Volume 155 — Kentucky Reports

<p>1. Libel and Slander — Pleading—Innuendo.—An innuendo cannot extend tbe meaning of words beyond their natural import. It is only explanatory of some matter already expressed, and may show the application, but cannot add to or enlarge or change the sense of the words.</p> <p>2. ¡Li'bel and Slander — Words Tending to Injure in Profession or imputing Unfitness in Office — Actionable Per Se. — Where defendant made the alleged false statement that ¡plaintiff, a school teacher, dismissed the boys, kept the girls in, gave them candy and courted them,” such words were sufficient to impute unfitness to perform his duties in his office as a teacher, and tended to injure him in his profession of teacher, and are therefore actionable ¡per se.</p> <p>3. (Libel and 'Slander — Words Actionable Per Se — Pleading—-Allegation of Special Damage — Necessity For. — In an action for slander it is not necessary to allege special damage where the words complained of are actionable per se,</p>

<p>Appeal from Kenton Circuit Court (Common Law and Equity Division).</p>

<p>1. Estates — Action to Settle — Commissioner’s Settlement — Exceptions to — Pleading—Limitation.—Upon the trial of exceptions to a commissioner’s report of settlement, the plea of limitation being interposed, and the petition stating .that decedent died sometime in the year 1906, hut just when the petition fails to state, it will be presumed that he died on January 1st of that year, more than five years before the filing of the claim, and therefore, it was (barred by the statute* of limitations.</p> <p>2. While the lower court gave no reasons for sustaining the exceptions so far as the record shows, and it is claimed by the attorneys for appellant that they were sustained for the reason that one joint owner cannot recover of the other rents for use of land held by them jointly, it will be presumed that the lower court considered the entire record in passing on the exceptions, and that it ruled correctly. .</p> <p>3. It is a debt upon an implied contract not in writing and a plea of the statute of limitations is raised in the exceptions filed to the report of the commissioner allowing the claim and should prevail.</p>

<p>Appeal from Lincoln Circuit Court.</p>

<p>Appeal from Jefferson Circuit Court (Common Pleas Branch, Second Division).</p>

<p>Appeal from Hickman Circuit Court.</p>

<p>Appeal from Daviess Circuit Court.</p>

<p>Appeal from Metcalfe Circuit Court.</p>

<p>1. Elections — Primary Elections — Object of — Eligibility to Vote. — Tbe object of bolding a primary election by a political party is to select party candidates, and no voter is eligible to vote at a primary election of a political party, unless be is a member of sucb party.</p> <p>2. Elections — Primary Elections — Registration—Conclusive of Right to Vote. — Under Section 19 of tbe Primary Election Law of 1912, in precincts where registration is required, registration. of tbe votel' by which he declares bis political affiliation is conclusive of bis right to vote, as registered.</p> <p>3. Elections---Primary Elections — Party Affiliation — Where There is No Registration. — In precincts where there is no registration of voters, electors are by Section 19 of tbe Primary Election Law of 1912, allowed to vote only tbe ballot of that party with which they declare their affiliation.</p> <p>4. Elections — Primary Elections — Party Affiliation. — For an elector to declare his party "affiliation he must, in some way, make plain which party he espouses and allies himself with.</p> <p>5. Elections — Primary Elections — Party Affiliation — When One Not Qualified to Vote in Democratic Primary. — Where a voter, 37 years old, had voted indiscriminately for Republicans and Democrats in general elections for twelve years, and had voted in Democratic primaries for the same period; had voted for a Democratic nominee for Governor in 1911, and for a Republican nominee for President in" 1912, he was not affiliated with the Democratic party, and was not qualified to vote in'a Democratic primary to select Democratic candidates, in 1913. .</p> <p>6. Elections — Primary Elections — Party Affiliation — When One Qualified to Vote in Democratic Primary. — Where an elector had not voted for eight years, but had voted the Republican ticket when he last voted, and had shortly thereafter made up his mind in good faith, to thereafter vote the Democratic ticket, and to change his politics and affiliate with the Democratic party, and had voted during said eight years in the Democratic primaries, although he _ had not voted at all in a general election, such voter was affiliated with the Democratic party, and was qualified to vote in .a Democratic primary in 1913.</p> <p>7. Elections — Contest Under — One Not Required to Tell For Whom He Voted — In contests arising.under a-general election under the Constitution, a. voter will not.-be required to tell for whom he voted, if he objects that his testimony might incriminate him.</p> <p>8. Elections — Primary Elections — Privilege Against Incrimination.— Where a voter merely asked the judge if he would be required.to answer a question asking him for whom he had voted in a primary election, he sufficiently raised the question of his privilege against incrimination.</p> <p>9. Elections — Primary ..Elections — Party Affiliation — Not An Offense for Qualified Elector to Vote With Party With Which He Is Not Affiliated. — Neither the general election Iawmor the Primary Election Law of 1912 makes it an offense for a qualified elector to vote in the primary election of a party with-which he is not affiliated.</p> <p>10. Elections — Primary Elections — When One Commits No Offense in Voting with Party with Which He Is Not Affiliated. — Where an elector having the necessary qualifications of sex,- age and residence prescribed by Section 1439 of the Kentucky.Statutes, which fixes the qualifications of voters, votes in the 'primary election of a political party -with which he is not- affiliated, he commits no offense, and is not privileged from being required to tell for whom he voted upon the ground that his testimony might incriminate him. - *</p> <p>11. Elections — Primary Elections — Tie Vote — Contest—How Determined. — Under Section 36 of the primary law of 1912, which provides that primary elections under that act shall be conducted substantially as now provided by law in case of regular elections and that any omission in said primary act of 1912 shall be supplied as nearly as practicable from the statutes governing the November elections, the Court of Appeals will, in ease the contest results in a tie vote between candidates, direct them, under sub-section 11 of Section 1596a of the Kentucky Statutes, to appear, either in person or by a properly accredited representative, 'before the clerk of this court who will t'hen and there determine, by lot, which of the two shall be declared the nominee.</p>

<p>1. Insurance,Life — When Property In Meaning of Statute. — A ten year term paid-up policy of insurance issued on the life of the husband, •while the marriage relation exists, for the benefit of the wife, is property in the meaning of section 425, civil code, and section 2121, Kentucky Statutes.</p> <p>2. Insurance, Life — When Judgment of Divorce Divests Wife of Interest in Policy. — A judgment of divorce, procured at the suit of the wife, after the policy became a paid-up policy, which allowed her $7,000 alimony and directed the restoration to each party of such property as was obtained from the other during, and in consideration, of the marriage, divested the wife of her interest in the policy and vested same in the husband; and upon his death, subsequently occurring,, the proceeds of the policy should have been paid to his administrator as assets of the estate; the above rule being applicable whether the policy is issued by an “old line’ insurance company, or company not of this class.</p> <p>3. Divorce — Judgment of Restores to Each Party, Property Obtained Through or During Marriage. — The judgment of divorce operates to restore to the divorced parties the title to such property as either may have obtained from or through the other during marriage, in consideration, or by reason thereof; and this is true, whether the return of the property is ordered by the judgment of divorce, or in a subsequent proceeding. If the order of restoration be, as is often the case, merely formal, or none is made when the divorce is granted, any question thereafter arising as to what property shall be restored by either party to the other, may be settled by subsequent proceedings.</p> <p>4. Insurance, Life — Interest of Wife in Proceeds of Policy — Divorce—Payment of Premiums by Wife. — But notwithstanding the legal effect of the judgment of divorce upon the property rights of the parties, if, in determining, after it is granted and following the death of the husband, whether a wife should yield her claim to the proceeds of the policy issued for her benefit upon the life of the husband during the marriage and before the divorce was granted, it should be made to appear, that she’ had paid the .premiums on the policy, or that the husband failed or refused to restore to her property which he had, during the marriage and by reason thereof, obtained from her, she should be reimbursed out of the proceeds of the policy the amount of such premiums so paid, or the value of such property as the husband failed to restore. But where, as in the instant case, no, such equities in behalf of the wife were presented the entire proceeds of the policy should have been adjudged to the husband’s administrator.</p>

<p>Appeal from Graves Circuit Court.</p>

<p>1. Bill of Exceptions — Piling of — Signature of- Judge to. — Where the bill of exceptions, including the evidence heard on the trial, is filed in proper time in the' circuit court, approved and signed by the judge thereof and made a part of -the record, it is not necessary that such judge should again attach his official signature to the bill of exceptions after it is included in a duly certified typewritten transcript of the record made by the circuit clerk for the Court of Appeals.</p> <p>% Criminal Law — Confession—Evidence—Instructions.—Where confession of a defendant’s guilt of a crime charged, made by him out of court, is accompanied with other proof that such a crime has been committed; that is, with proof of the corpus delicti, it will warrant a conviction, although the corroborative testimony should not tend to connect the defendant with the commission of the crime. "Where it is doubtful whether, in fact, a' crime has been committed, the jury should be instructed that an alleged confession will not warrant a conviction unless accompanied with other proof that such a crime has been committed. But where, independent of the confession of the defendant, there is evidence proving the corpus delicti beyond a reasonable doubt, it is unnecessary to give such an instruction.</p>

<p>Appeal from Knott Circuit Court.</p>

<p>1. Elections — Notice of Contest — Requisites of. — A notice contesting an election under the primary law of 1912 must state the grounds of contest and the grounds stated in .the original notice cannot be enlarged or added to by an amended or supplementary notice given or filed after the time allowed by the act in which notice may be executed.</p> <p>2. Elections — Illegal Votes — Must be Sufficient to Change Result.— Where a primary election is contested on the ground that the contestee received illegal votes, unless the evidence shows that the number of the illegal votes received by him was sufficient to change the result of the election, the contestant must fail, although it might appear that illegal votes in excess of the contestee’s majority were cast at the election, the evidence not showing for whom they were cast.</p> <p>3. Elections — Primary Elections Can Not Be Declared Void. — The The act providing for primary elections does not authorize the court to declare the election void, and so in a contested election case the court is limited to declaring that either the contestant or contestee has been elected.</p>

<p>Appeal from Jefferson Circuit Court (Common Pleas Branch, Fourth Division).</p>

<p>1. Wills — Construction of. — Where a devise of testatrix’ real estate was to her two sons, one-half of all ot it to Isaac with tbe provision that if he died without issue, his portion shall vest in ¡his ¡brother John, as trustee, for the wife of John and her children, naming them; and the other one-half to John to be ¡held in trust for his wife and children, and Isaac conveyed to his brother, John,, all of his interest with the provision. that at the death of the ■grantor the property shall descend as directed by the will, and Isaac for himself, and John for himself,, and as trustee, for a valuable consideration, conyeyed to the wife of John the entire estate, a conveyance of the property to E., by the wife and her husband, the children uniting therein, together with their husbands, perfected the title in E. and he should perform his contract of purchase.</p> <p>2. Wills — 'Construction of — 'Conveyances.—No one other than the wife and three children of John, in whom ¡h'is estate might vest, could object to the conveyance of Isaac, and they all having joined in the devise to appellant, his title is perfected.</p>

<p>1. Appeal — Review—Condition of Record — Instructions.—Where on -an appeal, tbe instructions given and asked are not made a part of tbe record, either by an order of court, or by. incorporating tbe same in tbe 'bill of exceptions, instructions copied in tbe .transcript by the clerk, cannot be considered.</p> <p>2. Appeal — Sufficiency of Pleadings and Evidence to Support Verdict. —Held, that the pleadings are sufficient to support the verdict herein, and that the weight of the evidence is in its favor.</p>

<p>1. Master and Servant — Action for Personal Injury — Negligence— Instructions. — In an action by a loader of a coal car for injuries sustained while returning a car into a. room, the evidence showing that there was a defect in the track where tihe car jumped it, injuring the servant, and failing to show that he negligently contributed to his injury, the giving of a peremptory instruction to find for the defendant was error.</p> <p>2. Master and Servant- — Injury to Servant — Negligence—Submission to Jury. — Where there is some evidence to support the plaintiff’s action for injury through negligence, the case should be submitted to the jury. Likewise the questions of assumed risk and contributory negligence are matters for the consideration of the jury, unless the facts proven leave no room for honest difference of opinion among intelligent men that the conduct of the party injured under the circumstances was not that of an ordinarily . prudent man. Held, the application of the facts of this case to this rule warranted its submission to the jury.</p>

<p>1. Libel and 'Slander — Pleading—Innuendo.—An innuendo cannot extend the meaning of words beyond their natural import. It is only explanatory of some matter already expressed, and may show the application, but cannot add to or enlarge or change the sense of the words.</p> <p>2. Libel and Slander — Words Actionable Per Se. — In the absence of preliminary averments of extrinsic facts showing that the words were used in a sense different from their , customary meaning, the words “you are a black bitch and I can' prove it,' and if the whole thing has to, it will come”, spoken to .plaintiff, do ’ not' import uniquivocally that plaintiff was guilty of some felony or other crime of such turpitude as to render her liable on indictment to some infamous punishment, and are not actionable per se.</p>

