Volume 170 — Kentucky Reports

<p>1. Evidence — Contradiction of Witnesses by Circumstances — Peremptory Instruction. — Where many circumstances are shown that contradict the direct evidence of witnesses, a jury may believe these circumstances of sufficient weight to overcome the evidence of the witnesses, and where circumstantial evidence of probative value contradicts the direct evidence, the case should go to the jury.</p> <p>2. Negligence — Contributory Negligence. — In personal injury cases the question of contributory negligence is for the jury unless the whole of the evidence and the reasonable inferences therefrom show clearly that the. negligence of the deceased was the direct cause of his death.</p>

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

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

<p>1. • Contracts — Parol Evidence — Admissibility.—When a writing, upon its face, purports to contain the entire agreement between contracting parties, parol evidence is not admissible to contradict, vary, add to or take any terms from the contract, in the absence of a claim of fraud or mistake.</p> <p>2. Contracts — Parol Evidence — Admissibility.—It is only when the writing does not purport to contain all the contract, or it is expressed in such short and incomplete terms, that parol evidence is necessary to make intelligible that which is per se unintelligible, that parol evidence is admissible as to the terms of the contract, in the absence of fraud or mistake, and such evidence must not then be contradictory of the terms set out in the writing.</p>

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

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

<p>1. Negligence — Imputed Negligence. — The fact that a passenger in an automobile, the relative and guest of the owner, told the chauffeur, in the employ of the latter, to drive by a library and stop, then told him to go ahead, did not make the chauffeur the agent of such guest, hence his negligence could not be imputed to her.</p> <p>2. Insurance — Indemnity Insurance — Evidence—Question For Jury.— There being some evidence of contributory negligence on the part of the person injured, it was for the jury to say, in an action by the owner of the automobile against the insurance company on a policy of indemnity, whether in a previous action against her by the person injured, her refusal to plead the contributory negligence of the person injured, was a violation of a clause of the Indemnity policy requiring her to aid in resisting the recovery of damages by the latter against her in such action.</p> <p>3. Insurance — Indemnity Insurance — Evidence.—In an action by the holder of an automobile indemnity policy against the insurance company to recover the amount paid by her in satisfaction of a verdict and judgment in favor of a passenger in her machine for an injury sustained, upon a defense by the company of fraud and collusion between the owner and passenger in the action for damages, evidence examined and held sufficient to authorize submission to the jury of that question,</p>

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

<p>1. Judgment — Constitutional Law. — A judgment based on an unconstitutional law is void, and upon tbe same footing as a judgment void for want of jurisdiction of the subject matter in the court rendering it.</p> <p>2. Statutes — Constitutional Law — Decision Declaring Statute Unconstitutional — Effect of. — A decision by a court of last resort that a statute is unconstitutional, renders such statute absolutely void from the date of its enactment and not from the date of such decision.</p> <p>3. Judgment — Default Judgment — Effect of. — The fact that a judgment is rendered by default, cannot be taken to cure or waive radical defects going to the authority of the court to enter the judgment or to the foundation of plaintiff’s cause of action.</p> <p>4. Judgment — Collateral Attack — Void Judgment Subject To. — A void judgment is subject to collateral attack from any person affected by it.</p> <p>5. Judgment — Collateral Attack — When Void Judgment Subject to. — ■ A void judgment in a criminal or penal prosecution, whether the punishment it imposes be a fine or imprisonment, may be collaterally attacked by the defendant, in an action in equity by the Commonwealth in the nature of a bill for discovery, to enforce payment of the judgment.</p>

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

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

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

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

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

<p>1. Infants — Care and Custody — Power of Court of Appeals Pending Appeal as to. — -Under section 2123 of the Kentucky Statutes, the Court of Appeals has the power, pending an appeal from a judgment disposing of the care, custody and control of an infant, to make such orders as may protect the interest of the infant.</p> <p>2. Infants — Care and Custody.- — The power of the court with respect to the custody of an infant is not dependent upon action upon the part of either parent, or upon a reservation in the judgment of authority to subsequently change or modify it.</p> <p>3. Infants- — Care and Custody. — Where .the judgment, of a circuit court granted the custody of a female infant, three> years old, to the mother, who was a proper person to have the custody of her infant child, and the father superseded the judgment, the Court of Appeals will, upon the motion of the mother, discharge the supersedeas in order to commit the custody of the child to its mother.</p>

<p>1. Descent and Distribution — Distribution of Personal Estate — Domicile — Jurisdiction.—If a person dies domiciled in another State, but has personal property in this State, the county court of tbe county where the property is situated has jurisdiction to grant letters of administration upon his personal estate situated in the State, but after payment of the debts which the decedent owes to creditors in this State, the assets of the estate will be distributed according to the law of the decedent’s domicile.</p> <p>2. ' Descent and Distribution — Personal Property. — Personal property does not pass to nor vest in the heir of a decedent, but passes to his personal representative provided by law.</p> <p>3. Descent and. Distribution — Suit by Creditor to Recover Personalty. — Neither a creditor nor heir can maintain a suit to recover personal property belonging to the estate of a decedent until demand has been made upon the personal representative to sue and he fails or refuses to do so.</p>

<p>1. Master and Servant — Negligence of Superior Servant. — No recovery may be bad from the master for an injury to the servant, not causing death, resulting from the ordinary negligence of the servant superior to and having immediate control of or supervision over the servant injured; such a recovery can be had-only in case of gross negligence upon the part of the superior servant.</p> <p>2. Appeal and Error — Error Necessary to Justify Reversal.. — For an error to justify a reversal, it must affect the substantial rights of the appellant; and that it does so affect them must as clearly appear as the error itself.</p> <p>3. Appeal and Error — Negligence—Instructions—Although an instruction erroneously permitted a recovery for ordinary negligence, yet, where admittedly and beyond dispute the facts show gross negligence, and there is nothing in the record to indicate that appellant was prejudiced by the error, the judgment will not he reversed.</p>

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

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

<p>Husband and Wife — Witnesses—Competency.—In an action wherein the husband, though not a party to the suit, is directly interested in the result thereof as one of the beneficiaries of the fund in litigation, either he or his wife may testify, but not both.</p>

<p>1. Municipal Corporation — Streets—Dedication—Abutting Owners.— If the proprietor of lands lays out; a town therein, ’ and makes and publishes a plat of the town, showing the lots to be sold and the streets and alleys, and dedicates the streets and alleys to the use of the town, and sells the lots with reference to the streets and alleys, the, purchasers of the lots become vested with the ordinary rights of an abutting property owner in such streets and alleys, and such rights run with the lands, whether the town be incorporated or not.</p> <p>2. Railroads — Obstruction of Street — Abutting Owners. — If a railroad is lawfully constructed in a street, and its construction and prudent operation obstructs the abutting property owners’ right to the reasonable use of the street for ingress or egress to and from his property, or the proximity of the road is such that soot, cinders, and ashes are necessarily thrown into and upon the houses of the lot owners, the injury is a permanent one and may be recovered in one action, and the measure of damages is the diminution in the market value of the property caused by the location of the tracks of the road in the street and the prudent operation of the trains over the tracks.</p> <p>3. Railroads — Measure of Damages. — If the structure is a temporary one, or the injury arises from a negligent construction of the road, or its construction is unlawful, or the trouble can be corrected at a reasonable expense, the injury is temporary, and the property owner may sue and secure recoveries as from time to time his property suffers injuries, and the measure of damages is the decrease in the rental value of the property, if rented; and if occupied by the owner, the damage to its use and occupation.</p> <p>4. Railroads — Failure to Compensate for Land for Tracks — Damages. —If a railroad constructs its tracks upon lands without making any compensation therefor, and the owner sues for damages, it will be considered that he has consented to the location of the road at that place.</p>

<p>1. Husband and Wife — Alienating Affections. — Upon the third appeal in an action hy the husband against his wife’s parents for the alienation of her affections, the evidence being substantially the same as on the two former trials, evidence examined and held to require the submission of the case to the jury.</p> <p>2. Appeal and Error — Alienating Affections — Verdict.—On appeal by defendants from a verdict and judgment for the husband for the alienation of his wife’s affections, verdict held not to be flagrantly against the evidence. .</p> <p>3 Appeal and Error — Review—Subsequent Appeals — Instructions.—■ Where, on a former appeal, the appellate court indicated the instructions that should be given on a new trial, and the evidence on the new trial is substantially the same as on the previous trial, no instructions other than those indicated should be given.</p> <p>4. Appeal and Error — Instructions.—Where defendants failed to request a peremptory instruction' on a former trial, based on the evidence or want of evidence, and the evidence on a subsequent trial, following an appeal to the Court of Appeals, is the same as on the former trial, they are concluded from complaining of the court’s .refusal to give such instruction on the last trial.</p> <p>5. Continuance. — Where there had already been two continuances at their request, the defendants were not entitled to a further continuance upon filing of affidavits to the effect that one defendant .was unable, on account of a permanent disease, to attend the trial or give her deposition, and the other unable, on account of unsoundness of mind, to testify or assist'his counsel in the trial, in the absence of a reasonable showing that either one would at a later term be able to attend the trial or. give deposition therein.</p> <p>6. Continuance — Discretion of Lower Court. — The fact that one of defendants’ attorneys was employed only two weeks before the trial, did not authorize a continuance, where their other attorney had been connected with the case at .a former trial.</p>

<p>Negligence — Proximate Cause — Evidence.—In a personal injury action the proven injury must be shown to have been the direct or proximate cause of the proven negligence, and unless the evidence shows such connection, directly or by fair inference, there can be no recovery; and if there is a failure of evidence on any one material point it is fatal to him having the burden.</p>

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

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

<p>!.'■ Homestead — Statutory Right of Widow — Abandonment. — The • statutory right-given to a widow .under section 170.7. of the Kentucky Statutes is not an estate in the realty, but in only a right' of' occupancy, which is forfeited by abandonment, and a sale of it con-' stitutes an abandonment.</p> <p>2. Homestead — Statutory Right of Widow — Abandonment.—If, how-ever, the widow should be induced to abandon the occupancy of the homestead through the purchase of it by' the owner of the fee in the land covered by the homestead,- or through one for his use and benefit, whereby such owner is vested with immediate possession of the land, he can not defend a suit by the widow to recover the price agreed to be paid to her, on the ground of no consideration for the purchase, for in such case the obtention of the immediate possession by the owner is a valuable consideration for the agreement to purchase.</p> <p>S. Homestead — Purchase—Right of Widow. — Where such purchase was made by the husband of the owner of the fee, and with her knowledge, procurement, and consent, and she executed a mortgage to secure the purchase price, the rule just announced will apply to her as though she had obligated herself to pay the purchase price, the transaction being tantamount to that.</p>

