all former wills. Did the attestation of this paper, by the two witnesses, Grasty and Brandon, after it had been revoked, add anything to its legality more than the parol proof of these two witnesses that the testator acknowledged and recognized this paper at that date, in their presence, as his will? It must be admitted this would not have amounted to an execution under the 'statute. (Ky. Stats., sec's. 4834, 4828; sec. 22, Statute of Victoria; Maxwell v. Maxwell, 3 Met., '90, citing the case of Tharp & Wooldridge, 14 Grafton [Va.]; Stewart v. Mul-holland, 10 Ky. Law Rep., 824; Dougherty v. Dougherty, 4 Met., 25; Porter v. Ford, 82 Ky., 38.)
121 Ky. 594Johnson v. City of Fulton (1905)Affirmed
1. Circuit Courts — Construction of Act Authorizing Holding in Town Other Than County Seat — The act of the. general assembly authorizing the holding of circuit courts in counties in which there are towns over seventeen miles from the county seat, and having a larger population than the county seat, is not violative of sec. 51, Constitution, because there is but one subject, the holding of circuit courts, expressed in the title. Nor is it special legislation because the act applies to all the counties of the State, and, therefore, is not in violation of 'sec. 59 of the Constitution. Neither does the act change the county seat, but merely allows circuit courts to be held at a 'place for a part of the time other than the county seat. 2. Powers of Legislature — The legislature may authorize a liability by a city for purposes of this kind for the reason that under a State Constitution the legislature has all power except such as is taken from it by the Constitution.
121 Ky. 601Deskins v. Big Sandy Co. (1905)Affirmed
Case 77. — ACTION 'BY JACKSON DESKINS AGAINST THE VIRGINIA MINING AND IMPROVEMENT CO. AND ANOTHER POR THE UNPAID PURCHASE MONEY ON LAND, AND TO RECOVER THE MINERAL RIGHTS THEREIN, IN WHICH TOM DESKINS' AND THE BIG SANDY CO. INTERVENE. Appeal from Pike Circuit Court. A. J. Ktrk Circuit Judge. Judgment for Big Sandy Co. Tom Desldns appeals. While the legal title to the land in controversy at the time of the conveyance to Wm. Deskins, was in James, Hatcher, yet he was the real owner thereof, and no valid title could pass to any one without his consent, and any private arrangement between him and Jackson Deskins giving the latter the right to redeem the land, can not affect the title of an innocent purchaser for value from both of them, especially so, when Hatcher was not a party to the action at the time of the conveyance to Wm. Deskins. 1. We affirm that appellant has shown no right of recovery, and that the court erred in permitting appellant to file a petition to be made a party, because the record shows conclusively that the sale of the mineral was made by the father of appellant nine years before appellant claims to have purchased the land, and that he had full knowledge of all the transactions between his father and the Virginia Mining and Improvement Co. 2. The court having jurisdiction of the .subject-matter and the parties is conclusive, not only as to all matters determined by it, but as to all incidental matters which might have been properly litigated and decided in the same suit, and is binding on all the parties to the action until it has been reversed, vacated or modified in some of the modes known to the law. AUTHORITIES CITED. Civil Code, sec. 358; 84 Ky., 202; Sears v. Sears, 95 Ky., 173; Malone v. Schwing, 101 Ky., 56; B'laok on Judgments, vol. 1, p. 34.
121 Ky. 611Waters v. Cline (1905)Reversed
1. Where plaintiff went to live with 'her uncle under a parol agreement that, in return for her services, he would devise her a certain farm, erect buildings thereon, and give her a certain sum of money, plaintiff was entitled,' on the uncle’s death without devising the land, to recover its value, together with the sums agreed to be expended in improving it and to be paid her, though the agreement was unenforcible under the statute of frauds. 2. In an action on an alleged contract that deceased would devise land to plaintiff in consideration of her going to live with and performing services for him, evidence that wages were paid her during the time she lived with him is admissible to disprove the contract.
121 Ky. 620Merschel v. Louisville & Nashville R. R. (1905)Reversed
Explosives — Negligent Keeping — 'Personal Injuries — Liability— Master’s Liability for Acts of Servant — Petition—Duplicity —Statute. 1. Under the Civil Code of Practice, permitting pleading in the alternative, a petition to recover for personal injuries, charging that an agent and servant of the defendant railroad with gross negligence placed a railway torpedo on a sidewalk, where it was found, or with gross negligence placed it on the railroad track so that it could be easily removed or brushed away, and suffered it to be removed to the place where it was found; that one of such statements is true, but that the plaintiff does not know which one is true, etc.— is not bad for duplicity. 2. Where a railroad company’s agent and servant, as the custodian of explosives in use by the company, and charged with their safe-keeping, negligently placed a railroad torpedo on the railroad track or on a public street, whence it was picked up by a child, and through childish curiosity struck and exploded, the railroad company was liable for the injuries to the child caused thereby.
121 Ky. 627Linn v. Hagan's Adm'x (1905)Overruled
Administrators; — Service of Process — Non-residence—Witness— Exemption From Summons — Statutes!—Construction. 1. Civil Code Practice, section 542, providing that a witness shall not be liable to be sued in a county in which he does not reside by being served- with -a summons in such county while going, returning, or attending in obedience to- a subpoena, refers only, to the venue, and hence has no application as to service of notice of appeal -to the Court of Appeals. 2. While a witness may not be sued in a county in which he does mot reside, by being served with a summons- in that county, while attending, in obedience to a subpoena, he may be sued in his own county, or in a county where the court would otherwise have jurisdiction, and may be 'served with' a summons while -attending under the subpoena.
121 Ky. 631Leonard's Adm'r v. Cowling (1905)Motion to dismiss overruled
Appeal — Abandonment—'Supersedeas and Bond' — 'Filing of Record —¡Bill of Exceptions — Time for Filing. 1. The entry and prosecution of -a motion for new trial suspends a judgment previously entered, and constitutes an abandonment of an appeal previously granted from the judgment. 2. An appeal bond and supersedeas executed and issued after an abandonment of the appeal by the filing of a motion for new trial are void. 3. Where the circuit court has lost jurisdiction over the case, the records should be filed with the clerk of the Appellate Court in order to perfect an appeal, and the allowance of the appeal should be procured- from that court, i. The court, on overruling a motion for a new trial, may allow time, not beyond a day in the next term, for the filing of a bill of exceptions. 5. Appeal — Motion to Dismiss — Rehearing—Perfecting Record— On rehearing of motion to dismiss- appeal, appellant may have the record perfected to show. that, after -abandonment by motion for new trial of the first appeal granted by the trial court, a second appeal was granted by it, the transcript filed having been apparently complete and certified by the clerk of the trial court as being complete, but this will be allowed on condition that the supersedeas issued below be allowed to ¡stand and abide the final result on the merits.
121 Ky. 637Bay State Petroleum Co. v. Penn Lubricating Co. (1905)Reversed
Oil Leases — Failure to Develop Property — Abandonment—Estoppel. 1. Where an 'oil lease was for a specified time, or as long as oil 'was obtained in paying quantities, the lessee had the right to determine when he was no longer obtaining oil in a paying quantity. 2. Where an oil lease provided that work should be commenced within a certain time, and that failure on the part of the lessee to complete one well should render the lease void, and the lessee commenced work within the required time, but failed to find any oil, and no further work was done for several years, when work was resumed, owing to oil 'discoveries in the vicinity, the conduct of the lessee amounted to an abandonment. 3. Where the conduct of the lessee in an oil lease had been such as to amount to an abandonment, but, on re-entry by him, the lessor did not stand upon his objection, but acquiesced in the resumption of operations, such acquiescence estoppel the lessor to complain of the entry. 4. Where a lessee in an oil lease in effect abandoned the lease,. but subsequently the lessor failed to stand by his objection to a re entry, and acquiesced therein, and the lessee then abandoned the property, the acquiescence of the lessor did not estop him to deny the lessee’s right to return a second, time.
