Volume 162 — Kentucky Reports

<p>1. Damages — Action—Evidence—Instruction.—Where in an action for damages against a corporation and its agent evidence was admitted which was competent against the agent hut not against the corporation, an only instruction authorizing a recovery is prejudicial, where it requires the jury to find against both the corporation and the agent if they believe that the agent was negligent.</p> <p>2. Appeal — Former Opinion — Law of the Case — Instruction.—Where on a former appeal only certain instructions are considered and modified, and the court does not direct that they alone shall be given on another trial, an instruction not criticized is tacitly approved, and becomes the law of the case, and should be given on the second trial, either in that form or in a form that will not materially change the effect thereof.</p> <p>S. Appeal — Former Opinion — Law of the Case — Instruction.—Where on a former appeal the Court of Appeals indicated errors in certain instructions complained of, the lower court was not precluded from giving on a return of the case a proper instruction on another subject which had been covered by the instruction given on another trial, and .not criticized in the opinion.</p> <p>4. Master and Servant — Injury to Servant — Action for Damages — Evidence of Employment. — In an action for damages for personal injuries by an alleged servant against the master, evidence that the master’s manager attempted to employ another boy is not competent to show that the manager employed plaintiff or knew he was engaged in doing certain work.</p>

<p>1. Municipal Corporations — Cities of Sixth Class — Street Improvements — Assessment of Costs — Authority of Board of Trustees— Section 3706, Kentucky Statutes. — Since Section 3706, Kentucky Statutes, authorizing the original improvements of streets in cities of the sixth class at the cost of the abutting property owner, does not provide that payment therefor, when the ten year bond plan is not adopted, shall be made in cash, it is within the power of the board of trustees to contract for the work either on a cash basis or a deferred payment plan, and it is no defense to an action by a contractor to enforce a lien for such improvements that a bid was accepted on a deferred payment plan.</p> <p>2. Municipal Corporations — Cities of Sixth Class — Improvement of Streets — Lien on Abutting Property — Section 3706, Kentucky Statutes. — -Under Section 3706, Kentucky Statutes, street improvement assessments are secured by a lien on the abutting property, whether made on the ten year bond plan or otherwise.</p>

<p>1. Deeds. — The courts mate a distinction between testamentary-deeds and a deed which is the result of an ordinary business ' transaction, and where the parties are dealing with each other as business antagonists.</p> <p>2. Verdict — When Court May Disregard. — Where in an equitable action the court submits the issues to a jury merely for their advisory aid, their verdict is not necessarily conclusive, and the court may disregard it.</p>

<p>1. Master and Servant — Injuries to Servant — Railroads—Collision— Issuffieient Rules and Methods of Operation — Negligence.—In an action for damages for the death of an engineer, hilled in a wreck alleged to have been caused by defendant’s negligence in changing the meeting point without notice to the decedent, and in not having sufficient rules to give proper notice of changes in the meeting points of trains, evidence examined and held insufficient to sustain the charge of negligence.</p> <p>2. Master and Servant — Injuries to Servant — Railroads—Collision-— Negligence of Employes of Waiting Train — In an action for damages for the death of an engineer resulting from the collision of two trains, evidence examined, and held insufficient to show negligence of the employes of the waiting train in failing to turn the switch, or in stopping that train too near the switch.</p> <p>3. Master and Servant — Injury to Servant — (Railroads—Collision-Topographical Conditions of Meeting Point — Negligence—Evidence. — In an action for damages for the death of an engineer resulting from the collision of two trains, evidence considered and held insufficient to show negligence on the part of the defendant in placing the switch of the passing track where trains were to meet at a place where the view was obscured by an embankment and trees.</p> <p>4. Master and Servant — Injury to Servant — 'Railroads—Failure to Adopt Block Signal System — Assumption of Risk. — An engineer of long experience, who has been in the employ of a railroad for a number of years, knows and appreciates the danger growing out of the failure of the company to adopt and have in use the block signal system, and assumes the risk of such danger.</p> <p>6.Master and Servant — Injury to Servant — Railroads—Rules—Contributory Negligence — Federal Employers’ Liability Act. — A rule of a railroad company imposing on its conductor the duty of placing himself in a position to hear the meeting point signals, and failing to hear and clearly understand them, to stop his train, is for the benefit not only of passengers but of employes on the train, and the contributory negligence of an employe does not, in an action under the Federal Employers’ Liability Act, deprive him of the benefit of the rule where its violation would be negligence as to anyone else on the train.</p> <p>6. Master and Servant — Injury to Servant — Railroads—Contributory Negligence — Federal Employers’ Liability Act. — In an action against a railroad company under the Federal Employers’ Liability Act, it is only where the employe’s act is the sole cause of the injury, and defendant’s act is no part of the causation, that defendant is free from liability under the act.</p> <p>7. Master and Servant — Injury to 'Servant — Railroads—Contributory Negligence — Federal Employers’ Liability Act. — Though an engineer killed in a collision be guilty of negligence in failing to give a signal of the meeting point of the two trains, and in failing to have his train under control as the meeting point is approached, yet where the rules of the company require the conductor to place himself in a position to hear the meeting point signals, and failing clearly to hear and understand them, to stop his train, a recovery may be had under the Federal Employers’ Liability Act if the conductor, in the exercise of ordinary care could have known that the decedent failed to give the meeting point whistle, or failed to take steps to stop the train, and eould. have stopped the train in time to avoid the collision.</p> <p>8. Master and Servant — Injury to Servant — Railroads—Contributory-Negligence — Federal Employers’ Liability Act — Evidence.—In an action for damages under the Federal Employers’ Liability Act, based on the negligence of a conductor in failing to comply with the rules of the company requiring him to place himself in a position to hear the meeting point signals, and failing to hear and understand them, to stop his train, evidence considered, and held sufficient to take the case to the jury.</p> <p>9. Master and Servant — Injury to Servant — Railroads—Federal Employers’ Liability Act — Verdict Based on Sufficient and Insufficient Grounds — Prejudicial Error. — Since in an action for damages under the Federal Employers’ Liability Act, the amount of the verdict necessarily depends on the amount of negligence attributable to the carrier, a finding based on negligence not authorized by law is prejudicial, even though based also on another 'and sufficient ground.</p>

<p>1. Insurance — Accident—Suicide Clause — Pleading—Necessary Alie-gations. — In an action to recover for the death of the insured on an accident insurance policy providing “suicide, sane or insane, is not covered,” it is not necessary to allege that the insured did not commit suicide.</p> <p>2. Insurance — Accident—Cause of .Death — Pleading—Necessary Allegations.- — In an action to recover for the death of the insured on an accident policy providing indemnity for loss of life “result ing directly and independently of all other causes, from bodily injuries effected through external, violent and accidental means,” a petition which alleges that the decedent did meet an accidental death effected -through external, violent and. accidental means, and that decedent “while crossing a gang plank lying between a barge and steamboat, both vessels lying in the Mississippi river near Cairo, Illinois, accidentally slipped from the plank across which he was walking and fell into the Mississippi river between the boat and barge and was drowned,” and thus describes the ^precise circumstances ■ and cause of the decedent’s death, is sufficient to negative the idea that other causes than those specified contributed to the -decedent’s death, and therefore to dispense with the necessity of alleging that his death resulted directly and independently of all other causes, from bodily injuries, etc.</p>

<p>1. Contracts — Rescission.—The ground upon which courts of equity proceed in rescinding or cancelling executed contracts is more narrow, and is to he more carefully trodden than that upon which they refuse specific performance or even decree executory contracts to cancellation; nothing but fraud or palpable mistake will justify the rescinding of an executed contract.</p> <p>2. Contracts — Rescission—Actionable Fraud — What Constitutes. — To establish actionable fraud it must appear that the misrepresentation was of a matter of material fact (as distinguished from opinion), at the time, or previously existing, and not a mere promise for the future; it must be relied upon by the person whose action is intended to be influenced; and must be made with knowledge of its falsity, or under circumstances which did not justify a belief in its truth.</p>

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

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

<p>1. Pleading — Filing Answer — Computation of Time. — Where defendants were given until the twenty-second day of the term to file their answer, and they tendered it on the twenty-second day, they were in time.</p> <p>2. Pleading — Set-off and Counter-claim — Unliquidated Damages.— Where plaintiff, a foreign corporation having no property in this 'State, hrings an action upon notes given for machinery sold by it, the purchasers may interpose by way of recoupment a demand for unliquidated damages arising out of the transaction in question.</p> <p>3. Pleading — Motions—Striking Out Pleading or Defense. — Where defendants having failed to file their answer within the time prescribed by the Code, were put upon terms, and thereafter tendered and filed an answer which was insufficient, the court had power to strike it from the record.</p>

<p>Appeal. — There is no error in the record and no point out of ■which to make a syllabus.</p>

<p>Elscal Courts — Dower to Control Property of tire County — Conflict of Authority With Jailer. — Under Section 1840 of the Kentucky Statutes, the fiscal court has jurisdiction to regulate and control the fiscal affairs and property of the county, and when it leases property of the county that is not needed for public - business or purposes to private persons, the jailer of the county cannot, by an action in ejectment, dispossess the lessees without the consent of the fiscal court. The authority of the fiscal court in the conduct of the business of the county is superior to that of the jailer, except in cases in which the jailer is by statute given paramount authority.</p>