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

<p>1. Appeal and Error — Infants—Sale of Real Estate — Guardian Ad Litem — Failure to Appoint — Clerical Misprision — Review.—Where, in an action for the sale of an infant’s real estate, the infant is served with process, rendition of a judgment of - sale before defense is made by a guardian ad litem is a mere clerical misprision, and until presented and acted upon- in the circuit court is not ground for an appeal.</p> <p>2. Appeal and Error — Clerical Misprision — Dismissal of Appeal. — An appeal based on a clerical misprision not presented and acted upon in the lower court is premature and will be dismissed.</p> <p>3. Infants — Sale- of Real Estate — Guardian Ad Litem — Failure to Appoint — Effect.—A judgment ordering a sale of the real estate of an infant who has been served with process, without defense by a guardian ad litem, is not void but erroneous. v</p> <p>4. Infants — Erroneous Judgment — Conclusiveness.—A ■ judgment ordering a sale of an infant’s real estate, even though erroneous, is conclusive betweeh the parties until set aside or reversed.</p>

<p>Landlord and Tenant — Subsequent Lease — Term of. — When, a lessor stipulates in a lease that if, during the life of the lease, he gives another lessee more favorable terms than are given in the lease in which such’ stipulation is made, then the lessee therein shall be given the same advantages,- does not prevent the lessor from giving another lessee more favorable terms, but obligates him, that if he does give another lessee more favorable terms, he will give to the first mentioned lessee the„ same terms, if he desires them, but. he is not obligated to give the terms to the first mentioned lessee, except upon the same. conditions upon which they are given to the other lessee.</p>

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

<p>1. Landlord and Tenant — Lease ’For Family Residence — Construction of. — A provision in a lease that the premises are to be used as ; a family residence only is not violated by the occupancy of the premises by the three joint lessees and their lodgers, where the lease on its face shows that it was made to three men of different names, and where the evidence shows that they were known to the ■ lessor to be unmarried men, and that with his knowledge and without objection by him they and their lodgers so occupied the premises as a family residence for several months prior to the occurrence of the fire out of which this action arose.</p> <p>2. Landlord and Tenant — Provision in Lease Against Sub-letting — ■ Effect of. — A provision in a lease against sub-letting any part of the premises for rooming purposes, is not violated by the lessees in keeping lodgers, where the lessees retain control of the rooms, furnish and attend to them.</p> <p>3. Landlord and Tenant — Injuries From Defective Conditions — When Landlord Cannot Escape Liability. — Provisions in a lease releasing the landlord from liability for failure to keep his tenement house in repair, do not exempt him from liability for injury or deaths resulting from a failure to provide a fire escape to the building or to keep in a reasonably safe condition for use in case of fire, a ladder and bulkhead door for escape to the roof, such duties being imposed by statute and a city ordinance.</p> <p>4. Landlord and Tenant — Negligence—Violation of City Ordinance 1 Requiring Fire Escapes — When Actionable Negligence. — The provisions of an ordinance of the city of Louisville, known as the “Building Code,” requiring fire escapes on tenements and other buildings, is mandatory and its violation by a landlord in failing to provide fire escapes, being the proximate cause of the injury of one and deaths of two occupants, was actionable negligence.</p> <p>6.Landlord and Tenant — Fire Escapes. — In requiring fire escapes on tenements and other buildings, the ordinance of the city of Louisville of 1909, known as the “Building Code,” applies to build- ■ ings erected before as well as after the passage of the ordinance.</p> <p>6. Municipal Corporations — Fire Escapes. — An ordinance of the city of Louisville, relating to the erection .and maintenance of fire escapes on tenements and other buildings, is repealed by a subsequent one relating to the same' subjects, to the extent that the provisions of the two ordinances are inconsistent and the fact that the ' . former ordinance appears with the later, in a compilation of published ordinances does not 'render the older one valid.</p> <p>7. Landlord and Tenant — Statutory Provisions — Duty of Landlord.— ■ Under s.ection 3037g, subsection 63, Kentucky Statutes, the owner of a three story. building, the first floor of which was used as a store, the second and third floors rented as flats, owed to the lessees of the second and third floors, their lodgers and boarders, the duty to maintain the ladder and bulkhead door, leading from the third 'floor to the roof, in such condition as to provide a reasonably safe means of escape to the roof in case of fire.</p> <p>8. Statutes — Construction—Section 3037g, Kentucky Statutes. — While the act of 1910, known as the “Tenement House Act” (section 3037g, Kentucky' Statutes) allowed" two years for reconstruction and alteration of tenement houses, the provisions of Article- 4 of the Act, with the exception of subsection 62, do not allow such time, but apply to buildings already erected, as they treat of the maintenance of such buildings.</p> <p>9. Statutes — Amendment of. — Subsection 63 of the act of 1910, known, as the “Tenement House Act,” was not affected by the act of 1912 extending the time for constructing certain improvements under the act, as such section was not included in the list of sections amended and re-enacted for that purpose.</p> <p>10. Appeal and Error — Conduct of Trial-Judge. — This court will refuse to sustain a complaint of alleged misconduct of the trial judge in the treatment of a witness, where the record fails to show that' an exception was reserved in respect thereto, and where the acts complained of were necessary to restrain the witness from injecting statements repeatedly ruled incompetent by the court.</p> <p>11. Appeal and Error — Conduct of Trial Judge — Conduct -of Juror. — In an action by his administrator for damages for the death of an occupant of a tenement house, defendant owner was not prejudiced by the conduct either of the judge or juror, where a sister of the decedent upon adjournment asked the juror when court would reconvene and he only gave her this information, and the judge, upon being advised of the juror having conversed, interrogated each separately in his office in the absence of the other jurors, and, upon ascertaining the nature of the conversation, overruled defendant’s motion to discharge the jury.</p>

<p>1. Ejectment.. — This action in ejectment to recover .possession óf land from an adjacent holder, the parties having derived title from a common source, the judgment is affirmed upon the authority of France v. C. & O. Ry. Co., 156 Ky., 126, which involved questions of law and fact substantially the same as are involved upon this appeal. '</p> <p>2. Ejectment — Pleading.—In an action of ejectment, an amended ¡petition setting up adverse possession by the plaintiff of the land in controversy continuously for a period of fifteen years before the commencement of the action, and offered to conform to the proof, was properly rejected because the evidence showed that the use of the land by the plaintiff was permissive only, and not adverse.</p> <p>3. Railroads — Right of Way — Permissive Use by Public. — The permissive use of a railroad right of way by the public gives to those enjoying such use no. legal right to a passway over it.</p>

<p>Railroads — Deatli of Person on Track — Licensee—Trespasser— Question for Jury. — In an action for damages for personal injuries to a'person walking along a railroad track, evidence examined and held that the question whether plaintiff was a trespasser or licensee was properly submitted to the jury.</p>

<p>1. Wills — Construction, of — Valuation of Property by Testator — Expression of Opinion. — Where a testator devised “all of my four farms on the Cumberland River in the Hereford Bottom in Russell County * * with the hill lands adjoining tl-(e .same. That is all the land that I own on the Cumberland River, to the value of fifteen thousand dollars,” the devisees took all the land on the Cumberland River, although it was of more than the value of fifteen thousand dollars. The words fixing the value at fifteen thousand dollars were merely an expression of opinion as to the value of the land.</p> <p>%. Wills — Construction of — Substitution of Word. — It is a familiar rule in the construction of wills that a word may be substituted whenever it is necessary to do so in order to carry out what seems to be the plain intention of the testator..</p> <p>3. Wills — When Construed to Take Effect as if Executed Immediately Before Death of Testator. — Under section 4839 of the Kentucky Statutes a will will be construed- to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention appears in the will.</p> <p>4. Wills — Disposition of Property Acquired by Testator After Execution of Will. — Where the testator, after the execution of the will, acquires property adjoining lands specifically devised, and that would have passed with the devise if it had been acquired before the execution of the will, the specific devise will include the land subsequently acquired, unless a contrary intention appears in the will.</p> <p>5. Wills — Construction of — After—Acquired Property. — In determining whether .property acquired after the execution of the will passed under and in connection with specific devises, the whole will will be looked to for the purpose of ascertaining the intention of the testator.</p> <p>6. Wills — Construction of — Dying Without Issue. — Where a will devised property directly to devisees without any intervening estate or period of ■ distribution, and provided that at the death of the devisees the land should go to their legal heirs, and if any of them should die without issue his share to go to the other devisees, the devisees took a defeasible fee subject to be defeated at any time by their death without issue then living.</p> <p>7. Wills — Construction of — Equality of Distribution. — Where a testator gave land to some of the devisees and money to others, the devisees to whom the money was given should be allowed interest on it from the time the devisees who got the land were put in possession of it until the money is paid over by the executor, in order to carry out the purpose of the testator to make'an equal distribution of his estate.</p>

<p>1. Trial — Submission.—A submission to which no objections were offered upon exceptions to a master’s report at the same term, but not the appearance term at which an amended petition and answer are filed, is not premature- when the case theretofore had been referred to the master by an agreed order of reference to hear proof and report upon every issue raised by the pleadings.</p> <p>2. Corporations — Insolvent Corporation — 'Payment by Officers Out of Assets. — An officer of a corporation may not out of its assets, after it is insolvent and an action ,for the settlement of its affairs has been filed against him by another stockholder and director, pay his own claim against the company, or one upon which he is surety, but will be required by the chancellor to pay said funds into court for the benefit of all the creditors, and take pro rata payments upon his proven claims as distributions are made by orders of court.</p> <p>3. Corporations — Officers and Agents — How May Act — Records.—A corporation can act only through its directors at an official meeting regularly held, and its acts can be proven only by the records of such meetings.</p> <p>4. Corporations — Officers and Agents — Evidence.—Casual .conversations among directors are insufficient to bind the copipany, and evidence of such conversations is incompetent.</p> <p>5. Corporations — Unlawful Use of Funds by Employe — Manager Not Bound. — The general manager in charge of the operation of a corporation’s business is not liable for unlawful use of the company’s funds by an employe not authorized or consented to by him.</p>

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

<p>1. Boundaries — Calls—Monuments.—Courses and distances are controlled by marked corners and fixed monuments, and where a call in a patent will not reach the natural object called for the call should be changed so as to reach that point.</p> <p>2. Boundaries — Corners—Evidence.—In an action to enjoin trespass where the defendant claimed under a superior patent, the fifth call of which is “Thence N. 69 E. 64 poles to a poplar and a large rock by the side of the path,” evidence considered and held to show that what was known as the “Upper rock and poplar,” as claimed by plaintiff, and not the “Lower rock and poplar,” as claimed by defendant, is the sixth corner of the survey.</p> <p>S. Boundaries — Description—Construction—Evidence of Location.— That construction which is most against a party claiming under an uncertain survey should be adopted, and under no circumstances ought a doubtful title prevail against a clear one.</p>