<p>1. Railroads — Action for Refusal to Admit Passenger — Province of Jury — Evidence.—In an action to recover damages for the refusal of the appellant, railroad company’s trainmen to admit the appellee to its train as a passenger, upon the ground that he was intoxicated at the time, it cannot be said that, because appellee’s own testimony furnished practically the only evidence in support of' this cause of action, the verdict was flagrantly against the evidence. It was the province of the jury to pass upon- the evidence as a whole, and they had the right to give greater credence to that of appellee than to the evidence in contradiction thereof, furnished by a greater number of witnesses introduced in behalf of appellant.</p> <p>2. Railroads — Passengers—Failure to Prove Ejectment From Train. — • The failure of the appellee to prove that he was ejected from the train was not fatal to his. right to recover,, as it was alleged, in the petition that he was refused, perpiission to enter the train, as well as ejected therefrom; therefore, proof of either a wrongful ejection or refusal to permit him to enter the train, was sufficient to take the case to the jury. '</p> <p>3. Railroads — Refusal to Admit Passenger — Action for — Instructions —Intoxication of Passenger. — The jury were not 'Properly Instructed, as the instruction' given erroneously advised them that appellant’s trainmen had no right to refuse appellee entrance into the train unless he was so intoxicated as to be “offensive, to other passengers on the train,” or unafble to “care for himself.” Whereas, they should have been instructed that if, when he attempted to enter the train, appellee was so intoxicated as to affect his conduct, make him offensive to other passengers, or render him unable to care for himself, appellant’s servants had the right to prevent him from entering the train.</p>

<p>Indemnity — Action by Municipality for — Construction of Concrete Walk — Ordinance.—The primary cause of the injury for which the city seeks indemnity from the property owner was the construction of the concrete walk on- the grade furnished by the ■city and by its consent and approval and under its ordinance, together with the city’s failure to properly light, its street; it, therefore, cannot- recover the indemnity. ,</p>

<p>Appeal from Campbell Circuit Court.</p>

<p>Appeal from Jefferson Circuit Court (Common Pleas Branch, Second Division).</p>

<p>Appeal from Nelson Circuit Court.</p>

<p>1. Appeal — Refusal of Trial Court To Make Paper Part of Record —Review—Bill of Exceptions. — When a trial judge refuses to make a paper a part of the record, the only way of getting it into the record for the purposes of review is by a bill of exceptions; and the mere act of the clerk in copying the paper into the transcript, when it has not been made a part of the record either toy an order of the court filing it, or by a hill of exceptions, amounts to nothing.</p> <p>2. Appeal — Refusal to Permit Affidavit to be Made Part of Bill of Exceptions — Clerk Copying Into Transcript — Striking Prom Record. — <Where a defendant offered to file an affidavit, and the court overruled the motion, and the defendant then moved the ■court to permit the affidavit to be filed, and made a part of the hill of exceptions, and the court also overruled said motion; and the clerk in making up the transcript copied said affidavit into it, the affidavit will, upon motion, be stricken from the record.</p> <p>3. Verdict — 'Evidence Insufficient to Support. — Evidence under which a conviction for murder was returned, examined and found insufficient to support the verdict. .</p>

<p>1. Railroads — Duty to Keep Station Premises and Approaches Thereto in Safe Condition. — A railroad company is under a duty to maintain its depot grounds and premises in reasonably safe condition for use by persons who hold the relation to it oí passengers, and this duty extends to approaches or roads that the company has set aside or established for the use of the public having business with it.</p> <p>2. Railroads — Passengers—When - Relation of Terminates. — When a passenger has safely alighted from a train at a station, and has left the depot grounds and premises, his relation as a passenger has terminated and the company does not owe him the duty it owes to passengers.</p> <p>3. Railroads — Licensees Not Passengers. — Where a person, who • was a passenger on a train, alighted al the depot, and, leaving the depot premises, started.to walk home over a path on the right of way of the company that had been habitually used by the general public for a number of years, he became, after leaving the depot premises, a mere licensee.</p> <p>4. Railroads — (Duty to Licensees. — A railroad company is under no obligation to keep its premises in repair, or long-existing pits or excavation protected for the ’benefit of licensees, as, generally speaking, licensees must take premises as they find them. But where the public generally have used, for such a length of time, the tracks and premises of a railroad company as to put on it the duty of taking notice of their presence, it must exercise care by keeping a lookout and giving warning not to injure them in the movement of its trains.'</p> <p>5. Railroads — Facts Stated. — The appellee, after alighting from a passenger train at a station, started home on the right of way of the company over a path that had been used by the general public for many years. This path was between the railroad track and an excavation that had been made for a turntable. In the darkness of the night she lost her way and fell into the excavation, which was 345 feet from the depot. Held, that she was not a passenger and the company did not owe her the duty of keeping the way lighted’ or of protecting the excavation by lights or barriers.</p>

<p>Appeal from Fayette Circuit Court.</p>

<p>1. Argument of Counsel — Improper But Not Hurtful. — The statements of appellee’s counsel in argument to the jury to the effect that the map was so drawn as to show up the place of the accident in the most favorable light to appellant, were improper, but iñ view of tne fact that the map had been used through the trial by consent, prevented the statement complained of from being hurtful.</p> <p>2. Jury — Selection of — Objection Too Late — Improper 'Selection — i Section 2241 Ky. Stats. — Appellant’s objectipn to the selection of the panel having been made thirty days after the trial, and which was filed as additional grounds for a new trial, came too late. It should have come before trial. While Bell County has two court houses by a general law, the statement of the court that in drawing from the wheel the commissioners might place those names drawn nearest Middlesboro on that list; and those living nearest Pineville on the Pineville list, while made for no other effect than to benefit the jurors, that method of selection was not authorized by Section 2241 of the Kentucky Statutes. (See 146 Ky., 821; 141 Ky., 107).</p> <p>8. Verdict — Cannot Be Said to Be Disproportionate to Damage Sustained — Evidence.—In view of all the evidence it cannot be said that the amount of the verdict is so disproportionate to the damage sustained as to appear to have resulted from passion or prejudice.</p>

<p>1. Insurance, Life — Right of Divorced Wife to — Divorce Granted by-Illinois Court — Statute of Kentucky in Such Case. — It not being, alleged that there are, or were in force at the time of the divorce in Illinois, laws of similar import to sections 425 of the Civil Code, and '2121, Kentucky Statutes, it cannot be said that the interest of appellee in her former husband’s insurance was destroyed by the judgment of divorce in Illinois. The court of that. State having jurisdiction of the parties and the subject matter, and the record not disclosing that it was the duty of that court under the laws of Illinois, to restore any property obtained through the other during marriage, or in consideration thereof, and in view of the further fact that the insured never attempted to change the beneficiary named in the policy, the appellee named as beneficiary is entitled to the proceeds.</p> <p>2. Insurance, Life — Divorced Wife Under Decree of Illinois Court Entitled to Proceeds of policy. — A wife divorced under a decree of the courts of Illinois, is entitled to the proceeds of insurance od the life of her divorced husband, where the policy was made payable to her, and where the husband had the right to change the beneficiary named in the policy, but did not do so, and the divorce court having made no award with reference to it.</p>

<p>1. Insurance, Fire — Forfeiture Clause for Non-occupáncy — Agent— Waiver. — A clause íu a fire insurance policy avoiding tbé policy for non-occupancy may be waived by the conduct or parol agreement of -the agent who solicits the insurance,- collects the' premiums and delivers the policy,-although the policy .provides'that it can be done only by agreement endorsed thereon and added thereto. . . .</p> <p>%■ Insurance, Fire — Forfeiture Clause, for Non-occupancy — Waiver—■ Evidence. — In an action on a fire insurance policy, evidence of waiver by company’s agent of a clause avoiding the policy for non-occupancy examined and held sufficient to sustain a finding in favor of plaintiff.</p> <p>S. Instructions — Assumption of Fact. — Where' an unimpéaehed witness testifies that she is the agent of her mother, and there is no direct testimony or fact tending to show the contrary, it is not error, in instructing the jury, to assume the fact of-agency.</p>

<p>Appeal from Lincoln Circuit Court.</p>

<p>Appeal from Bell Circuit Court.</p>

<p>1. Railroads — Lookout—When Those in Charge of Train Not Required to Keep. — Those in charge of a railroad train are not required to keep a lookout on an adjacent highway to learn if a team is frightened but are required after they learn that the team is frightened and know the danger of the person in charge of it, to use ordinary care for his safety.</p> <p>2. Instructions — Singling Out Fact Not Complained of in Petition.— The court should not in his instructions single out a fact not complained of in the petition, or give undue prominence to certain facts which with others go to make out a cause of action.</p> <p>3. Railroads — -Injury to Driver of Team — When Not Barred of Recovery — Ordinary Care. — The driver of a team which he knows -to 'be afraid of a train is not barred of a recovery because he drove the team near the train, if those in charge of the train by ordinary care, after they discovered his peril, could have avoided the injury to him; and in such a case, it is a question for the jury -whether his injury was caused by reason of the wildness of the team or by reason of the .want of care on the part of-those in charge of the train after they discovered- his peril.</p>

<p>1. Railroads — Trespasser Upon Track — Duty to Avoid Injury. — In. running its trains through the open country and away from a public crossing, and not where persons are to be reasonably expected upon the track, a railroad company owes a trespasser upon, its track only the' duty to avoid injuring him after the discovery of his peril.</p> <p>2. Railroads — Trespasser Upon Track — Duty of Engineer to Exercise* Ordinary Care to Avoid Injury. — Whenever it becomes reasonably apparent to the engineer of a train, ¡by the exercise of ordinary prudence, that a trespasser upon the track in the country is-unconscious of the approach of the train, the engineer should exercise ordinary care, with the means at his command, to stop the train in time to avoid injuring the trespasser.</p> <p>3. Railroads — Death of Trespasser — Question of Engineer’s Negligence — Submission to Jury. — Where the engineer -of a train testified that he could stop his train in a little more than a quarter of a. mile by applying the brakes; that he applied the brakes when the train was 300 feet from the trespasser; and it otherwise appeared, that the train ran nearly half a mile after the engineer had applied the brakes, the case should have been submitted to the jury upon the question of the engineer’s negligence in causing the death . of the trespasser, and the order of the circuit court peremptorily directing a verdict for the defendant, was error.</p>

<p>Appeal from Floyd Circuit Court.</p>

<p>Appeal from Marion Circuit Court.</p>

<p>Appeal from Johnson Circuit Court.</p>

<p>1. Vendor and Purchaser — Records—Notice.—Where a deed is recorded and indexed in the county court clerk’s office of the county wherein the land thereby conveyed is located, subsequent purchasers are charged with notice of the claim of title to such land by the grantee therein.</p> <p>f¡. ‘Estoppel — Equitable Estoppel. — Equitable estoppel extends to real and personal property, and rests on the theory that a person who has induced another to believe and act in a certain manner, will not afterwards be permitted to prejudice such person because of acts done under the belief that they were consented to. Such person, however, will not, as a general rule, be estopped by his acts, unless he understands his rights and actively participates or silently acquiesces in conditions operating to deprive him of such rights.</p> <p>3. Estoppel — Negligence As Ground of Estoppel. — Negligence to amount to an estoppel must be the neglect of some duty owing by a party to another or to the general public, and be also the proximate cause of leading another into mistake.</p> <p>4. Ejectment — Estoppel As Defense — Evidence—Weight and Sufficiency. — In an. action of ejectment to which defense of estoppel is interposed on the ground that the claimant of the land knew and acquiesced in defendant’s purchase, possession and improvement thereof, evidence examined and held, to fail to show that plaintiff had actual knowledge of the sales or conveyances' of the land to defendants, or that he induced them to purchase or take possession of the land, or that his delay in asserting title to same was the proximate cause or inducement to defendants to purchase and possess the land.</p> <p>5. Vendor and Purchaser — Improvements.—Where lasting improvements made by a purchaser of land did not increase its vendible value to an amount exceeding its rental value during the time it was in his possession, he cannot, upon eviction because of failure of title, charge the holder of the legal title with the value of such improvements.</p> <p>6. Vendor and Purchaser — Mortgages—Ejectment.—A purchaser in possession of land bought at decretal sale to enforce a valid mortgage lien thereon, in action of ejection, can demand of the claimant to the title) payment of the mortgage debt and its accrued interest, before eviction by the holder of the superior title.</p>