<p>1. Carriers — Street Railway Companies — Duty Toward Passengers.— Conductors on street cars are under a duty to passengers to exercise care to protect them from danger whether this danger arises from the negligence or thoughtlessness of the passenger or other causes.</p> <p>2. Carriers- — Duty Toward Passengers Alighting From Cars — Care Required of Conductor. — Where a passenger on a street car, in the night time, believing the car had stopped or was about to stop, when in fact it was running at a high rate of speed, manifested a purpose to get off and did get off in the presence of the conductor, it was his duty, if he knew the purpose of the passenger, to make a reasonable effort to warn the passenger of the danger, and his failure to do this was negligence on the part of the Company, for which the passenger, who was injured when he stepped from the car, was entitled to damages.</p> <p>3. Carriers — Duty Toward Passengers. — A conductor or person ‘ in charge of a street car, if he discovers a passenger in the act of doing something that will place him in peril, is under a duty to warn the passenger of the danger, and his failure to do so is actionable negligence.</p>

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

<p>1. Trial — Credibility of Witness — Question for Jury. — In a common law action, tried by a jury, the credibility of a witness is for the jury, and neither the trial judge nor the Court of Appeals has a right to reject the evidence of a witness merely because his demeanor on the stand is such as to induce the belief that he is not telling the truth.</p> <p>2. Damages — Stock Killed by Train — Evidence—Peremptory.—In an action to recover damages for two horses alleged to have been killed at Campbell’s crossing about 3:20 A. M., on Saturday, September 16, 1911, the testimony of a witness that on a Saturday morning in September, 1911, between the hours of two and three o’clock, he saw two horses struck and killed by defendant’s train at said crossing, and that the engine did not whistle for the crossing, held sufficient to take the case to- the jury, and that the trial court erred in peremptorily instructing the jury to find for defendant.</p>

<p>1. Municipal Corporations — City of Sixth. Class — Indebtedness—Election to Incur. — In order for a municipality of the sixth class to incur an indebtedness for a public lighting system under a vote of the people, notice of an election for that purpose must be given as required by Section 3TO5 of the Kentucky Statutes, stating the purpose of the election, the amount of money necessary to be raised annually by taxation for an interest and sinking fund to pay the proposed indebtedness.</p> <p>2. Municipal Corporations — Creation of Indebtedness. — Notice of Election. — A notice of an election under Section 3705 of tbe Kentucky ¡Statutes by a municipality of tbe sixth class to incur an indebtedness for a public lighting system, which states the amount of the indebtedness proposed to be incurred, the purpose of the same, and which specifies “the amount necessary to be raised annually by taxation for sinking fund will be $400.00, and the amount of money necessary to be raised annually for interest will be $225.00 for the first year, and $20 less each subsequent year,” is sufficiently specific to satisfy the statute.</p> <p>3. Municipal Corporations — Election Upon Bond Issue — Validity of Election. — Where four or five legal voters voted in a general election for United States Senator and other officers, and left the voting place, and afterwards returned to the voting place and voted in an election upon a proposed bond issue by the town, the action upon the part of the voters and the officers of the election was irregular, but did not invalidate the election upon the bond issue.</p> <p>4. Municipal Corporations. — Creation of Indebtedness. — In determining whether or not the proposed indebtedness to be incurred by a municipality for a lighting plant will exceed the constitutional limit of three per cent of the taxable property of the town, the probable cost of maintaining and operating the lighting plant in the future cannot enter into the question; the constitutional prohibition contemplates a present and not a future indebtedness.</p> <p>5. Municipal Corporations — Town Trustees — Quorum.—A majority " of a quorum of a board of town trustees is sufficient to take action unless there be some other rule established by the constitution or the charter.</p> <p>6. Elections. — Where the election officers failed to- perform their clerical statutory duty of detaching and destroying the unused ballots, but returned them to the clerk, their action constituted a mere irregularity, which did not invalidate the election.</p>

<p>1, ■ Libel and Slander — Libel by - Servant — When Master.,: Not Liable for. — In an action for damages brought by . .one of its employes against a corporation for a libel affecting him, written and published by the corporation's bookkeeper, a peremptory instruction directing a verdict for tlie defendant was properly given, wliere it was conclusively shown by. the evidence that the bookkeeper' was not at the time acting in the execution of any authority, express or implied, given him by the corporation, and the act was not within the apparent scope of his employment, or in the furtherance of its business, and was never ratified by the corporation.</p> <p>2. ■ Master and Servant — When Act of Servant Will or Will Not Be Binding Upon the Master. — The reason the master is liable for the act of his servant at all is because the servant is acting in that matter in the master’s stead, for him. If the servant is not acting for . the master, he cannot be said to be his representative in that act! So, if the servant is charged by his master with the • authority to act in his stead in a given matter, the servant’s action or his failure to act, as the case may be, is imputed to the master, as if it were his own. But where the servant steps aside from his employment assuming to act, and does act, solely'.on-his own account in a matter which the master has no more connection ■ with than if he were a complete stranger, it would not be .logical or fair to make the master suffer for it, for in doing that act the servant, so called, was absolutely-his own master.</p>

<p>1. ‘ Nuisance — Adulterous Relation — Acts Proving Existence of — How Shown. — Where, with the knowledge generally of other people of. the neighborhood, a man and woman not legally sustaining to each other the relation of husband and wife, and conclusively shown to be of bad reputation for chastity, together occupied the same house for seven months, and, according to the evidence, acted at times in such a lewd and vulgar manner as to indicate that they were living in adultery, such conduct constituted a common or public nuisance in the meaning of the law.</p> <p>2. Nuisance — What Will Constitute. — A nuisance per se is any act, or omission or use of property or thing, which is of itself hurtful to the health, tranquility or morals, or outrages the decency of the community. Open and gross lewdness, or whatever openly outrages decency and is injurious to public morals is a misdemeanor and indictable at common law. Thus the living together of a man and woman unmarried, which is generally known throughout the neighborhood, is sufficient to constitute open and notorious lewdness, without proving it to have been in a street or under the immediate observation of strangers. In such case outward indecency is not a necessary element.</p>

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

<p>Insurance — The Contract — Oral Contract of Fire Insurance — Actions — Sufficiency of Evidence. — Plaintiff’s evidence showed a promise upon the part of a fire insurance agent, made Dec. 15, 1912, to issue a policy of fire insurance on Jan. 1, 1913, to be effective for three years thereafter. Held, no completed contract effected.</p>

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

<p>1. Intoxicating Liquors — Local Option. — Under an indictment for having liquor in one’s possession for sale in local option territory, the jury may take into consideration all the circumstances to determine whether the possession was for purpose of sale.</p> <p>2. Jurisdiction — Judicial Notice — Location of Cities and Towns.— The court and jury have the right to take cognizance of the county in which public cities and towns are situated without proof aliunde of that fact.</p>

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

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

<p>1. Basements — Obstruction—Evidence.—In an action to enforce a right of passway to a graveyard, evidence examined and held to sustain the finding of the chancellor that the passway was obstructed.</p> <p>2. Easement — Obstruction—Action to Enforce — Cost.—Where plaintiff is compelled to bring an action in order to enforce his right of passway to a graveyard, he is entitled to recover of defendants the cost of the action, including the cost of laying off the half-acre of ground including the graveyard, and establishing a route thereto.</p> <p>3. Easements — Passway—Gates—Erection, Maintenance, Closing and Fastening — Duties of Owner of Passway and Owner of Servient Estate. — Where a deed reserving a passway to a graveyard contains no stipulation to the contrary, it is not error to impose on the owner of a passway the duty of erecting, maintaining, closing and fastening the gate leading from the public road to the passway.</p> <p>4. Deeds — Exception—Construction.—Under a deed of conveyance excepting therefrom one-half acre of land at the grave, including the graveyard, with privileges of passing to and from said graveyard, the land excepted can be used only for graveyard purposes.</p>

<p>Criminal Law — Indeterminate Sentence — Instruction.—Under the indeterminate sentence law the jury, after being first advised of the minimum and maximum punishment fixed by law, should be instructed if they find the defendant guilty to fix a minimum sentence for any time in their discretion under the maximum and not less than the minimum sentence fixed by law and a maximum sentence for any time in their discretion greater than the minimum sentence but not more than the maximum punishment fixed by law.</p>

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

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

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

<p>1. Constitutional Law — Alteration of Liquor Laws — 'Section 59 of the Constitution does not prohibit the General Assembly from enacting a general law relating to an alteration of the liquor laws.</p> <p>2.- Constitutional Law — Authority of Legislature to Enact a General Law for the Alteration of the Liquor Laws. — Section 61 of the Constitution authorizes the Legislature to enact a law, whereby the sense of the people of any county, city, town, district, or precinct may be taken as to whether or not spirituous, vinous or malt liquors may be sold, bartered, or loaned therein or the sale thereof regulated.</p> <p>3. Intoxicating Liquors — Manner of Repealing Prohibitory Law. — /Section 2554 of the Kentucky Statutes authorizes a vote to be taken as to whether or not any prohibition law in force in any'county, city, town, district, or precinct by virtue of any general or special act or acts shall become inoperative.</p> <p>4. Intoxicating Liquors — Local Prohibitory Laws — Local prohibitory laws relating to the sale of liquors enacted by the General Assembly prior to the adoption of the present constitution, rémain in force until annulled as provided in Chapter 81, of the Kentucky /Statutes, and amendments thereto.</p>