121 Ky. 645Louisville & Nashville Ry. Co. v. Helm (1905)Affirmed
Case 83. — .ACTION BY WILSON HELM AGAINST THE LOUISVILLE & NASHVILLE RY. CO. FOR DAMAGES FOR PERSONAL INJURIES. Appeal from Boyle Circuit Court. "W. C. Bell Circuit Judge. Judgment for plaintiff. Defendant appeals. POINTS AND AUTHORITIES DISCUSSED. 1. The Boyle Circuit Court had no jurisdiction of appellant. (Civil Code, secs. 73, 92, sub-sec. 1; Harper, &c. v. N. N. & M. Y. Co., 90 Ky., 359-363; Morris v. Gilmer, 129 U. S., 315, and cases there cit.ed; Jacobs, Adm’r v.' L. & N. R. Co., 10 Bush, p. 269.) 2. There being no good plea of tender, the judgment should have been for appellant, though there was a verdict against it. (Civil Code, sec. 386; Gould’s Plead., sec. 46; Dewey v. Humphrey, 5 Pick., 187; Evans v. Stone, 80 Ky., 78; L. & N. R. Co. v. May-field, 18 Ky. Law Rep., 224; lb v. Schweitzer’s Adm’r, 14 lb., 855; Gore v. I. C. R. Co., 17 lb., 799; I. C. R. Co. v. Nall, 21 lb., 281; Brooks- v. L. ’& N. R. Co., 24 lb., 1318.) 3. The compromise settlement w-as- freely, fairly and understandingly made with appellee, and there is no- ground for disaffirmance. (L. & N. R. Co. v. Carter, 23 Ky. Law Rep., 2017; Barker v. N. P. Riy. Co., 65 Fed., 461; E. T., V. & G. R. Co. v. Hayes-, 83 Ga., 558, 10 S. E., 3-50; Huffaker v. Jones, 13 Ky. Law Rep., 432; Hart v. Gould, 62 Mich., 262; Wells-’v. Neff, 14 Ore., 66, 12 Pac., 88; Vande-rvelden v.'Ry. Co., 61 Fed., 54; C. & N. W. Ry. Co. v. Wilcox, 116 Fed., 913.) 4. Even if appellee had the right to disaffirm) the settlement, he defeated this right: (a.) Because the pretended tender was- not made to an authorized agent of appellant. (b.)- Because it was not for a proper amount — interest and expenses, in addition to the $400 paid in settlement, not being included in the tender. (28 A. & E. Ency. of Law, p. 19e, and caises there- cited; L. & N. R. Co.v. McElroy, 100 Ky., 153; Home Benefit Society v. Mue-hl, 109 Ky., 479; Cobb v. Hatfield, 46 N. Y., 533; Evans v. Gale, 17 N. H., 573; Slack v. Price, 1 Bibb., 274; Jarboe v. M-cAtee, 7 B. M., 279; Halpin v. Phoenix Ins. Co., 118 N. Y., 165; Wright v. Robinson, 84 Hun., 172; Franklin v. Ayre, 22 Fla., 654; Pell v. Chandos, 27 S. W., 48.) (c.) Because the tender was not kept good. (B-ls-sell v. Hey-ward, 96 U. S., 587, and cases there cited; State of Illinois v. I. C. R. C-o., 33 Fed., 730; Woodland Cemetery Co. v. Ellison, 25 Ky. Law Rep., 2069.) (d.) The tender came too late. (Strong v. Strong, 102 N. Y., , 69'; Go-uld v. Bank,. 8G N. Y., 75; 1 A. & E. Ehcy. of Law [2d Ed.L p. 430.) (e.) Becaus-e the money tendered was not appellee’s ’money. (Boyce & S'hrieve v. Prichett’s Heirs-, 6 Dan-a, 231.) (f.) Because the disaffirmance was not attempted in a county in which the contract could have been enforced. (Civil Code, sec. 72.) 5. Appellee ratified the settlement by the use he made of the money he received, and by his laches in attempting to dis-affirm the settlement. (Taylor v. Patrick, 1 Bibb., 170; Mo. Pac. R. Co. v. Brazzil, 10 S. W., 406; Gibson v. Western, &c., R. Co., 44 Am. St. Rep., 595, 164 Pa. St., 142.) 6. The evidence does not show, that appellee ever had a cause of action against appellant.' 7. The instructions are vitally erroneous in many particulars. (1 Shearman & Redfield on Negligence, sec. 89; Cain’s Adm’r v. O. V. Tel. Co., 20 Ky. Law Rep., 855.) 8. The burden was on appellee to establish, by the weight of evidence, that he was not of contractual capacity when he made the setlement. (Addyston Pipe & Steel Go. v. Copple, 94 Ky., 292; Cunningham v. Belknap & Co., 22 Ky. Law Rep., 1580.) This he has not done. His own testimony is wholly uncorroborated, shows he was testifying falsely or mistakenly, and must, therefore, be disregarded. (Hurt v. L. & N. R. Co., 25 Ky. Law Rep., 758, 759.) The company’s liability is so palpably clear, and his cause of action is so well shown from the uncontradicted testimony, that it is not even a debatable question. 1. It is contended that the Boyle Circuit Court had no jurisdiction, because it is claimed that Helm did not reside in Boyle county when he filed his petition herein, on the 28th of August, 1902. This was necessarily a question of fact, which was left to the jury to determine' under the instructions of the court. 2. It is contended’ also that the alleged settlement with Helm at $400 “was fully, fairly and undenstandingly made with appellee, and there isi no evidence authorizing a disaffirmance of it. In its answer, the company i-eliesi on a settlement alleged to have been made June 4, 1902, and should have been confined to that date in its proof. Helm denies this settlement, and pleads and proves that at some .time, when he did not know it,, his signature or mark was obtained to a paper which purported to be a settlement of his claim. He alleges and proves that he ascertained this after he left the hospital. 3. Appellant’s third '.contention is, that this action can not be maintained) 'because before instituting it, the .appellee did not tender back to the company the value of the medical attention, or the value of hospital nursing, medicine and board, or the value of his transportation from Covington to Stanford, or the $400 alleged to have been received by him, under the terms of a contract mutually entered into by him with the company in settlement of his claim for damages for his personal injuries inflicted by the gross negligence of the company. Upon the issue made by his denials the burden was upon the company to 'establish these stipulations of the contract to the satisfaction of the jury, to whom the issues of fact are required by law to be submitted. AUTHORITIES CITED. L. & N. Ry. Co. v. McElroy, 100 Ky., 153; Mullen v. Old Colony R. R. Co., 127 Mass., 86; Brown v. Hartford Insurance, 117 Mass., 479; Lumley v. Wabash Ry. Co., American and English Railroad Cases, New Series, vol. 6, 94; Railroad Co. v. Harris, 158 U. S., 326; Railroad Co. v. Ddgle, 18 Kan., 58; Railroad Co. v, Lewis, 109 111., 120; Bigelowe on Fraud, 425; Deisctoman v. Deis'chman, 49 Mo., 107; Westlake v. St. Louis, 77 Mo., 47; Duvall v. Mawry, 6 R. I., 479; Smith v. Salmon, 7 Daly, 216; Butler v. Redmond andi D. R. Co., 88 Ga., 594; Kley v. Healey, 227 N. Y., 555; Shenon v. Pacific Mutual Life Insurance Co., 38 Wls., 507; Kerchur v. New Home Sewing Machine Co., 135 N. Y.; 182-507; Knoxville C. G. & L. R. R. Co. v. Acuff, 92 Tenn., 26; Mercer v. King, 13 Ky. Law Rep., 429; Lithgrow Mfg. Go. v. Samuel, 24 Ky. Law Rep., 1590'; Evening Post Co. v. Canfield, 23 Ky. Law Rep., 2028; Castle v. Bays, 19 Ky. Law Rep., 345.
121 Ky. 666Louisville, H. & St. L. R. v. Hathaway's Ex'tx (1905)Reversed
Case 84. — ACTION BY ALBERT C. HATHAWAY’S EXECUTRIX AGAINST LOUISVILLE, H. & St. L. R. CO. FOR CAUSING THE DEATH OF PLAINTIFF’S INTESTATE. Appeal from Jefferson Circuit Court, Common Pleas Branch., Second Division. Ti-iomas R. Gordon Judge. Judgment for plaintiff. Defendant appeals. POINTS AND AUTHORITIES. 1. When, by deducting one rough estimate of a distance from another rough estimate of a distance between a running train and a stationary object, the remainder is a distance of thirty feet, which at the rate of- speed of the train, would be traversed in one and one-half seconds, and on this alone the plaintiff relies to prov-e a “negligent delay” in giving a signal to- stop the train, the court should have peremptorily instructed the jury to find for the defendant, as there is no proof of any facts from which negligence could be inferred. The foundation for the inference being ’speculation and guesses. (Wintuski’s Adm’r v. L. & N., 14 Ky. Law Rep., 580; Hughes’ Adm’r v. Cincinnati, &c., R. Co., 91 Ky., 526; Louisville Gas Co. v. Kaufman, 106 Ky., 131; L. & N. v. W(athen, 22 Ky. Law Rep., 85.) 2. When all the witnesses testify that the nature of an object seen lying beside t.he track was never suspected to be a person until it was too late to stop the train, the court should not -submit the case to- the jury on the theory that the jury might conclude the- real character of the object was discovered sooner than any witness said it was or could have been discovered, (Earley’s Adm’r v. L., H. & St. L., 24 Ky. Law Rep., 1808; Goodman’s- Adm’r v. L. & N., 25 Ky. Law Rep., 1086.) 1. The main and practically the only contention of the counsel for appellant is that the verdict is contrary to the evidence. There is no question of law involved. Under our system the jury is the absolute and unqualified- trier of the facts of a jury case. Its province is as complete and unassailable as that of the court to direct it as to the law of the particular case submitted to it. 2. It is a principle of inferential evidence that it is not legal to support a case by an inference from an inference, and the court'will observe that learned counsel have failed to draw this distinction in citing authorities. 3. We insist that the question of negligence is always one for the jury. authorities as to province op the jury. L. & N. R. R. v. 'Graves, 78 Ky., 78; Smith v. Northern Bank, 1 Met., 579; Alexander v.- Garrard, 1 Mar., 239; Clay v. Johnson, 6 Mon., '668; Bucklin v. Thompson, 1. J. J. M'., 227; Wallace v. Maxwell, 1 J. J. M., .449; McAndre v. Osborn, 5 J. J. M., 530; Griffith v. Dicken, 2 B. M., 24; Letton v. Young, 2 Met., 566; Patterson v. Hansel, 4 Bush, 661; Thompson v. Blackwell, 17 B. M., 624.. NEGLIGENCE IS TO BE POUND BY JURY. L. & N. R. R. v. Creighton, 106 Ky., 42; Becker v. L. & N. R. R. Co., 110 Ky.; Lou. So. Ry. v. Tucker, 105 Ky., 492; Hughes’ Adm’r v. L. & N. R. R. Co., 104 Ky., 774; Jenkins v. Same, 104 Ky., 673; Ashland Co. v. Wallace, 101 Ky., 626; Hemstein v. Dupue, 24 Ky. Law Rep., 887; Oonadeau v. Am. Ac. Co., 95 Ky., 280- LAW OP INFERENCE. Hughes v. Easten, 4 J. J. M., 573; Wilmut'h, Adm’r v. Illinois Central R. R. Co., 25 Ky. Law Rep., 671.