<p>Elections — Primary Elections — 'Contest—Notice—Courts—Jurisdiction —Tbe primary election law of 1912 requires written notice and grounds of contest of tbe nomination of a political party to be served on tbe contestee, witbin five days from tbe awarding of tbe certificate of nomination, and therein to warn tbe contestee of tbe time and place, not less than three and not more than ten days after tbe service thereof, when and where tbe contestee shall be required to answer and defend such contest. Where a specific day, witbin tbe three to ten day period, for tbe bearing of tbe contest is not fixed in tbe notice thereof, tbe circuit court is without jurisdiction to bear or to determine such contest, although written notice of contest was given witbin five days from tbe granting of tbe certificate of nomination.</p>

<p>Appeal from Nicholas Circuit Court.</p>

<p>Appeal from Scott Circuit Court.</p>

<p>1. Municipal Corporations — Defects or Obstructions in Streets — - Action for Injuries — Instructions.—In an action against a municipal corporation for injuries received by reason of an obstruction in the street, an instruction imposing on the corporation the duty of exercising ordinary care in the inspection of its streets in addition to the duty of exercising ordinary care in maintaining its streets in a reasonably safe condition for ordinary travel, is erroneous. The duty of inspection, if such it may be termed, is included in the duty of exercising ordinary care in the maintaining of its streets -in a reasonably safe condition for ordinary travel; and the methods, frequency and extent of inspection are matters to he considered by the jury in determining the question of the-exercise or failure to exercise ordinary care in maintaining the street in reasonably safe condition for ordinary travel.</p> <p>2. Negligence — Imputed Negligence. — When Negligence of Husband! Not Imputed to Wife. — Where the wife is injured by being thrown from an automobile which her husband was driving, in a collision between the automobile and a street car, the negligence of the husband, if any, cannot be imputed to the wife, unless the relation of master and servant or of principal and agent existed between them at that particular time.</p>

<p>1. Insurance, Life — Service of Process Against Upon Insurance Commissioner — Revocation.—A foreign insurance company upon its entry into this state to do business, and after filing its written consent that service upon the Insurance Commissioner should constitute due service in all actions against it, cannot revoke that authority so long as it has liabilities in the State. It cannot cease to do business in the State and withdraw all of its agents, and revoke the authority to serve process upon the Insurance Commissioner so long as it has existing policies in the State.</p> <p>2. Insurance, Life — Contracts of Insurance — Does Not Cease to do Business by Withdrawing Agents. — Where an insurance company goes -into a state and makes contracts of insurance, it does not cease to do business simply because it withdraws its agents and solicits no new business.</p> <p>3. Insurance, Life — What Is “Doing Business”. — A life insurance company collecting premium on policies issued in this State, when it is authorized to do business in this state, is doing business within the meaning of the statute when it is still insuring these same lives and collecting the premiums on the policies.</p> <p>4. Insurance, Life — Transfer of Risks to Another Company — Tax on Premiums — Section 609 Ky. Stats. — Appellee did not relieve itself of the tax imposed on premiums by transferring its risks on policies in this State to another company, the latter company not being authorized to do business in this State, section 699’ of the Kentucky Statutes being in effect at the time appellee entered this State and a part of its implied contract upon being permitted to do business in this State.</p>

<p>1. Divorce — Community Property — California Statute — Extra-territorial Force. — A judgment for divorce rendered in California, adjudging' pursuant to tbe California statute,- that the community property owned by the parties should be equally divided between them, has no reference to land in Kentucky which was (bought by the husband fifteen years before the divorce was obtained, and which was not community property in Kentucky, the California statute defining community property having no extra-territorial force.</p> <p>2. Judgment — Of California Court Pursuant to Statute of That State —Construction.—The judgment of the California court rendered pursuant to the mandate of the California statute, must be construed as referring to property to which the statute applies.</p> <p>■3. Title — How Title to Real Estate Regulated. — The title to real estate is regulated by laws of the State where the land lies.</p>

<p>Appeal from Hickman Circuit Court.</p>

<p>Appeal from Owen Circuit Court.</p>

<p>1. Mines and Mining — Statutory Duty of Mine Owner. — Under section 273 9-b of tbe Kentucky Statutes it is the duty of tbe mine owner to provide and furnish to the miners employed in the mine a sufficient number of caps and props to protect the roof, and the failure to so furnish this timber is actionable negligence.</p> <p>2. Mines and Mining — Contributory Negligence of Miner — Failure to Furnish Props. — Where the mine owner fails to furnish props when needed and requested, and the miner is injured by reason, of this failure, the fact that he was working without the props when injured will not defeat a recovery on his part unless the danger of working without props was so imminent and obvious as that an ordinarily careful man would not have worked under the conditions.</p> <p>3. Mines and Mining — Duty of Mine Owner as to Timber — 'Contributory Negligence. — The first duty is on the mine owner to furnish the timber needed, and he can only escape liability for failure to perform this duty when the negligence or carelessness of the miner in continuing to work in the face of an imminent or obvious danger is so apparent that an ordinarily prudent miner would not have engaged in it.</p> <p>4. Mines and Mining — Furnishing Timber — Sufficient Request for. — • When it is the habit or custom in a mine for the miners to select from timber furnished by the mine owner the pieces they need, and mark them so as to indicate the room for which they are intended, and place them at a point set apart for that purpose, to be carried where they are needed, if a minor so selects and marks and places timber needed, this will be treated as a request for the timber and notice to the mine owner that it is needed.</p> <p>6. Evidence — Intoxicated Condition of Mine Boss. — In a suit by a miner to recover damages for injuries not caused by the intoxicated condition of the mine boss, it is not competent to show the habitual intoxication of the mine boss, but it is competent to show that he was intoxicated when certain things occurred concerning which he testified.</p> <p>6. Evidence — Witness—Contradiction of — Construction of Section 596 of the Code. — Under Section 596 of the Code a party introducing a witness may contradict him by other evidence and by showing that he has made statements different from his present testimony. But it is only competent to thus contradict the witness when he states substantial and material facts prejudicial to the party introducing him. If the witness merely denies having made the statements attributed to him or merely states that he has no recollection of making them, his answers cannot be treated as prejudicial and therefore it cannot 'be shown by other witnesses that he made statements differing from those attributed to him in the questions to which he gave negative answers.</p>

<p>Appeal from Perry Circuit Court.</p>

<p>1. Pleading — Where Two Defendants Sued for Tort. — Where two de.fendants are sued for a tort, one cannot make his answer a cross petition against the other and in that action obtain a Judgment over against him before he has paid anything or sustained any loss.</p> <p>2. Negligence — When Negligence of Husband Not Imputed to Wife.— The negligence of the. husband with whom .the wife was driving, is not to be imputed to her.</p> <p>3. Verdict — When Verdict for Damages Will Not Be Set Aside as ¡Excessive. — A verdict for damages will not be set aside as excessive, unless so large as to indicate passion or prejudice on the part of the jury.</p>

<p>1. Easements — Right to by Prescription — Presumption—Limitation.— A rignt by prescription to a passway is founded upon the presumption of a grant, such presumption arising from the adverse, uninterrupted and continuous use of the passway, by the person asserting the prescriptive right thereto, for the statutory period of limitation.</p> <p>2. Easements — Permissive Use — User Matter of Right — Pleading— Presumption. — Where the defendant’s answer admits the use of the passway by the claimant thereof for more than fifteen years, the burden of overcoming the presumption that the user was a matter of right is upon the defendant, who must show by proof that the use was merely permissive; but when it is made to appear that the passway, as originally created, was accorded to plaintiff as a privilege, the character of the passway is established and the plaintiff’s right to the use thereof continues to be permissive until something is done to bring notice to the owner of the land that the character of the use has been changed. For one cannot enter upon the use of a permissive privilege and claim after a lapse of time that he intended during the while that it should be as of right, and in spite of the owner’s will, and thereby gain a title to it. The evidence in this case showing that the use of the passway was allowed plaintiff as a neighborly courtesy from the defendant, and never deemed by either of them to be a use other than by the owner’s permission, the circuit court did not not err in dismissing the plaintiff’s petition.</p>

<p>Appeal — Finding of Chancellor — A chancellor’s finding of fact will not fee disturbed where the evidence is conflicting and the mind is left in doubt as to the truth.</p>

<p>1. Limitation — Plea of Statute is Personal — Avoidance.—The plea of the statute of limitations is a personal plea; tbe defendant may not. desire to avail himself of it; but when pleaded, the opposing party may set forth matter in avoidance of the plea.</p> <p>2. Limitation — Statute of Must be Pleaded — Cannot be Raised by Demurrer to Petition. — In order for a defendant, in an action against him for fraud, to avail himself of the statute of limitations, the statute must be pleaded; the question of limitation cannot be raised by a demurrer to thé petition.</p>

<p>Appeal from Boyle Circuit Court.</p>

<p>Appeal from Knox Circuit Court.</p>

<p>1. Master and Servant — Safe Place to Work — Application of Rule as tp. — It is the duty of the master to exercise ordinary care to furnish to the servant a reasonably safe place to work, but. this rule only applies to the place where the servant is directed by the master to work, and when the servant voluntarily leaves the place of work assigned by the master, and without his knowledge or consent takes up work at another place, and with other appliances, the servant gets beyond the limit of duties imposed by law-upon the master.</p> <p>2. Master and Servant — Acts Done 'Suddenly or Through Fright.— In order to relieve a person from the consequences of his own acts on - the ground that they were done suddenly- or through fright, they must be done under a sense of impending danger, and that danger must be a real one, or the circumstances such as to create in the mind a reasonable apprehension of danger.</p> <p>3. Master and Servant — Negligence—'Evidence.—In an action by a Servant against the. master for damages, evidence examined and held that no negligent act of the master has been proven to warrant a recovery against it for the injury sustained, and it was error to submit the case to the jury.</p>

<p>Appeal from Jefferson Circuit Court (Common Pleas Branch, First Division).</p>

<p>1. Land — Partition—Presumption.—Where each of several joint owners of land takes into possession a separate part of the land, and the land is thus separately held and claimed during a long period of years, the presumption arises that a partition thereof was made between the parties.</p> <p>2. Land — 'Oral Partition — Adverse Possession. — An oral partition of land by joint owners, followed by the separate adverse possession of each, acquiesced in by all the parties, for more than fifteen years will vest in each the title to that portion of the land allotted to him.</p>

<p>Appeal from Jefferson Circuit Court (Common Pleas Branch, Third Division).</p>

<p>1. ¡Railroads — When Gross Negligence for One Train to Run Upon Schedule of Another — (Exemplary Damages. — It is gross negligence for one train to run upon the schedule time of another without orders so to do; and when it does, and injury results, the assessmnt of substantial exemplary damages is authorized.</p> <p>2. Damages — Separation of Compensatory and Exemplary Damages in Verdict. — If a party desires compensatory and exemplary damages separated in the verdict, he must request such separation.</p> <p>3. - Damages — When Verdict of $25,0000 Not Excessive — Negligence.— Where the negligence is flagrant, and endangers many human lives a verdict of $25,000 for both compensatory and punitive damages will not be deemed excessive in a case where a young man thirty four years of age, in good health, of good’ habits, and earning about $120 a month, is killed.</p>

<p>•Accord and Satisfaction. — (Where there is a bona fide dispute between ' parties as to the amount due by one to the other, and they agree to accept a certain sum in settlement of their conflicting accounts, it will be good as an accord and satisfaction.</p>

<p>1. Appeal — Objections—Exceptions.—Where neither objection was made nor exception taken to the ruling of the court, an error complained of cannot be reviewed upon- appeal.</p> <p>2. Evidence — -Statements ■ as to Sufferings. — Where physical or mental suffering of an injured person are proper subjects of inquiry, the usual expressions of such suffering, manifested or made at the time, may be admitted as original evidence.</p> <p>3. Evidence — Statement to Physicians — Res Gestae. — So much of an injured party’s statement to her physician, at the time of examination by him, as is necessary to enable the physician to know the location, cause and nature of the injury is admissible as part of the res gestae.</p> <p>4. 'Evidence — Opinions.—A question which was leading, and the answer thereto being an expression of opinion by the witness, should have been excluded.</p> <p>6. Witnesses — Impeachment—Character.—Evidence of the general character of an adverse witness for immorality is admissible to impeach the credibility of such witness, and it was error to exclude it, notwithstanding such fact was proved by other witnesses in the case.</p> <p>6. Carriers — Injuries to Passengers — Care Required. — A passenger should be allowed a reasonable opportunity to board a car of the carrier’s train upon which his ticket entitles him to ride, and it is negligence upon the part' of the carrier to prematurely start the car and not give the passenger a reasonable opportunity to enter it.</p> <p>7. Carriers — Injuries to Passengers — Trial—Instructions.—>In an action for injuries to a passenger for the negligence of the carrier in suddenly starting the train as she was about to enter the car and the negligent act of a trainman in pulling her from the steps, instructions which did not submit to the jury the issues as to whether or not the injuries were the result of the premature starting of the train or the act of the trainman in pulling the passenger 'from the steps of the train or of the negligence of the passenger herself were prejudicial and authorize a reversal of the cause.</p>