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

<p>1. Officers — Increase or Reduction of Compensation. — A county school superintendent is not entitled to collect any salary except that allowed to him by the fiscal court, which can neither be increased or decreased after his election.</p> <p>2. Schools and School Districts — Appropriation Out of School Fund for County Superintendent. — The county board of education has no right to appropriate any of the school fund to the county school superintendent in payment of salary, nor can the county school superintendent discharge the duties of school supervisor and be paid by the county board of education therefor, nor can the salary of the county superintendent be increased in this manner. The county board of education is vested with sound discretion in the matter of increasing and paying expenses of the county school superintendent, or in making the school system of the county more efficient. But this discretion must not be abused as it is not an arbitrary one, and when this discretion- has been abused, the courts upon proper application will correct it.</p> <p>8. Schools and School Districts — Clerical Assistance to Superintendent — Board of Education. — If the clerical work of the county school superintendent is so large or heavy as that he is unable to do it and perform other duties of his office, the board of education may provide clerical assistance for the superintendent to use in his office, and the board may further provide for reasonable expenses of the superintendent when in the actual discharge of the duties of his office, but these expenses must be for services rendered in the county, as must also those allowed and paid for rendering the school more efficient; and in every ease, the expenses must be passed on and agreed to in advance by the board of education.</p> <p>4. Schools and Schcol Districts — Assistant School Superintendent Unauthorized. — There is no such officer as assistant county school superintendent and no one is authorized to employ any such, or to pay to him any salary; nor can the county school superintendent charge the school fund with the use of his own horse and vehicle in discharging the duties of his office.</p>

<p>1. Master and Servant — Safe Place to Work — Assumption of Risk.— It is the duty of the master to furnish a reasonably safe place for his servant to perform his -work; but this does not apply where it is the duty of the servant to make the place safe, nor where the master has provided a place, but the servant declines to use it and uses one of his own selection. If the servant is injured under the circumstances of either of the exceptions, the master is not liable. The servant assumes the usual and ordinary risks of the employment, and this applies to actions under the employers’ liability act, unless the injury was produced by the failure of the master to observe some provision or some requirement of a Federal Statute.</p> <p>:2. Master and Servant — Assumption of Risk. — Where a locomotive fireman whose duty it was tó see that the engine and tender were properly supplied with water and coal, and to make general inspection of them with the view of fitting them for the trip, and while so engaged, endeavors to walk over and upon the coal in' the tender from the cab of the engine to the rear of the tender, and in doing so stumbles oyer some object or article on top of the coal pile, the injury thus sustained is the result of an assumed risk for-which the servant- cannot recover; and especially so when in such case it was the duty , of-the servant to inspect the place upon which he was walking, and when he failed to use the means provided by the master to get to the rear of the tender, which' were steps and handholds at the back of it whereby the servant' might climb to the top of it for the purpose of discharging the duties which he was endeavoring to discharge when walking on the coal pile.</p>

<p>1. Death — Action—Sufficiency of Evidence — Expectation of Pecuniary Benefits. — Declarations of the decedent that he intended to go to work and to contribute to the support of both his father and mother will support a finding of damages in their favor in an action under the Federal Employers’ Liability Act.</p> <p>2. Death — Damages—Amount—Sufficiency of Evidence. — In an action under the Federal Employers’ Liability Act by the administrator ' of a decedent for the benefit of his father and mother, evidence examined and held sufficient to support a finding of $3,500.0b in favor of the mother.</p> <p>.3. Death — Damages—Amount—Excessiveness.—In an action under the Federal Employers’. Liability Act by the administrator of the decedent to recover damages for the benefit of the father and ’ mother of the decedent, evidence examined and held that a. finding of $6,500 in favor of the father was excessive.</p> <p>4. Appeal and Error — Death—Damages—Excessive Apportionment— Prejudicial Error. — The apportionment of excessive damages to one of the beneficiaries in an action for damages under the Federal Employers’ Liability Act is prejudicial error, entitling the defendant to a reversal.</p> <p>5. Appeal and Error — Federal Employers’ Liability Act — Death—Damages — Excessive Apportionment — Reversal.—Where, in an action for damages for death brought under the Federal Employers’ Liability Act, the verdict is excessive because of the excessive apportionment to one of the beneficiaries, the entire judgment will be reversed and the cause remanded for a new trial, even though the damages apportioned to another beneficiary are not excessive.</p> <p>6. Evidence — Death—Action—Deposition of Decedent. — In an action by a personal representative to recover damages for the benefit of the father and mother of the decedent, the deposition of the decedent given in the action of divorce betwen his father and mother was properly excluded, because it did not illustrate decedent’s general attitude of mind towards his father, but only his attitude of mind growing out of particular circumstances which had long, since passed away.</p> <p>7. Evidence — Death—Action—Agreed Judgment in Another Action — r Admissibility. — In an action for damages for death involving thp question of the father’s reasonable expectation of pecuniary benefits from his deceased son, an agreed judgment of divorce between the decedent’s father and mother, by which the father surrendered the decedent to his mother during his minority, is not admissible.</p> <p>8. Death — Federal Employers’ Liability Act — Settlement of Claims— Effect. — After suit is brought under the Federal Employers’ Liability Act by the personal representative of the decedent to recover damages for his death, a settlement by one of the beneficiaries of the action in no way affects the right of the personal representative to proceed with the action to final judgment.</p>

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

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

<p>1. Pleading — Amendment—Discretion of Court. — Refusal to permit’ second amended petition to be filed making immaterial change in description of injury as set out in petition as theretofore amended, held not to be abuse of the sound discretion of trial court.</p> <p>2. Physicians and Surgeons — Liability for Negligence or Malpractice. —Whether or not a physician or surgeon must continue attentions after an operation, if left to his discretion, depends upon the necessity therefor under the nature and circumstances of each particular ease as appears to him in the exercise of reasonable care and skill.</p> <p>3. Physicians and Surgeons — Liability for Negligence or Malpractice. —Failure to effect a cure is no evidence of want of proper care, skill and diligence upon the part of a physician; and to support a charge of malpractice it must be shown affirmatively that the ■physician was unskillful or negligent and that his want of care or skill caused injury to the plaintiff.</p>

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

<p>1. Wills — Construction of — Power of Devisee to Convey Good Title.— Under a will in which, the testator said, “I give and bequeath and devise to my beloved wife, Sallie C. Bryan, all of my estate both real and personal of every description, to have and to hold and to enjoy as she may wish,” the devisee had the right to sell the land and to convey to the purchaser a good title, although in another part of the will the testator said, “At the death of my wife I desire that the Louisville Trust Co. take charge of any and all effects of' any description and invest to the best advantage,” and further provided that the Trust Company should hold whatever was left of the estate in trust for the daughter of the testator.</p> <p>2. Wills — Construction of — Power of Sale) — A devisee may have the' power to convey the fee simple title in an estate devised and yet not be possessed, in the full meaning of these words, of such title.</p>

<p>1. Trial — Taking Case From Jury — Evidence—Sufficiency.—Since the credibility of a witness and the weight of his testimony are for the jury, courts are not at liberty to refuse to submit a case to the jury on the ground that the evidence of plaintiff’s witnesses as to distance is based on estimates, while the evidence for the defendant is based on actual measurements.</p> <p>2. Evidence — Photographs—Enlargement—Admissibility. — The fact that photographs are enlarged does not render them inadmissible as evidence, when their correctness is established and their enlargement is brought to the attention of the jury.</p> <p>S. Trial — Instructions—Error.—Where negligence is defined by other instructions as a failure to exercise ordinary care, an instruction on contributory negligence telling the jury that it was the duty of plaintiff “to exercise ordinary care for her own safety in using the sidewalk, and if you believe from the evidence in this case that she failed to exercise such care and her negligence, if any, so contributed to bring about her fall and injury, if she did fall and was injured, that but for her negligence she would not have been injured, the law of the case is for the defendant,” etc., is not erroneous because of the use of the word “negligence” in the first instance in place of the word “failure,” and the use of the word “negligence” in the second instance in lieu of the words “her failure to exercise such care.”</p> <p>4. Appeal and Error — Verdict—Excessiveness.—In a personal injury-action, exidence examined and held that a verdict of $2,000.00 was not excessive.</p>

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

<p>1. Municipal Corporations — Incurring Indebtedness in Excess of Annual Income — When Election Must be Held. — An election held under section 157 of the Constitution to authorize a city to incur an indebtedness in excess of its yearly income, must be held on the general election day in November.</p> <p>2. Municipal Corporations — Election to Incur Indebtedness — When Taxpayer Entitled to Injunction to 'Prevent. — Ordinarily a court of equity will not enjoin the holding of an election; but where the election is not one, in which a public office is involved, and the election would be void and cause unnecessary and improper expense, a taxpayer or other person who would be injured thereby, is entitled to an injunction.</p>

<p>1. Municipal Corporations — Defective Streets — Overhead Structures— Duty — Liability.—The duty of a municipality to exercise ordinary care to maintain its streets in a reasonably safe condition applies to overhead structures as well as those under foot, and for an injury to a pedestrian, received by reason of a defective awning or shed projecting over and across a sidewalk, and supported on posts at the curbstone, the city is liable, if it knew, or, by the •exercise of ordinary care, could have known, of ¡the .defective condition in time to take reasonable precautions to avoid the injury and failed to do so.</p> <p>2. Municipal Corporations — Defective Streets — Governmental Function. — The duty of a city to exercise ordinary care to maintain its streets in a reasonably safe condition furnishes an exception to the governmental function doctrine, and where a pedestrian is injured by a fall of a shed projecting over and attached to the sidewalk and the city is negligent in failing to take reasonable precautions to warn pedestrians of the danger, it is liable in damages, even though the shed was rendered dangerous a few hours before by the fall of bricks thereon from the wall of a building injured by fire which the city, in the exercise of a governmental duty, found it necessary to tear down.</p> <p>3. Municipal Corporations — Defective Streets — Overhead Structures —Notice—Question for the Jury. — In an action by a pedestrian against the city for damages, for personal injuries caused by the fall of a shed projecting over the sidewalk, evidences examined and held that the question whether or not the city knew of the dangerous condition of the shed, or could have known of it by the exercise of ordinary care, in time to have taken reasonable ■precautions to prevent the injury, was for the jury.</p> <p>4. Municipal Corporations — Defective Streets — Duty to Guard — Instruction. — In guarding its streets the city is required to use only such means as are reasonably sufficient to warn pedestrians of the danger, and an instruction which specifies the means which should have been employed is erroneous. •</p>

<p>Appeal and Error — Absence of Brief — Presumption.—In the absence of a brief specifying the errors for which a reversal is asked on appeal, it will be presumed that no error exists, and that the judgment is correct.</p>

<p>1. Deeds — Construction.—The meaning of a deed, like other instruments, must be gathered from its whole contents and not detached portions; and where the granting clause is repugnant to other recitals in the deed the whole instrument will he construed so as to effectuate the purpose of the parties, and if necessary the granting clause will he made to yield to such purpose.</p> <p>2. Husband and Wife — Reduction of Wife’s Property to Possession. ■ — Where a father advances to his daughter money which is used in the purchase of land, the title to which is taken to her husband, the transaction will he treated as a reduction by the husband of the wife’s personal property to his possession. ,</p> <p>3. Husband and Wife — 'Purchase of Land With Money of Wife — Title. —Under section 2353, Kentucky Statutes, if the wife consents to-the use of her money in purchasing land, the title to which is taken to the husband, no trust results for her- benefit.</p> <p>4. Deeds — Conduct of Parties — Construction.—After a long lapse of years a deed will- be construed to mean that which the parties by their conduct have construed it to mean.</p>