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

<p>1. Negligence — Pleading.—While negligence may be pleaded in general terms, yet where plaintiff specifies the negligence on which he relies, his recovery is limited to such negligence.</p> <p>2. Trial — Pleading.—It is error either to hear evidence or submit a case on a cause of action or defense not relied on in the pleadings.</p> <p>3. Pleading — Evidence—Trial.—In an action for damages for the death of a coal miner caused by falling slate, under an allegation of the failure of the defendant itself to prop the roof where decedent was working, and of its failure to furnish decedent a reasonably safe place to work, evidence of defendant’s failure to furnish decedent sufficient props and caps to support the roof was not admissible; and where this issue was submitted to the jury, the trial court properly granted a new trial.</p> <p>4. Mines — Provisions of Statute — May Not Be Changed by Custom. —The provisions of the statute relating to mines may not be changed by custom so as to impose on the mine owner liability by reason of such custom, when, as a matter of fact, the statute itself is not complied with.</p> <p>5. Customs and Usages — Repugnancy to Statutes. — A custom or usage contrary to the express provisions of a statute is void; and where there is a conflict between the custom or usage and a statutory regulation, the statutory regulation must control.</p> <p>6. Master and Servant — Mines—Injury to Miner — Failure of Miner to Comply with Provisions of Statute — Custom of Mine. — Where a miner failed to comply with the provisions of the statute in selecting and marking props, his administratrix cannot recover damages for his death, caused by falling slate, on the theory that the custom of the mine did not require him to select and mark the props.</p>

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

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

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

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

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

<p>Taxation — Action by Revenue Agent to Recover on Omitted Assessment. — In this action by a revenue agent to recover taxes on property omitted from assessment, the ruling of the lower court in dismissing the proceeding was erroneous in view of the ruling of this court in Commonwealth v. Ewald Iron Co., 153 Ky., 116.</p>

<p>Appeal from Jefferson Circuit Court (Chancery, No. 2).</p>

<p>Appeal from Jefferson Circuit Court (Common Pleas, No. 2.)</p>

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

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

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

<p>1. Officers — Salary of County Officer — Duty of Fiscal Court.— "Where the salary of a county officer is to be paid by a county, it is the duty of the Fiscal Court to fix the salary of such officer for each year of his term, by a general order made previous to his election.</p> <p>2. Officers — Salary of County Officer. — If the Fiscal Court fails to fix the salary of an officer before his election to the term, it can do so by an order made after'his election, or qualification.</p> <p>3. Officers — Where Salary of County Officer Is Not Fixed Before His Term — Power of Fiscal Court — Gross iSum Allowed.— Where the fiscal court has failed to fix the salary of a county officer before his election, by a general order, and for the first year of his service allowed him a gross sum, a like sum will be -considered his salary for each of the years of his term thereafterj and the fiscal court has no power to increase or lessen it for any of the succeeding years of his term, provided such sum is within the maximum and minimum amounts provided by law.</p> <p>4. Officers — To Ascertain Salary of School Superintendent, Where Gross Sum Is Allowed for First Year — Where there has been no order made by the fiscal court fixing the salary of the County Superintendent of Schools before his election, and he is allowed by said court a gross sum for the first year’s service of his term, the gross sum divided by the number of pupil children reported by the census in the county, will ascertain the amount per capita for each pupil child, and will be a basis upon which to ascertain his salary for the succeeding years of his term.</p> <p>S. Fiscal Courts — Order of Fiscal Court. — An order of a Fiscal Court which was never read publicly by the clerk, nor signed by the county or presiding judge, with the approval of the justices present, is not a valid order for any purpose.</p>

<p>1. Evidence — Spontaneous Exclamations — Res Gestae — Time of Utterance. — Deceased was engaged in a fight at a hall game. Defendant approached and struck him with a baseball hat, fracturing his skull. Deceased was rendered immediately unconscious. He was carried a few feet away, and immediately on regaining consciousness, asked “Who hit me?” Held, that the exclamation was as much a part of the occurrence or transaction as if it had been made the very moment after he was struck, and was therefore properly admitted in evidence as a part of the res gestae.</p> <p>2. Evidence — Statement of Fact. — On a trial for homicide, the question whether or not the deceased saw the defendant at the time he was struck, called for a statement of fact, and not a mere opinion or conclusion on the part of the witnesses.</p> <p>3. Evidence — Homicide—Character of Deceased. — On a trial for homicide, where the had reputation of the deceased for peace and quiet was established by uncontroverted evidence of two witnesses, it was not prejudicial error to refuse evidence tending to establish his bad reputation for peace and quiet eight or ten years before the homicide.</p> <p>4. Criminal Law — Homicide—Self Defense — Instruction.—On a trial for homicide, an instruction which required the jury to acquit the defendant if they believed from the evidence that the defendant “believed and had reasonable grounds to believe he was then and there in danger of loss of life or of receiving great bodily injury at the hands of said Nell, and that it was necessary, or believed by the defendant in the exercise of a reasonable judgment to be necessary, to strike said Nell, etc.,” held not subject to complaint.</p> <p>5. Trial — Separation of Jury. — Where the sheriff and one member of the panel were seen standing about thirty-five feet from the rest of the, jury, engaged in conversation, held that such separation was not prejudicial in the absence of a showing that they were discussing the case, or that any member of the jury spoke to or was addressed by any outsider.</p>

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

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

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

<p>1. Employers’ Liability Act — Employe Defined. — Under the Federal Employers’ Liability Act an employe who is engaged in interstate commerce while actually employed at his work will be treated as in the course of his employment when he is going to or from his work on the premises of the employer in a car appointed by his employer for the purpose of carrying him to or from his work, or while he is walking to or from his work on the premises of the employer and along the way set apart by the employer as a means of ingress and egress.</p> <p>2. Master and Servant — Liability of Master for Injury to Servant in Going from His Work. — Where an employe of a railroad company was killed by the negligence of his employer while he was walking, at the end of the day’s work, on premises of the company, to boarding cars owned by it in which he boarded, a right of action arose in behalf of his administrator under the Federal Employers’ Liability Act to recover damages for his death.</p> <p>S. Master and Servant — Negligence.—While an employe óf a railroad company was going from his work to boarding cars of the company and for this purpose was walking across a trestle from which he was knocked by a piece of timber projecting from a push-car operated by other employes of the company, the , company was properly held liable in damages for the negligent manner in which the operators of the push-car loaded on it the timber and for their negligence in failing to give the employe who was killed warning of its approach.</p> <p>4. Employers’ Liability Act — Liability for Negligence of Employe Not Engaged in Interstate Commerce. — To entitle an employe engaged in interstate commerce to recover damages for injuries sustained in such commerce, it is not necessary that the injuries should have been caused by the negligence of another employe engaged in interstate commerce. It will be sufficient if the negligent party was an employe of the company.</p>

<p>Sales — Delivery—What Constitutes — Instruction.—An instruction "That, in law, there is a delivery of property hy a seller to a purchaser when the seller places the property at the disposal of the purchaser and relinquishes to the purchaser the control and right of control of, or dominion over, the property and the purchaser takes, or accepts, the control and right of control, or dominion, over the property,” correctly defined delivery, although there might have been added to it the words, “Acceptance need not he by words but may be by act or acts of the purchaser.”</p>

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

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

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

<p>Partnership — Insolvent Partnership — Attachment Against Property of — Fraud in Obtaining — How Attached Property Should Be Disposed of. — Where, in an action against an insolvent partnership and the members of the firm, an attachment was levied upon the partnership property for an alleged debt sued on by the plaintiffs, and it was made to appear from the evidence that the plaintiffs were not, in fact, bona fide creditors, but silent partners in or part owners of the business and property of the defendant partnership, and that the action was brought and attachment procured for the purpose of defrauding actual creditors of the latter, the judgment of the circuit court dismissing the action and attachment of the plaintiffs, and applying the proceeds of the attached property to the payment of the debts of other attaching bona fide creditors of the partnership, according to priority, properly determined the rights of the parties.</p>

<p>Deeds — Deed by Married Woman — Failure of Husband to Join— Possession. — Where a married woman executes and delivers a deed to her lands in which, her husband does not join, and puts the vendee in actual possession, it is void so far as it attempts to convey title, but it is sufficient to show the nature and extent of the possession of the vendee under the deed, and where he enters upon a tract of land under such deed, and claims to the extent of the boundaries of it, he becomes possessed of the whole so far as it is not adversely held by others.</p> <p>Adverse Possession — Deeds—Married Women. — Where one is in possession of a tract of land under a deed from a married woman, in which her husband did not join, and claims the land under such deed, his possession is adverse to her- as soon as she becomes discovert by the death of her husband.</p> <p>Limitation of Actions — Conveyance by Married Woman— Champerty. — While one is holding land conveyed to him by a married woman by a deed in which her husband did not join, a conveyance made by her of such lands to another, after she becomes discovert, is champertous and void and does not stop the running of the statute of limitation in favor of the one holding the land adversely.</p> <p>Limitation of Actions — Conveyance by Married Woman. — If a .married woman ineffectually attempts to convey her lands by the execution and delivering of a deed, in which her husband did not join, and puts the vendee in possession her right of recovery of the land is barred unless she brings an action within three years after she becomes discovert.</p> <p>Adverse Possession. — One holding under a deed purporting to convey a tract of land to him is in possession of the mineral products of said land, unless the holding of the minerals has theretofore been separated from the surface of the soil by a previous conveyance.</p>

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

<p>1. Criminal Law — Trial—Misdemeanor—Absence of Defendant. — A defendant in a misdemeanor case may be tried in his absence, where his failure to appear is his own voluntary act, and does not grow out of a denial of that right.</p> <p>2. Criminal Law — Continuance—Grounds—Sickness of Accused.— Where the Commonwealth permits the accused at the first calling of his case to show without contradiction that he is too sick to he present or to manage his defense, he is entitled to a continuance so as to give him an opportunity to. exercise his constitutional right of being present at the trial, and the probability of the absence of the principal witness for the Commonwealth if a continuance was granted could in no way affect this right.</p>