121 Ky. 681City of Covington v. Kanawha Coal & Coke Co. (1905)Reversed
1. Contracts — Breach—Delay in Delivery — Strikes—Customs—Explaining Writing — 'Appellee agreed, in writing, with appellant to furnish it coal of a certain kind from September 1, 1901, to September 1, 1902, a,t a named price per ton, but failed to comply with its contract, alleging that by reason of a. strike in the district where the coal was to be had it could not be obtained, and pleaded that there was a general custom in the locality where the sale was made to the effect that the contract was made subject to a strike in said mining district, to which •plea a demurrer was filed and overruled by the lower court, and upon this plea proof was heard and the jury found for the appellee. Held — There is nothing equivocal or obscure in the contract. The evidence does not interpret or explain, hut contradicts what is written. 2. Contingencies — Must be in Writing — If a party agreeing to furnish coal at a named price desires to protect himself from the contingencies of strikes occurring in the district where his •coal is to be obtained, it is incumbent on him to express the •contingency in the contract, and if he fails to do so he can not show, a custom that his written contract is not what it reads, but is only a conditional engagement.
121 Ky. 689Commonwealth v. Adair (1905)Reversed
1. Local Option — Violation of Statute — Where the real transaction was a sale of beer within the prohibited territory, and it was delivered there by the seller, the fact that the parties agreed that the title should not pass until the liquor was. paid for would be an intentional and complete violation of the statute. 2. Same — Reason of Statute — Sec. 257'0, Kentucky Statutes, waJs in tended to enable courts and juries to go behind appearances and 'subterfuges so as to get at the real transaction. 3. Same — Under the state of facts indicated t'he peremptory instruction to find appellee not guilty was erroneous.'
121 Ky. 694Dupoyster v. Clarke (1905)
1. Courts — Special Judges of — Under the provisions of secs. 968 and 971, Ky. Stats., special judges of circuit courts have no. authority in any case except that in which they shall he appointed, and their powers are not limited to the terms, for which they have been appointed, or to one term, a 'special term, if necessary, may be held. 2. Same — Rule in Vacation — A special judge, however, can mot. in vacation award a contempt rule for the disobedience of the orders' of the court. It can only he awarded when the regular term comes. Neither has he the power to enter an order in vacation directing a receiver to pay over money-in his hand. Such a matter must be heard and determined at a term of court.
121 Ky. 698Goslin v. Commonwealth (1905)Reversed
1. False Swearing — Indictments—Sufficiency—An indictment for false swearing which charges “that in a trial of accused before the judge of the county court of Barren county, which had jurisdiction of the case of the prosecution of the Commonwealth of Kentucky against Tom. Goslin, charged with gaming, he was sworn as a witness on his own motion by the said county judge and therein deposed' and testified that he did not play at a game of craps with Will Wheeler in that county for money or property; that the statement then made was false and was known by the witness at the time to be false; that he had previously played at the game with said Wheeler in that county for money,” is- a good indictment, the particulars of the transaction are set out with sufficient certainty. 2. Time — Not Necessary Allegation — In an indictment for false swearing, time not being of the essence of the offense need not be alleged otherwise than that it occurred before the finding of the indictment. The matter inquired about need not have been material to the issue- then being tried, as in a prosecution for perjury it would have been. It is enough if the court had jurisdiction of the case, administered the oath to the witness, that he was- required to -and did answer the question and that his answer was corruptly false. 3. Instructions — Two Witnesses or One Witness Corroborated — On the trial of one indicted for false swearing, it was error in the court to fail to instruct the jury that before they could convict the accused his guilt must be established beyond a reasonable doubt by the testimony of two witnesses, or of one witness and strong .corroborating circumstances. 4. Oath — County Judge- — -Official Character — Parol Proof — Prosecution Pending — Record Evidence — On the 'trial of one in-dieted for false -swearing in a case where he was sw-om by the county judge, it was competent for the Commonwealth to 'establish 'by parol testimony that the person who administered the oath to- the accused was at the time county judge. But it was incompetent to prove by parol testimony that the prosecution before the county judge was pending when he administered the oath to the accused. There was- -of necessity a record of the trial. It would have shown the offense charged, a-nd that the prosecution was pending when the oath was -administered and the testimony given.
121 Ky. 706S. F. Dana & Co. v. Blackburn (1906)Reversed
1. Master and Servant — Injury—Negligence of Fellow Servant-— Appellee, who was -a shoveler in a coal elevator, was injured by -being struck by one of th-e cars used in- carrying the coal. His work was being d-one in connection with the truckman and engineer, neither of whom was his superior, but was his fellow- workman. Held — That while in this State the common law doctrine of respondeat superior -applies where a brakeman -on a railroad train is injured by gross negligence upon th-e part of the engineer, we have been referred to no case which extends this doctrine to an injury to a servant caused by the negligence of a stationary engineer employed by the same master and engaged in the same service with the injured servant. The engineer being a fellow servant -of -appellee, if the latter was injured by his negligence, of which there is no proof, such injury was incidental to the work in which both were engaged and one of the ordinary risks- pertaining thereto for which no -recovery can be had.
121 Ky. 716Southern Ry. v. Thurman (1906)Reversed
1. Railroads — -Separate Coaches — Mistaking White Passenger for Negro — Refusing Admission to White Coach — Using Insulting Language — 'Statement of Employe — Competency—In an action for damages hy a white woman against a railroad company for refusing her admission into the coach set apart for'white passengers on the ground that ¡she was a negro, in which she claimed that the brakeman used insulting language to »her and to others ¡about her. Held — That what the agent ¡said while he was doing the business of his master is competent ¡against the master, but what he said after the business- was done is not competent. 2. Employe — Statement Made Out -of Court — Competency—Substantive Testimony — If a witness out of court makes statements inconsistent with his testimony on the trial, proof of these may be admitted when a proper foundation is laid to contradict the witness, but the court in such case must instruct the jury -that the testimony is not to be considered ais substantive evidence against the defendant, but only to impeach the witness. '3. Statement in Hearing of Plaintiff — If anything insulting was said hy the brakeman in tlie hearing of the appellee, this may be -admitted in evidence. , 4. Instruction's — Act of employe — Ordinary Care/-The court should have told the jury that the brakeman in requiring the plaintiff t-o leave the white coach did not in good faith believe, or -did not have the right to believe that she was a woman of color, -or if he was' in-sxilting to her, they 'should find for the plaintiff, but that if he in good faith believed, and in the exercise of ordinary car-e had a right to believe that she was a woman of color, and was not insulting to her, the jury should find for the defendant. 5. Measure of damages — The jury should also have been told that if they found for the plaintiff the measure of recovery was such sum as would fairly compensate her for the trouble in leaving the ear and returning to it unless the brakeman was insulting to her, and in this -event' they were not confined to compensatory damages, but might or might not in their -discretion allow punitive damages, but not exceeding in all the amount claimed in the petition.
121 Ky. 724Andricus' Adm'r v. Pineville Coal Co. (1906)Reversed
1. Master and Servant — Negligence of Master — Safe Place to-Work — It is actionable negligence for the operators of a mine to suffer the mine to be unfit for use because of lack of ventilation, and to use it in that condition. 2. Same — Duty to Warn Servants — It is negligence for the operators of a mine not to apprise the miners working' in the mine of the insufficiency of ventilation of the mine. • 3. Same — Contributory Negligence — Reliance of Master’s Assurances — -Unless a danger incident to the employment is known to the servant or is an obvious danger, he miay rely upon the implied a-ssnrance and superior -knowledge of- his -employer th-at the premises are reasonably safe for the purposes for which they are being -used. 4. Depositions — Objections—Necessity of filing Exceptions — Civ. Code Prac., sec. 585, requires depositions to be filed with the papers of the case before the commencement of the trial. Sec. 586 requires exceptions to depositions .to be in writing, filed with the papers of the- case, and noted on the record. Sec. 587 requires exceptions other than- to the competency of the witness or to the relevancy or competency of his testimony to be filed and noted on the record before the commencement of the trial. Held — That an objection to the reading of a deposition which was filed- in the record of the case was properly overruled, where no exception to the deposition was filed. 5. Same — Depositions Taken in Other Case- — Where two actions were pending against' the same employer for the death of different servants, and the same person was administrator of both decedents, and the parties were represented by the same counsel in each case, and the same negligence and the same cause of death were relied-on as a basis'of recovery in each case, depositions taken in one case relevant to the other could be read in the latter, if filed therein before the trial. <6. Master and Servant — Injuries to Servant — Actions—Evidence-In an action for the death of a miner, caused by the negligent and insufficient ventilation of the mine, evidence of the unsafe condition of the mine from the same cause a few months before the death of plaintiff’s intestate was relevant to show that the plan of ventilation was defective and that such fact was known to the mine operators. 7. Same — Statutory Regulations — Power to Regulate — It is within the police power of the State to regulate, or to require the employer to regulate, the conditions of an extra hazardous business in which a large number of persons are employed, so as to safeguard' the lives and- health of the workmen; :and to that end provision for an inspection of the premises and appliances of the business may be prescribed, and the owner or operator may be required to remedy defects, or the workmen may be notified -thereof, -so that they may keep away from or protect themselves in the defective premises. '8. Same — Negligence of Master — Disregard of Statute — Ky. Stas. 1903, sees. 2722-2733a, create the office of inspector of mines, define the duties- of the inspector, -require mine owners or operators to provide suitable and efficient ventilation for their mines, empower the mine inspector to visit and inspect mines and to notify the mine owner to remedy defects which lie finds therein, and prescribe penalties for the failure of the mine owner to comply with -the requirements of the 'law. Sec. 466 provides that a person injured by the violation of any statute may .recover from the offender such damage :a-s he may sustain -by reason of the violation, although a penalty or forfeiture is- also imposed for such violation. Held — 'That the failure of a mine owner to adopt the statutory safeguards for the safety of his employes is per se an act of negligence toward such employes. 5J. Evidence — Official Reports — Certified Copies — Under Ky. Stats-. 1903, sec. 2725, requiring the inspector of mines to keep a record of inspection's made by him, and making a certified copy of his- report of the inspection of any mine admissible in -evidence and prima facie evidence of the truth of recitals therein contained, a certified copy of a report of inspection ;made by the inspector of 'mines is admissible, in an action for injuries to -a miner, to establish -prima facie the existence -of defective conditions- of the mine which the report states do exist. 10. Constitutional Law — -Due Process of Law — Statutes Affecting-Evidence — It is competent for the Legislature to place the-burden of proof in actions by making official determinations, or certifications prima facie proof of the facts determined or-certified to, and such legislation is not subject to the objection of disposing of property or other rights Tyithout ai hearing. 11. Master and Servant — Injuries to Servant — Actions—Evidence— Sufficiency — In an action for the death of a miner, evidence,. Held- — Sufficient to support a finding that the death of plaintiffs decedent was- caused by the defective and insufficient ventilation of the mine.