<p>Appeals from Daviess Circuit. Court.</p>

<p>Appeal from Mercer Circuit Court.</p>

<p>Appeal from Kenton Circuit Court (Criminal, Common Law & Equity Division).</p>

<p>Appeal from Kenton Circuit Court (Common Law and Equity Division).</p>

<p>Appeal from Hickman Circuit Court.</p>

<p>Appeal from Anderson. Circuit Court.</p>

<p>1. Turnpikes and Toll Roads — Property of County — Status Under Present Statutes — Highways.—A turnpike road which has become the property of the county under the present statutes stands- as any other public road and may be discontinued or altered as any other public road.. .</p> <p>2. Highways — Owner of Land Adjacent to Cannot Complain That Road is Altered or Discontinued. — The owner of land adjacent to a public highway cannot complain that the public road is altered or discontinued, and is not entitled to compensation for any depreciation of the property by reason of the alteration of the road.</p> <p>3. Highways — Proceeding to Alter Public Road — Jurisdiction.—In a' proceeding to alter a public road upon petition, notice as required by the statute, must be given; the court is without jurisdiction to-proceed unless the notice is given.</p>

<p>1.' Vendor and Purchaser — Sale of Standing Timber. — Tbe vendor of timber standing on land having undertaken to show the vendee approximately where the lines were, is not responsible if the lines he pointed out were approximately correct; and the deficiency in the timber was not greater than might, reasonably be within the contemplation of the parties under the eircumstaneés.</p> <p>2. Instructions — Failure to Define “Approximately” — Not Ground for Reversal. — The failure of the court to define what was meant by the word “approximately”, will not be ground for reversal, neither party asking that a further instruction be given, as the jury would naturally regard a material deficiency as not an approximately correct location of the lines.</p> <p>3. Judgment — Instructions.—A judgment will not be reversed for an instruction which under all the evidence was not prejudicial to the substantial rights of the appellant.</p>

<p>Appeal from Knox Circuit Court.</p>

<p>Appeal from Jefferson Circuit Court (Chancery Branch, First Division).</p>

<p>.Appeal from Hopkins Circuit Court.</p>

<p>Appeal from Jefferson Circuit Court (Criminal Division).</p>

<p>Appeal from McCracken Circuit Court.</p>

<p>1. Taxation — Forfeiture for Non-payment of Taxes Under Section 4076-b, Ky. Stats. — Right of Redemption. — A claimant of land who has a title upon which he could maintain an action in ejectment may redeem land forfeited for the non-payment of taxes under the provisions of Sec. 4076-b of the statute, although he is not named as a defendant in the forfeiture suit brought by the Commonwealth.</p> <p>2. Taxation — Effect of Judgment Allowing a Claimant of Land to Redeem — Collateral Attack on. — In a suit by the Commonwealth to forfeit land for the non-payment of taxes, a judgment of redemption, as authorized by the forfeiture act, reciting that the person allowed to redeem had the fee simple title to the land, is conclusive of the question that he had such title in another suit between him and other parties involving his title to the land, as the judgment of the court having jurisdiction of the parties and the subject matter cannot be attacked in a collateral proceeding.</p> <p>3. Taxation — Construction of Subsection Six of Section 4076-b of the Statute. — Under subsection six when land is forfeited by the judgment of the court for the non-payment of 'taxes, and is not redeemed as provided in the act, a judgment of forfeiture has the effect of transferring the title to the land forfeited to that party who has been in the actual adverse possession of the land for five years next preceding the forfeiture judgment, and who has paid the taxes thereon for that period of time.</p> <p>4. Landlord and Tenant — Attornment by Tenant to a Stranger Forbidden. — A tenant in possession of premises cannot attorn to a stranger or lease the premises from a stranger or in any manner or way renounce his allegiance to or set up a title hostile to his landlord without first obtaining the consent of the landlord or re. nouncing his tenancy by removing from the leased premises.</p> <p>5. Landlord and Tenant. — 'Where a tenant from year to year whose term expired in January, 1909, took a lease from a stranger in the fall of 1908 for the year 1909, and under this lease occupied the premises in the same manner that he had been occupying them under the landlord, he continued in 1909 to be the tenant of the landlord under whom he had entered in 1908, as he did not obtain the consent of the landlord to lease from a stranger or renounce his tenancy by removing from the leased premises.</p> <p>6. Landlord and Tenant — Severance of Relations. — Where a tenant had remained in possession of land for several years under annual leases and in 1909 the landlord refused to lease him the land for that year, but leased it to another party, this did not have the effect of severing the relation of landlord and tenant when the tenant continued to remain on the premises, although the tenant claimed to he occupying the premises in 1909 under his lease írom a stranger for that year.</p>

<p>1. Municipal Corporations — Jurisdiction Over Territory — Burden of Maintaining Thoroughfares. — When a city takes jurisdiction over territory it assumes the burdens then incident to it, among which is the maintenance of public thoroughfares.</p> <p>2. Municipal Corporations — Boundary of Territory — Evidence—In. «tractions — Pleading.—While an issue as to the location of the street where the accident occurred is made in the pleadings, plaintiff offered proof that the place was within the city’s boundary, and the city offering no proof to the contrary, it stands uncontradicted that the place of the accident was within the city limits, and there being no issue in the proof on this point, there was no occasion for the court to instruct the jury with reference to it.</p> <p>3. Negligence — Specific Acts Charged — Pleading.—While it is a familiar rule that when specific acts of negligence are charged a recovery will not be'permitted for others not charged, the original petition charges that the city was carelessly negligent in permitting the road to remain in a dangerous condition for many months before the accident occurred, and this allegation is sufficiently broad to cover the negligence of the city with reference to the street which caused the injury.</p> <p>4. Highways — Duty of City to Maintain in Safe Condition for Public Use. — Highways for the use of the public are all necessarily artificial, and the city has the unquestioned duty imposed upon it of maintaining them in a safe condition for public use.</p>

<p>1. Deeds — Delivery.—It is not necessary that the grantor make an actual delivery to the grantee. He may deliver to the grantee’s attorney, or to the county clerk, or to any other person for him.</p> <p>2. Deeds — Delivery.—Where both parties to the deed agreed that it was signed, acknowledged and delivered, and it is shown that the grantee and his attorney were the active parties in getting the conveyance; that they went to the grantor who signed and acknowledged the deed and left it with them, the delivery was sufficiently complete to bind the grantee, it is effective as to appellant, who seeks to subject the land conveyed to its debt by the levy of a subsequently issued execution.</p> <p>3. Deeds — Consideration.—'The real consideration for the deed being to perfect the one the grantor’s mother had made to the grantee a few days before, which was made for the purpose of raising money to pay the grantor’s debt, the consideration being far in excess of any interest he had, was ample.</p> <p>J. F. COMBS for appellants.</p>

<p>Appeal from Pike Circuit Court.</p>

<p>1. Fraudulent Conveyances — Rights of Parties — Suit for Re-conveyance. — Equity will not decree the re-conveyance of real estate con. veyed by the grantor to his sister for the purpose of defeating a threatened action by his wife on a claim for alimony.</p> <p>2. Fraudulent Conveyances — Motive, Fraudulent and Legal — Rights of Parties. — Where the grantor in conveying property to another in secret trust has two motives, one fraudulent and the other legal, equity will not undertake to separate the one from the other and determine which is the controlling factor.</p>

<p>1. Instructions — Exercise of Ordinary Care by Street Railway Company — Constructing and Maintaining Tracks. — An instruction that it was the duty of a street railway company to exercise ordinary care to so lay and maintain its tracks on public streets as not to render the streets unsafe or dangerous for vehicles is equivalent to an instruction that it was its duty to so construct and maintain them that the streets would be so nearly on a level with the rails as ■ to reasonably prevent injury to the traveling public.</p> <p>2. Instructions — -When Failure to Instruct as to Loss of Time, Doctors’ Bills and Cost of Cure Not -Prejudicial Error. — Failure to instruct as to plaintiff’s loss of time, doctors’ bills and cost of cure is not prejudicial error where the jury has found there is no liability.</p>

<p>Appeal from Daviess Circuit Court.</p>

<p>Appeal from Perry Circuit Court.</p>

<p>1. Schools and School Districts — Trustees of Graded School and County Board of Education May Maintain a Joint School. — Under subsection 8 of section 4426-a of the Kentucky Statutes, tlie board of trustees of a graded school and the county board of education, are authorized to enter into a contract whereby a school building may be jointly erected and a joint school conductéd in the building under the management of the hoard of trustees and the board of education.</p> <p>2. Schools and School Districts — Bond Issue to Provide for Building to be Used as a Graded School and County High School.— The county board of education and the trustees of a graded school district may enter into a contract for the erection of a school building to be paid for in part by the board of education and in part by bonds issued by the graded school district, under section 4481 of the Kentucky Statutes.</p> <p>S. Schools and School Districts — Hours of Election on Question of Bond Issue to Erect Buildings for Graded School. — Section 4481 of the statute leaves it to the board of trustees of the graded school district to fix the time, place and hours of the election, and when they have fixed the hours of election, it should be held within these hours. In this case the hours of election fixed were from one until four o’clock but the polls were kept open until five o’clock. But the unauthorized act of election officers in keepingi the polls open later than the order specified did not affect the result of the election, as it does not appear- that any votes were cast after four o’clock.</p> <p>4. Schools and School Districts — Graded School Election to Erect Building — Viva Voce Voting. — Section 4481 of the statute provides that at elections ordered by boards of trustees of graded school districts for the purpose of erecting buildings that voting shall be viva voce and not by secret ballot.</p> <p>5. Schools and School Districts — Graded School Election — White and Colored Voters. — At an election held for the purpose of erecting buildings for a white graded school, colored voters are not entitled to vote. Their property in the district is not subject to taxation for the purpose of erecting the building or maintaining the school, nor can colored children attend the school.</p>

<p>1. Municipal Corporations — Indebtedness—Amount—Determination— Indebtedness of Independent School District — Board of Education. —Bonds issued by the Board of Education of cities of the second class under the authority of Chapter 137 Acts 1912 are obligations of the Board of Education, and the amount thereof is not to be considered in determining whether the city has reached its maximum constitutional debt limit.</p> <p>2. Municipal Corporations — Board of Education — Issue of Bonds by— Indebtedness. — Bonds issued by the Board of Education of cities of the second class under authority of Chapter 137, Acts 1912, are obligations of the city, and the amount thereof is not to be considered in determining whether the city has reached its maximum constitutional debt limit.</p>

<p>1, Estates — Action to Settle — Parties.—In an action by appellant for a settlement of ber husband’s estate, the inference from the petition being that he left children who were proper parties, the special demurrer was properly sustained to the petition, and the action dismissed without prejudice.</p> <p>2. The general demurrer, however, was improperly sustained, for the reason that the statute of limitations should have been pleaded. It cannot avail on demurrer.</p>

<p>Appeal from Laurel Circuit Court.</p>

<p>Appeal from Breckinridge Circuit Court.</p>

<p>1. Judgment — Action to Enforce Satisfaction — Limitation.—The fact that a judgment creditor failed to have an execution issued within fifteen years after the last execution, does not prevent the maintaining of an action to enforce satisfaction of the judgment, which was instituted before the expiration of the fifteen year period, under Section 439 of the Civil Code .</p> <p>2. Judgment — Action to Enforce Satisfaction — Creditors Suits — Limitation. — An action to enforce the satisfaction of a judgment, brought under Section 439 Civil Code, may by the judgment creditor be kept on the docket until the judgment is satisfied, and alias attachments may be had from time to time without the filing of a new affidavit, although fifteen years may have elapsed since the last attachment was issued in the action.</p>

<p>Taxation — Assessment—Board of 'Supervisors — Quarterly Court — Appeal by State or County. — No appeal lies in favor of the State or county from the action of the Board of Supervisors or of the quarterly court in placing valuation on property for the purpose of assessment.</p>