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

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

<p>1. Insurance — Insurable Interest — What Constitutes Interest in Human Life. — The relationship of uncle and nephe.w or niece is not of itself sufficient to constitute an insurable interest upon the part of either in the life of the other where there is no reasonable ground of expectation of support to be furnished by the assured to the other.</p> <p>2. Insurance — -Insurable Interest — Wagering Policies in General.— Where the assignment of a policy of insurance was contemplated at the time it was procured to be issued, the first and all subsequent premiums to be paid by the assignee, and he to receive the proceeds of the policy, and the assignee lacks insurable, interest in the life of the insured, the assignment is void, barring recovery by the assignee from the insurer; and the policy itself is void, preventing a recovery by the personal representative of the insured, from the insurer. Such an arrangement is a mere colorable evasion of the prohibition against wagering contracts, violative of a sound public policy, and unenforceable in the courts.</p>

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

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

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

<p>Contracts — Contemplating Personal Supervision or Service of One Party — Rights of Parties. — Where a contract provides, and it is the intention of the parties, that one of them shall render personal service or give personal supervision to the business created by the contract, the other party is entitled to this personal service or supervision and cannot be compelled to renew the contract when the other party has put it out of his power to give the attention or supervision contemplated by the contract, although the contract may in terms provide for its renewal after the expiration of a time fixed in the contract.</p>

<p>Land — Action to Recover — Evidence.—Plaintiff sought to recover a tract of land, claiming title hy virtue of a deed from one L. S. Clark and wife, conveying the land to plaintiff’s mother, and at her death to plaintiff, the consideration being certain cash and promissory notes secured by a lien on the land. Defendant claimed title through L. S. Clark, who in turn claimed title by virtue of a commissioner’s deed made pursuant to orders entered in an action alleged to have been brought by Clark against plaintiff’s mother to recover the purchase money notes and enforce his lien against the land, in which action the land was sold and Clark became the purchaser. Held, under the evidence, that the records of the suit having heen destroyed by fire, defendant failed to show that plaintiff was divested of title by the suit in question.</p>

<p>1. Municipal Corporations — Ordinances—When Not Measures for Raising Revenue. — Ordinances originating in the hoard of aider-men of a city of the second class, one ordering an election to determine whether an indebtedness should be incurred by the city and its bonds to that amount issued, for a necessary muniei-pay improvement, naming the amount of such indebtedness and the amount to be raised annually by taxation to pay interest on the bonds and creates a sinking fund to retire them at maturity; the other passed after the election, declaring the result, directing the issuance of the bonds and ordering the general council to thereafter levy and collect annually a tax sufficient to pay the interest on the bonds and create a sinking fund for their retirement, are not measures for raising revenue in the meaning of ■Section 3060, Kentucky Statutes. Consequently, it was not necessary that they first be introduced in and passed by the city’s board of councilmen, as required by its provisions.</p> <p>2. Municipal Corporations — Ordinances for Raising Revenue — What Are. — Ordinances of a city providing merely for the incurring of an indebtedness are not measures for raising revenue, as the indebtedness is to be paid in the future by the levy and collection of taxes to be thereafter fixed and imposed by subsequent ordinances. Bills or ordinances for raising revenue are confined to such as levy taxes in the strict sense of the word and do not embrace bills or ordinances for other purposes, which incidentally create revenue.</p> <p>3. Municipal Corporations — Publication of Ordinance as Notice for Election — What Publication of Notice Insufficient. — Where a statute providing for the holding of an election to determine whether an indebtedness shall be incurred by a city of the second class, declares that it shall be done by publication, in the official newspaper of the city, of the ordinance calling the election and that “such ordinance shall be published for at least two weeks just preceding the election,” its publication for only nine days just preceding the election-will be fatal to the validity of the election. The requirement as to notice being mandatory, whether its language “at least two weeks just preceding the ■election” be construed to mean each of the two weeks, running from Sunday to Saturday, inclusive, next preceding the week in which the election is held, or fourteen days just preceding the election and including the day thereof, under neither computation was there a sufficient publication of the ordinance in this case.</p>

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

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

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

<p>Consolidated Causes from the McCreary Circuit Court.</p>

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

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

<p>Judgment — Enforcement of Lien — Erroneous.—In a suit to foreclose a purchase money lien on certain real estate, a judgment rescinding the sale but granting plaintiff a writ of possession, and charging defendant with rent for the land from the date of the note was erroneous, when there was no plea or proof that plaintiff ever had or was entitled to possession of the land.</p>

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

<p>1. Bailroads — Crossing Accident — Right of Traveler at Private Crossing to Depend on Signals for a Public Crossing. — Persons using a private crossing who are in the hahit of depending upon signals required to be given for a nearby public crossing are entitled to the benefit and protection of such signals, and if the company fails to give the public crossing signals and the traveler at the private crossing is injured as a result thereof, he may recover damages.</p> <p>2. Conflict of Laws — Torts—Action in This State to Recover for Injury Received in Another State. — Where an action is brought in a court of this State to recover damages for personal injuries sustained in another State, the rights of the complaining party are to be determined by the laws of the State in which the injury occurred.</p> <p>3. Conflict of Laws — Torts—Pleadings.—Where a common law action is brought in this State to recover damages for an alleged tort committed in another State, the plaintiff may set out a sufficient cause of action under the common law as administered in this State without setting up the law of the foreign State and averring that under the law of that State he was entitled to recover, as it will be presumed that the common law here in force prevails in the foreign State; and so it is incumbent upon the defendant, if he desires to defeat a recovery upon the ground that an action founded on common law principles could not be maintained in the State where the cause of action arose, to plead and prove the law of such State.</p>

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

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

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

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

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

<p>Master and Servant — Negligence.—A master is not responsible for injuries to an employee caused by tbe ordinary negligence of a superior employee, but is responsible for such injuries to a subordinate caused by the gross, negligence of a superior.</p> <p>Master and Servant — Negligence—Exemplary Damages. — The servant can not recover exemplary damages against a master for an injury caused by even the gross negligence of a superior employee, but may recover compensatory damages on account of injuries resulting from gross negligence of a superior employee.</p> <p>Master and Servant — Negligence.—The master is not responsible for injuries resulting to a servant, and which were caused by the negligence, either ordinary, or gross, of a fellow servant in the same class with himself, and engaged in ,the same field, of labor.</p> <p>Master and Servant — Damages—Negligence.—An act done by a servant in the immediate presence of a superior,, and by the command of a superior, is the act of the superior, and the master is responsible for the damages resulting from such act, if it be an act" of gross negligence on the part of the superior employee.</p> <p>Master and Servant — Assumption' of Risk. — While a servant in engaging in work for a master assumes all the risks and dangers incidental to .the work in.which he is. engaged, he does not assume the hazards and dangers resulting from the negligence of the master,, or the gross negligence of his superior servant in authority, in the conduct ot the work.</p> <p>Master and Servant — Assumed Risk.. — The doctrine of assumed risk arises out of the contractual relations between.the master and servant, and it can not bé presumed that the servant contracts to risk the hazards- and dangers to himself, arising from the gross negligence of a superior, or the negligence of the master.</p>

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

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

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

<p>1. Statutes — Construction—Intention of Legislature. — Courts cannot add to or take from the words of a statute to gire effect to any-supposed intention of the Legislature; hut when the intention can be ascertained with reasonable certainty, words may be altered or supplied in a statute so as to give it effect, and avoid any re-pugnancy to or inconsistency with such intention.</p> <p>2. 'Statutes — When Court May Correct Act. — When it is manifest upon th© face of an Act of the Legislature that an error has been made in the use of words, the court may correct the error and read the statute as corrected in order to give effect to the obvious intention of the Legislature.</p> <p>S. Municipal Corporations — Territorial Limits — Monuments and Lines. — Monuments and plain lines of location must generally, in determining the extent of territorial limits, prevail over any mere acts of user or attempted jurisdiction by the municipal authorities.</p> <p>4, Municipal Corporations — Boundary of City. — The corporate boundary of a city can not be extended or altered by officers or employes of the city performing work or doing other acts outside of the city’s corporate limits.</p> <p>5. Deeds — Construction of. — The meaning of a deed, that is, what it covers, is a question of law for the court; What the boundaries of a given piece of land are, is a question of construction for the court also; where they are is a question of fact for the jury.</p>

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

<p>Wills — Rights and Liabilities of Devisees and Legatees — Election . —Time for Mating Election. — Section 2067 Kentucky Statutes gives the surviving husband the right to renounce his wife’s will; if he fails to renounce within one year, such failure amounts to an election to take under the will, as does likewise the institution of an action claiming the lands devised, as devisee under the will.</p>

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

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

<p>1. Insurance — Right of Foreign Assessment Association to do Business in This State. — When a foreign assessment association has fully, complied with the requirements of Section 680 of the Kentucky Statutes, and is in a sound condition, and there is nothing in its charter or hy-laws or method of doing business that is obnoxious to the laws of this State, the Commissioner of Insurance is not authorized to refuse it a certificate to do business in this State.</p> <p>2. Corporations — Foreign Corporations to Do Business on Equality With Domestic Corporations — Construction of Section 202 of Constitution. — Under Section 202 of the Constitution a foreign corporation will not be allowed to transact business in this State on more-favorable conditions than like domestic corporations, but it is hot- necessary that a foreign corporation seeking authority to do business in this State should be incorporated or organized according to the forms prescribed for the incorporation or organization of domestic corporations.</p> <p>?. Corporations — Construction of Section 202 of Constitution. — Under this section when a foreign corporation comes into this State, no matter how it was incorporated or organized in another State, it cannot do business in this State under more favorable conditions than like domestic corporations.</p> <p>4. Insurance — Powers of Commissioner. — Under Sections 752 and 753 of the Kentucky Statutes the Commissioner of Insurance has ample power to protect the people of the State against foreign ■companies that are not in a sound condition or that fail or refuse to comply with the laws of this State, and when a foreign corporation is admitted to do business in this State this privilege does not in any manner interfere with the right of the commissioner to compel it to do business in conformity with the laws of this State, and the provisions of its charter and by-laws, or to at any time exclude it from the State if it is doing business in violation of our law or in a manner not authorized by its charter or by-laws or if its affairs for any reason become in an unsound condition.</p>