121 Ky. 737City of Bardstown v. Nelson County (1906)Reversed
Case 92. — ACTION BY THE CITY OF BARDSTOWN AGAINST NELSON COUNTY FOR EXPENSES INCURRED IN PREVENTING THE SPREAD OF SMALLPOX. Appeal from Nelson Circuit Court. Samuel E. Jones Circuit Judge. Judgment for defendant. Plainltiff appeals. POINTS AND AUTHORITIES. 1. In view of the fact that this is the second appeal of this case; that the evidence on both -appeals is identical, and that the court on former appeal, rev-er-sing, said the liability sued on “must be paid by the county as its other obligations are;” that “all the evidence was in favor of appellant (city), but the verdict was for appellee (county),” the verdict and judgment appealed from can only be accounted for in one of three ways, or as a result of all combined, viz., incompetent evidence admitted by the court improper instructions given by the court, or passion or prejudice on the -part of the jury. (City of Bardistown- v. Nelson County, 78 S. W., Rep., 169; vol. 25, Ky. Law Rep., 14-78.) 2. Notwithstanding this court has- said on former appeal that the judgment and a-ction of the county board of health, concerning matters within their discretion, was conclusive and- binding on the county, yet the lower court committed the flagrant error of permitting worthless, ignorant negroes to- challenge the judgment of The board of health and testify before the jury that the patient was not sick and did not have smallpox. (City of Bards-town v. Nelson County, supra.) 3. All the evidence being one wiay, a-nd it being proven and un-contradioted that Drs. Gore, Blinco and Pope constituted the local board of health of Nelson county, it was- error in the court to submit that question as be did to the jury, and the submission of that question to the jury was calculated to, and did confuse land mislead the jury greatly to the prejudice of appellant, and the jury, persuaded by the improper argument of- counsel, under the improper instruction of the court, were thereby influenced to find against appellant. (Henning v. -Stevenson, &c., 80 S. W. Rep., 1135; L. & N. R. Co. v. Earl’s- Ad-m’x, 94 Ky., 368; State v. Harold, 9 K'an., 194; vol. 11, Ency. Plead. & P-rac., p. 134.) 4. Thi-s court having decided on first appeal (the evidence as to appointment on this appeal being identical), t-h-at “the State Board of Health regularly appointed three persons (Drs, Gore, Blinc-oe and Pope) -as the local board of -health of Nelson county, t-he question -of their appointment was res- -a-djudieata, and the lower court -committed flagrant error in s-ubmiting that question to the jury. (Thompson v. Brannin, &c.,, 15 Ky. Law Rep., 36; City of Bardstown v. Nel-son County, supra; Thompson v. Brannin, &c., 19 Ky. Law Rep., 454; Herman on Estoppel- & Res Ad,judicata, vol. 1, sec. 115.) -5. Instruction No. 1 was -erroneous and very prejudicial to appellant in directing the jury to disallow the account of C. R. Barnes, because said Barnes was- a member of the city council at the time. Sec. 3632, Ky. Stats., only applies to the furnishing of anything by a councilman “for the use of the city.” Under no 1-ess authority than the former opinion of this case, the lumber, etc., was- furnished- to the appellant county and not to the city, the city -being merely the agent of the county or fiscal court whose duty it wa-s- to furnish the necessary supplies. (See Ins. No. 1, -and record.) Sec. 341, of the Civil Code, provides that no more than two new trials- shall be granted to a party upon the. ground that the verdict is not sustained by the evidence. It is true the reversals of this ca-se have been upon questions of law; but the fact still remains that there have been three findings in the same way upon the same evidence, and while the case may -not be within the -letter, it is clearly within the spirit of the statute, and it is also within th-e rule laid down in the decisions of this court prior to the enactment of the statute. AUTHORITIES CITED. L. & N. R. R. Co. v. Geaves’ Ass’ee, 78 Ky., 75; Dorsey v. Dougherty, — Marsh., 183; Bennett v. Runyan, 4 Dana, 422.
121 Ky. 747Deweese v. Deweese (1906)Reversed
1. Homestead' — Preferring Creditors — Insolvency—It is well settled that the statute of 1856 does not apply to conveyances of exempt property for the reason that as this property is n-pt subject to the payment of debts the creditor can not complain of what the- debtor does with it. As it was a homestead his right to it was not affected in any way by his temporary absence from it or account of i'll health while, he still held -possession by a tenant. 2. Pleading — General Denial — Burden of Proof — In -an action seeking to subject a homestead to the payment of a debt on the ground that it had been conveyed in contemplation of insolvency and to prefer one creditor to the exclusion oí others, it was unnecessary for the defendant in his answer to do more than deny the allegations- of the petition. The burden was on the plaintiff to- make out. his case and when it was 'shown that the property conveyed was exempt from execution, a state of fact was made out which showed that the conveyance was not ‘within the statute.
121 Ky. 751Ehrmann v. Stitzel (1906)Reversed
1. Partnerships — Sale by Retiring Partner — Error in Making Esti-mate's — Fraud or Mistake — WM-ting—Where-, in an action to correct a settlement of a partnership which was made in. writing, in w-hich one member 'sold his interest to the other, the petition alleges that the plaintiff having full faith in the honesty and integrity of the other partner and of his belief that he was a reliable bookkeeper, .he suffered him to make all the calculations, 'estimates and statements of accounts, and that either by mistake or with fraudulent intent to deceive plaintiff and .induce him to settle with defendant for a larger amount than was justly due him, to-wit, the sum of $555.90, for which sum he prays judgment. Held — That th-e petition states a cause of action against the defendant. 2. Same — Correcting Date of Writing — Parol Evidence — In an action to correct a written -settlement of -a partnership between two partners, in which one of the firm -sold his interest therein to the other -and alleging that the settlement was m-a-de by the mistake or fraud of the -defendant, one or the other of which is- true, pa-rol evidence is -admissible to prove that the settlement was -made on _ July 31 instead of July 1, 1902, the latter date being named in the writing. 3. Surcharging Settlement — In an action to- correct errors in a -settlement of a sale by one member of the firm to the other, alleged to have been made by frau-d or mistake of the defendant, who was trusted by the plaintiff to make the calculations and estimate the liabilities and .profits, in order to arrive at the interest of each member, the settlement may be surcharged to the extent that there were errors committed in arriving at the amount of t-h-e consideration whether as the result of fraud or -mistake.
121 Ky. 765Pennsylvania Land Co. v. Justi (1906)Affirmed
1. Wills — Construction—In construing a will the general intention of the testator must prevail, though it may set aside some particular part of the will. When the intention of the testator is plain from the will taken as a whole, the court will endeavor to carry out that intention, and in doing so will, if necessary, disregard particular expression and broaden restrictive provisions. 2. Codicils — Efftect—Intention—The disposition by a will, will not be disturbed by an erroneous recital of its contents in a codicil, unless a design to modify or revoke the disposition in the will can be fairly collected from the whole will. 3. Same — By the first part of his will the testator devised tcs his wife his whole estate during her life, with power to dispose of it as she saw fit, and if any part of it was left at her death, it was to he equally divided among his five children per stirpes. He gave absolutely and without restriction to each of his two sons, John I. J. and Herman Justi, an undivided one-fifth of the property that remained at the death of his wife, and made- a like provision for his- daughter, Rebecca W. Justi. The dominant ideas of the testator were that his children should enjoy his estate equally while they lived, but that if any of the estate devised was. left at their death's, then it should go only to those of his- blood. He then said in his codicil “It ds said in the foregoing will that in case one of my daughters shall die without children her part shall return back to the Justi family again. I declare that in case one of my sons dies without children, likewise his portion ¡shall return back again to the Justi family,” evidently having in mind the sole thought of having that -part of the estate remaining at their death's to revert to those of his blood. It is certain from the whole will and codicil that he did not, by these words in the codicil, intend to change or take away the power he had given the children to own, use, sell or mortgage the property as they pleased while they lived.