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

<p>Wills — Devise to Witness — Proof.—Under section 4836 Of the Kentucky Statutes a devise to one of two attesting witnesses to a will is not void if the will may he proven by the testimony of the other attesting witness.</p>

<p>1. Pleading — Election.—Where an answer presents in one paragraph the plea of no consideration and in another the plea that the consideration was $250.00, the defenses are inconsistent, and á motion to elect is properly sustained.</p> <p>2. -Pleading — Fraud—Collusion.—A plea of fraud and collusion which, does not state facts but mere legal conclusions is insufficient»</p>

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

<p>1. Carriers — Personal Injuries — Negligence.—If a train is moving slowly and it can not be said by reasonably prudent men to be necessarily dangerous, if a passenger under such circumstances, to avoid the inconvenience of being carried beyond his destination, undertakes to alight from the train, his acts in so doing is not negligence per se, but if the train is moving at such a speed as to make it probably unsafe for him to alight, he will be guilty of negligence per se if he undertakes to do so, and in such case the carrier will not be liable for any injury which he might sustain.</p> <p>2. Carriers — Personal Injuries — Negligence of Passenger. — Whjere the facts show that the train had reduced its speed to about four or five miles per hour at a point about 200 yards from the depot platform, but began to increase the speed so that when it arrived at the platform it was moving at the rate of-about 15 miles per hour, it was negligence per se for a passenger to undertake to alight from the train while passing the depot platform.</p>

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

<p>Principal and Agent — An agent who is authorized to buy property for his principal cannot purchase the property in his' own name and sell it to the principal at a greater price than he paid for it.</p>

<p>Appeal and- Error — Supersedeas—Dismissal of Appeal — Liability of Surety for Costs. — Where a defendant superseded a judgment by giving a bond with surety thereon, pursuant to section 748 of the Civil Code of Practice, to the effect that the appellant would pay to appellee all costs and damages that might be adjudged against the appellant on the appeal, and also that he would satisfy and perform the whole of the judgment in case it should be affirmed. and the appeal was dismissed by the Court of Appeals, with damages, because appellant railed to prosecute his appeal within the time prescribed by section 738 of the Civil Code of Practice, the dismissal of the appeal was a virtual affirmance of the judgment, and made the surety upon the supersedeas bond liable for the debt.</p>

<p>1. Wills — Construction.—A will being explicit and the meaning of the language used not being obscure, rules of construction meant to elucidate cannot be employed to contradict the terms of the will.</p> <p>2. Wills — Construction.—That the plain and unambiguous provision made by a will does not accomplish what was expected of it by the testator, affords no reason for enlargement under the guise of construction of the only provision made.</p> <p>3. Wills: — Construction.—Courts are not authorized to give to a will any construction other than that which is justified by a fair interpretation of the wording and language of the will itself even though they may be of the opinion the testator did not intend to say what he did say.</p>

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

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

<p>1. Courts — Jurisdiction — Crimes and Punishments — Trespass. —■ County courts of this Commonwealth are without jurisdiction to try persons charged with trespass, under section 1256 of the Kentucky Statutes, which fixes the punishment for trespass at not less than ten nor more than two thousand dollars. The jurisdiction of county courts in criminal cases is limited to those cases where the' punishment does not exceed $100.00 and fifty days’ imprisonment.</p> <p>2. Statutes — Crimes and Punishments — Jurisdiction of County Courts. —The Act of 1914 which attempted to give the county courts of this Commonwealth jurisdiction over all misdemeanors where the punishment exceeded a fine of $100.00 and imprisonment for fifty days, is unconstitutional.</p> <p>S. Courts — Jurisdiction.—Where a county court had no jurisdiction, . an appeal to the circuit court where the case was tried de novo, did not give the circuit court jurisdiction, although the circuit court would have had jurisdiction to try the case in the first instance.</p> <p>4. Judgment — Void Judgment May Be Enjoined. — A judgment based upon an invalid statute may he enjoined in any court of competent jurisdiction, regardless of the amount involved. '</p>

<p>1. Damages — When Excessive if Injury Not Permanent. — Damages in the sum of seven thousand dollars, awarded a boy eleven years old whose skull was broken in places, was excessive, in the absence of some evidence showing, that the injury permanently impaired his health or his facidties.</p> <p>2: Negligence — Licensees On Premises of Coal Company — Duty Owing to. — A coal company owes to' persons on • its premises who are mere licensees only the duty of exercising ordinary care to save them from injury on account of its unsafe or defective appliances or premises, after their peril has been discovered.</p>

<p>Petition for writ of prohibition in Court'of Appeals.</p>

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

<p>1. Limitation of Actions — Action for Recovery of Personal Property —Evidence.—In an action by plaintiffs to recover their part of the proceeds of lumber, alleged to have been jointly owned by them and the defendant who sold the lumber, evidence examined and held that the lumber had been sold and paid for more than five years before the bringing of the action and that their claim was barred by the statute of limitation.</p> <p>2. Fraudulent Conveyances — Creditors—Evidence.—In an action by the creditors of a grantor to subject the estate of decedent to the payment of their debts on the ground that the conveyance to him was fraudulent, evidence considered and held that no fraud was shown.</p> <p>3. Witnesses — Competency—Section 606, Subsection 2, Civil Code. — ■ A party is not a competent witness for himself concerning a transaction had with a person who is dead at the time he testifies.</p>

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

<p>Criminal Law — Carrying Concealed Deadly Weapons — Increased Penalty for Second Conviction. — Under section 1309, Kentucky Statutes, the increased penalty upon a second conviction for the offense of unlawfully carrying concealed weapons can not he imposed upon one for a second conviction, unless the violation of the statute, for which the second conviction is had, occurred subsequent to his first conviction.</p>

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

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

<p>1. Courts — Courts of Appellate Jurisdiction. — The Court of Appeals is a court primarily of appellate jurisdiction and its original jurisdiction is limited to the causes set out in section 110, of the constitution.</p> <p>2. Courts — Courts of Appellate Jurisdiction — Jurisdiction of Inferior Courts. — As a general principle, this court will not, hy the use of any extraordinary writs, interfere with the jurisdiction of the inferior courts or their discretion in hearing and determining questions of either law or fact, of which they have original jurisdiction, or with the course of justice in the inferior courts, when its ad- • ministration is proceeding in its usual and ordinary way.</p> <p>3. 'Prohibition — When Writ of Will be Granted. — Only in exceptional cases or where an unusual state of facts are presented, which makes it apparent that injurious consequences will result, against which there is no other adequate remedy, will the writ of prohibition be granted.</p> <p>4. Prohibition — Discretion as to Grant of Writ. — The writ of prohibition is a matter reposing in sound discretion; determined by the facts of the particular case, which must in their character be exceptional or unusual, so as to make it apparent that a violation of one’s rights is threatened, and against the results of which he has no adequate remedy, other than the writ of prohibition.</p> <p>6. Prohibition — Writ of Will be Denied Where Adequate Remedy by Appeal. — If a party has an adequate remedy by appeal, the writ of prohibition will be denied him, although the inferior court may be proceeding out of its jurisdiction or erroneously within its jurisdiction.</p> <p>6. Prohibition — Jurisdiction, Proceedings and Relief — Appeal.—Although an appeal from the judgment of the circuit court to this court by a party, of whose person the circuit court has not jurisdiction, may have the effect upon a reversal of the judgment to give the. circuit court jurisdiction of his person- for all the pur- • • poses of the action, this being a principle applied to all litigants in this jurisdiction, it has never been considered such a threatened injustice, without remedy, as to justify the granting of a writ of prohibition.</p>

<p>Appeal and Error — Finding of Chancellor. — Evidence examined and the chancellor’s finding of fact that the use of a passway had been merely permissive and not adverse, is approved.</p>

<p>1. Deeds — Construction—Estate Conveyed. — In construing a deed tlie instrument as a 'whole will he considered, and where, notwithstanding the use of technical words importing a fee, it clearly appears from the instrument considered as a whole that the grantor intended that the grantee should take only a life estate, that construction will he adopted.</p> <p>2. Deeds — Construction—Estate Conveyed. — The granting clause of a deed was: “* * * to the party of the second part, her heirs and assigns,” etc. The hahendum clause was:"“* * unto the party of the second part her heirs and assigns forever.” The hahendum clause also contained the following: “That is to say that if said Dorcas Thacker arrives at the age of twenty-one years or marries and has children this land is deeded to said Dorcas Thacker during her lifetime and at her death to her children, but if she dies before she marries or arrives at the age of twenty-one years, or if she marries and dies without leaving any children, then this land falls back tc me or my heirs. This deed is not to take effect until after my death and the death of my wife, Martha Justice.” Held, that the deed conveyed to the grantee only a life estate, with remainder to her children.</p> <p>3. Infants — Deeds—Avoidance—Laches—Limitation.—An action to avoid a deed made during infancy cannot be maintained after the lapse of ten years from the time the infant becomes of age.</p>

<p>1. Trial — Argument of Counsel — Discretion of Court. — Trial courts may limit the time for argument by counsel to such time as is sufficient to fairly and adequately present the case to the jury, but where a sound discretion is abused, the judgment will be reversed, if the question is properly presented by the record.</p> <p>2. Witnesses — Damages by Overflow of Water. — Housekeepers of the neighborhood are competent witnesses to establish damage to the use and occupancy of property, and the owners of property and ■others who are familiar with property values of the vicinity, though they have not bought or sold many pieces of property, are competent to testify upon the question of diminution in salable value of the. property resulting from overflow by water negligently deflected upon same.</p> <p>3. Damages — Negligence—Overflow of Water. — Where the owner of property occupies same, the temporary damage from negligence which augments the natural flow of water upon same is the damage to the use and occupancy of the property and not the diminution of its rental value.</p> <p>4.' New Trial — Objection to Jury. — An objection to the jury panel first presented upon motion for a new trial comes too late.</p>

<p>1. Mortgages — Chattel Mortgage on Property Not in Existence. — A mortgage of a crop to be raised on a farm during a certain term passed no title if the crop was not sown when the mortgage was executed. The thing mortgaged must have an actual existence at the time of the execution of the mortgage to the end that the mortgage may create a lien upon it.</p> <p>2. Mortgages — Chattel Mortgage — Exceptions to Rule That Property Must be in Existence. — To the general rule that the thing mortgaged must have an actual existence at the time of the execution of the mortgage, there is an exception which exempts from its operation the increase of female animals covered by a mortgage and property acquired by a corporation in the exercise of powers conferred by its charter.</p> <p>3. Assignments' for Benefit of Creditors — Position of Assignee. — An assignee-, for the benefit of creditors, generally speaking, can assert no rights that his assignor could not have asserted, and any equity which might have been enforced against the assignor is equally as available against the assignee.</p> <p>4. Mortgages — Chattel Mortgage — Equitable Lien of Mortgagee on Property Not in Existence When Mortgage Was Executed. — A ' chattel mortgage on property to be acquired in the future is not void as between thé parties, and whenever the mortgagor acquires the subject-matter of the mortgage it becomes subject to the lien of the mortgagee to the same extent as if it had been in existence at the time the mortgage was executed.</p> <p>6. Mortgages — Chattel Mortgage — Equitable Lien of Mortgagee as Against Assignee of Creditors.- — Where property to be acquired in. the future is mortgaged and the mortgagor, after the .property ■ has come into existence, makes an assignment for the benefit of his creditors, an equitable lien in behalf of the mortgagee attaches tq the property superior to the rights of the assignee.</p>