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

<p>1. Elections — Schools—Qualification of Women Voters — Ability to Read and Write. — In order to comply with the statute allowing women to vote in school elections, and providing that they shall be able to read and write, it is sufficient if the voter can read in a reasonably intelligible manner sentences composed of words in common use, and of average difficulty, though each and every word may not always be accurately pronounced; on the other hand, one is able to write who, by the use of alphabetical signs, can express in a fairly legible way words in common use and of average difficulty, though each and every word may not be accurately spelled.</p> <p>2. Elections — Contest—Evidence—Tie.—In a contest over an election for school trustee, evidence examined, and held that each party received the same number of votes.</p>

<p>1. Automobiles — Notice—Presence on Street — Lookout.—It is the duty of a person in charge of an automobile to have it under reasonable control; to give notice of its presence by the customary signal of sounding the horn; to keep a lookout for persons and vehicles on the street; and to exercise ordinary care- to prevent injuring them.</p> <p>2. Automobiles — Pedestrian—Care Required of in Use of Street.— It is the -duty of a pedestrian using a street to exercise that degree of care which ordinarily prudent and careful persons usually observe under like or similar circumstances, to look out for and learn of the approach of vehicles upon the street, and to avoid coming in collision with them.</p>

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

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

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

<p>1. Appeal — Opinion—Questions Determined. — When an opinion is rendered in a case in the Court of Appeals, it is considered to be a determination of every question made in . such case, and properly presented to the court for adjudication, whether the court in its opinion adverts to such question or not.</p> <p>2. Appeal — Verdict—Interference With. — The court is not authorized to interfere with the verdict of a jury on account of the verdict being excessive, unless it strikes the mind at first blush as having been caused by passion or prejudice, and glaringly' disproportionate to the injury received.</p>

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

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

<p>1. Fraudulent Conveyances — Transfers and Transactions Invalid.— A conveyance without consideration is void as to existing liabilities, but not as to debts subsequently created.</p> <p>2. Fraudulent Conveyances — Remedies of Creditors and Purchasers —Persons Entitled to Assert Invalidity. — Only persons who are prejudiced by a conveyance alleged to be fraudulent may call its validity into question; and the party claiming under such conveyance may impeach the claim of the attacking creditor and interpose any defense, including a plea of the statute of limitations, which the grantor himself might have invoked in a direct action upon the claim; the effect of such defenses when interposed by the grantee being to deny. prejudice to the attacking creditor resulting from the conveyance sought to be invalidated.</p>

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

<p>1. Wills — Construction of — Life Estate. — Where a testatrix devised to her granddaughter, in trust, a portion of her estate, with the provision that “all the balance of said portion to be paid over to the 'Louisville Trust Company and held by said company in trust for the use and benefit of Ella Bull Snively during her life, with power to dispose of same by her last will and testament,” this gave to the devisee a life estate, with the power of disposition, and not the fee in the estate covered by the devise.</p> <p>2. Wills — Construction of — Life Estate — Power of Disposition.— When the estate is devised for life, either expressly or by necessary inference gathered from the intention of the testator as expressed in the will, the power of disposition in the devisee will not convert the estate into a fee; but if the devise does not specifically or by necessary inference create a life estate, the power of disposition invests the devisee with the fee, and these rules apply with equal force whether the estate is given immediately to the devisee or placed in the custody of a trustee for his benefit.</p>

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

<p>1. Bonds — Officers—Fiduciaries.—The bond of a public fiducial officer is controlled by Sections 3751 and 3752, Kentucky Statutes, and must be read in connection therewith.</p> <p>2. Bonds — Officers.—Under Section 186d, Kentucky Statutes, the statutory obligation which, is really the basis of the contract obligation for public officials, is that the officer will faithfully discharge the duties of the office or else the surety will pay the loss occasioned thereby, not to exceed the sum fixed in the bond.</p> <p>3. Municipal Corporations — Act Through Officers. — A city can only act through its officers, and those officers cannot bind the city, unless authorized or directed by law.</p> <p>4. Municipal Corporations — Officers.—For the reason that municipal corporations and their officials are not sui juris, they have no authority to take an obligation from a surety of any official for any failure less than a faithful discharge of the duties of the office, nor the right to impose by contract any duties on other officials, so that a breach of such added duties would avoid the bond.</p> <p>5. Bonds — Municipal Corporations — Officers of. — A bond of a city official is executed in the light of the statutes above referred to, any limitations in the bond in derogation of the statutory requirements are not binding against the city.</p>

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

<p>Rent — What Profits Included — Royalties From Mines. — Where a grantor conveyed land to his sons, and provided that his wife should “receive one-half of all rents from off the place, from all resources whatsoever,” this provision held to include royalties from mines.</p>

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

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

<p>1. Criminal Law — Confession—Competency.—Evidence by a railroad detective that, according to reports received by him through railroad channels, a certain freight car consigned to a point in Alabama when it reached its destination showed that it had been broken into and a part of its contents missing, was not competent in connection with the confession of the defendant, to show that the offense had been committed.</p> <p>2. Criminal Law — Confession.—Under the express provisions of Section 240 of the Criminal Code, a confession of a defendant made outside of court must be, to authorize a conviction, accompanied by other evidence that the offense was committed.</p>

<p>Contracts — Parol Contract — Services.—In an action under an express parol contract for domestic services-, where the only issue is not whether there was a contract or no contract, but what was the real rate of compensation agreed upon by the parties, evidence of the real value of the services rendered and of the customary price of similar services at the time and place of the contract, may be introduced; not for the purpose of varying the contract between the parties, but solely for the purpose of aiding the jury in determining what was the real rate of compensation agreed upon.</p>

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

<p>1. Judgment — Premature Rendition — Motion to Set Aside — Evidence. —On a motion to set aside a judgment on the ground that it was prematurely rendered, evidence considered, and held to sustain the finding of the chancellor that the judgment was not prematurely rendered.</p> <p>2. Judgment — Personal Judgment on Note — Lien on Stock Pledged.— In an action on a note secured by stock of an insurance company which has been absorbed by another company by an arrangement whereby the latter was to issue its stock in lieu of the stock oi the company absorbed, it was error to render personal judgment on a note, and direct that the new stock be issued to plaintiff’s attorney; the judgment should have adjudged plaintiff a lien, and ordered a sale of tile stock by the commissioner after due advertisement.</p>

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

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

<p>Evidence — Paper Releasing Claim for Damages — Mistake in Execution of — Instructions.—Where a. person who was injured by the alleged negligence of two parties received from one of them after suit was brought a certain sum in settlement of his claim for damages and executed a writing to this effect, the writing, unexplained, would be a bar to the prosecution of the action, ■but where it appeared from the evidence that it was the intention of all parties that the paper was only to release the one to whom it was given, the court properly instructed the jury that they should find for the oher defendant unless they believed that the paper was only intended to be a release as to the one to whom it was given.</p>

<p>Automobiles — Frightening Animal on Street. — It. is not negligence for the driver of an automobile in a city to run it within three or four feet of a mule hitched to a buggy standing on the side of the street, unless it should appear that the mule gave evidence of fright on the approach of the automobile and that this was discovered or in the exercise of ordinary care should have been discovered by the driver. The nearness to which a machine is run to an animal does not constitute negligence unless it is purposely done to cause fright or unless the-•driver before going near discovers, or should in the exercise of ordinary care have discovered, that running the machine close to the animal would frighten it. The duty of the driver of an automobile is the same whether it is being run within three feet or thirty feet of an animal.</p>

<p>Appeal from Jefferson Circuit Court (Common Pleas Branch, No. 3).</p>

<p>1. Carriers — Carriers of Live Stock — Limitation of Liability — Validity of Stipulation as to Time When Claim for Loss or Damage Must Be Presented. — A stipulation in a contract for the interstate carriage of live stock, requiring claim for loss or damage to be presented within ten days after the stock is unloaded from; the car, is valid; and no action may be maintained by a shipper who has failed to conform to such stipulation.</p> <p>2. Courts — Jurisditional Amount. — Where plaintiff sued for $720 for damages to a shipment of live stock and $25.80 for overcharge in freight rate thereon, and defendant presented a valid defense to the claim for damage to the livestock by answer, demurrer to which was overruled by the court, plaintiff declining to plead further, so that there remained in controversy only $25.80, the circuit court was without jurisdiction to entertain the proceeding further, and properly dismissed the entire petition.</p>

<p>Mechanics’ Liens — Detective Construction — Evidence.—In an action to enforce a mechanics’ lien, evidence examined, and held that the wort for which plaintiffs claimed a lien was not properly done, and they were therefore not entitled to a lien.</p>

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

<p>1. Intoxicating Liquors — Jurisdiction.—Where one is charged with delivering intoxicating liquors in violation of Chapter 7, Acts 1914, held, that the delivery took place, and the offense was committed, in the county in which the same was delivered to the carrier, and that the courts in the county to which the same was consigned did not have jurisdiction.</p> <p>2. Criminal Law — Jurisdiction.—It is fundamental that a crime is punishable only in the jurisdiction where it was committed.</p>

