Volume 199 — Kentucky Reports

<p>1. Criminal Law — Commonwealth’s Failure to Produce Search 'Warrant is Waived by Defendant’s Failure to Object to Oral Evidence of its Contents. — The failure of the Commonwealth to produce a valid search warrant by which the evidence introduced against defendant was obtained was waived by defendant where he made no objection to oral testimony by the witnesses as to the existence and contents of the search warrant.</p> <p>2. Intoxicating Liquors — Evidence Held Sufficient to Sustain Conviction for Manufacturing. — Evidence as to the finding of utensils suitable for distilling on defendant’s premises, showing evidence of recent use, in connection with defendant’s explanation of their presence, which did not explain all the circumstances, held sufficient to sustain a conviction for manufacturing intoxicating liquors, though it more clearly proved the distinct offense of possessing an illicit still.</p> <p>3. Criminal Law — Duplicity is Cured by Election to Prosecute for Only One Offense Charged. — An objection that an indictment was duplicitous was cured by the Commonwealth’s election to try defendant on only one of the offenses charged in the indictment.'</p> <p>4. Criminal Law. — Verdict Cannot be Disturbed Unless Flagrantly Against the Evidence. — The jury are the triers of the fact, and it is not the province of the Court of Appeals to disturb their finding unless it be so flagrantly against the evidence as to indicate that it was the result of passion or prejudice and to such an extent as to shock the conscience of the court.</p>

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

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

<p>i. Evidence — Rights Cannot be Determined by Speculation. — The rights of litigants in courts are not to be determined by guesswork, surmise, or speculation, but there must be either direct evidence authorizing a finding of fact, or circumstantial evidence based upon facts which will authorize a finding by a court or juror without indulgence in mere speculation.</p> <p>2. Railroads — Evidence as to Cause of Eire ' Held Insufficient. — Evidence that smoldering fire was left on the railroad right of way the night before plaintiff’s unoccupied, house, situated 36 feet away, was found to be on fire and so nearly consumed that it was impossible to determine the origin of the fire, held not to warrant an inference that the fire was caused by the spreading of that fire.</p>

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

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

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

<p>Criminal Law — Argument of Counsel for Prosecution Held Not Prejudicial. — In a prosecution for unlawfully selling intoxicating liquors, where the defense had produced a witness who had the same last name as the witness for the prosecution, and during a noon recess the sheriff brought in a moonshine still alleged to have been found on the premises of the defendant’s -witness, an argument by the counsel for the Commonweálth that the jury should .not consider the happening outside of the courtroom, but if it was considered to be sure on which witness’ farm the still was found, and further stating it was a physical impossibility for the jury not to be impressed by what they had seen, and that the Commonwealth accepted the first twelve men called, since any " twelve men were good enough to try a bootlegger, did not amount to prejudicial error.</p>

<p>Covenants — Construction of Switch Track for Steam Railroad Held Violation of Restriction in Deed. — The construction of a switch track leading to a warehouse on the lots in controversy would violate the restrictions in ¡ the deed to plaintiff prohibiting the sale of the property to be used for steam or electric power or for any business of an objectionable nature, since the operation of steam locomotives on the switch would be more objectionable than the operation of stationary steam engines on the premises</p>

<p>1. Contracts — Grantees Held Not Required to Furnish Grantor Meals Away from Premises. — A clause in a deed reciting that the grantor should retain exclusive control of one room, and- while on the land should take her meals at the grantee’s table, clearly limits her rights to meals to the time she occupies the land, and does not require the grantees to furnish her meals elsewhere.</p> <p>2. Contracts — Unkind Treatment is Breach of Contract to Support Grantor on Premises. — Unkind treatment from a grantee or his family which the grantor could not reasonably endure would breach a contract by the grantee to fhrnish the grantor meals <m the premises.</p> <p>3. Contracts — Grantor can Recover Damages for Breach of Contract to Furnish Support on Premises. — An action for damages would lie for breach of a grantee’s contract to furnish the grantor her meals on the premises.</p> <p>4. Appeal and Error — Chancellor’s Judgment Not Disturbed if Conflicting Evidence Leaves Mind in Doubt. — Where the proof on an equitable issue is conflicting and the mind of the court is left in doubt as to its truth, the judgment of the chancellor will not be disturbed.</p> <p>5. Contracts — Evidence Held to Sustain Finding Grantor was Not Unkindly Treated by Grantee. — In an action to recover damages for breach of a contract to furnish to a grantor her meals on the premises conveyed, evidence held sufficient to sustain the chancellor’s finding that the grantor was not so unkindly treated by the grantee as to compel her to leave the premises.</p>