121 Ky. 775Board of Education v. Newport National Bank (1906)Reversed
1. Schools — Contract by Board of Education' — Form, of Vote— Under Ky. State. 1903, sec. 3212, providing that for the execution of a contract by the board of education of a city the concurrence-of a majority of its members “shall he indispensable, and on a call for the yeas and nays, to he entered of record,” the vote must in all cases he on call of the yeas and nays, and not merely where so demanded by a member. 2. Same — Record of Vote — The record of a meeting of a boa~d of education of a city, showing the requisite number of members for transaction of business present when the meeting commenced, and that afterwards a resolution for a contract was unanimously adopted, is not a sufficient compliance with Ky. Stats. 1903, sec. 3212, requiring the resolution to be on a call of the yeas and nays, to be' entered of record.
121 Ky. 784Woodruff v. Woodruff (1906)Reversed
Case 97. — ACTION BY EMMA WOODRUFF AGAINST WILLIARD F. WOODRUFF TO ENFORCE A WRITTEN CONTRACT BETWEEN HER AND HER HUSBAND. Appeal from Jefferson Circuit Court, Chancery Branch, Second Division. Sam'l B. Kirby, Judge. From a judgment dismissing the petition the plaintiff appeals.
121 Ky. 791Hager v. American Surety Co. (1906)Affirmed
Case 98. — SUIT BY THE AMERICAN SURETY CO., OF NEW YORK, AGAINST S. W. HAGER AND OTHERS AS THE STATE BOARD OF VALUATION AND ASSESSMENT TO RESTRAIN THEM FROM MAKING A CERTAIN ASSESSMENT OF PLAINTIFF’S FRANCHISE. Appeal from Franklin Circuit Court. R. L. Stout, Circuit Judge. From a judgment sustaining a demurrer to tlie answer, defendants appeal. It is the contention of the State: 1. That the statutory provision for the taxation of the corporate franchise of a foreign corporation as set out in Ky. Stats., sec. 4080, is not mandatory, but directory only. 2. If the result reached by the board was correct or not more onerous on appellee than it should have been the assessment should not be disturbed for no principle is better settled than that if an officer is right in his conclusion, the fact that he gives bad reasons for it, or reaches it in a wrong way is immaterial. 3. If the board of valuation and assessment has no discretion as to the method of fixing the value of the franchise, and the provisions, of sec. 4080, Ky. Stats., are mandatory, and must be literally complied with by the board then said section is unconstitutional, because it is an usurpation of a judicial function by the legislature. (Slaughter v. Louisville, 89 Ky., 121; Life Associtaion v. Board of Assessors, 49 Mo., 512; People v. Hastings, 29 Col., 449; In re Union Coll., 129 N. Y., 308; Attorney General v. Leavenworth, 2 Kan., 61; Western Railroad Co. v. Nolin, 48 N. Y., 513; Thompson v. City of Lexington, 20 Ky. Law Rep., 457; Albuquerque Nat. Bank v. Pa., 147 U. S., 92; City of Covington v. Shinkle, 25 Ky. Law Rep., 73; State Constitution, ,sec. 231; U. S. Cons. 11 Amendment; Ex-parte Ayres, 123 U. S., 443; Louisiana v. Junne 107 U. S., 711; Hans v. State of Louisiana, 134 U. S., 1; Coulter, Auditor v. Weir, 127 Fed. Rep., 897.) Our contention is: 1. That under Ky. Stats., sec. 4079, the board in fixing the value of the 'entire capital stock of domestic corporations, is not limited to 'any given mode of procedure. It may accept the report made under sec. 4078, Ky. Stats., as the basis of valuation, or it may take “other evidence;” it may accept the sale price of the shares, or it may add the surplus to capital; it may capitalize net earnings; or it may combine -these several processes in fixing the value of tihe entire capital stock. 2. In respect to foreign corporations' the method is substantially the same, except as provided in sec. 4080, Ky. Stats., after finding the value of the entire capital stock, the next step i-s to ascertain the gross receipts of the corporation in Kentucky, and the entire gross receipts from every other source, including Kentucky, then calculate the proportion which the gross receipts in Kentucky bear to the entire gross receipts of the corporation, and that proportion of the value of the entire capital stock (less the value of assessed tangible property) shall -be the value of the franchise subject ito taxation.
121 Ky. 802Manning v. Grinstead (1906)Reversed
Case 99. — ACTION BY J. L. MANNING AGAINST JAMES F. GRINSTEAD AND OTHERS FOR DAMAGES ON BOND OF INDEMNITY. Appeal from Whitley Circuit Court. M. L. Jarvis, Circuit Judge. Prom the judgment plaintiff appeals. 1. Where there is any reasonable doubt as to the ownership of goods, or their liability to be taken on execution, indemnity may include damage's, costs and other legal expenses, including counsel fees. (Russel v. Walker, 15 Am. St. Rep., 242; Cook v. Merrifield, 139 Mass., 139; Lindsey v. Parker, 142 Mass., 582.) 2. The view is taken in some jurisdictions that damages for injury to or loss, of business are recoverable as actual damages, but the weight of authority is probably against this view, owing to the fact that such injury is not the proximate or natural result of the wrong complained of. (M'arx v. Leinkauff, 93 Ala., 453; Meyer v. Fagan, 34 Neb., 184; Powérs-Taylor Drug Co. v. Watford, 53 S. W., 243.) 3. Damages for the loss of the use of the property during the time of its detention is an injury for which recovery may be had. In other words, the appellant should' recover the value of the right to, ¡sell this proiperty during the time it was detained. (Ashcraft v. Elliott, 18, Ky. Law Rep., 934; Vol. 2, Sutherland on Damages, p. 1336; Gaar v. Lyon, 99 Ky., 672; Bruce v. Coleman, 1 Handy [Ohio], 575; Doll v. Cooper, 9 Lea [Tenn.], 576; Coulson v. Panhandle National Bank, 54 Fed., 855.) 1. The court will observe that this action is based upon a breach of covenant; the breach of the bond is the foundation and cause of action. The allegation on the part of the plaintiff that two of the defendants, naming them, have broken the conditions of the bond, is an admission on his part that the other two defendants have not broken the conditions of the bond, and, if they, Sharp & Siler, have performed the conditions of the covenant, the plaintiff can not maintain an action against any other person therefor. 2. The allegations in the plaintiff’s petition in regard to the attorney’s fees, time lost in preparing his suit, and paying witness fees, were all incurred in the defense of the motion for a judgment upon the bond executed by the defendants, and are therefore damages, if sustained, not recoverable in this action. AUTHORITIES CITED. Mann v. Martin, 82 Ky., 242; Riggs¡ v. Maltby, 2 Metcalf, '88; Campbell v. Galbraith, 12 Bush, 459; Crawford v. Wood-worth, 9 Bush, 725; Worthington v. Morris, 98 Ky., 541; Smith v. Bell, 91 Ky., -655; Trustee v. Perkins, 8 B. Monroe, 198; Wolfe v. Hunter, 15 Ky. Law Rep., $47; Mjocrf. v. Stirman, 13 Ky. Law Rep., 587; Pettit v. Mercer, 8 B. Monroe, 851; Tisdale v. Major, 68 American State Rept., 272; State v. Thomas, 61 American Decisions, 580; Seattle v. Haley, 36 American State Repts., 156; Casper y. Kipping, 52 American State Repts., 604; Burton y. Knapp, 81 American Decisions, 474; Kyd v. Cook, 71 American. State Repts., 669; Asher v. Stacy, 23 Ky. Law Rep., 1586; Perry v. Lyon, 23 Ky. Law Rep., 844.
121 Ky. 811Rowlett v. Harris (1906)Reversed
Case 100. — ACTION BY WILL HARRIS AND OTHERS AGAINST J. L. ROWLETT AND OTHERS TO ENFORCE A MORTGAGE LIEN ON MERCHANDISE AND LAND Appeal from Calloway Circuit Court. Thomas P. Cook Circuit Judge. Erom the judgment defendants, Eowlett and others, appeal. CLASSIFICATIONS. 1. Judgment Premature in Ordering a Sale — Because rendered before action stood for trial. (Civil Code, secs. 664 and 666; Practice Act [1902], secs. 5 and 10; Smith v. Ferguson, &c., 3 Met., 424.) 2. Because it ordered a sale to satisfy the uncontested part of plaintiffs’ claim, before a trial of the issue made by defendants’ answer and counterclaim; the plaintiffs not waiving- their lien as to the contested part of claim. (Oivil Code, sec. 694; sub-sec. 3; Sears v. Henry, 13 Bush, 413; Breckinridge v. Peeble, 19 Ky. Law Rep., 510.) (No brief in record for appellees.)