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

<p>1. Master and Servant — -Wlien Master Not Liable For Injury to Servant. — A competent and experienced laborer employed to put a tile roof on a house, the danger of doing which is obvious and therefore bound to be known to him, cannot, if injured by falling from the building while engaged in such work, recover damages of the master for such injury. Especially is this true where the injured employe is possessed of sufficient skill and experience to be placed in charge of the work.</p> <p>2. Master and Servant — Doctrine of Safe Place — Where Not Applicable. — When the servant, by reason of his skill and experience, is put in charge of the work of putting on a roof, the rule that, his master must use ordinary care to provide him a safe place to work has no application. As the danger of performing such work is open and obvious, the servant must protect himself against it, and he assumes such risks as are ordinarily incident to such work, and is charged with the duty of inspection and also left to his judgment as to the manner of doing the work.</p> <p>3. Master and Servant. — Petition—Failure to State a Cause of Action —Demurrer to is Fatal. — Where, as in this case, the facts stated in the petition show that the injuries sustained by the employe were not caused by the negligence of the master, the latter’s demurrer to the petition was properly sustained.</p>

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

<p>1. Elections — Submission of Question to Voters — Compliance With Statutes. — In the submission of public questions to the voters, a substantial compliance with the Statute as to the manner and form of submission is sufficient; but where the submission is in such ambiguous and unintelligible form as to be confusing to the elector, or as to make it uncertain how he shall mark his ballot so as to register his intention, the election will be held Invalid.</p> <p>2. Elections — Purpose of Holding Elections. — The purpose of holding elections is to ascertain the public will, and neither the courts nor the election authorities are authorized to arbitrarily assume that the voters meant something which cannot be fairly ascertained from the ballots themselves.</p> <p>S Elections — Ambiguity.—The question: “Are you for or against voting bonds on the county of Carter, State of Kentucky, for the purpose of building roads and bridges to the amount of one hundred ana fifty thousand ($150,000) aollars in Carter County?’- is in sucli ambiguous form as that the electors might well have differed as to the manner of marking- their ballots so as to register their several intentions; therefore the will of the voters coulfi not well be ascertained under such a submission.</p>

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

<p>1. 'Railroads — Trespassers Upon Tracks. — One is not licensed to travel longitudinally upon a railroad track, because the public road nearby has been obstructed, either by the railroad company, or some other person, and is thereby made inconvenient to travel. The employees of the railroad company are not required to anticipate the presence of persons upon the track of the railroad, except at public crossings, and in populous communities, like cities and villages.</p> <p>2. Railroads — Trespassers Upon Tracks — Lookout Duty. — The employees of the railroad company do not owe a trespasser any lookout duty, and only owe him the humane duty of using ordinary care to prevent doing him injury, after they shall have discovered his peril.</p>

<p>1. Limitation of Actions — Computation of Period of Limitation— Commencement of Action by Unauthorized Parties. — The bringing of an action by an administrator under a void appointment does not stop the running of the statute. Unless there is a valid appointment and qualification of an administrator within one year after the death of the intestate no action ma.y he maintained to recover damages for his death.</p> <p>2. Pleading — Amendments—Substitution of Parties. — Where an action to recover damages for the death of an intestate is brought by an administrator acting under a void appointment, there is no shit in court, and nothing to amend; hence the trial court properly refused to permit to be filed an amended petition tendered and offered by the administrator after he had obtained a second and valid appointment, after the expiration of more than a year after the death of intestate.</p>

<p>1. Tenancy in Common — Mutual Rights, Duties and Liabilities of Co-tenants — Adverse Possession. — A tenant in common may hold land adversely to the other owners, but the statute of limitations will not begin to run until notice of such adverse holding is given to the tenants in common not in possession.</p> <p>2. Tenancy in Common — Mutual Rights, Duties and Liabilities of Co-tenants — Actions Between Co-tenants. — A tenant in common may recover judgment for his undivided interest in the common estate in ejectment against a co-tenant claiming the whole estate by virtue of adverse possession ripened into title.</p> <p>3. Partition — Actions for Partition — Proceedings and Rélief — Parties. —A valid partition of land may not be had unless all the tenants in common are before the court when the decree is rendered.</p>

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

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

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

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

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

<p>1. Fraudulent Conveyances — Conveyance by Husband to Wife-Question of Fraud. — The question whether a voluntary conveyance from a husband to his wife is fraudulent, is not to be determined from the mere fact that the husband was indebted at the time, hut from all the circumstances of the case; and if the circumstances do not establish fraud, the conveyance is deemed to be above exception.</p> <p>2. Husband and Wife — Conveyance by Husband to Wife — When Court of Equity Will Approve. — If a court of equity would have required a husband to convey to his wife land which was bought with her money and conveyed to him by mistake, it will approve a conveyance of said land which he voluntarily made to his wife.</p> <p>3. Fraudulent Conveyances. — As to subsequent creditors a conveyance is not fraudulent merely because it is voluntary.</p>

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

<p>Landlord and Tenant — Fires—Repairs.—Where there was no express covenant on the part of the tenant to repair the premises or to keep them in repair, and the obligation was to surrender the premises at the end of the term in as good condition and order as they were at the time of the contract, does not impose upon the tenant a liability to repair or restore in the event of destruction of the premises, or a material part of them, during the term, by fire, unless the fire was the result of default or negligence of the tenant.</p>

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

<p>1. Principal and Surety — Contractor’s Bond — Notice of Claims Un- , paid. — Where in a contractor’s bond the obligee is required to withhold payments from the contractor, and to notify the obligor, after he has notice or knowledge of the fact, that any claim for labor performed or for materials or supplies furnished the contractor “remains, unpaid,” the words “remains unpaid” apply only to claims where payment has been demanded and either refused or neglected for an unreasonable length of time.</p> <p>2. Principal and Surety — Contractor’s Bond — Notice of Claims Unpaid — Evidence.—In an action on a contractor’s bond requiring the obligee to withhold payments to the contractor, and notify the obligor, after he has notice or knowledge of the fact that any claim for labor performed or for materials or supplies furnished the contractor remains unpaid, evidence examined, and held that the obligee did not pay out money, or fail to notify the obligor within a reasonable time after having notice or knowledge of the fact that certain claims of the sub-contractors remained unpaid.</p> <p>'3. Mechanics’ Liens — Statutory Notice of Intention to Claim Lien — . Time.. — Where the principal contractor abandons his contract, and the sub-contractors are told by the owner to go on and complete the work, the time for giving the statutory notice of an intention to claim a lien should date, not from the time the last item was furnished while the contractor was in charge, but from the time the last item was furnished after the owner directed the sub-contractors to go ahead and complete the work.</p> <p>4. Mechanics’ Liens — Credit.—It is not error to credit a sub-contractor by the amount of a note executed by the principal contractor to him, and discounted by a bank, though the note still be held by the bank, where it appears that the contractor is insolvent and the sub-contractor will have to pay the note.</p> <p>5. Mechanics’ Liens — Notice of Intention to Claim Lien — Additional Work — Extension of Time. — Where additional work or material is not only required by the contract, but is furnished at the request of the owner, it will extend the time for giving the statutory notice of an intention to claim a lien.</p> <p>6. Mechanics’ Liens — Notice of Intention to Claim Lien — Sufficiency. —A notice which fails to state the amount for which a mechanics’ lien will be claimed is insufficient.</p> <p>7. Assignments — Existence of Fund. — An equitable assignment will be created only where there is a fund in existence belonging to the assignor.</p> <p>8. Mechanics’ Liens — -Personal Judgment — Evidence.—Where a subcontractor claimed a personal judgment against the owner on the ground that the owner made a binding promise to pay, evidence considered, and held that the chancellor did not err in holding that no such promise was made.</p> <p>9. Interest — 'Funds Retained by Owner. — Where a part of the contract price is retained by the owner, it is not error to charge him with interest after suit has been brought to settle the questions of liens and adjust the liability of the surety on the contractor’s bond, where the owner fails to pay the money into court.</p> <p>10. Principal and Surety — Contractor’s Bond — Attorneys’ Fees.— Where a contract between the owner and the principal contractor provides “that the contractor shall refund to the owner all moneys that the latter may be compelled to pay in discharging any liens on said premises made obligatory in consequence of the contractor’s default,” a bond executed by a surety company guaranteeing the faithful performance of the contract by the contractor does not cover attorneys’ fees incurred in resisting mechanics’ liens.</p>

<p>1. Statute of Frauds — Subsection 4, Section 470, Kentucky Statutes. —Subsection 4 of Section 470, of the Kentucky Statute of Frauds, which provides that no action shall he brought to charge any person upon a promise to answer for the debt, default or misdoing of another, unless the promise be in writing and signed by the party to be charged therewith, applies to actions and not to defenses.</p> <p>2. Statute of Frauds. — The Statute of Frauds does not make oral contracts to answer for the debt of another person invalid; it merely prohibits the bringing of an action upon such a promise.</p>

<p>1. Evidence — Mercantile Books — When Incompetent. — In an action to recover damages of a street railway company for injuries received by the plaintiff in attempting to board one of its cars, the driver of an ice cream wagon, who testified as to the accident as a witness for the defendant, cannot be contradicted or his evidence impeached by the books of the ice cream manufactory for which he was driving, which were introduced for the purpose of showing that they contained no orders for ice cream requiring its delivery by the witness at or west of the place of the accident on the morning of its occurrence.</p> <p>2. Evidence — Reasons for Exclusion of Such Evidence. — The introduction of the books in the manner and for the purpose indicated was inadmissible because: (1) They were not shown to have been properly kept; (2) Mercantile books can only be admitted as affirmative evidence and are never admissible to establish a negative proposition.</p> <p>3. New Trial — Incompetent Evidence — Books.—The prejudicial effect resulting to the defendant from the introduction of the books in question being manifest, the refusal of the circuit court to grant it a new trial by reason thereof requires the reversal of the judgment.</p>