<p>Appeal from B'ell Circuit Court.</p>

<p>Appeal from Carter Circuit Court.</p>

<p>Appeal from Franklin Circuit Court.</p>

<p>Appeal from Union Circuit Court.</p>

<p>Appeal from Campbell Circuit Court.</p>

<p>1. Sales — Contracts—Offer and Acceptance. — Where a broker procured a written memorandum of sale of five carloads of oranges wherein it was provided, “all sales subject to confirmation,” shipment by the vendor to the vendee of two car loads of oranges on the dates stipulated in the writing constitutes an acceptance by the vendor of the offer of the vendee to buy, expressed in such writing, and creates a binding contract.</p> <p>2. Sales — Rescission by Buyer — Defects as to Quantity and Quality. —In an entire contract for successive deliveries of goods sold, of specified description and quality, a defect in quantity or quality of the goods in the earlier deliveries, or any of them, constitutes such a breach of the contract on the part of the vendor as will relieve the vendee from liability for subsequent deliveries, provided prompt notice of refusal to perform is given by the latter; or he may permit its performance by the vendor to proceed and rely upon his damages for the breach.</p> <p>3. Sales — Remedies of Seller — Action—Damages.—Where plaintiff contracts to sell a specified number of car loads of merchantable oranges, free on board cars at a designated place, at a stipulated price, and he is wrongfully prevented by the vendee from delivering same, the measure of damages is the difference, if any, in the price for which the oranges, free on board of cars, if of a merchantable quality, could have been sold on the market at the place of shipment, as of the dates fixed by the contract for their shipment, and the contract price agreed to be paid by vendee.</p> <p>4. Sales' — Action—Evidence—Competency.—Evidence of defective quality of oranges received by other purchasers from the same vendor is incompetent, unless it be shown that they were of the same variety, and grown, handled and shipped under similar conditions or circumstances.</p>

<p>Appeal from Lawrence Circuit Court.</p>

<p>'Appeal from Allen Circuit Court.,</p>

<p>1. Eminent Domain — 'Assessment of Property as Evidence. — In condemnation proceedings it is competent as a relevant circum- ■ stance to show the price at which the owner of the property listed it for taxation, or, if his testimony cannot be procured, to show by the assessing officer the value at which it was given in for assessment by the owner.</p> <p>2. Eminent Domain — Measure of Damage — Construction.—The measure of damages to which the owner of property is entitled where the whole property is not taken is the fair and reasonable market value of the land taken, considering it in relation to the entire tract and for all purposes for which it is adapted, and also such sum as will compensate the owner for the direct damage, if any, that results to the remainder of the tract by reason of the situation or condition in which it is left by the taking of the part taken. But the whole amount of damage should not exceed in all the difference between the actual market value of the entire tract immediately before and the actual market value of the remainder immediately after the taking.</p> <p>3. Eminent Domain — Evidence—Value of and Damage to Improvements'. — It is competent to ask witnesses as to the condition, character and surroundings of the property proposed to be taken, as well as the remainder of the tract, and as to the value and character of the improvements thereon, so that the jury may have before them all of the facts upon which the witnesses based their opinion as to the market value of the whole tract.</p> <p>4. Eminent Domain — Evidence as to Value of Property. — In arriving at the value of the property and the damage to the owner, it is admissible to show its condition, surroundings, improvements and capabilities, and if it is peculiarly adapted to some particular use, all the circumstances which make up this adaptability may be shown.</p> <p>6. Eminent Domain — Damages to Which Land Owner is Entitled.— The damage to which the owner of land is entitled includes all direct damage done to permanent improvements of every kind and character as well as all direct damage done to the property not improved.</p> <p>G. Courts — Place at Which Cases Should Be Tried in Circuit Courts of Kenton County — Trial of Appeals to Circuit Court. — Under section 980 of the Kentucky Statutes all cases in the circuit court of Kenton County are to be tried in the city of Covington except where the defendants reside nearer to Independence than they do to Covington, and this practice applies to appeals brought to the circuit as well as to cases originally filed in the circuit court.</p>

<p>Appeal from Leslie Circuit Court.</p>

<p>Appeal from Payette Circuit Court.</p>

<p>1. Principal and Agent — Brokers—Factors—Purchase By — When Invalid. — Neither a broker nor a factor can purchase from the principal for himself without apprising the principal of all the facts within his knowledge, unless it be clearly understood between them that he has the right to do so.</p> <p>2.| Principal and Agent — Brokers—Factors—Purchase; By — When Invalid — Evidence.—The mere fact that a principal first decline's to ship a broker goods ordered, without knowing the names of the purchasers, and then consents to do so upon ascertaining that the broker is financially responsible, is not sufficient to establish the right of the broker to purchase for himself, especially in view of the fact that the broker continues to charge brokerage on every transaction that they have.</p>

<p>Appeal from Jefferson Circuit Court (Common Pleas Branch, Second Division).</p>

<p>1. Pleading — Exhibits—When Not Proper to Sustain Demurrer for Want of Exhibit. — It is not proper to sustain a demurrer to a petition because a writing has not been filed as an exhibit, although the action may be founded on this writing.</p> <p>2. Pleading — Writings Upon Which Petition Pounded Copied Into It. — Where the writng upon wheh the petition is founded is copied into it, and at first rule day, and before the case was called for trial, certified copies were filed as exhibits, no right of the - adverse party was in any wise prejudiced by the failure to file the copies at the time the petition was filed.</p> <p>3. Practice — Taxation—Action to Forfeit Title to Commonwealth— Parties — Pleading—Defective Affidavit. — In an action to forfeit title to certain land to the Commonwealth, the affidavit for the warning order being defective, the motion to quash it was. properly sustained.</p>

<p>Appeal from Butler Circuit Court.</p>

<p>1. Carriers — Shipment of Live Stock — When No One Accompanies Stock — Rule as to — Action for Injury to Stock — Burden.—In the shipment of live stock the rule is, that when no one accompanies the stock, the shipper makes out a prima facie case when he shows that the animals were in good condition when delivered to the carrier, and in a damaged or injured condition when delivered by the carrier to the consignee; and thereupon the burden is cast upon the carrier to explain the cause of the injury to the stock, and the carrier can only exempt himself from liability by showing that the injury or death was brought about by the act of God, or because of the inherent nature, propensities, or viciousness of the animals themselves.</p> <p>2. Carriers — Shipment of Live Stock — Instructions.—An instruction which attempted to apply the foregoing rule to a shipment ol hogs, by directing a verdict for the plaintiff unless the hogs died from some “inherent defect” in said hogs, was erroneous.</p> <p>3. Carriers — Shipment of Live Stock — Burden.—'Where cattle, unaccompanied by the owner, were shipped over a railroad from Danville, Ky., to Jersey City, N. J., and were unloaded at Cincinnati, Ohio, by the carrier, for rest and food, in compliance with the federal law, they were still in the custody of the carrier, and the burden was upon it to show that an injury to the cattle which first appeared after the cattle had been unloaded and were in the stock pens in Cincinnati, resulted from the inherent nature, propensities or viciousness of the animals carried.</p> <p>4. Carriers — Question of Diligence for Jury. — Where the weather was so extremely cold and unusual as to render railroad operations difficult, and the evidence upon the question of the carrier’s diligence was conflicting, that question was properly submitted to the jury.</p> <p>5. Books — Account Books as Evidence — Entry.—Two of the requisites of admissibility of original entries in account books are, (1) that the entries must be original, and (2) the party who made them must, as a general rule, have had personal knowledge of the facts recorded.</p> <p>6. Carriers — Delay in Shipment of Stock — Action for Damages From Delay — Evidence.—In an action by the shipper against a carrier to recover for extra feed bills and loss of weight in cattle shipped by reason of the delay of the carrier, the feed bills and the loss in weight should be proved by the person who fed and weighed the cattle; these facts cannot be proved by a bookkeeper of thd Stock Yards Company which caused the cattle to be fed and weighed, the bookkeeper having no personal knowledge of those facts, or by the bookkeeper of a commission Arm which paid the feed bills to the Stock Yards Company, since neither the Stock Yards Company nor the commission firm represented the carrier, or had any dealings with it.</p>

<p>Appeal from Jefferson Circuit Court (Chancery Branch, First Division).</p>

<p>Appeal from Clark Circuit Court.</p>

<p>Appeal from Franklin Circuit Court.</p>

<p>Appeal from Henderson Circuit Court.</p>

<p>Appeal from Jefferson Circuit Court Chancery Branch, Second Division).</p>

<p>1. Action — Multiplicity of Suits — Equity Will Prevent. — The jurisdiction of a court of equity may be invoked to prevent a multiplicity of suits growing out of the same transaction or arising from the same common cause.</p> <p>2. Action — Multiplicity of -Suits — Grounds of Equitable Jurisdiction, to Prevent. — When a number of persons, who had no meritorious or enforceable demands, brought separate suits in an inferior court against the same defendant on causes of action growing out. of the same transaction, the defendant might maintain an equitable action in the circuit court to enjoin the prosecution of these-suits in the inferior court and compel the plaintiffs to assert their claims, if any they had, in the equity suit.</p> <p>3. Action — Multiplicity of Suits — Jurisdiction of Equity to Prevent. —There is a broad distinction between invoking the jurisdiction of a court of equity to prevent a multiplicity of suits by different plainiffs each having a separate, distinct, meritorious cause of action, and invoking this jurisdiction to prevent a multiplicity of suits-by plaintiffs who have not legally enforceable demands aganst the defendant. In the one case the plaintiffs might be required to assert their claims in one suit, while in the other they would not.</p> <p>4. Action — Multiplicity of Suits — Injunction to Prevent Practice. — - Where a multitude of suits have been brought by different plaintiffs in an inferior court against the same defendant, all resting on the same common ground, the defendant may bring an equitable suit in the circuit court to enjoin the prosecution of the suits in the inferior court and require all of the plaintiffs in the suits to assert claims in the equitable action, if the suits are of such. a character as that it would he proper to adjudicate all of them in one case.</p> <p>5. Contracts — Right of Third Party or Stranger to Maintain Action on. — Generally a stranger to a contract cannot maintain an action for a breach of it. Actions for breaches of contract are usually only allowable to the parties to the contract or their privies, or to parties for whose benefit the contract has been made.</p> <p>6. Contracts — Between Carrier and Shipper — Right of Action on.-v Where a carrier has committed a breach of its duty in failing to furnish cars to a shipper, the shipper is the only person who can maintain an action against the carrier to recover damages for the breach of its duty. An action will not lie against the carrier in behalf of persons who have suffered loss arising from the inability of the shipper to fulfill contracts with them due to the fact that the carrier did not comply with its obligation with the shipper.</p> <p>7. Carriers — Liability of to Shipper for Failing to Furnish Cars. — A common carrier is under a statutory duty to furnish to shippers cars needed in their business, and if it fails to furnish such cars without legal excuse therefor, the shipper may have an action to recover the damage he has sustained by the failure of the carrier to perform this duty.</p> <p>8. Carriers — Duty and Liability to Shipper and Third Parties in Respect to Furnishing Cars. — While a shipper may maintain an action against a carrier for its failure to furnish cars, an action will not lie against the carrier in behalf of persons who have contracts with the shipper and who have suffered damage by the carrier’s failure to perform its duty toward him.</p> <p>9. Carriers — Duty and Liability to Shipper and Third Parties in Respect to Furnishing Cars — Case Stated. — A carrier committed a breach of its duty in failing to furnish cars to the owner .of a coal mine, and thereby he was unable to operate his mine, to the damage of the coal diggers who were deprived of employment pn account of the failure of the carrier to furnish the cars in which to ship the coal. The coal diggers brought a suit against the carrier to recover damages for the loss of time they had sustained. Held, That they could not recover.</p>

<p>Jurisdiction — Amount in Controversy — Sbam Pleading. — The plaintiff in an action cannot confer jurisdiction on this court by tha mere statement that he has been damaged exceeding $200, when-the body of his pleading and the facts therein stated that constitute the cause of action show that he has not been damaged in that amount and under no circumstances could recover that sum if he should have judgment for all that the averments of the petition show him entitled to. There must be a real controversy between parties, involving an amount sufficient to give this court jurisdiction, before an appeal will lie. '■</p>

<p>1. Taxation — Domicile for Purpose. — The taxing domicile of a domestic insurance company is where the vital acts of the com' pany’s operations are performed; and where such company maintained an office in a small village near Louisville at which its assistant secretary and three stenographers did the clerical work; but the president, secretary-treasurer, medical director and general agent of the company had offices in Louisville and there directed, controlled and conducted the operations of the company, ' and there the board of directors held its meetings principally, the taxing domicile of such corporation was in the city of Louisville.</p> <p>2. Corporations — Corporate Domicile. — A domestic insurance corporation must state in its articles of incorporation the name of the town or city and county in which its principal office or place of business is to be located; and it is not sufficient to specify the county only, and to provide in said articles that the city or town in which said office is to be located may be determined from time to time by the board of directors. Ky. Stats., 539 and 618 require this information to be made a matter of public record; and such information is not a matter of public record unless made so by •express statement in the articles of incorporation.</p>