121 Ky. 816Porter v. Eastern Ky. Asylum for Insane (1906)Reversed
Case 101. — ACTION BY THE EASTERN KENTUCKY ASYLUM FOR THE INSANE AGAINST CHARLES P. PORTER AND ANOTHER TO RECOVER FOR THE KEEP OF PORTER WHILE CONFINED. IN SAID ASYLUM. Appeal from Fleming Circuit Court. James P. Harbeson Circuit Judge. Judgment for plaintiff. Defendants appeal. SUMMARY. 1. The judgment is void, the defendant not being before the court on account of defective service' of process. (Code, sec. 53; Cheatham v. Whitman, 85 Ky., 618; -Jenkins v. Crofton'ss Adm’r. 10 Ky. Law Rep., 456; Denham v. Anderson, 14 Ky. Law Rep., 366, 391; Youngstown Bridge Co. v. White’s Adm’r, 20 Ky. Law Rep., 1175.) 2. There was no proof of service under a quantum meruit and judgment was erroneous. (Code, see. 126; Nichols v.. Central Asylum, 81 S. W., 247.) 3. It was error to adjudge a lien. All plaintiff could exact was personal judgment under the pleadings and proof. 4. Exception should- have been sustained and sale set aside to do justice and right, the amended answer being a good plea. (Terry v. Swinford, 19 Ky., 712; Michaels v. Central Asylum-, above.) We respectfully submit tp the court that this case should not be reversed for three reasons: 1. The judgment is not void. (Sec. 518, sub-sec. 5, Civil.Code; Allison v. Taylor &' Washburn, 6. Dana, 87; Cheatham, &c. v. Whitman, 86 Ky., 614; Jenkins v. Crofton’s Adm’r, 10 Ky. Law Rep., 456; Dunham, v. Anderson, 14 Ky. Law Rep., 391; Yocum v. Foreman, 14 Bush, 502, and decisions cited- by appellee in case of Spencer v. Parsons, 87 Ky., 577.) 2. The court should protect a purchaser at a judicial gale, especially so when he is no, party to the suit. (Beckner v. Samuels, 6 Ky. Law Rep., 663; Harrison v. Hord, 12 B. M'., 472; Bustard v. Gates and Wife, 4 Dana, 436; Buningfield v, Reed, 8 B. Mon., 104 and 105; Lusk & Gill v. Sátter, 2 Bush, 201; Yocum v. Foreman, 14 Bush, 497; Shuler v. Mayo, 5 Ky, Law Rep., 331; Stamp v. Martin, &c., 9 Bush, 285.) 3. This case should have been taken up on a hill of exceptions. (Polly’s Adm’r v. City of Covington, 10 Ky. Law Rep., 3'61; Green v. Literal, 5 Ky. Law Rep., 429; Donan v. Donan’s Adm’r, 12 Ky. Law Rep., 291; Johnson v. Hale, 13 Ky. Law Rep., 542.)
121 Ky. 821Ross-Paris Co. v. Brown (1906)Affirmed
Case 102. — ACTION BY NORA A. BROWN AGAINST THE ROSS- ' PARIS CO. FOR DAMAGES' FOR PERSONAE INJURIES.— Appeal, .from Jefferson Circnit Court, Common Pleas Branch, Third Division. Matt O’Doherty Judge. Judgment for plaintiff. Defendant appeals. (No briefs in the record.)
121 Ky. 827Trotta's Adm'r v. Johnson, Briggs & Pitts (1906)Reversed
Case 103. — ACTION BY ANTONIO TROTTA’S ADMINISTRATOR AGAINST JOHNSON BRIGGS, & PITTS FOR DAMAGES FOR CAUSING DEATH OF PLAINTIFF’S INTESTATE. Appeal from Pike Circuit Court. A. J. Kirk Circuit Judge. From a judgment overruling a demurrer to an amended answer, plaintiff appeals. 1. The sole question in this record is, can the administrator of an alien sue for damages for an injury resulting in hiis death? 2. It is the contention of appellant that our statute is primarily a.protection to the life of a working man in the State of Kentucky, without Tegard to the residence of his'wife children, or the residence of his next of kin. AUTHORITIES CITED. Cleveland, C., C. & St. L. Ry. Co. v. Osgood, 70 N. E., 839; Mullhall v. Fallon, 176 Mass., 266 (vol. 54 L. R. A., 934); Kellyville Coal Co. v. Petraytis, 195 111., 215 (63 N. E., 94); Constitutional Debates, vol. 4, pp. 4715 to 4720; L. & C. Mining Co. v. Huffman, 99 Ky., 404; O. & N. R. R. Co. v. Barclay, 102 Ky., 16; Brannigan v. Union Gold Mining Co., 93 Fed., 164; A'm. & Eng. Ency., vol. 11, p. 66; Lem M'oonsing v. U. S'., 158, U. S. R., 547; Brouthon y. Phoenix Light & Fuel Co., L. R. A., vol. 61, p. 563; Beni v. Penn. R. R. Co., 181 Pa. St., 525; Knight v. West Jersey R. R. Co., 108 Pa. St., 250; Brownfei Adm’r v. L. & N. R. R, Co., 17 Ky. Law Rep., 145 (97 Ky., 231); Yearkes Heirs v. Yearkes Heirs, 4 Met., 33. 1. Has a non-resident alien a right to sue through an administrator for loss of life caused .by negligence? The answer will,; of course, depend upon the construction to be placed upon sec. 6, Ky. Stats. If not found there, the right to sue does not 'exist, as the action did not survive at common law. 2. This action can not he maintained only upon the idea that the general terms of sec; 6, ’ Ky. Stats., ’ includes all nations, and to adopt,- that construction would abrogate the cardinal rule that statutes have no extra territorial force.
121 Ky. 832McCormick v. McDowell (1906)affirmed
Case 104. — ACTION BY MAUDE H. McDOWELL AND OTHERS AGAINST H. S. McOORMICK FOR FORCIBLE ENTRY— Appeal from Ballard Circuit Court. R. J. Bugg Circuit Judge. Judgment for plaintiffs. Defendant appeals.
121 Ky. 839Michigan Mut. Life Ins. v. Mayfield's Adm'r (1906)Reversed
Case 105. —ACTION BY WILLIAlM MAYFIELD’S ADM’R AGAINST THE MICHIGAN MUTUAL LIFE INS. CO. TO RECOVER ON A POLICY OF INSURANCE. Appeal from Hardin Circuit Court. Weed S. Chele Circuit Judge. Judgment for plaintiff. Defendant appeals. POINTS AND AUTHORITIES. 1. A provision in a policy that upon default in paying a premium 'after three or more full premiums have been paid, the insured shall be entitled to two options: (a.) To automatic paid-up insurance, or— (b.) To extended insurance if demanded within thirty days after default; is construed to mean that the insured is not en-tiled to both options concurrently, end that the option for automatic paid-up insurance must obtain unless he demands the extended insurance within the time specified in the policy. (New York Life Insurance Co., v. Meinken’s Adm’r, 80 S. W., 175; Equitable Life Assurance Society of the U. S. v. Warren Deposit Bank, &c., 76 S. W., 391; Drury’s Adm’r v. New York Life Insurance Co., 74 S. W., '363, 115 Ky., 681; Crutchfield, &c. v. Union Central Life Insurance Co., 67 S.' W., 67.) 2. Under the terms, of the policy, as soon as default in the payment of premium was made by the insured, his right to paid-up insurance accrued automatically, and this right was not affected by the fact that within the thirty days allowed for demanding extended insurance, the insurance suddenly died. To be entitle to extended insurance the insured must have made a.n affirmative 'demand therefor. 1. Insurance companies are entitled to the benefit of their contracts, but they are to be strictly construed against them because their contracts are prepared with the utmost care, 'skill and deliberation, and are usually accepted without careful examination. (Nat. Bank v. Ins. Co., 95 U. S., 673; 20 Fed. Rep., 722.). 2. Time is not of the essence of the contract in insurance policies. (Montgomery Case, 14 Bush, 51; Jarboe, 102 Ky., 80; So. Mut. v. Montogue, 5 Ky. Law Rep., 515.) 3. Where an insurance policy admits, without violence, of two Interpretations that one should be adopted Which will cover the loss in preference to that which will defeat the claim. (Mut, Benefit Life v. Dunn, 106 Ky., 591; Sun Life Ins. Co. v. Taylor, 108 Ky., 408.) 4. After default in payment of a premium and time is given in which to extend the insurance by surrendering the old policy and taking up a paid-up policy and death .ensues before the expiration of the time limit to take out the new policy, the old •one remains in force and suit may be maintained on the old policy and recovery had thereon for the amount of the paid-up insurance without surrendering the old policy. (Page 306, vol. 11, Am. & Eng. Eney. of Law, 1st Ed.; 62 N. Y., 612; 67 Me., 438, and Hexter v. TJ. S., Life, 11 Ky. Law Rep., 903, 14 Bush, 51; 102 Ky., 80 Jarboe Case.)