<p>1. Taxation — Corporations—Payment of Taxes by — Listing Shares by • Stockholders. — Under section 4085 of the Kentucky Statutes, so long as a corporation pays the taxes on all of its property bona fide used in its business in this State, the individual stockholder is not required to list his shares in .the corporation for assessment and taxation.</p> <p>2. Corporations — Existence Separate Froin Officers and Directors.— A corporation is a distinct, entity and has an existence separate from its officers and directors, and irrespective of the persons who own its stock.</p> <p>3. Corporations — Stock of Another Corporation. — A corporation owning all the stock of another corporation does not own the property of the latter corporation. '</p> <p>v Taxation — Assessment of Shares of Stock.of .Foreign .Corporation. . ^ — Shares of stock in a foreign, corporation,.which, 'owns no prop:- • ■ -' erty of any. kinft 'in the State of Kentucky,' are not rendered ©xémpt'from'assessment'and taxation in'the hands of an individual owner resident in Kentucky under section 4085’ of the Kentucky Statutes' by the fact that the foreign corporation owns substantially all of the stock of another corporation which owned property in Kentucky and paid taxes ■ thereon.</p>

<p>li Contracts — Timber—Instructions.—Where a contract for the cutting and delivery of timber provides that “payment to be made between the 10th and 15th of each month for all timber cut and skidded in the previous month,” and plaintiffs sued to recover a •certain portion of the payments retained by the defendant on the ground that they, were compelled to abandon the contract because of the failure of the defendant to make payments in accordance with the contract, the time of payment, and not the failure of the defendant to take up' and give estimates within the dates specified, is the essential feature of the contract; and .an instruction authorizing a • finding for plaintiffs if the defendant failed and refused to take u© and give them estimates on or before the 10th or' 15th of each month for the timber cut and skidded in the previous month, is. erroneous.</p> <p>2. Appeal and Error — Instructions—Error—New Trial. — Since thei instructions given by the court should'be correct as far as they go, it is not necessary for a party, in order to avail himself of an erroneous instruction, to offer an instruction on the subject. It is sufficient if he objects and excepts to the instruction and makes the giving of the instruction a ground for a new triah</p>

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

<p>1. Master and Servant — Fellow Servants — Doctrine of in This State. —The fellow servants doctrine prevails in this State with two exceptions. (1) An inferior servant is not a fellow servant with his boss or superior so as to relieve the master of the negligence of the superior servant resulting in injury to the inferior servant under him. (2) Inferior servants are not fellow servants, although of the same grade, if they are employed in a different department of the work.</p> <p>2. Master and Servant — Fellow Servants. — The members of a crew or gang of men working under a superior, or boss, are fellow servants with the latter so as to relieve the master from liability for the negligent acts of the inferior servant resulting in injury .to - the superior or boss.</p> <p>3. Master and Servant — Rules for Protection of Employes. — Where the employment is exceedingly hazardous and dangerous, and it is’ necessary for the proper protection of the employes, that rules should he established by which they should be guided and gov: erned in their work, it would be the duty of the master to enact and promulgate such rules; but this does not apply as to every minute detail of the work, nor in cases where the work is simple, easily understood and attended with no extraordinary hazards,</p>

<p>1. Infants — Sale of Real Estate of — Code Provisions Must tie Fallowed. — The power to sell the real estate of infants is conferred, exclusively hy the provisions of the Civil Code of Practice and unless authority to sell can be found in the code, there can be no sale. Where an infant owned an interest in indivisible land and brought suit for a sale and division of the proceeds, the court had no authority to consent that the other joint owners might pay the infant the value of his interest in the land and thereby avoid a sale.</p> <p>2. Guardian and Ward — Compromise Concerning Lands of Ward.— Section 2030 of the Kentucky Statutes, providing that a guardian may by consent of court compromise a controversy concerning the land of his ward, does not confer authority to sell the real estate of the infant in violation of the code provisions.</p> <p>3. Judicial Sales — Inadequacy of Price — Infants.—The rule that a judicial sale will not be set aside for mere inadequacy of price does not apply to sales of infants’ real estate. Such sales will be set aside when the price is grossly inadequate and for this reason alone.</p>

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

<p>1. Criminal Law — Reading Indictment to Jury — Section 219 Criminal Code. — The purpose of section 219 of the Criminal Code requiring the cleric or Commonwealth’s attorney to read to the jury the indictment and state the defendant’s plea is to inform the jury at the inception of the trial the nature of the charge and the plea of the defendant, and when the cleric has read the indictment and the defendant in .person has entered a plea of not guilty, although neither the clerk nor the attorney for the Commonwealth has stated to the jury the defendant’s plea, there has been a substantial compliance with the Code provision.</p> <p>2 Criminal Law — Instructions—Evidence.—Evidence -examined and . held to authorize the giving of an instruction on murder.</p> <p>3. Criminal Law — Killing Officer in [Resisting Arrest — Murder.— Where an officer is killed while attempting to make an arrest by one knowing him to be an officer it is not necessary to constitute murder that the slayer should have had any particular malice.</p> <p>4. Criminal Law — Killing Officer in Resisting Arrest — Instructions. • — -An instruction on self-defense which stated to the jury- that an officer in attempting to make an arrest had the right to use such force as appeared to him to be reasonably necessary to accomplish his purpose, and that if the defendants knowing he was an officer and attempting to arrest them resisted arrest and in ■ doing so killed him or aided and abetted in such killing they could ndt be acquitted on the grounds of self-defense, while not technically correct was not .prejudicial under the facts of this case.</p> <p>5. Criminal Law: — Resisting Officer — Force Officer May Use. — An ■officer has no right to wantonly shoot or kill one charged with a misdemeanor if the offender is merely trying to escape arrest by flight, but if the offender be armed and offers forcible resistance or threatens the officer and in connection with such threat assumes a menacing attitude, the officer then may use such force in the exercise of a sound judgment as is necessary to make the arrest, not only for the purpose of bringing the offender to justice, but to protect himself from threatened danger.</p> <p>6. Criminal Law — Resisting Officer — Instructions.—An instruction which told the jury that if they believed from the evidence the defendants did know that the person who attempted to arrest them was an officer and was attempting to arrest them and they did not forcibly resist such arrest and the officer assaulted them or either of them with a pistol and that they had reasonable grounds' to- believe from, his conduct that they were in danger of death or great bodily harm and that it was necessary or appeared to- them in the exercise of a reasonable judgment to be necessary in order to avert such danger to shoot the officer then they would find the defendants not guilty, was equivalent to an instruction that they had the right to resist arrest if it was undertaken by the officer in an illegal way.</p> <p>7. Criminal Law — Discretion of Officer in Custody of Criminals. — -It is within the sound discretion of an officer in custody of a criminal, taking into account the nature of the offense, charged and the character and disposition of the offender; to- place handcuffs on him when he is taken to and from, the court room in the presence of the Jury during the trial.</p>

<p>•1, - Master, and Servant — Presumption—Notice.—A man o£ average intelligence will be presumed to know that a heavy stone on edge , elevated at one end several inches from the floor by means of a rope attached to a crane and resting on the floor at the heavy end will have a tendency to tilt from the nature of its position, and an employe must take notice of this simple law of gravitation.</p> <p>•2;- Master and Servant — Negligence.—An employe whose duty it is to place a wooden block under a stone which is set on edge and , ' elevated at one end several inches above the floor by a rope attached to a crane while the other and heavy end is resting on the floor,, and whose duty it is to brace or steady the stone slab , with one hand while he places the wooden ¡block under it with the. other cannot recover Jf an injury 'is caused by his failure 1 to so steady or brace it.</p> <p>■3. Master and Servant — Injury of Servant — Negligence of Fellow , Workman. — An employe who is injured because a stone falls on him by reason of the failure of his fellow workman to steady or brace the suspended slab while he places a wooden block under it cannot recover because of such fellow workman's failure.</p> <p>4. Master and Servant — Injury to Servant Caused by Fellow Workman. — The operator of a crane used in unloading slabs of stone from a car and a hooker1 at work in the car in placing ropes around the stone for the purpose of removal ar© fellow servants, , and the hooker cannot recover for an injury resulting from a movement of the crane by his fellow workman.</p>

<p>Taxation. — Assessment Omitted by Railroad Commission. — Under section 4260 of the Kentucky Statutes, the revenue agent may, iby proceedings in the county court, cause to be listed for taxation any property omitted from assessment and taxation by the railroad commission.</p>

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

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

<p>1. Carriers — Carriage of Passengers — Negligence.—It is negligence in tlie agents and servants of a street railway company to start. the car after it has stopped at the usual and regular place for letting off and taking on passengers, whilei a passenger is in the act of getting on the car, as it is their duty to see that no one is on the steps ¡before starting the car.</p> <p>2. Carriers — Carriage of Passengers — Negligence.—If a passenger, on account of afflictions or other burdens, is disabled so that he needs assistance in entering the car, it is the duty of those in charge thereof to render or offer to render assistance. And where a lady 57 years of age attempted to board the car at its usual place, she at the time having in charge two- small children, one of whom was only 18 months of age, and being carried by her, it was negligence to start the car, as she had only one foot upon the steps and before she got upon the platform, and this is so, although the conductor did not see her situation as it was his duty to have done so before giving the signal for the car to start.</p> <p>3. Damages — Evidencei—Aggravation of Damages. — Testimony having for its only purpose .the aggravation of damages, although erroneous, can not be considered -'hen there is no complaint as to the size of the verdict.</p> <p>4. Damages — Evidence—Incompetency.—Where the charge is, in substance, that the plaintiff’s leg was bruised, strained and twisted, to such an extent that a large lump was formed on it, evidence to the effect that the limb was shortened by the injury, is incompetent, as it is not justified ¡by the pleading and is at variance therewith.</p> <p>5. Carriers — Negligence—Instructions.—An instruction defining only the care which should be exercised in starting the car is improper when the evidence shows that the negligence consisted in failing to discover and observe the situation of the passenger at the time the car was started.</p>