<p>Appeal from Pulaski Circuit Court.</p>

<p>1. Homicide — Instructions—Defense of Insanity — Malice.—Tbe true test of responsibility, where the defense is insanity, is whether the accused had sufficient reason to know right from wrong, and whether or not he had sufficient power to control or govern his action, and the instruction complained of here met the requirements of this test. If it was error, which is not conceded, in further saying to the jury that they might acquit if they found defendant was without sufficient mind or reason to know what he was doing, it was merely giving an additional ground to acquit him, and was not prejudicial.</p> <p>2. The objection to the instruction defining malice is not sustained for the instruction defines the term as used in “these instructions,” and “these instructions” include all the instructions, and all of them make particular reference to the homicide for which defendant was tried.</p> <p>3. Verdict — Evidence.—While the evidence was conflicting, there is certainly not a preponderance against the verdict, and it being the province of the jury to judge of its weight and credibility, the verdict will not be disturbed.</p>

<p>Appeal from Graves Circuit Court.</p>

<p>Appeal from Clark Circuit Oourt.</p>

<p>Appeal from McCracken Circuit Court.</p>

<p>Appeal from Fayette Circuit Court.</p>

<p>Appeal from Marion Circuit Court.</p>

<p>1. Criminal Law — Homicide—Trial—Evidence—AVeigbt and Sufficiency. — In a prosecution for homicide, evidence examined and ’• sufficient to sustain verdict of jury.</p> <p>2. Criminal Law — Homicide—Trial—Doubtful Rulings as to Admis- • sion or Rejection or Evidence — Harmless Error. — In a prosecution for homicide, doubtful rulings as to the admission and rejection of evidence made upon the trial, if not prejudicial to the substantial rights of the accused, do not authorize a reversal.</p> <p>3. Criminal Law — Trial—Continuance.—In a prosecution for homicide where, upon the calling of the case for trial, an application for a continuance, on the grounds of the absence of one of several counsel and of material witnesses, is made by the accused, and an affidavit in support thereof is filed, the affidavit not showing that the counsel conducting the trial did not have ample opportunity to be advised of the facts necessary for the defense of the accused, and it appearing from the record of the trial that such ■counsel ably conducted the defense, refusal of a continuance by the trial court on account of the absence of one of the counsel is not an abuse of discretion.</p> <p>4. Criminal Law — Trial—Continuance.—Where the trial was had at a term subsequent to that of the indictment term, and so much of the affidavit of the accused as contained the statements, to which-it was claimed the absent witnesses would testify, was perihitted to be read to the jury as the depositions of such absent witnesses, thereby giving to the accused the benefit of their testimony, the denial of a continuance, by the trial court was not error; and accused had no right to demand of the Commonwealth’s attorney that he admit the truth of such satements.</p> <p>5. Criminal Law — Trial—Instructions.—In a prosecution for homicide, the incorporation in a murder instruction of a provision authorizing the jury to find the accused guilty' as an aider or abettor of the crime, was not prejudicial error, where the evidence showed that the deceased was shot and hilled by the accused alone.</p>

<p>Appeal from Laurel Circuit Court.</p>

<p>Appeal from Jefferson Circuit Court (Common Pleas Branch, Fourth Division).</p>

<p>Appeal from Letcher Circuit Court.</p>

<p>1. Railroads — Duty of Company to Furnish to Shippers Safe Cars.— A railroad company is under a duty to exercise ordinary care to furnish cars in reasonably safe condition to shippers, and for a breach of this duty it becomes liable to any person injured thereby.</p> <p>2. Railroads — Duty to Furnish Reasonably Safe Cars to the Owner of the Plant Reached by a Spur Track — Liability for Failure.— ' Where the owner of a coal mine owned a spur track extending from his mine to the railroad company’s line, and the railroad was in the habit of furnishing him on the spur track cars to be Operated on the spur track and loaded by his employes, the railroad company was under a duty to furnish cars with sufficient brakes, and where an employe of the coal company was injured by a car with a defective brake, the railroad company was liable.</p> <p>3. Railroads — Defective Appliances — Injury to Third Persons.— Where the servant of a coal company was injured by reason of a car with a defective brake being put by a railroad company on a spur track for the use of the coal company, he might maintain an ■ action against the railroad company.</p> <p>4. Railroads — Unsafe Appliances — -Injury to Third Persons — Duty and Liability of Third Persons and Railroad. — Where a car is put on a spur track to be used by a coal company, it is the duty of the coal company to exercise ordinary care to discover any defects in the car that might interfere with its safe operation, and if it knew, or by the exercise of ordinary care could have known, of the defects complained of, the railroad company is not liable. On the other hand, if the coal company did not know and could not by the exercise of ordinary care have known of the defective condition of the brake, and the railroad -company knew or by the exercise of ordinary care could have known of this defective condition, then the railroad company is liable.</p> <p>5. Railroads — Duty to Third Persons Using Its Cars. — A railroad company owes to persons having dealings with it, and whom it invites to use its cars, the duty to exercise ordinary care to have them in suitable condition for the use to which they are intended and to which it knows they will be applied.</p>

<p>Appeal from Warren Circuit Court.</p>

<p>Appeal from Lawrence Circuit Court.</p>

<p>Appeal from Boyd Circuit Court.</p>

<p>Appeal — Omitted Parties — Reversal.—Where an appeal was prosecuted from a judgment, which was reversed on the appeal, and, by accident or mistake, a judgment plaintiff was not made a party to the appeal, the judgment will be reversed as to such omitted' party, upon another appeal taken against him, within the time allowed by law; his interest in the subject of the action being the same as that of the appellees on the first appeal.</p>

<p>Appeal from Pulaski Circuit Court.</p>

<p>1. Appeal — Opinion Upon Former Appeal Law of Case. — The opinion of the Court of Appeals upon a former appeal is the law of the case, and governs a subsequent action between the same parties, and upon the same cause of action.</p> <p>2. Actions — Day in Court — Defenses.—A party who has had his day in court will not be allowed thereafter to set up a defense which he should have relied upon in the first action.</p> <p>3. Action — Adjudication—Final and Conclusive. — It is a well established rule that an adjudication is final and conclusive, not only as to a matter actually determined, but also as to every other matter which the parties might have litigated, and have had decided as incident thereto, or essentially connected with the subject matter of the litigation, and every matter coming within the legitimate purview of the original action, both as to matters of claim and defense.</p> <p>4. Action — Action to Sell Land Under Attachment — Pleading—Home, stead — Bar.—Where a defendant in a suit to sell land under an attachment failed to set up her claim to a homestead in her original answer, and presented it for the first time by an amended answer and counterclaim tendered after judgment had been given, but before it had been entered, and the court rejected the pleading upon the ground that it came too late, said ruling is a bar to a subsequent action by the defendant to enforce a claim of homestead in the property sold in the first action.</p>

<p>Appeal from Graves Circuit Court.</p>

<p>Subrogation. — Lunatics—Land Charged for Support — (Right of Asylum to Subrogation.- — Where a father, in, consideration of past and future support and maintenance, conveys land to his son, and reserves a lien thereon to secure his future support, a state asylum, required by law to maintain pauper lunatics, but authorized, in case the lunatic has or should acquire property, to sue and recover for his support and maintenance, is not. entitled to be subrogated to the lien of the father on the land conveyed, to the extent of its claim for the support and maintenance of the father while therein confined.</p>

<p>Appeal from Graves Circuit Court.</p>

<p>1. Taxation — Assessment of Distilled Spirits — Construction of Statutes. — (Section 3381 of the Kentucky Statutes, governing cities of the third class, as' well as sections 4105 to 4114 entitled the city of Henderson to collect taxes on whiskey withdrawn for the years stated at the same rate of taxation as it applied to other property within its limits.</p> <p>2. Action — Exhibits—Evidence of Indebtedness —Pleading —i The writing which section 120 of the Code requires ‘ to be filed with, and as part of the petition is that writing which evidences the indebtedness.</p> <p>3. Taxation — Assessment of Distilled Spirits — Action to Recovear Tax — (Limitation..—In an action to recover taxes on distilled spirits withdrawn from appellants’ bonded warehouse, the question of limitation will not be considered on demurrer.</p>

<p>1. Verdict — Appeal.—The mere fact that it appears to appellant that the verdict is too large is not ground for reversal.</p> <p>2. Instructions.' — Where the record does not show that appellant offered any instructions there is nothing to consider upon the complaint that the trial court erred in refusing to. give instructions offered by him.</p>

<p>Appeal from Whitley Circuit Court.</p>

<p>Appeal from Jessamine Circuit Court.</p>

<p>Appeal from Warren Circuit Court (On motion to dissolve injunction).</p>

<p>Appeal from Lee' Circuit Court.</p>

<p>1. Appropriations — Application.—(Money appropriated by tbe Legislature for a specific purpose may not be used for any other purpose; and- where an appropriation to improve a school is anticipated by the school authorities, the warrant when received, must be used to repay the bank which advanced the money under an. arrangement with the school authorities to this effect.</p> <p>2. Appropriations — Advancement by Bank to School Authorities— Repayment Out of Warrant. — An appropriation for the upkeep of an institution being payable quarterly at the end of each quarter, the money advanced by a bank to the school authorities to pay cash for its supplies under an arrangement that the money would be repaid out of the warrant when received at the end of the quarter, must be paid out of the warrant when received.</p> <p>3. Corporations — Change in Board — Rights of Parties. — A change in the board does not affect the liability of the corporation. The rights of the parties should be settled as though there had been no change in ‘the Board.</p>

<p>1. Municipal Corporations — Sidewalks—Care Required. — iA city is bound to use ordinary care and diligence in making its sidewalks reasonably safe and convenient for travel, and it is not liable for injuries to a pedestrian due to her slipping and falling on a sidewalk, where the sidewalk is properly constructed, and its slippery condition was the result of natural causes.</p> <p>2. Municipal Corporations — Defective Sidewalks — Notice.—The duty of a city to exercise ordinary care to keep its sidewalks in a reasonably safe condition does not extend to the removal of ice which constitutes no other defect than slipperiness. If, however, there should be an accumulation of snow or ice in such' ridges or inequalities as would be liable to trip pedestrians, and for that reason constitute an obstruction, or the sidewalk itself is defective, or its natural condition has been changed by artificial means, or it is customary for the city to treat the removal of snow >and ice as a regular part of highway management, the city, in case of resulting injury, is liable for its failure to remove the obstruction, provided it had knowledge of such obstruction or the obstruction had existed for such a length of time as that the exercise of ordinary care, on the part of the city, would have enabled it to have discovered its presence.</p> <p>3. Municipal Corporations — Defective Sidewalks — Action— Sufficiency of Evidence. — In an action against a city for injuries to a pedestrian resulting from her .slipping and falling on- an accumulation of ice on a sidewalk, it failing to appear by proof that tbe injury was tbe result of any defect in tbe construction of tbe sidewalk, or its changed natural condition by artificial means, or that tbe city had undertaken tbe duty of removing tbe snow and ice from its sidewalks, a peremptory instruction to the jury to find for tbe city was proper.</p>

<p>1. Appeal — Dismissal—(Grounds —Want of Actual Controversy.— Husband and Wife. — Where, pending an appeal from a judgment dismissing the petition of the wife in an action against the husband for alimony, the parties settled and adjusted the claim asserted and the motion to dismiss the appeal is resisted, not by the wife but by her counsel, the appeal will be dismissed upon the ground of want of actual controversy.</p> <p>2. Appeal — Husband and Wife — Jurisdiction.—Even if the appeal could be treated as one prosecuted by the wife for the purpose of recovering of the husband a reasonable fee for the benefit of her attorney, the amount of fee claimed by him being less than two hundred dollars, the appellate court would be without jurisdiction to entertain the appeal.</p>

<p>1. Contracts — Agreement Defined. — An obligatory contract is a species of agreement, and an agreement consists in two persons being of tbe same mind concerning the matter agreed upon.</p> <p>2. Contracts — Character of Agreement. — To amount to a contract, an agreement must be of a nature to produce a binding result upon the mutual relations of the parties, therein differing from the agreement of a bench of judges or a -board of directors, which has no reference to the relations of the judges or the directors, one to another.</p> <p>3. Contracts. — ¡Where the terms of a contract have been mutually agreed to, and the parties then made a further agreement to write and sign a paper evidencing those terms, the verbal contract is valid without the writing.</p>

<p>Appeal from Shelby Circuit Court.</p>

<p>Appeal from Fleming Circuit Court.</p>

<p>Appeal from Warren Circuit Court.</p>

<p>Mortgages — Action to Have Deed Declared a Mortgage — Evidence.— In an action by B. as next friend for his seven children to have a deed executed by his deceased wife to appellant declared a mortgage, except the deed itself, and the testimony of appellant relating to a conversation he had with Mrs. B. at the time the deed was made, all the evidence shows that the instrument was intended to be a mortgage, and not a déed. His testimony as to the conversation is incompetent now that Mrs. B. is dead, and is not admissible against the infant children. Held, The facts amptly justified the lower court in holding the instrument a mortgage.</p>