<p>1. Domicile — How Changed — Insane Person Incapable of Changing Domicile. — In order to enable one to change his legal residence or domicile or acquire a new domicile, there must be: (1) Freedom of choice; (2) bodily presence in the chosen locality; (3) an intention to remain there permanently. An insane person, being incapable of either choice or intention, cannot legally change his domicile.</p> <p>2. Domicile — Of Insane Person* — 'Where Located — Situs of Property of for Taxation — Powers of Committee. — Where an insane person, residing in this State until he became insane, was sent by his father to an asylum in another State for care and treatment, and there kept until the father’s death two- years later, following which, under an inquest of the Boyle County Court, he was found by a verdict of a jury and judgment of the court to be a lunatic and a committee appointed to take charge of his person and estate, the fact that the committee allowed him to remain in the asylum of another State where he had previously been maintained by the father, did not have the legal effect to fix the lunatic’s domicile in such other State or remove it from Kentucky. Such domicile continued and yet remains in Boyle County, Kentucky, where the committee must statedly make settlements of the estate and list it for taxation and pay taxes thereon. The committee cannot by its mere election fix the lunatic’s legal domicile in another State. It may have the power to change the lunatic’s municipal domicile, that is, from one place to another within this State, hut it is without power to change his national or quasi-national domicile hy removing it from this State to another State.</p>

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

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

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

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

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

<p>1. Corporations — -Report to Auditor — Taxation.—Where a corporation furnished all the information required, upon blanks supplied by the auditor, in its annual report of property owned and business transacted in Kentucky, for the purpose of license taxation, the fact that it also showed the amount -of its issued capital stock does not signify a fraudulent intent to evade or mislead, as the law takes no consideration of its issued capital stock in arriving at the tax.</p> <p>2. Corporations — Assessment of — Board of Valuation and Assessment. —The judgment and action of the Board of Assessment and Valuation as to values based upon the legal evidence then obtainable, and at hand, and as fixed by statute, when recorded in the proper tax list, is conclusive upon the State as well as against the tax payer.</p> <p>3. Taxation — What Not Omitted Property. — Property that has been undervalued by the owner is not property omitted from taxation within the meaning of the statute.</p> <p>4. Corporations — Mistake in Determining License Tax. — Where the Board of Assessment and Valuation in determining the amount oí license tax due by a corporation, by mistake took for its basis of calculation the capital stock issued by the company instead of that which the law authorized it to show, the Commonwealth is entitled to recover the amount which, by reason- of this mistake, it has been deprived of, although settlement has been made and receipt in full given.</p> <p>5. ' Corporations — Assessment of. — Where a corporation reported all of its authorized capital stock, as required by law, and by mistake the Board of Valuation and Assessment failed to assess a portion of the same, the corporation can not be said to be delinquent and subject to the 20 per cent statutory penalty, but comes within the exception of Section 4260 of one who has duly listed his property.</p>

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

<p>1. Wills — Vested Remainders. — A devise to one for life, and at bis death to his children, then living, and those which may he horn to him thereafter, creates a vested remainder at the death of the testator, in the children then living, and a vested remainder in each one of those horn thereafter, as they come into being.</p> <p>2. Wills — Life Estates — Contingent Remainders. — A devise to one for life, and at his death to his heirs, creates a contingent remainder in the heirs, because one can not have heirs until he is dead, and it is uncertain who his heirs may be.</p> <p>3. Wills — Vested Remainders. — A vested remainder passes upon the death of the remainderman to his heirs, or to his vendee or devisee.</p> <p>4. Wills — Rmaindermen—Uncertainty.—The uncertainty as to whether or not the remainderman will live until the termination of the particular estate, upon which the enjoyment of his estate depends, does not make his interest a contingent one.</p> <p>5'. Wills — Construction—Intention.—The intention of the testator as to when an estate is to vest, is the rule by which to determine when it does vest, and this is to be determined by the terms .used, and the rules established by the adjudications of the courts for construing devises.</p> <p>6. Wills — Possession—Remainders.—The present capacity of taking possession, if the possession was to become vacant, distinguishes , a vested from a contingent remainder.</p> <p>7. Wills — Construction.—As a rule of construction, the words of the testator should be taken as expressing his meaning, unless it shall appear from the context, or from his will taken as a whole, that he does not use such words in their generally accepted meaning.</p> <p>8. Wills — Contingent Remainders. — A contingent remainder is one limited, so as to depend on some event or condition, which is dubious or uncertain, and which may never happen or be performed.</p> <p>9. Wills — Vested Remainders. — A vested remainder may be created in property devised to an executor for the use and benefit of certain, persons, if the devise has the other essentials necessary to create a vested remainder.</p>

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

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

<p>1. Railroads — Youth Fourteen Years Old Riding on Freight Train— Assisting in Unloading Light Freight. — It is neither intrinsically hazardous or obviously dangerous for a youth fourteen years of age to assist in unloading light freight from a freight car and placing it on depot platform; nor is it necessarily hazardous or dangerous for such youth to ride on the caboose of a freight train or to be permitted to do so.</p> <p>2. Railroads — Injury to Youth, in Riding on Freight Train- — Action for Damages — Peremptory Instruction. — In an action for damages for injuries to a boy fourteen years old resulting from his becoming frightened and jumping from a caboose of a freight train upon which the conductor was permitting him to ride under his agreement to assist in unloading light freight, the injury to the boy occurring while he was not engaged in handling freight and his riding on the caboose not being necessarily hazardous or dangerous, there should have been a peremptory instruction to find for defendant.</p>

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

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

<p>Appeal from Jefferson Circuit Court (Chancery Branch, No. 2).</p>

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

<p>1. Contracts — Sale and Delivery of Tobacco. — In a contract for sale and delivery of tobacco, after it was stripped, where the place of delivery was changed by subsequent agreement from Madison, Ind., to Carrollton, Ky., the fact that the purchaser later told them not to deliver it at Carrollton, did not justify the seller in secretly delivering to Carrollton and selling to other parties.</p> <p>2. Contracts — Delivery of Tobacco. — It was their duty to deliver at Carrollton, and offer it to the purchaser in a reasonable time after stripping.</p> <p>3. Contracts — Sale and Delivery of Tobacco. — The purchaser did not abandon the contract or release the seller by asking for another change in the place of delivery, and if the seller failed to deliver according to contract, he is liable in damages to the purchaser.</p>

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

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

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

<p>Wills — Requisites and Validity — Form and Contents of Instrument — When Signed “At tbe End.” — Kentucky Statutes 468 requires a will to be signed at tbe end or close thereof. Held a substantial compliance, where a will was written on a sheet of legal-cap paper, and there not being( room at the bottom of the sheet for the testator’s signature, he wrote his name on the ruled line which runs from the top to the bottom of the paper near the left margin, the name being written thereon beginning at the bottom. There was a small space above his name as written, that is, between his name and the extreme- left margin of the sheet, but this was not so unreasonable a blank space as to render the signature insufficient.</p>

<p>Municipal Corporations. — Street Improvements — Assessment for. —The council had the power to adopt an ordinance providing for the improvement of Barney Avenue from Park Boundary Road to Alta Avenue, extending hack a depth of 378 feet, the work to he done at the cost of the owners of the ground within the boundary, although a part of the boundary was outside of a line drawn at right angles from the intersection of Barney Avenue with ■Park Boundary Road.</p>

<p>1. Contracts — Prohibited by Statute Not Enforcible. — An individual partnership doing business under an assumed name, without complying with the requirements of Section 199b of the Kentucky Statutes, which provides that no persons shall carry on or transact any business under an assumed name or name other than the real name of the individuals conducting the business, unless they shall file a certificate setting forth the names of the parties and also the assumed name, and which fixes a penalty for violation of the Statute, could not recover on a contract when the Statute was interposed as a defense, although, the defendant had received and retained property under the contract.</p> <p>2. Business — Carrying On Under Assumed' Name. — Under Section 199b of the Kentucky Statutes individuals cannot lawfully carry on business under an assumed name without observing the requirements of this Section, and unless the statute is observed the persons carrying on the business under the assumed name cannot enforce rights arising under contracts made in the conduct of their business.</p>

<p>1. Deeds — Cancellation—Mental Incapacity — Evidence.—In an action to cancel a deed because of tbe mental incapacity of the grantors evidence examined, and held that the grantors had sufficient mental capacity to know and appreciate the effect of the deed which they signed.</p> <p>2. Deeds — Consideration—Support of Grantors — Violation of Agreement — Evidence.—Where the grantors conveyed to their daughter their home place, the consideration being that the daughter should maintain and support them during their life, held, in an action by mne of the grantors to cancel the deed because the grantee had failed to carry out her agreement, that the grantee had not failed to comply with her agreement, and that there was no valid reason to cancel the deed.</p> <p>3. Deeds — Trusts.—Where a husband freely and voluntarily unites with his wife in a deed conveying certain land to his daughter in consideration of support, he parts with all interest in the land, and is not entitled to have a trust declared in his favor on the ground that, though the deed was made to his wife, he furnished the money to pay for the land.</p> <p>4. Deeds — Consideration—Agreement to Support. — Where the grantor executed a deed in consideration of the grantee’s agreement to support and maintain him during his natural life, and he voluntarily leaves the grantee’s home, held, that an allowance of $100 to him while living away from the grantee’s home was sufficient, in the absence of such mistreatment on the part of the grantee, or such friction as made it no longer agreeable to him to live there, or the refusal of the grantee to permit him to live there.</p>