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

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

<p>1. Municipal Corporations — Assessment for Street Improvements — • Sections 157 and 158 Constitution. — The taxes referred to in se«- ■ •tions 157 and 158 of the Constitution are the regular levies of taxes for ordinary governmental purposes upon all the property in the taxing district, according to its value; those sections do not embrace special assessments in cities for street improvements which are not taxes within the meaning of the constitutional provisions.</p> <p>2. Municipal Corporations — Streets—Special Assessments — Sections 157 and 158 Constitution. — Special assessments for the construction of streets in a city are not to be considered in determining the municipal tax rate under section 157 of the Constitution, or the limit of municipal indebtedness under section 158 of that instrument.</p> <p>3. Municipal Corporations — Street Construction — Section 3643 Ky. Statutes, Sub-section 1. — Under sub-section 1 of section 3643 of the Kentucky Statutes, a city of the fifth class may construct streets only in one of three ways: (1) at the cost of the city; or (2) at the cost of the land fronting and abutting upon the improved street; or (3) the city may require the abutting property to pay two-thirds of the cost, the other third to be paid by the city; the last two methods being subject to the provision that the assessment shall, in no case, exceed fifty per cent of the value of the ground, after the improvement is made.</p> <p>4. Municipal Corporations — Street 'Construction — Ordinances-—Section 3643 Kentucky Statutes, Sub-section 1. — An ordinance of á city of the fifth class which directed the middle twenty feet of a street to be constructed at the cost of the city and the remaining eight feet upon either side of the middle section of the street to be constructed at the cost of the abutting property, violated subsection 1 of section 3643 of the Kentucky Statutes and is, for that reason, invalid.</p> <p>5. Municipal Corporations — Street Construction. — Sub-section 1 of section 3643 of the Kentucky Statutes contemplates ‘a division of the cost of constructing the streets of a -city of the fifth class to be based upon the total cost of the street and not upon a territorial partition of the street.</p> <p>6. Municipal Corporations- — Street Construction. — Uniformity and equality of burdens require that the same system of aportioning the cost of constructing streets should govern all cases.</p>

<p>1. Railroads — When Under Duty to Avoid Injuring Employes on Track. — A railroad company in the operation of its trains does not owe to its employes, whose business it is to be advised of the movement of trains and to keep the track free from obstructions, the duty of lookout or warning, or any other duty than to avoid injuring them after their peril has been discovered.</p> <p>2. Railroads — Duty of Trainmen to Employes on Track When Warned of Their Presence. — Where an engineer is warned of the presence of a hand-car on the track before he discovers it, it is his duty to keep a sharp lookout and to have the train under such control as that it can be stopped within a reasonable distance.</p> <p>S. Railroads — Duty to Employes on Track — Warning Signals. — ■ Where a section foreman standing by the track gave to an engineer on a passing train a signal in use for many years and which was understood by trainmen although not in the book of rules, that there was a hand-car on the track ahead of the train, it was the duty of the engineer, who understood and acknowledged the signal, to anticipate the presence of the hand-car on the track and act accordingly.</p> <p>4. Railroads — Duty of Section Foreman to Keep Track Clear of Obstructions. — A section foreman in charge of a hand-car is not a trespasser on the track, but it is his duty to keep it out of the way of trains.</p> <p>5. Railroads — When Negligence of Employe Will Not Excuse Company for Injury to Him — Warning—Discovery of Peril. — The rule that the. negligence of an employe will not excuse the railroad company if his peril was discovered in time to avoid the injury applies to a state of case in which the engineer has warning of the presence of the employe on the track before he discovered him.</p> <p>6. Railroads — Care to be Exercised by Employe in Removing Handcar from Track When Train Approaching. — When the foreman of a section crew saw a train approaching, it was his duty to attempt to remove the hand-car from the track, and if in attempting to remove it he exercised such care as might, be reasonably expected of a person of ordinary prudence, his act in making the attempt will not be contributory negligence.</p> <p>7. Appeal and Error — Argument—How Improper Argument Must Appear in Record to be Available. — It is not sufficient to show the misconduct of counsel in argument of case for the first time in the motion and grounds for a new trial, supported by affidavits. It must appear in the bill of exceptions, certified to by the trial judge.</p>

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

<p>Appeal from Martin Circuit Court.,</p>

<p>1. Municipal Corporations — Streets—Held in Trust for Public Use.— The authorities of a municipality hold the streets in trust for the public use, and are not authorized to let them for the erection of booths, and the conduct of private business in them from such booths.</p> <p>2. Injunction — Obstruction of Streets — Interference by Chancellor.— Before the chancellor is authorized to interfere by the process of an injunction in behalf of one who complains of an obstruction in a street, it must appear that such complainant is suffering a special injury, which is not common to all the public alike; that his remedy at law is inadequate, and that he will suffer a substantial injury from, the obstruction.</p>

<p>Taxation — Exemption—Manufactories and Manufacturing Com' pany. — Defendant corporation in connection with a -wholesale job' bing business in stoves and tinware conducted a tin shop, in which it made from parts manufactured by others and from raw material which it itself cut and fashioned into shape, coffee pots, buckets, water coolers, stove pipe, drum stoves, ash pans, etc. It afterwards purchased additional, ground and installed a new plant at a cost of about $90,000. In this new plant it accomplished the same results by machinery that were theretofore accomplished by hand, the only difference being that it operated in a more extensive way, made a greater variety of stoves and tinware, and perhaps itself manufactured more of the component parts of the completed articles: Held, that the last plant was not a new manufacturing enterprise entitling it to exemption thereon, but a mere expansion of the old business.</p>

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

<p>1. Statutes — Workmen’s Compensation Act of 1916. — The workmen’s compensation act of 1916 is free from any constitutional objections, and this being so, the wisdom and propriety of the legislation was for the law-making department of the government and the courts will not set it aside.</p> <p>2. Statutes — Workmen’s Compensation Act — Master and Servant — Allowing and Setting Aside Defenses. — The statute is not invalid because it abolishes the doctrine of fellow servant, assumed risk and contributory negligence in certain cases or because it permits these defenses to be made in other cases.</p> <p>3. Statutes — Classification—Special Legislation — Constitutional Law. —An act that creates classes of employers and employes and deals with them as a class is not open to the objection that it is such class or special legislation as is forbidden by 'section 59 of the constitution.</p> <p>4. Statutes — Compensation Board Not a Court. — The compensation board provided for in the act of 1916 is not a court. It is merely an agency of the State for the purpose of ascertaining facts, and an appeal to the courts is allowed from its. decision.</p> <p>5. Statutes — Change in Law as to Parent and Child. — An act that changes the business relations of parent and child from what they formerly were is not open to objection as the Legislature has full power to control the business relations between parent and child.</p> <p>6.. Statutes — Act Not Compulsory That Provides for Voluntary Ac-'1 ceptance. — The act of 1916 is an elective and not a compulsory statute and neither employer nor employe are brought under its provisions until they voluntárily accept them.</p> <p>7. Statutes — Limitation on Right of Recovery Does Not Violate Section 54 of the Constitution — Section 54. of. the constitution, providing - that the Legislature shall have no power to limit the amount that may be recovered for injuries resulting in death or to person or property, is not violated by a compensation act which permits individual employes to consent to accept a stipu-' l^ted sum in satisfaction of injuries which'may be received.</p> <p>8. Statutes — Public Policy of State — Police Power. — Workmen's compensation acts are authorized by the police power of the State which gives to the Legislature the right to regulate and control matters affecting not only the health and safety but the general welfare of the people individually as well as in classes.</p> <p>9. Statutes — Aliens—Discrimination Against. — The validity of so much of the act as provides that aliens and their dependents shall not receive the same compensation as persons who are not aliens, is not passed on. This 'section may be eliminated without affecting the remainder of the act.</p>

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

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

<p>¡1. Appeal and Error — Judgment Will Not be Reversed for Minor Error. — A judgment will not be reversed for a minor error in the admission or exclusion of testimony which did not prejudice the substantial rights of the appellant.</p> <p>2. Libel and Slander — Special Damages. — Where the language constituting the alleged libel is not actionable per se, the plaintiff can recover only upon showing special damages.</p> <p>3. Libel and Slander — Special Damages. — Where the language of an alleged libel is not actionable per se, the plaintiff cannot recover unless the proof shows that the special damages alleged are the natural, immediate, and legal consequences of the charge, and due exclusively to the publication by defendant.</p> <p>4. 'Libel and Slander — Special Damages. — In an action for libel for language used concerning a candidate for- office, which is not libelous per se, the failure of election by the plaintiff and the value of the office are too remote and speculative to authorize a finding of special damages. ,</p>

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

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

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

<p>1. Infants — Guardian Ad Litem — Appeal.—The duties of a guardian ad litem do not terminate with the rendition of a judgment in the trial court; he may, when he thinks it to be to the interest of the infant defendant, take an appeal therefrom, and his duties continue until the final determination of the case, unless removed by the court, or terminated by the arrival of the infant at the age of majority.</p> <p>2: Infants — Guardian Ad Litem — Allowance.—The allowance to a guardian ad litem for the services rendered by him in the circuit court and in the Court of Appeals must be made by the court where he was appointed.</p> <p>3. Infants — Guardian Ad Litem — Services—Affidavits.—Under subsection 4 of section 38 of the Civil Code of Practice, the affidavit of the guardian ad litem, or of another, or other competent evidence, is admissible to prove tbe services rendered, but not to prove tbeir value.</p> <p>4. Infants — Guardian Ad Litem — Fee.-—In fixing the fee to he paid a guardian ad litem, if either party asks it, the court should require the parties to take their proof as in other cases in order that the witnesses may be cross-examined.</p>

<p>1. Schools and School Districts — Indebtedness in Excess of Income.— Section 157, of the Constitution, makes void any indebtedness incurred by the board of trustees of a graded school district, in any year, which is in excess of the income and revenue provided for such year, without the assent of two-thirds of - the voters of such district.</p> <p>•2. Schools and School Districts — District Indebtedness. — It is an abuse of discretion for the trustees of a graded school district to expend the revenues of a district in the payment of demands which the district does not legally owe and is not obligated to pay.</p> <p>3. Schools and School Districts — Application of Levy Voted. — Under section 4464, Kentucky Statutes, the county court can not, by its order, designate the particular use to which any part of the tax levy voted by the district upon its establishment shall be applied, as its appropriation is vested in the trustees, for such lawful purposes as are provided by the statute.</p> <p>4. Schools and School Districts — Indebtedness—What Part Void.— Only the excess of indebtedness attempted to be created by the board of trustees of a graded school district, over and above the income and revenue for the year, is void.</p>

<p>1. Statutes — Construction—Legislative Intent. — The prime purpose, in the construction of statutes, is to ascertain the legislative intent, and when such intent is ascertained, it must be enforced by the courts.</p> <p>2. Statutes — Construction—Legislative Intent. — The intent of the legislature must he ascertained from the statute alone, unless the language is of doubtful meaning, or where a strict adherence to the language would result in an absurdity, or injustice, or in contradictory provisions.</p> <p>3. Statutes — Construction—Legislative Intent. — If the legislative intent is plain, and is expressed in plain and unambiguous language, St is not necessary to call to the aid of the construction of the Statute any extraneous matter.</p> <p>4. Statutes — Construction—Legislative Intent. — The common and accepted doctrine is, that the operation of a proviso in a statute is usually confined to the provision or clause immediately preceding the proviso, and it will be so applied, unless in effecting the legislative intent, it is necessary to apply its operation to other sec- • tions or clauses of the statute, or to the entire statute.</p> <p>5. Statutes — Construction.—Where the provisions of two statutes are not repugnant to each other, although dealing to some extent with the same subject matter, and can be enforced consistently with the provisions of each, ,it is the duty of the court to enforce the provisions of each.</p>