<p>1. Intoxicating Liquors — Prosecution for Violation of Local Option Law — Evidence.—Where a police officer who suspected one was engaged in violating the local option law employed another in. an effort to apprehend the suspect, and the officer watched the one so employed go into the house of the suspect and saw him Come out, the testimony of the officer and the one so employed as to the purchase and payment of the whiskey were relevant and does' not come within the rule reiterated in Franklin v. Commonwealth, 105 Ky., 244, and Pedigo v. Commonwealth, 103 Ky.» 41.</p> <p>2. Accomplice — Violation of Local Option Act — When One Not Accomplice in. — One who procures whiskey for another in violation cf the 1912 act, is not an accomplice of the man who sells it to him in violation of the local option act.</p>

<p>Banks — Powers of Cashier. — The cashier of a bank has general authority to discount and re-discount paper owned 'by the bank and to sell and assign paper owned by it for a valuable consideration; and where a cashier in the usual course of business sells and assigns paper for a valuable consideration, his acts are binding on the bank.</p>

<p>1. Railroads — Railroad Companies Cannot Contract So As to Prejudice Rights of the Public. — Railroad companies cannot entei into traffic contracts with each other that will disable either of them from performing service to the public which except for the contract would be performed. They cannot enter into contracts with each other that will impair the ability of either of them to furnish to the public such service as either of them might be required to and would furnish except for the contract.</p> <p>•2. Railroads — Contracts Between Railroads — Construction of When Rights of Public are Affected. — In the construction of traffic contracts between railroad companies that affect the rights of the public that construction will be adopted that is most favorable to the interests of the public, if the contract is fairly susceptible of two constructions.</p> <p>8> Railroads — Contracts Between Railroads That Impair Ability to Serve 'Public Forbidden by Statute — Construction of Section 792 of the Kentucky Statutes. — Section 792 of the Kentucky Statutes provides in substance that when two railroad companies use the same line of roadway in the operation of their trains, they shall furnish reasonable and proper facilities for receiving, forwarding and delivering passengers and property, and that all contracts made between them that interfere with the performance of this duty shall be void. Therefore, where two railroad companies have entered into a traffic contract that prohibits one of them from furnishing reasonable and proper facilities to serve the public along the road operated jointly by them, so much of the contract is in violation of the statute and void.</p> <p>4. Railroads — Traffic Contracts Between Railroads — Construction of Contract. — The contemporaneous construction given to a traffic contract by the railroad companies will not be controlling upon a member of the public whose rights are affected by the contract, although such construction might be binding between the parties to it.</p> <p>5. Railroads — Unlawful Traffic Contract Between Railroads — Facts Stated. — The C. & O. and the L. & N. entered into a contract by which the trains of the C. & O. were to run over the track of the L. & N. between Lexington and Louisville but the contract as construed by the companies prohibited the C. & O. from delivering any freight between Lexington and Louisville that was received by it Bast of Lexington, and under this construction it was compelled to deliver such freight to the L. & N. at Lexington for delivery at points between Lexington and Louisville. Acting under this contract the C. & O. received a carload of stock at Mt. Sterling for Shipment to Shelbyville, a point between Lexington and Louisville, through which the train carrying the stock from. M!t. Sterling to Lexington passed a few hours after leaving Mt. Sterling, but the stock was delivered to the L. & N. at Lexington and carried by it to Shelbyville in a roundabout way and in such carriage it was damaged. Held, that the C. & O. was liable for damage done to the stock by the L. & N.</p>

<p>Appeal from Knott Circuit Court.</p>

<p>Master and Servant — Contract of Employment — Terminable on Notice —Measure of Damages. — Where by its terms a contract of employment may ¡be terminated at any time upon the giving of a specified notice, the damages for a v/fongful discharge can be no more than the wages which would have accrued under the contract after the notice, had one been given; and for a breach of a contract terminable on a week’s notice, the measure of damages is the difference between one week’s wages as fixed by the contract and what the plaintiff earned or, by the exercise of reasonable diligence, could have earned during that time.</p>

<p>Appeal from Jefferson Circuit Court (Common Pleas Branch, Fourth Division).</p>

<p>1. Assignment — Equitable Assignment — Particular Form of Words Not Necessary. — No particular form of words is necessary to make a valid equitable assignment of a chose in action; nor is any written instrument necessary.</p> <p>2. Assignments — Wlhat Amounts to Equitable Assignment. — Any order, writing or act which makes an appropriation of the fund amounts to an equitable assignment thereof.</p> <p>3. Equity — Priority.—In a contest between equities merely, that which is prior in time will prevail.</p> <p>4. Estoppel — Representation Amounting to.- — A representation which will operate as an estoppel must be one that is either a suggestion of an untruth, or a concealment of the truth when there is a duty to speak.</p>

<p>1. Trial — Evidence.'—Upon a trial, in cross-examining a witness, the adverse party may prove by such witness, even though he be a party to the action, any fact which would be competent as evb dence bearing upon the issues made by the pleadings. In such case, the witness, if the testimony be new matter, becomes the witness of the party mating the cross-examination.</p> <p>2. Public Lands — Patents—Validity—Collateral Attack. — Ordinarily, the validity of a patent cannot be collaterally attacked; the exceptions to this rule 'being where the patent is void upon its face, or has been issued in contravention of a statute which declares that issuance of the patent under the circumstances prohibited shall render it void, or where it is issued under circumstances which the statute declares to be fraudulent.</p> <p>8, Public Lands — Patents—Validity—Evidence.—Where it is stated in the- elder of two conflicting patents that it was issued in pursuance of a previous entry and survey of the land, the validity of such patent cannot be overthrown by the testimony of a claimant of the land, Under a junior patent, that he and his attorney, upon searching the records of the county clerk, had failed to find any evidence of its having been entered or surveyed.</p> <p>.4. Adverse Possession — Character of — Evidence.—In an action involving title to land, proof that a claimant of the land under a junior patent did occasional cutting of timber thereon, at intervals fed hogs thereon, cleared and for two years cultivated a small parcel of the land, and at times fenced a party thereof, though such acts from first to last stretched over a period of fifteen or more years, did not constitute actual, adverse and continuous possession for fifteen -years preceding the institution of the action.</p> <p>5. Adverse Possession; — Character of. — In order to defeat the title of the holder of an elder patent by adverse possession, the possession of the junior patentee must not only be within the lap of the o conflicting patents but such possession must be shown to have been actual, continuous and adverse for a period of fifteen years before the institution of the action, and of such a character as to give a cause of action for every moment of that time.</p>

<p>Appeal from Lee Circuit Court.</p>

<p>Appeal from Muhlenberg Circuit Court.</p>

<p>Appeal from Christian Circuit Court.</p>

<p>Appeal from Hickman. Circuit Court.</p>

<p>1. Railroads — Action for Damages for Death of Flagman — Negligence of Flagman. — When a flagman is sent out to watch for trains and warn them of danger, the railroad company and its trainmen have a right to presume that he will not only watch for trains, but also for his own safety, and his failure to do this is his own negligence, and he cannot recover of the company for an injury which he received by reason of his neglect, unless his presence and peril were discovered by those in charge of the train in timé to avoid striking him, by the exercise of ordinary care.</p> <p>2. Railroads — Death of Flagman — Negligence of Flagman — Facts Stated. — Appellant’s decedent, a flagman, was sent but by appellee to keep a lookout for trains during the time that its track had been damaged by rains and storms and while it was being repaired. He was run over by a train and killed, but it not being shown that he was in a helpless condition when he was discovered on the track, and there being no proof of any negligent act, or omission of duty on the part of those in charge of the train, the lower court properly directed a verdict for the railroad company.</p> <p>3. Railroads — Employers’ Liability Act. — If one’s death is ■ caused solely by his own negligence he cannot recover under either the state law or the Federal Employers’ Liability Act.</p>

<p>1. Criminal Law — Indictment—Arson.—An indictment charging the burning of a warehouse and tobacco house belonging to G. It. Allen and W. A. Usher and occupied by B. W. Wright who was doing business for B. W. Wright and V. E. Allen, where there was but one building answering such description, and it was used by the defendant for the storage of tobacco, is not defective as stating two offenses.</p> <p>2. Criminal Law — Jury—New Trial. — The fact that four of the jurors were related to a witness for the Commonwealth who was not actively assisting in the prosecution and whose testimony was not attempted to be contradicted, will not entitle accused to a new trial.</p> <p>3. Criminal Law — Confession—Admissions.—Where the corpus delicti is proven, accused is not entitled to instruction based on Section 240 Criminal Code. Certain testimony held to be an ad- ■ mission, not a confession.</p> <p>4. 'Criminal Law. — Evidence.—Where defendant in attempting to establish an alibi testifies he called central office of the telephone company on a certain night from his residence; and on rebuttal the telephone operator testifies that he did not do so, such testimony is substantive evidence; and not merely admitted for the purpose of impeaching defendant; and no admonition to the jury as to tha purpose and effect thereof is proper.</p>

<p>1. Passways — Difference Between. Travel Under a Permissive Use and Under a Claim of Right — Burden of Proof. — The general rule has been time and again laid down that where the use of the pass-way has been merely permissive on the part of the owner of the land, no length of time will deprive him of the right to reclaim it; but, on the other han.d, where the use has been asserted as a matter of right by the public, and this use has continued uninterrupted for as much as fifteen years, this uninterrupted use constitutes an easement that the users cannot be deprived of. It is a further rule that where the use has continued for a long period of time, the burden is on the owner of the land to show that it was merely permissive.</p> <p>2. Passways — Distinction Between Travel Over Uninclosed Woodland and Through Inclosed or Cultivated Land. — A distinction is made between travel over uninclosed woodland and travel over a well-defined way or inclosed or cultivated land, and this distinction should always be kept in mind when the facts bring the case within it. There is and ought to be a marked difference between the rights of the public claiming a passway when the travel has been for many years through an open and uncultivated woodland and where it has been through inclosed or cultivated land. When an owner permits the public for a long period of years to travel through his cultivated or inclosed land without attempting to interfere with the use, his action implies his consent to the use; while the mere fact that he permits the public to travel at liberty through uninclosed woodland might not raise any presumption of a grant.</p> <p>3. Passways — Necessity for — IRule' of This Court Where Evidence is Conflicting as to Necessity for Way. — In nearly all the cases where the right to a passway has been sustained upon conflicting evidence it has appeared either that the passway was necessary to enable the person claiming it to get to a public road, or that it was a way which had been uninterruptedly used by the public for many years through inclosed land; while in nearly all of the cases where the right to a passway has been denied on conflicting evidence it appeared that the passway was not a necessity or that it did not run through inclosed, cultivated land for the length of time required to create presumption of a grant.</p> <p>4. Passways — Facts of' This Case Showing Parties Not Entitled to Passway. — The appellees are not entitled to a passway, (1) because they do not need it to go to the county seat, to the voting place, to the railroad station, to schools or to churches; (2) because the travel through uninclosed woodland" for 25 or 30 years under the circumstances of the case did not create any presumption of a grant; (3) because to establish this passway at the place claimed would subject the land owner to large and unnecessary damage; (4) because the land owner’s obstruction of the beaten road through the uninclosed woodland, and the further fact that he inclosed the woodland with a fence obstructing for a time the travel, without objection or complaint, show that the public who had been traveling through there did not do so under any claim or right.</p>

<p>Contracts — Meeting of Minds Necessary to Make Contracts — Where a city advertised for bids to install a sewerage plant, and a contractor put in a bid stating the amount for which he would do all the work, as well as the sum for which he would do each unit of the work, and the city, understanding his bid to mean that he would do the work at the prices named for each unit and not at the price named for the whole work, accepted the bid, the contractor had the right to refuse compliance with the contract when he understood his bid to mean that he was to be' paid for the work the total sum named in his bid and not the unit prices. In such a state of case the minds of the parties did not meet. The bid made by the contractor was not accepted, and the city should return to him the money deposited as a forfeit that he would exe. cute the contract if his bid was accepted.</p>