<p>1. Constitutional Law — Section 51 of Constitution. — The purpose of Section 51 of the Kentucky Constitution, which provides that no law enacted by the General Assembly shall relate to more than one subject, which shall be expressed in the title, was to enable persons reading the title of an Act to get a general idea of what the Act treated, .or contained, so that the members of the Legislature as well as the public interested in legislation could rely on the title as indicating the subject-matter of the Act, and to assume that the Act contained no legislation that was not embraced, in a general way, by the subject expressed in the title.</p> <p>2. Constitutional Law — Section 51 of Constitution. — No provision of a Statute directly or indirectly relating to the subject expressed in the title, and having a natural connection therewith, and not foreign to the same, should be deemed within the inhibition of Section 51 of the Constitution, which provides that no law enacted . by the General Assembly shall relate to more than one subject, which shall be expressed in the title.</p> <p>3. Statutes — Sections 39 and 40, Acts 1912, p. SO9 — Road Engineer —Public Roads. — Sections 39 and 40 relating to the construction of turnpikes owned by individuals or corporations, and prescribing the tolls to be charged for their use, and constituting a part of the Act of 1912, entitled. “An Act defining public roads — Providing for their establishment, regulation and construction, and use and maintenance — Creating the office of Eoad Engineer, and prescribing the duties thereof” (Acts 1912, p. 309), are not germane to the subject-matter contained in the title, and are unconstitutional.</p> <p>4. Statutes — Title—Constitutional Law. — When a subject foreign to the title is introduced into the body of an Act, if it is so separate and distinct from the remainder of the subject-matter of the legislation that it may be omitted without affecting the otherwise valid portions, the unconstitutional part will be omitted, and the remainder allowed to stand.</p> <p>5. Turnpikes and Toll Roads — Vehicles.—It is not the model or the name of á vehicle but the purpose for which it is used that fixes its toll charge for using a turnpike road having the right to- charge tolls.</p> <p>6. Turnpikes and Toll Roads — Statutes—Stage Coaches — Automobiles. — Under a statute which prescribed tolls to be charged for the use of turnpikes by “vehicles,” “pleasure carriages or hackney coaches,” “stage coaches,” and “traction or other engines,” but failed to fix a charge for automobiles using the turnpike, automobiles will be classed as “stage coaches,” where they are used by a stage coach line in the place of stage coaches.</p> <p>7. Statutes — Turnpikes and Toll Roads — Tolls—Vehicles.—Under a statute prescribing tolls to be charged for the use of turnpike roads, and exempting certain specified vehicles from tolls, it is not to be presumed that the Legislature intended to exempt from tolls a new type -of vehicle, having a new name; but performing the same service that was formerly rendered by a vehicle named in the statute.</p>

<p>1. Schools and School Districts — -Taxes—Apportionment Between White and Colored Schools. — Where taxes are levied by a graded white common school district upon the property of a railroad or bridge company within such district, they, when collected, must be apportioned between it and any graded common school for colored pupils having the same boundary as the white district, as provided for in Section 4101 Kentucky Statutes.</p> <p>2. Schools and School Districts — Trustees of Graded Common Schools —Expenditures.—The trustees of a graded common school district are restricted in the expenditure of the public moneys coming to them, to such purposes only as are authorized by the laws governing the management and control of the schools.</p> <p>3. Schools and School Districts — Truant Officer — Payment of Salary. —A graded white school district having the same boundary as a graded colored school district, can not employ a truant officer and require the colored district to- pay any part of his salary, although he may have performed service for both the white and colored school.</p>

<p>1. Trusts — Constructive Trustee. — Where property is impressed with a trust, and passes to a devisee by will, or to an heir by the laws of descent, or to a purchaser for value with a knowledge of the trust, or to a purchaser without valuable consideration, it is still impressed with the trust, and the devisee, heir, or purchaser is a constructive trustee for the beneficiary.</p> <p>2. Trusts — Parol Constructive Trust. — Where one procures a testator to devise lands to him,, upon his promise to hold it for the benefit of another, it creates a parol constructive trust, and may be enforced in equity upon parol testimony.</p> <p>S. Trusts — Parol Trust. — A parol trust in lands will not be enforced, unless it shall be established by clear and undoubted testimony. where the establishment of the trust will be contradictory to written instruments, and where a rational doubt is left in the mind of the court, as to the acts of the one alleged to have created the trust.</p> <p>4. Trusts — When Equity Will Refuse Relief to Claimant of Trust.— Courts of equity will refuse relief to those claiming the existence of trusts, where the claim is old and stale, and the acts of the parties authorize a presumption unfavorable to its continuance.</p>

<p>1. Taxation — Tax Sale — Identification of Property, — To uphold a tax sale there must he a substantial compliance with the statute, and’ the proceedings must identify the property with reasonable certainty.</p> <p>2. Taxation — Tax Sale — Identification of Property — Sufficiency.— Where property is assessed, sold and reported in the wrong name, and is described as being located in the wrong precinct, a tax sale of such property is invalid.</p>

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

<p>l. Negligence — Actionable Negligence — Proximate Cause. — In an action by appellee to recover damages for injuries sustained by her through the negligence of the appellant’s agent in putting, or by mistake permitting, her to enter an automobile not owned or controlled by appellant, from which she was thrown by the negligence of the chauffeur; as her evidence conduced to prove that her injuries were received as stated, in either event the jury, if they believed appellee’s witnesses, were authorized to find that the negligence of appellant’s agent was the proximate cause of her injuries. For the latter’s negligence, after selling her a ticket entitling her to ride in an automobile to her home, in putting appellee in the wrong machine, or not informing her of taking the wrong machine, if he knew it, concurring with that of the chauffeur in letting the machine escape, produced the injuries, responsibility for both being upon appellant. It is a well settled rule that the master is liable for injuries of which his servant’s negligence is the proximate cause, though the negligence of a third party contributed to cause the injuries.</p> <p>2. Personal Injuries — Proximate Cause — When Question for Jury.— It is also a well settled rule of law that what is the proximate cause of the injury is ordinarily a question for the jury; and before the court can take it away from the jury and determine it, the facts must be such that fair-minded men ought not to differ about them.</p> <p>3. Appeal — Verdict—When Must Stand — Flagrantly Against the Evidence — Meaning of. — It is not the province of the Appellate Court to declare what witness or number of' witnesses should have been believed by the jury, or in whose favor the evidence as a whole preponderates; nor would the fact that a jury accept the testimony of two witnesses, or even one, as against that of a greater number of opposing witnesses, justify the appellate court in setting aside the verdict on the ground of its being flagrantly against the evidence. To say of the verdict that it is flagrantly against the evidence means that it is palpably against the evidence. The fact that the evidence is conflicting or that the Appellate Court would have made a different finding on the facts, or that in its opinion the verdict is against the weight of the evidence, furnishes no cause for setting it aside; nothing" short of its being clearly and palpably against the evidence will give the Appellate Court authority to disturb it on this ground.</p>

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

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

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

<p>Principal and Agent — The Relation — Estoppel to Deny Agency.— Where one by want of ordinary care, induces a third person to believe that another is his agent, although such ostensible agent is not so in fact, such one is bound by the acts of the apparent or ostensible agent; liability arises for the acts of such ostensible agent not because he is an agent in fact, but because the principal will not be heard to deny the agency to the injury of third persons who have in good faith and in the exercise of reasonable prudence 'dealt with the agent upon the faith of his apparent and ostensible authority.</p>

<p>■1. Railroads — Action for Personal Injuries — Negligence.—Where a conductor on a freight train was injured while in the performance of his duties through the negligence of a brakeman, who, in the absence of the conductor, coupled onto the train a car with a defective draw-head, the negligence of the brakeman was not attributable to the conductor, although the conductor was superior in authority to the brakeman.</p> <p>2. Railroads — Employers’ Liability Act. — Where there is evidence conducing to support the averments of the petition constituting ground of action relied on for recovery, although the weight of the evidence, both numerically and in probative value, may be with the defendant, the evidence is sufficient to sustain the verdict of the jury, although the case is laid and practiced under the Federal Employers’ 'Liability Act.</p> <p>3. Railroads — Contributory Negligence — Inspection.—Where the conductor in the line of his duty was elsewhere engaged, it can not be said that he was guilty of contributory negligence in not being present at the time a defective car was coupled onto the train, or in not personally inspecting the car before it was coupled.</p> <p>4. Trial — Employers’ Liability Act. — In cases tried in the State courts under the Federal Employers’ Liability Act, three-fourths or more of the jury may return a verdict.</p> <p>6. Personal Injuries — Action for — Verdict.—Where one was suffering the consequences of an injury received five years before, but not to the extent of incapacitating him from service or lessening his power to earn money, and he received another injury from his master’s negligence, which permanently and greatly aggravated the consequences of the first injury, and wholly incapacitated him from service, rendering him dull and stupid, impairing his powers of speech and faculties of sight, hearing, and feeling, incurred medical expense of $100, and lost $400 in time, a verdict of $2,500 is not excessive.</p> <p>6. Contracts — Evidence—Submission to Jury. — Evidence examined and held to warrant submission to the jury whether at the time the injured party signed a contract in settlement of damages he was mentally capable of understanding his rights and mating a contract concerning them, or whether the contract was procured by fraud or misrepresentation.</p>