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

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

<p>1. Schools and School Districts — Consolidated District — Submission of Question of Tax. — When the board of education creates a consolidated district and submits to the voters thereof the question, of levying a tax to provide for the building of a schoolhouse, a tax levied for this purpose cannot be used for the purpose of maintaining the school or transporting pupils to and from school, and when the schoolhouse has been provided, the tax cannot be longer collected.</p> <p>2. Schools and School Districts — Board of Education — Submission of Question of Tax, — The board of education has authority under subsection 8 of section 4399 to submit to the voters in ai'consolidated district the question whether they will vote a tax to provide a schoolhouse alone without submitting to them the question of transporting pupils or maintaining the school.</p> <p>3. Schools and School Districts — Consolidated District — Discretion of Board in Submitting Tax Question. — The board of education is invested with large discretion in submitting to the people the question of voting a tax in a consolidated district and may submit , the question of voting a tax to ouild a schoolhouse or to maintain the school or to transport pupils, or submit the question of a tax’ for all these purposes or any one or more of them.</p>

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

<p>1. insurance — -pife • Insurance — Insurable Interest — Beneficiaries.—In ordinary life insurance no one without an insurable interest in the life of the. assured may be the beneficiary of the proceeds of the policy and the relationship of aunt ^nd nephew does not con- • stitute such insurable interest in the one or the other so as to entitle either of them to take out insurance on the life of the ■ other.</p> <p>2. Insurance — Industrial Insurance. — This rule, however, does not apply to the more modern character of insurance called “industrial insurance,” .which consists of policies of small size and small weekly premiums and has for its purpose the provision of funds by which the insured may defray the expenses of care and attention in his last sickness and provide for burial and funeral expenses, as this class of insurance' has none of the features of a wagering contract. It is therefore, competent for the insurance company to provide in such policies that payment shall be made to the one - incurring such expenses and to be discharged by the payment of the insurance to such persons.</p>

<p>Master and Servant — Safe Place to Work — Assumption of Risk.— Where the very work in which the employer and employe are engaged is such as to render the place, unsafe, the safe place doctrine does not apply and the employe assumes the risks incident .thereto.</p>

<p>Death — Action for Damages — Evidence—Peremptory Instruction. — • In an action for damages for the death of an employe of a coal company, alleged to have been caused by the negligence of a railroad company in moving the car on -which he was standing with unusual and unnecessary violence, evidence considered, and held insufficient to show that the decedent’s presence on the ear should have been anticipated by the train crew, and there being no evidence tending to show that they knew of his presence on the ear, a peremptory instruction in favor of the railroad waa. properly given.</p>

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

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

<p>Homicide — Threats—Evidence.—The proof of a mere threat, by one accused of a homicide against the deceased, is not any evidence of his guilt of the homicide, where there is an entire absence of any fact or circumstance, which in any way connects the accused with the perpetration of the crime.</p>

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

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

<p>1. Witnesses — Competency—Waiver.—Where a party, who is incompetent to testify for himself concerning transactions with the decedent, is called as a witness hy the adverse party and his deposition taken in behalf of the latter as to such transactions, his iricompetency is removed and he may • thereafter testify as to those matters concerning which he was interrogated.</p> <p>%. Appeal and Error — Finding of Chancellor — Evidence.—Where, in an action hy an administrator for the settlement of an estate, certain heirs claimed that the administrator, as- agent of his mother, converted to his' own use a- portion of his mother’s estate, evidence1 examined and held insufficient to sustain the charge.</p>

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

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

<p>1. Insurance — Life Insurance — Contract with Wife — Beneficiary— Vested Interest. — Where a policy of insurance on the life of a husband is payable to his wife, if living, and .if not, to her children or their guardian, and the contract is made with the wife and not the husband, the .children, upon the death of the wife, take a vested interest, which is not defeated by their death before that of the insured but is transmissible by will.</p> <p>3. Appeal and Error — Improper Parties — Dismissal.—Where a party below prosecutes no appeal but is inadvertently named as a party appellant by the party prosecuting the appeal, the appeal will be dismissed at the latter’s cost.</p>

<p>1. Criminal Law — Appeal and Error. — A judgment of conviction will not be reversed for any error of law appearing on the record unless, upon consideration of the whole case, the court is satisfied that .the substantial rights of the defendant have been prejudiced thereby.</p> <p>2. Intoxicating Liquors — Criminal Prosecutions — Instructions.—Where the local option statute fixed the punishment for its violation at a fine of not less than- $60.00 nor more than $100.00, and at confinemient in jail for not less than twenty nor more than forty days, . . it was not ■ a reversible error for the trial court to instruct the jury, in case they should find the defendant guilty, to fix his punishment at. a fine in any sum not less than $60.00 nor more than $100.00, and at confinement in jail for not less than' ten ñor more than forty days, although the jury fixed defendant’s' punishment at á fine of $100.00, and confinement iri the county jail for ' á period of forty' days.</p>

<p>1. Counties — Roads—Limit of Indebtedness and Taxation for Under Section 157a of Constitution. — A' fiscal court cannot create an indebtedness under section 157a of the constitution which cannot be fully paid within the time fixed for its maturity by the 20 cent tax authorized by this section.</p> <p>2. Counties — Roads—Construction of Section 157a of the Constitution. —A county may incur under section 157a of the constitution an indebtedness to the extent of 5 per cent, of the assessed value of its property, if it can pay this indebtedness with the 20 cent tax authorized by this section; otherwise it cannot do so, but must confine the indebtedness to a sum that can be paid by this tax without reference to other taxes or funds.</p> <p>3. Counties — Roads—Creation of Indebtedness for Under Section 157a of the Constitution — Funds That May Be Applied to Payment of. — When a county creates an indebtedness under section 157a of the constitution, it may apply to the payment of this indebtedness so much of the State aid road fund and so much of the 50 cent tax authorized by section 157 of the constitution as it chooses to apply to this purpose, but it cannot be compelled to apply any part of either' of these funds to the payment of the indebtedness so created.</p> <p>4. Counties — Roads—Twenty Cent Tax Must Be Applied to Pay Indebtedness Created Under Section 157a. — The whole of the 20 cent tax collected under section 157a must be applied to the payment of any indebtedness created under this, section and no part of it can be diverted for any other purpose until the debt has been paid. If-it is, the members of the fiscal court will be civilly and criminally liable under section 4281u of the Kentucky Statutes.</p> <p>5. Counties — Roads—Creation of Indebtedness for by Different Votes. —It is immaterial how many different issues of bonds authorized by the vote of the people there may be outstanding at the same time, provided always that the total of these outstanding bonds does not at any time exceed in the aggregate an amount that can be paid by the 20 cent tax levy alone.</p> <p>6. Counties — Roads—Limit of Indebtedness for Under Section 157a.— How Computed. — The amount of indebtedness that a county may create under section 157a is a 'matter of calculation to be computed on the basis of how much can be realized by a 20 cent tax on the assessed value of the taxable property of the county according to the assessment last preceding the bond issue; and no bonds in excess of the amount that can be paid with the 20 cent tax on this assessment, and within the final maturity of the bonds, can be issued by the fiscal court.</p>

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

<p>1. Trial — Instructions.—It is error to refuse an instruction directing the jury to find for plaintiff an amount admitted in the evidence to be .due upon an account in issue on the pleading's.</p> <p>2. Trial — Instructions.—Abstract propositions should not be submitted to the jury by the instructions.</p> <p>3. Trial — Instructions.—An instruction, one part of which is inconsistent with and contradictory of another part, held to be confusing ' to the jury and cause for reversal.</p> <p>4. Judgment — Non Obstante Veredicto. — A judgment notwithstanding. the verdict is not proper when pleadings are at issue upon all matters.</p> <p>5. Trial — Argument of Counsel — Limitation Upon. — Limitation upon arguments to the jury not appearing in the record except in motion and grounds for new trial is not available for reversal.</p> <p>6. Principal and Agent — Insurance—Contract to Procure. — An agent having obligated himself to procure insurance upon his principal’s property in his possession, having failed to procure the insurance or notify his principal of his inability to do so is liable as an insurer to the extent the property ’was insurable less the premium chargeable tliereior.</p>

<p>1. Corporations — Contracts Between President and Corporation— Good Faith. — It is the duty of the president of a corporation who is acting as the manager thereof to exercise good faith towards the corporation in the conduct of its business, and this will not permit him to enter into contracts between himself and the corporation whereby he reaps a profit individually, and in such cases he will be made to account to the corporation for the profits thus made.</p> <p>2. Corporations — Books of — Duty of President in Respect to. — In such cases it is the duty of the president and manager to so keep the books of the corporation, or if a partnership, the books of the firm, as to show the condition of the affairs of the firm or corpration which he is representing, and if he fails to do this and a judgment is rendered against him in a suit for an accounting and a settlement of the affairs of the concern by the other stockholders of the corporation or members of the firm, this court will presume that the trial court was correct and will not search for errors whereby to reverse the judgment.</p> <p>3. Corporations- — Bankruptcy.—Where P. & W. entered into a mercantile partnership which was under the general management of P., and the firm was afterwards incorporated with P. & W. owning practically all the stock except a small quantity held by the wife of W., and P. was the president and manager of the corporation, which had a capital stock of $30,000.00, and at the expiration of about ten months it became bankrupt with not enough assets to pay the debts, and the books of the corporation were so kept as to be unintelligible and impossible to, show what had become of the assets or the true status of the account of P., a judgment rendered in a suit of the plaintiff against the defendant for $4,600.00 will not be disturbed.</p> <p>4. Corporations — Stockholders—Accounting.—Where it is agreed between the parties interested in such concerns that each may obtain goods from the store at cost price, plus carriage, this includes only such goods as are necessary for the domestic use of each party and does not include goods taken from the firm at that price in wholesale quantities to supply stores owned by the individual partner or stockholder thus taking them, and in such cases the partner thus offending should be made to account for a reasonable profit for all the goods so taken by him above what is needed for his domestic use.</p> <p>5. Damages — Pleading Claim for Unliquidated Damages. — A claim for unliquidated damages may be pleaded as a set off against an adverse claim when the party against whom it is asserted is a nonresident of the State, or insolvent, and the same is true when an ascertained claim is pleaded as a set off against one for imliquidated damages, by a non-resident of the State or who is insolvent.</p>