121 Ky. 846Commonwealth v. Central Hotel Co. (1906)Affirmed
Case 106. — ACTION BY THE COMMONWEALTH BY AUDITOR'S AGENT OF MASON COUNTY AGAINST THE CENTRAL HOTEL CO. TO RECOVER A LICENSE TAX FOR THE PRIVILEGE OF KEEPING A HOTEL AND SELLING INTOXICATING LIQUORS. Appeal from Mason Circuit Court. James P. Harbeson Circuit Judge. Judgment for defendant. Plaintiff appeals. CITATION OF AUTHORITIES. Ky. Constitution, sec. 59; Ky. Stats., arts. 7, 8 and 9, secs. 4148, 4171, 4182 and 4263; Gen. Stats., Ed. 1888, p. 356, sec. 2; Cooley on Taxation, 3d Ed., pp. 836 and 1142; Dillon on.Municipal Corporations, 4th Ed., sec. 818; Black on Constitutional Law, 59. CASES. Baldwin v. Hewitt, 88 Ky., 673; Clark v. Louisville Water Co., 50' Ky., 581; Louisville Water Co. v. Hamilton. 81 Ky., 517; Commonwealth v. Taylor, 101 Ky., 325; Sawrls v. Commonwealth, 83 Ky., 331; Commonwealth v. Fowler, 96 Ky., 166; Anderson v. Commonwealth, 13 Bush, 485; Mork v. Commonwealth, 6 Bush, 397; City of Lexington v. Wilson, &c., 80 S. W., 811; Central Railway & Bridge Co. v. Commonwealth, 20 Ky. Law Rep., 1890; Louisville & Jeffersonville Ferry Co. v. Commonwealth. 22 Ky. Law Rep., 480; Commonwealth v. Carter, 21 Ky. Law Jtep., 1509; Ad'ler v. Whitbeck, 44 Ohio Statutes, 565; Blatchley v. Mdser, 15 Wend., 215; Druggist Cases, 3 S. W., 490. POINTS AND AUTHORITIES. No license tax is due to the State from appellees, and the auditor’s agent has no right in this action to sue for it. (Ky. Stats., secs. 4190 to 4224; Standard Oil Co. v. Commonwealth, 82 S. W., 1021; Creekmore v. Chitwood, 7 Bush, 318; Vanmeter v. Spurrier, 94 Ky., 22; Franklin Ins. Co. v. L. & A. Packet Co., 9 Bush, 590; Sha whan v. Harrison Co., 76 S. W., 407; City of Lexington v. Wilson, 80 S. W., 811; McLean County Precinct "V. Deposit Bank, 81 Ky., 257.)
121 Ky. 850Cum. Telep. & Teleg. Co. v. Hopkins (1906)Reversed
Case 107. — SEPARATE SUITS BY THE CUMBERLAND TELEPHONE & TELEGRAPH CO. AND THE LOUISVILLE & NASHVILLE RAILROAD CO. AGAINST W. A. HOPKINS, POLICE JUDGE OP THE CITY OP EMINENCE, &c., TO PROHIBIT THE ENFORCEMENT OP AN OCCUPATION TAX. Appeals from Henry Circuit Court. R. F. Peak, Circuit Judge. From a judgment dismissing their petitions, the plaintiffs appeal. POINTS AND AUTHORITIES CITED. 1. The general assembly has no.t delegated to cities of the fifth 'Class the power to impose a license tax on railroad companies. (Cincinnati, New Orleans & Texas Pacific R. R. Co. v. Commonwealth, 81 Ky., 492; Kentucky Railroad Tax Cases, 115 U. S., 322; General Statutes, Ed. 1888, chap. 92, art. 3, sec. 1, p. 1042; sec. 4096, Ky. Stats.; sub-sec. 4, isec. 3637, Ky. Stats.; Merced County, v. Helm, 102 Cal., 159; Chicago, R. I. & P. Railway Co. v. Ottumwa, 112 Iowa, 300; Cincinnati v. Conover, 55 Ohio St., 22; Memphis v. Bing, 94 Tenn., 644; McCutcheon v. Pac. R. R.,. 72 Mo. App., 271; McNally v. Field,' 119 .Fed., 445; Sewall v.. Jones, 9 Pick., 412, 414; Boyd v. Hood, 57 Pa. St., 98, 101; sec.. 541, vol. 2, 2d Ed., Lewis’ Sutherland on Statutory Construction, and notes thereto; Nashville, C. & S. L. Railway Co. v. Jones,' 100 Tenn., 512; Hand v. Cole, 88 Tenn., 400; Greenhow v. James,. 80 Va., 636; Minet v. Lehman, 20 Beav., 269; Harrison v. Commonwealth, 83 Ky., 170.) 2. The ordinance in controversy is invalid because it imposes double taxation on. the franchise of the appellant railroad company, so far as the same is exercised in the city of Eminence. (Henderson Bridge Co. v. Commonwealth, 99 Ky., 641; Adams Express Co. v. Ky., 166 U. S., 171; Session Acts 1904, p. 95; City of Louisville v. Louisville Railway Co., 26 Ky. Law Rep., '380; Wilmington Railroad v. Reid, 13 Wall., 268; Hamilton Co. v. Massachusetts, 6 Wall., 638; Commonwealth v. Delaware, Susquehanna & Schuykill R. R. Co., 165 Pa., 44; sec. 4077, Ky. Stats.; sec. 4022, Ky. Stats.; Frankfort, Lexington & Versailles Turn, pike Co. v. Comonwealth, 82 Ky., 389; Louisville Tobacco Warehouse Co. v. Commonwealth, 106 Ky., 168.) POINTS AND CITATIONS. 1. Railroad property and franchises have, by the Constitution ahd Statutes of Kentucky, been taken out of the general class of property and put in a class by themselves, and provision has been made for the assessment and collection of taxes thereon different from the manner in which the assessment and collection of taxes on property generally isNmade; and no tax — either an ad valorem, franchise, or license — can be assessed against or collected on the property and franchises of a railroad company except in the manner provided therefor by the Legislature. (Applegate v. Ernst, 3 Bush, 648; 1 Acts 1876, p. 78; '1 Acts 1878, p. 82; 1 Acts 1881-2, 66;, C., N. O. & T. P. R. Co. v. Commonwealth,. 81 Ky., 492-503; Constitution, secs. 181 and 182; Ky. Stats., secs. 4096 et seq., 4077 et seq: L. & N. R. R. Co. v. City of Louisville, 16 Ky. Law Rep., 796; Commonwealth, By, &c. v. Union R. T. Oo., 26 Ky. Law Rep., 23; Vanceburg & iStout’s Lane Turnpike, v. Maysvill'e & Big Sandy R. R. Co., 63 S. W., 749.) 2. A license tax and a franchise tax are, in effect, the same— eagh being a tax upon the privilege ¡of doing business. (Ky. Stats., 4077; Southern Building & Loan Association r. Norman,. 98', Ky., 294; Fidelity & Casualty Co. v. City of Louisville, 20 Ky. Law Rep., 1785; 'Constitution, secs. 171 and 174; Commonwealth,. By, &e. v. Bank of Commerce, 26 Ky. Law Rep., 407.) 3. A city of the fifth class has no constitutional, or legislative authority to impose a license tax upon, a railroad company. (Ky. Stabs., sec. 3011; Acts'1904, p. 93-99; Ky. S'tats., sub-sec. 2,.. of sec. 3058; Ky. Stats., sec. 2984; Aetna Life Ins. Co. v. Coulter,,' Auditor, 25 Ky. Law Rep., 193.) 4. The validity or constitutionality of an ordinance of a city, of the fifth class must be tried by writ of prohibition. (Ky. Stats., sec. 3639.) SUMMARY. 1. A writ of prohibition is the proper method to test the validity of this ordinance. (Sec. 479, Civil Code; title 10, chap. 5, Civil Code; sec. 3629, Ky. Stats.; Bybee v. Smith, 22 Ky. Law Rep., 467; Campbellsville Telephone Co. v.. Patterson, Judge, 24 Ky. Law Rep., 832.) 2. The ordinance is invalid because it is a law impairing the. obligation of a contract. (Commonwealth v. Pearl Laundry Co., 105 Ky., 263; Louisville Tobacco Warehouse Co. v. Commonwealth, 106 Ky., 168; Fidelity & .Casualty Co. v. City of Louisville, 106 Ky., 208; City of Covington v. Woods, &c., 98 Ky., 345; City of Louisville v. Louisville Railway Co., 26 Ky. Law Rep., 378; Smith’s Modern Law of Municipal Corporations, secs. 519 And 532; The People v. West Division Railway Co., 118 111., 113; New Jersey v. Yard, 95 U. S., 104; New Orleans R. R. Co. r. Delamore, 114 U. S., 501; New Orleans Water Works Co. v. Rivers, 115 U. S,, 674; Louisville Gas Co. v. Citizens’ Gas Co., -115 U. S., 683; Walla Walla City v. Will a Wlalla Water Co., 172 U. S., 1; St. Louis v. Western Union Telegraph Co., 148 U. S., 92; 'Postal Telegraph Cable Co. v. Charleston, 153 U. S., 692; Northwestern Telephone Exchange Co. v. Minneapolis, 53 L. R. A., 175; City of Louisville v. Wüble & Willinger, 84 Ky., 290.) 3. This ordinance is a revenue ordinance, and not a police regulation. (Vol. 4, Blackstone’s Commentaries, 162; Dillon’s Municipal Corporations, vol. 1, sec. 141; sec. 181, Constitution of Ky.; sec. 3637, Ky. Stats.; Standard Oil Co. v. Commonwealth, 26 Ky. Law-Rep., 985; State v. Wiheelock, 30 L. R. A., 430.) 4. The ordinance is unreasonable and oppressive. (Hall v. ‘Commonwealth, Use, &c., 101 Ky., 382; Dillon’s Municipal Corporations, 328, 321, 319, and the case cited in 30 L. R. A., 429; St, Louis v. Western Union Telegraph Co., 148 U. S., 92; Smith’s Modern Law of Municipal Corporations, secs. 425, 527; Livingston v. City of Paducah, 80 Ky., 556.) POINTS AND AUTHORITIES. • 1. No Writ of prohibition can be granted against a municipal •corporation. (Civil Code,'sec. 479; Patton v. Stephens, 14 Bush, 324; Campbellsville Telephone Co. v. Patterson, 24 Ky. Law Rep., 834; sec. 3639, of. Ky. Stats.) ’ ‘ 2. The petition states merely conclusions of law. A demurrer Admits' only as true averments of facts well pleaded and never legal conclusions. (Norman v. Ky. Board of Mlanagers, 93 Ky., '547.) 3. The right to impose a license on franchises. (Ky. Stats., ¡sec. 3637, sub-sec. 4; secs. 174 arid 181 óf Ky. Constitution; Levi v. City of Louisville, 97 Ky., 394; Cooley cn Constitutional Limitations [5th Ed.], 279; Elliott v. City of Louisville, 101 Ky., 262; Ky. Stats., 3011-3012-3058; Dillon on Municipal Corporations, sec. "793; WoodruH v. City of Louisville [Mss. Opinion]; Bullitt v. •City of Paducah, 8 Ky. Law Rep., 870; 21 Am. & Eng. Ency., 780 f2d Ed., 775-779]; Kniper v. Louisville, 7 Bush, 599; Bowser v. Thompson, 103 Ky., 331; City of Carlisle v. Heckinger, 103 Ky., 381; Prank Ford v. Philadelphia, 98 Am. Dec., 242; Newport v. 'South "Covington Railway Co., 89 Ky., 29; Livingston v. City of. Paducah, 80 Ky., 657; Louisville City Railway v. City of Louis.ville, 4 Bush, 478; Cobb v. Durham County, 122 N. C., 307;. Newport Light Co. v. City of Newport, 14 Ky. Law Rep., 464;. Constitution. of Ky., secs. 174, 181, 182; Ky. Stats., secs. 4077-4091 inclusive;. 4096-4104 inclusive; City of Covington v. Woods., 98 Ky., 344, 346, 347; Postal Telegraph Cable Co. v. Charleston, 153 U. S., 692; Wiggins Perry Co. v. East .St. Louis; 107 V. S.,. 365; City of Louisville v. Louisville Railway Co., 26 Ky. Law-Rep., 378.) 4. The definition of franchise, ais now fixed by law. . (Henderson Bridge. Co. v. Commonwealth, 99 Ky., 638; Louisville Tobacco Warehouse Co. v. Commonwealth, 106 Ky., 167-168; Louisville & Jeffersonville Perry Co. v. Commonwealth, 104 Ky., 726; Fidelity & 'Casualty Co. v. City of Louisville, 106 Ky., 211.) 5. The test of the ordinance is not as to oppression. But ás to. validity. (Hall.v. Commonwealth, 101 Ky., -382; Mason vu Trustees of Lancaster, 4 Bush, 406.) 6. -All 'exemptions from tax or license under charters granted? to corporations are repealed by the present Constitution. (City of Newport v. Masonic Temple, 103 Ky., 592.) 7. This license iis the exercise of police power. (City of Port .Smith v. Hunt, 82 Southwestern- Rep., 163; Black on Constitutional Law, Ed. 1897, 334 and 615.)