<p>1. Witnesses — When Non-resident Exempt from Service of Process. — A non-resident witness is exempt from the service of civil process in this state while in attendance upon court as a witness, and this privilege attends him not only when coming to, returning from and attending upon the court, but also for a reasonable time after the hearing, to prepare for a departure.</p> <p>2. Witnesses — Exemption from Service of Process. — Construction of Section 542 of Code. — Section 542 of the Civil Code 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 coumy while going, returning or attending, in obedience to a subpoena” only refers to residents of this State.</p> <p>3. Witnesses — Exemption Prom Service of Process — Counties to Which Exemption Does Not Apply. — A resident of this 'State may be sued in a county other than the county of his residence, although he is there as a witness, if the venue of the action in. which the process was served is in that county. But a witness who is in attendance in a county other than the county of his residence that has not the venue of the action, cannot be sued in that county while attending as a witness.</p>

<p>Appeal from Christian Circuit Court.</p>

<p>Appeal from Franklin Circuit Court.</p>

<p>Appeal from Woodford Circuit Court.</p>

<p>Appeal from Campbell Circuit Court.</p>

<p>Insurance, Life — Policy—Provision for Automatic Paid Up Insurance— —Waiver.—Where on non-payment of premium an insurance policy provides for automatic paid up insurance, mere inaction on the part of the company will not constitute a waiver of its provisions.</p>

<p>1. Elections — Mandatory injunction to Compel Election Commissioners to Assemble and Act — Discretion as to Disputed Ballots. —Members of the board of election commissioners may be compelled by mandatory injunction, or by mandamus, to assemble and discharge the duties required of them by law. They may also be compelled, if there are no disputed ballots, to canvas the returns and issue the certificate of election to that candidate who has received a majority of the votes according to the certificate of the election officers, but if there are disputed ballots they have a discretion as to what action they shall take in respect to them, and while they may be compelled by a mandamus to act on these disputed ballots, they cannot be directed f»s to how they shall act.</p> <p>2.. Elections — Who Compose Board of Election Commissioners — ' ■Powers of Sheriff. — Under section 1596a of the Kentucky Statutes, the board of election commissioners is composed of the sheriff of the county and two other persons appointed respectively by the authorities of the two dominant political parties of the State, the sheriff, by virtue of his office, being a member of the board, with authority to preside at its meetings and, in case of disagreement between the other members, to vote.</p> <p>S. Elections — Board of Election Commissioners — Sheriff Must Act . as Member of Board — When Sheriff Disqualified Who Máy Take His Place. — Under subsection 2 of Sec. 1596a in any county where ■there is no sheriff or where the sheriff, from any cause, cannot act, the circuit clerk shall take his place as a member of the board; but if the sheriff is able to perform the duties of election commissioner, then he must act. The only causes that will prevent the sheriff from acting are such causes as to physically or ¡mentally disqualify him from acting, or causes arising from his enforced absence. But if he is a candidate, while he must yet act as a member of the board, he cannot take any part in the decision of his own case.</p> <p><§. Elections — Board of Election Commissioners — Who Compose. — ■ No person has authority to act as a member of the board of election commissioners except the persons designated by statute to constitute the board, and so when the circuit clerk acted as a member of the board without authority, his acts were a nullity.</p> <p>5. Elections — Powers of Board of Commissioners in Canvassing Returns When There Are No Disputed Ballots. — The election law provides in section 1483 that the election officers shall certify on the stub books the number of votes cast for each candidate, and if there are no disputed ballots returned by the election officers the duties of the board of commissioners are confined strictly to adding up the votes cast for each candidate as shown by the certificate of the election officers, and when they have thus added up the votes, it is their duty to issue the certificate to that candidate who has received, according to the certificate of the election officers, a majority of the votes. Their duties are purely ministerial. They have no discretion whatever to exercise.</p> <p>6. Elections — Powers and Discretion of Election Commissioners in Respect to Disputed Ballots. — If disputed ballots have been returned by the election officers, the board of commissioners are invested with discretion as to them, and it is the duty of the board to examine these ballots and determine for whom they should or should not be counted, and if, in their judgment, any of these ballots should have been counted for any candidate, but the statement of the election officers show they have not been so counted, the board should add to the vote certified to by the election officers the additional votes found in these disputed ballots. On the other hand, if they find that disputed ballots have been Counted which, in their opinion, should not have been counted, they should subtract the votes from the vote the election officers certified the candidate received.</p> <p>7. Elections — Powers of Election Commissioners with Respect to Dis- ' puted Ballots — Returns and Statement of Election Officers Concerning Disputed Ballots. — If disputed ballots are not identified as required by section 1482 of the statute, or if the statement of the election officers accompanying them does not show how they were acted on by the election officers, the board should not consider them at all, or add any of them to or subtract any of them from the vote of any candidate as certified to by the election officers. In other words, they should ignore the disputed ballots entirely unless they are identified in the manner indicated by the statute and accompanied by the statement mentioned in the statute.</p>

<p>Appeal from Knox Circuit Court.</p>

<p>Appeal from Bullitt Circuit Court.</p>

<p>1. Husband and Wife — Action to Subject Notes of Wife to Husband’s Debts — Burden of Proof. — The rule is that the burden of proof is upon the creditor to show that the property belongs to the debtor, and that it has fraudulently been transferred to the wife. But when it is shown, as in this case, that the property never did belong to the wife until the transfers and loans referred to, and that at the time the husband was insolvent, it devolves upon the wife to show that there was a valid consideration for the transfer, and in this case she has failed.</p> <p>2. Husband and Wife — Transferring Property to Wife — Agent of Wife. — A man cannot protect his property against the demands of creditors by simply transferring it to his wife and managing it for her as agent.</p> <p>3. Husband and Wife — Action to Subject Notes of Wife to Husband’s Debt' — Evidence of Wife — Competency.'—In a proceeding to attach in the hands of garnishees the proceeds of two notes payable to the wife which it was alleged were transferred to the wife to prevent them from being subjected to the husband’s debts, she was not an incompetent witness. Since he made no claim to the property, she was not testifying against him, but for herself.</p>

<p>Appeal from Jefferson Circuit Court (Chancery Branch, Second Division).</p>

<p>Appeal from Logan Circuit Court.</p>

<p>Appeal from Fayette Circuit Court.</p>

<p>1. Mines and Mining — Duty to Furnish Props — Not Confined to Permanent Roof. — Under Section 2739b-7, Kentucky Statutes, requiring the owner, lessee or operator of every mine to furnish props when requested by a miner, the duty is not confined to .furnishing props for the permanent roof of the mine, but may extend to draw slate, and where there is a request and a failure to furnish props, and the miner is injured, the question whether or not the failure was the proximate cause of his injuries is ordinarily for the jury.</p> <p>2. Mines and Mining — Action for Damages — Evidence—Question for Jury. — In an action by a miner against a mine owner for damages for personal injury, evidence examined, and the proximate cause of plaintiff’s injury and the contributory negligence of plaintiff held questions for the jury.</p> <p>3. Mines and Mining — Personal Injury — Compromise—Fraud—Infancy. — A compromise of a claim for personal injuries is not binding if obtained by fraud or plaintiff is an infant when the compromise is made.</p> <p>4. Mines !and Mining — Personal Injuries — Compromise—Tender.— Where, pending an action for damages for personal injuries, a compromise is effected, which plaintiff attacks on the ground of fraud and infancy, the payment into court of the amount of the compromise and interest by the checks of plaintiff’s attorneys, accompanied by an order of court reciting that the sum has been so paid is a sufficient tender to enable plaintiff to continue the prosecution of the suit.</p> <p>5. Mines and Mining — Independent Contractor. — Where the manner and method of mining coal is subject to the control of the master, one who is paid by the ton is not an independent contractor.</p> <p>6. Mines and 'Mining — Owner—Liability.—The owner of a mine cannot relieve himself of the duties imposed by statute for the protection of human life by entering into a contract with a third party to do the work at so much a ton.</p>

<p>Appeal from Hart Circuit Court.</p>

<p>1. Municipal Corporations — -Defective Sidewalks — Notice of Defects. —A city is chargeable with notice of defects in a sidewalk, where the defect is of such a nature that the city authorities could, in the exercise of reasonable diligence, have ascertained and repaired it.</p> <p>2. Trial — 'Submission of Issues to the Jury — Sufficiency of Evidence. ■ — In an action for personal injuries resulting from a defect in a sidewalk, evidence held sufficient to authorize the submission of the case to the jury.</p> <p>3. Damages — Personal Injuries — Excessive Verdict. — In an action for personal injuries, where plaintiff’s arm was broken, the bones of which did not reunite sooner than thirty days after the injury, she was confined to her bed and room for ten days, and endured mental and physical sufferings as a result of her injuries, although there were no permanent impairment of the use of her arm and no proof of loss of time, a verdict of ¡¡>200.00 is not excessive.</p> <p>4. Municipal Corporations — Contributory Negligence — Infants.—An infant five years of age cannot be chargeable with contributory negligence in falling into a hole in a sidewalk, even if such negligence be shown.</p>

<p>1. Appeal — Bill of Exceptions — 'Sufficiency of Pleadings. — In the absence of a hill of exceptions, the only question to be determined on appeal is whether or not the pleadings support the verdict.</p> <p>2. Corporations — Directors—Agreement to Use Fund in Bank to Discharge Contract — Diversion of Fund to Payment of Other Debts — Individual Liability of Directors. — The directors of a corporation who contract with plaintiff to dig an oil well and agree that the corporation will place in a certain bank a sum sufficient to pay therefor, and that the fund shall not be used for any other .purpose, incur no individual liability to plaintiff where the fund is not impressed with a trust or lien in his favor and is used in paying other debts of the corporation.</p> <p>3. Corporations — Directors—Liability of. — Section 549, Kentucky Statutes — Pleading—Sufficiency.—In an action by a contractor against the directors of a corporation to hold them individually liable on the contract, pleadings examined and held insufficient to show liability under Section 549, Kentucky* Statutes, making the directors of a corporation liable for knowingly causing to be published a false statement or report of the condition of the business of the corporation.</p> <p>4. Pleading — Motion to Strike — Error.—-In an action by a contractor against the individual directors of a corporation, it is not error to strike from the .petition and amended petition certain portions thereof which are wholly insufficient to show liability.</p>

<p>1. Master and Servant — Fellow-servant —Negligence — Proximate Cause. — In an action brought by a servant against his master to recover damages for personal injuries, caused by the negligence of the latter, in using for operating coal cars at its mine, a defective and unsafe wire rope, which broke and permitted a car to run against a tipple where the plaintiff was weighing coal and injure him, the fact that a fellow servant of plaintiff in charge of the movements of the cars from the mine to the tipple, was negligent in the performance of his duties, could not bar a recovery, as the negligence complained of in the petition was that of the master in permitting the use of the defective and unsafe rope; and, according to the evidence, such negligence of the master was the proximate cause of the plaintiff’s injuries.</p> <p>2. Compromise and Settlement — Fraud—Weight of Evidence. — Although the defendant pleaded, and introduced in evidence, a writing purporting to contain a compromise and settlement of plaintiff’s claim for damages resulting from his injuries, as plaintiff alleged fraud in the procurement of the writing, that his signature thereto was obtained when, by reason of his injuries and sufferings, he was incapable of understanding its contents; and that he was induced to sign it by the false representations of defendant’s agent that it evidenced a different settlement orally offered by defendant which he had expressed his willingness to accept; and these facts, pleaded in avoidance of the writing, were sustained by the weight of the evidence, the finding of the jury that such writing did not constitute a defense to the action, should not be disturbed.</p> <p>3. Compromise and. Settlement — Fraud.—While, as a general rule, one who is in full possession of his faculties and able to read, will not be heard to say that he did not know the contents of a paper which he signed and which he had opportunity to read, it is likewise the rule, that if, at the time he signs the contract, he is imposed upon and deceived, and, in fact defrauded, he has a right to assail its validity, although his mind is not enfeebled; and, if his mental condition be such that he cannot reasonably know or understand the contents of the paper, this affords him a stronger and independent ground for attacking its validity.</p> <p>4. Trial — Instructions.—An instruction which advised the jury that in order to find for the plaintiff, it was necessary for them to believe from the evidence, not only that the written contract relied on by the defendant, or the oral one testified to by the plaintiff, if there was such an oral contract, was procured by the fraud of the defendant’s agents, but also that the plaintiff was at the time incapable of understanding same, erroneously stated the law; as either contract, whether in writing or in parol, was invalid, if procured by the fraud of defendant’s agents, or at a time when plaintiff, by reason of his injuries and sufferings, was incapable of understanding same. But as the error indicated, was against the plaintiff, the defendant cannot complain that the instruction was unduly favorable to it, or that the jury found for plaintiff, notwithstanding the double burden it put upon him.</p> <p>5. Damages — Personal Injuries — Excessive Verdict. — The verdict of $6,500.00 was not excessive, as it is apparent from the evidence that plaintiff’s leg is useless and will make of him a cripple for life; also that the injuries to same and his chest have permanently impaired his health and strength; and that his physical and mental sufferings, continued through a period of many weeks and were very great.</p>