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

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

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

<p>1. Criminal Law — Trial—Submission to Jury. — Circumstantial evidence of appellant’s guilt, beld to be sufficient to carry the case to the jury and uphold a verdict of conviction.</p> <p>2. Criminal Law — Manslaughter—Instructions.—A manslaughter instruction, when there is no evidence of manslaughter, is erroneous and may' be prejudicial to a defendant prosecuted as a principal for aiding and abetting another against whom murder is proven.</p> <p>3. Criminal Law — Witnesses—Credibility.—Evidence of the bad reputation for morality of a defendant in a criminal prosecution, who has testified in his own defense, is admissible only for the purpose :of affecting his. credibility as a witness, and it is the duty of the trial court to so limit by an admonition its consideration by the jury, and his failure so to'do may be reversible error when defendant objects and excepts to the admission of such evidence.</p> <p>4. ’ Criminal Law — Instructions—Accomplice —An instruction under section 241 of the criminal code is not authorized when the evidence does not show the prosecuting witness was an accomplice.</p>

<p>1. Trial — Judgment—Suspension of Upon Granting Appeal. — It appearing that upon overruling defendant’s motion for a new trial and granting him an appeal, the circuit court by order then entered gave him until the second day of the next term to file his bill of .exceptions, but only a sixty day suspension of the judgment;'and it appearing that the time for which judgment is suspended will end before the expiration of the sixty days allowed by section-336, subsection 4, criminal code,-for the filing of the transcript of the record in the office of the clerk of the Court of Appeals, after, the bill of exceptions is filed in the.circuit court; the circuit court, instead of staying execution of the judgment for sixty days from its rendition, should have suspended it for a period of sixty days after the date of the filing of the bill of exceptions in the'office of the clerk of the circuit coiirt.</p> <p>2." Appeal and Error — Motion for Suspension of Judgment — When Court of Appeals Cannot Entertain. — Where the appeal has not reached the Court of Appeals that1 court is without authority to enter an order suspending execution of the judgment of conviction rendered in the circuit court; such order can only be made by the circuit court.</p>

<p>1. Appeal and Error — Amount in Controversy — Jurisdiction.—The - Court of Appeals lias no jurisdiction of an appeal from a judgment for the recovery of money only, when the amount in controversy is less than $200.00, exclusive of interest and costs.</p> <p>2. ' Appeal and Error — Amount in Controversy — Jurisdiction,—1The ' -Circuit'courts do not have jurisdiction to grant an appeal, to the Court of Appeals from a judgment for the recovery ,of rnoney, only,'when the amount in controversy, exclusive of interest, and ■ ■ -'Costs;- is dess than $500.00. ......,,,</p> <p>3. Appeal and Error — Amount in Controversy — Jurisdiction.—The Court of Appeals will grant an appeal from a judgment for the recovery of money, only, when the amount in controversy, exclusive of interest and costs, is as much as $200.00 and less than $500.00, if from an examination of the record it is'satisfied that the ends of justice require the judgment to he reversed, or when the construction or validity of a statute, or a construction of a' section of the constitution is involved, and a correct decision of the case can not he had without passing on the validity of the statute or construing the section of the constitution or statute involved; but an appeal in such state of case is obtained by motion in the Court of Appeals, as provided for in subsection 3, of section 950, Kentucky Statutes, and the rules of the Court of Appeals.</p> <p>4. Process — Award of Railroad Commission — Quashing Summons.— In a proceeding to recover judgment upon an award of the Railroad Commission, the summons will not be quashed because not issued upon a petition, as a petition is not required in such a. proceeding.</p> <p>5. Process Quashing Summons — Misjoinder Not Ground For. — A misjoinder of actions and parties plaintiffs is not a ground for quashing the summons, but the remedy is a motion to elect which cause of action will be prosecuted and which party will prosecute same.</p> <p>6. Statutes — General and Special Laws. — Section 829, Kentucky Statutes, does not violate section 59 of the constitution, subsection 1, as it is not a special or local act within the meaning of that clause of the constitution, but is a general law, which applies to all proceedings of the kind, and in all the courts having jurisdiction</p> <p>7. Statutes — Constitutional Law. — Section 829, Kentucky Statutes, is not in contravention of sections 27, 28, 109 and 135, of the constitution, in that it vests judicial powers in the commission.</p> <p>8. Constitutional Law — Railroad Commission. — The Railroad Commission had authority under the constitution of 1850 to make awards to be paid in money, and section 209, of the present constitution, authorizes it to exercise all the powers which it had when "the present constitution was adopted.</p> <p>9. Railroads — Rates Established by Railroad. Commission. — The Railroad Commission, in establishing rates to be charged by railroads for the transportation of commodities of.commerce, exercises a legislative power,- which is delegated to it by the legislative department of the state government.</p> <p>10. Railroads — Regulation of-Rates.- — The right of a railroad to fix its own intrastate rates is subject to the laws of tire State, which are constitutionally enacted. ,</p> <p>11. Railroads — Regulation of Rates — Intrastate Commerce. — The constitutional limitation upon the legislative authority, as to the • establishment of rat.es for intrastate commerce, is that the rates préseribed must not be confiscatory.</p> <p>12. Carriers — Regulation of Rates — Judicial Inquiry. — The courts have inherent power to restrain the enforcement of a law which prescribes rates for a carrier; which are confiscatory, but, beyond this, the reasonableness or unreasonableness of rates prescribed by the legislative authority is not a subject of judicial inquiry.</p> <p>13. Carriers — Regulation of Rates — Railroad Commission. — if the Railroad Commission, in the manner provided for hy section 820a, Kentucky Statutes, makes an order for the establishment of rates, the order may be the subject of attack in the courts on account of the rates being confiscatory, or that the commission has acted , arbitrarily, but it must be done by an action for that purpose and not as a defense to a judgment sought upon an award, which is based upon a rate order made by the commission.</p> <p>14. Carriers — Regulation of Rates. — The averment, that the commission acted without evidence and therefore arbitrarily, to the effect that the evidence failed to prove the payment of the rates by the shipper, the excess of which .over the rates established hy the commission as just and reasonable, and which, goes to make up the award, or that there was a failure of proof upon the subject of damages suffered by the shipper, is not a defense to the recovery of a judgment upon a reparation award, because these are proper inquiries before the court in the trial before judgment upon the award, if the railroad put the amount paid and the damages in . issue.</p> <p>15. Carriers — Regulation of Rates — Powers of Railroad Commission.— Section 820a, supra, does not authorize the Railroad Commission to fix a rate for the transportation of commodities except after ten days’ notice of the complaint, and the matter to be investigated, and after it has heard such statements, evidence and argument, which the parties offer and the commission deems relevant.</p> <p>16. Carriers — Award hy Railroad Commission. — The Railroad Commission, under section 829, Kentucky Statutes, is not authorized to make a reparation award except after notice to the carrier of the time and place of hearing, where each party may introduce such •evidence as it desires, and the award can not be enforced until after a'judgment has been rendered in the circuit court, upon a trial as any ordinary action.</p> <p>17. Carriers — -Award by Railroad Commission — Evidence.—The provision of section 829, Kentucky Statutes, which limits the evidence to. be heard in the circuit court, in the proceeding to enforce a reparation award, to that heard' before, the .commission and such as the court shall be satisfied, from sworn testimony, could not have been produced before the commission by the . exercise of ordinary diligence, does not deny the equal protection and due process of law, guaranteed by the 14th amendment to1 the federal ’ constitution, as under this statute there is no failure of equal' Protection, and -“due process” is always had when a party-h'as sufficient notice and opportunity to make his defense.</p> <p>18. Carriers — Award by Railroad Commission. — Section 829, Kentucky ’ .Statutes, and an award made thereunder, does not violate sec- - ■ 'tions 2, 13, nor-14, of the constitution. , •••.. -■ .A;.:....Á ■</p> <p>19.- Carriers — Award by Railroad Commission. — A reparation award made by the Railroad Commission, under section 829, Kentucky. Statutes, does not violate section 4, of article IV., of the federal constitution.</p> <p>20. Carriers — Charges—'Regulation of Rates. — An extortionate charge by a carrier for transportation is illegal when exacted, and it does not become illegal, only, after the commission has found it to be extortionate, and fixed a lower rate.</p> <p>21. Carriers — Award by Railroad Commission. — The enforcement of a reparation award or the rate order upon which it is based is not violative of section 218, of the constitution, in that it compels a discrimination denounced by that section of the constitution.</p> <p>22. Carriers — Awards—Proceeding to Enforce. — The carrier can not require a plaintiff, in a proceeding to enforce a reparation award, to file copies of the proceedings before the commission, other than a copy of the award and the evidence heard, as the carrier may file copies of the other proceedings, if it desires same, in its defense.</p> <p>23. Trial — Issue—Pleading.—In an ordinary action a party is not entitled to a trial upon the evidence or a jury, unless the pleadings make an issue and makes it necessary for the one holding the affirmative to support with evidence.</p> <p>24. - Carriers — Awards—Proceedings to Enforce. — In a proceeding to enforce an award made under section 829, Kentucky Statutes, it must be considered that the findings in the copy of the award amount to an allegation that the carrier has received from the ■ shipper the amount of the award from extortionate charges, which the shipper has paid.</p> <p>25. Trial — Issue—Pleading.—A party can not make an issue by alleging that he has not information sufficient upon which to form a belief as to whether or not he has received a sum of money, where it is alleged in the petition that he received it, and it is a matter necessarily within his knowledge.</p>

<p>Criminal Law — Section 1241a, Kentucky Statutes. — The provisions of section 1241a of the Kentucky Statutes defining and denouncing the crime of confederating and banding together for the purpose of intimidating or injuring any person or persons has no application to a family fight growing out of a contention between a father and his brother and his wife and mother-in-law over the possession of an infant which the wife and mother-in-law had taken from the home of the father.</p>

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

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

<p>Appeal from Jefferson Circuit Court (Common Pleas No. 1).</p>

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

<p>1. Judgment — Conclusiveness.—A judgment of a court of competent jurisdiction is a final settlement of all questions which were determined in the suit in which the judgment was rendered, so far as relates to the parties and their privies.</p> <p>2. Judgment — Recovery of Land — Adverse Possession — Estoppel.—A judgment for the recovery of lands, to which the party in possession claims title by adverse possession, breaks the continuity of possession, although the judgment is not put into effect by a writ of possession and the party is permitted to continue in the possession, as the party in possession is estopped to claim the title to the lands until the statutory period necessary to ripen a possession into title has passed, after the judgment.</p> <p>3. Adverse Possession — Champerty and Maintenance — Estoppel.— The adverse possession of one, who is estopped to claim the title or the right of possession, does not render a conveyance by the owner of the lands void, under the statute which denounces champerty.</p> <p>4. Appeal and Error — When Too Late to Complain of Judgment.— When a suit is prosecuted at equity, which should have been prosecuted at law, and the parties make no objection to it, it is too late after judgment is rendered to complain on that account.</p> <p>5. Appeal and Error — Judgment Treated as Verdict of Jury. — When a legal action is prosecuted as an equitable action, without objection, the court will determine the matters in controversy according to the- right of the parties, and the decision of the judge upon matters of fact will be treated on appeal as the verdict of a properly instructed jury.</p> <p>6. Appeal and Error — Finality of Judgment. — Where, in an action, both legal and equitable relief is sought, and it is permitted to continue to a final judgment, without objection, neither party will be heard to complain that the court decreed all the relief, both legal and equitable, to which the parties were entitled.</p>

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

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