121 Ky. 863Southern R'y Co. v. Shirley (1906)Affirmed
Case 108. — ACTION BY HENRY SHIRLEY AGAINST THE SOUTHERN RY. CO. IN KY. FOR FALSE IMPRISONMENT. Appeal from Garrard Circuit Court. W. C. Bell, Circuit Judge. Judgment for plaintiff. Defendant appeals. POINTS AND AUTHORITIES. 1. Tine petition does not state a cause of action. (I.) In failing to state what was the agent’s authority. (Smith y. Railway Co., 124 Ind., 394; 24 N. R., 753; Sekator v. Lamon, 26 R. I., 125; 58 Atl. Rep., 456.). (2.) In failing to allege that arrest complained of was without probable cause. (Dierig v. South Covington Street Ry., 24 Ky, Law Rep., 1825; Maddox v. McGinness, % Mon., 371; Mitchell v. Mattingly, 1 Met., S40; 13 Ency. Plead. & Prac., 436.) 2. The instruction» were erroneous. (Schneider v. McGill,. 23 Ky. Law Rep., 589.) 3. The court erred in admitting incompetent evidence and in submiting to the jury the case at all. Beattyville Coal Co. v. Hoskins, &c. 19 Ky. Law Rep., 1759; Commonwealth v. Parlin, 26 Ky. Law Rep., 58; Dupuy v. Ashby, 2 A. K. Mar., 11; Louisville & Nashville Railroad Co., v. Rouitt, 25 Ky. Law Rep.,. 887; Patterson v. M. & B. S. R. R. Co., 25 Ky. Law Rep., 1750; Edwards v. London & Northwestern Ry. Co., L. R., 5; Com. Pleas, 445; Allen v, London & Southwestern Ry. Co., L. R., 6; Q. B., 65;. Bank of New South Wales v. Owston, L. R., 4; App. Gas., 270; Abrahams, v. Deakins, L. R., 1891; 1 Q. B., 518; Mali v. Lord, 39 N. Y., 381; 100 Am. Dec., 448; Porter v. C. R. I. & P. R. R. Co., 41 la., 358; Penny v. N. Y., C. & H. E. R. Co., 53 N. Y. Sup.p.,. 1043; WSkle v. L. & N. R. R., 42 9. E. Rep., 525; 116 Ga., 309; Eichengreen v. Louisville & Nashville R. R. Co., 96 Tenn, —, 34 S. W., 219.) 4. Evidence of ratification. (Perley v. Inhabitants .of Georgetown, 7 Gray, 464.) 5. Instruction as- to malice. 1. We insist that a good cause of action for false imprisonment is stated’ in the petition, if the expression, “without any cause,’” is entirely stricken from the petition. 'This is an action of trespass to the person of (Shirley and it is. not essential to a -statement of hi-s cause of action, that he should have stated that the company in arresting him, or causing his-arrest, 'acted with malice or without probable cause. 3. A trespass to the person may be committed without malice and- with probable cause, and yet; without any right upon the part of the trespasser to do so, and if without right the wrongdoer is liable in compensatory damages to the person injured by such trespass. Want of malice and probable cause are defensive pleas which may be made in mitigation of punitive damages, but not in justification of the trespasis. 4. A wrongdoer can not be absolved from his legal obligation to repair an injury to the person of another upon the ground that he was not actuated by malice or that he had probable cause. AUTHORITIES CITED. Reynolds v. Price, 22 Ky. Law Rep., 5; A. & E. Ency., vol. 7, pp. 661-663-664; Jaggard on Torts, vol. 1, p. 418; Reyill v. Pettit, 3 Metcalfe, 319; Sutherland on Damages, vol. 4, secs. 1257-1258.)
121 Ky. 872Huntsberry v. Smith's Adm'r (1906)Reversed
Case 109. —ACTION BY BART SMITH’S ADMINISTRATOR AGAINST C. R. HUNTSBERRY TO SET ASIDE A CONVEYANCE. Appeal from Hardin Circuit Court. W. S. Chele, Circuit Judge. Judgment for plaintiff. Defendants appeal. QUESTIONS discussed. 1. Under chap. 54, art. 1, 'secs. 1908-7, Ky. Stats., no suit can he maintained to set aside a conveyance made to pay a debt really 'existing because it is preferential, but such actions must he brought under art. 2, sec. 1910. 2. The interrogatories propounded to appellant were contradictions of, and foreign to the allegations in the petition and need not have been answered at all, but were, however, fully and sufficiently answered by the answer and .appellant’s deposition. AUTHORITIES CITED. Ky. Stats., chap, 54 art. 1, sees. 1906-7; Ky. Stats., chap. 54, art. .2, sec. 1910; 18 B. Mon., 70 and 71; Civil Code, secs. 150. 142, 140 and 365; 5 Bush, 618; 3 Met., 427; Hoover v. Hawks, 21 Ky. Law Rep., 190; Brown v. Smith, 7 B. Mon., 364; Beatty v. Dudley’s Ass’ee, 80 Ky., 381; Warden v. Fulkerson, 22 Ky. Law Rep., 184; McMillen v. Stephens, 20 Ky. Law Rep., 1528; Seiler v. Wals, 17 Ky. Law Rep., 301. QUESTIONS DISCUSSED. 1. Unless questions attached to a petition and propounded to the defendant are answered a judgment for plaintiff is proper. 2. The evidence in this case does not show any consideration for the deed in controversy, but on the contrary sustains plaintiff's plea of fraud, &c., and the judgment setting aside said deed was proper. AUTHORITIES CITED. Civil Code, 'secs. 142, 150, 365 and 606; 18 Ben Monroe, Bennett & Miller v. G. & T., 70 and 71; 5 Bush, 617, Bcklar v. Galbreath; Ky. Stats., secs. 1906, 1910 and 1911.
121 Ky. 876Marion Nat. Bank v. Burton (1906)Reversed
1. Taxation — National Bank Stock — Exemptions — Non-taxable Government Bonds — The question involved is, whether shares of stock" in national banks, when taxed under the statute of this State, are subject to have deducted the value of nontaxable government bonds held by the bank. 2. Discrimination — The purpose of the act discussed in this case is' to place national banks with respect to taxation upon the same footing as State banks. Any exemption from taxation which would be allowed a State bank, or any deduction that , would be made in favor of a State bank must, under the act of 1902, be made in the assessment of the shares of a national bank. In no respect may the moneyed capital invested in a national bank be taxed under the act at a higher rate than the moneyed capital invested in State banks, nor may any discrimination be made against the national banks. 3. Same — Intangible Property — If, as is the requirement of our statutes, and doubtless the practice of the board of assess- . ments, in taxing the intangible property of State banks, which includes their capital not invested in tangible property, the tax is called a franchise, it is nevertheless an ad valorem property tax upon the capital of the bank, and, under the decision of the Supreme Court of the United States, the State banks are entitled to have deducted from such assessment so much of their capital as is invested in the non-taxable securities of the United States, it follows that shares in national banks must be treated as to their taxation in the same way, •or at least so that they will not be discriminated against. ,