<p>1. Municipal Corporations — Treasurer Cannot Pay Commission to Himself Without Warrant/ — The treasurer of a city as a ministerial officer is in legal contemplation a different person from the individual occupying the office, and he cannot appropriate funds belonging to the city for payment to him of a claim for commissions without an order or direction from the city, evidenced by a warrant issued by the city and signed by the mayor or other executive officials, and countersigned by the clerk of the board, as provided by Ky. Stats., section 3555.</p> <p>2. Municipal Corporations — Answer of Treasurer Held Not Valid as Counterclaim for Commissions Due. — Even though a city treasurer, in an action against him for money paid'to himself without warrant, could set up a valid counterclaim for commissions, for which he paid the money to himself, an answer by him designated as a counterclaim and set-off, which alleged that the city owed him the amount for commissions, and prayed that he be dismissed, with his costs, without asking affirmative relief, was not good as a counterclaim and a demurrer thereto should have been sustained.</p>

<p>1. Mines and Minerals — Right of Grantor to Take Coal from Land Held Personal, Not Running with the Land. — A clause inserted in a deed, that grantor was to have coal for fuel for home consumption from the land conveyed in return for a passway to grantee over grantor’s land, gave a right to take coal which was limited to the personal consumption hy grantor, and was therefore a personal right not running with the other land of grantor over which the passway was granted.</p> <p>2. Covenants — Passway Over Land of Grantor Held Covenant Running With the Land. — A clause giving a grantee the use of a passway over the other land of the grantor for an outlet from the lands therein conveyed which was necessary to a full enjoyment of the lands conveyed, created an easement running with the land.</p>

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

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

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

<p>Reference&emdash;Judgment Not Reversed Because Issues Raised Accounts too Complicated for Jury, Where no Motion to Refer Made. &emdash;Where an action between a building contractor and the owner involved numerous issues as to the contract between the parties and its breach and as to claims for extras, a judgment for the contractor, rendered on a verdict after the jury had been properly instructed as to all the issues, will not be reversed, because the numerous complicated accounts and issues were such as should not have been submitted to a jury, if neither party bad made a motion to bave them referred to a commissioner for settlement.</p>

<p>1. Divorce — Wife Not at Fault is Entitled to Costs, Including Attorney’s Fee Notwithstanding Possession of Estate by Her. — Under Ky. Stats., section 900, providing that the husband shall pay the costs of each party, unless it appears that the wife is at fault and has ample estate to pay the costs, a wife who is not at .fault is entitled to recover from her husband her costs, including a reasonable attorney’s fee, even though she has an ample estate with which to pay them.</p> <p>2. Divorce — Wife Not at Fault is Entitled to Alimony as Matter of Right if She Has no Estate. — In divorce proceedings a wife who is not at fault is entitled to alimony as a matter of right where she has no estate and is granted a divorce, or where her estate is not ample for her support, but she will not be granted alimony where she has an ample estate and the husband has none.</p> <p>3. Divorce — Wife Held Entitled to $500.00 Alimony. — Where a wife was awarded a judgment for divorce and her husband was given property worth $3,000.00, equal in value to that he owned at the time of the marriage, though the evidence showed that the wife had contributed to some extent to the support of herself and defendant during their married life, and both parties had only small earning capacity, the wife held entitled to $500.00 as alimony.</p>

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

<p>1. Executors and Administrators — Order Referring Administration to Public Administrator Pour Days After Decedent’s Death is Void. —Under Ky. Stats., section 3905, authorizing county courts to confide to the public administrator, appointed under section 3903, the administration of the estate of deceased persons, if, after the expiration of three months from the death of decedent, no one will qualify as executor or apply for administration, the county court is without jurisdiction to confide the administration of an estate to the public administrator before the expiration of the three months period, so that an order to that effect, entered four days after the death of decedent, is absolutely void.</p> <p>2. Executors and Administrators — Void Appointment of Public Administrator Appearing on Pace of Petition can be Raised by General Demurrer. — Though a special demurrer is necessary, under Civil Code of Practice, section 92, to question plaintiff’s legal capacity to sue, a general demurer is sufficient to raise the objection that the petition on its face shows that plaintiff has neither a legal nor beneficial interest in the controversy, so thqt a general demurrer should be sustained, where the petition showed on its face that the order confiding administration of the particular estate to plaintiff, the public administrator, was void.</p> <p>3. Appeal and Error — Party Cannot on' Appeal Attack Appointment Admitted at Trial, When There was Time to Correct Defect.— Where defendant at the trial expressly admitted that plaintiff’s appointment as administrator was valid, and at that time the invalidity of the appointment could still have been corrected if an attack had been made thereon, defendant cannot on appeal rely on the invalidity of the appointment when it was then too late to have a valid appointment made and a new action begun.</p> <p>4. Death- — Evidence Held to Warrant Finding Death Proximately Resulted from Personal Injuries.- — Where plaintiff’s expert witnesses testified that -the abscess which caused the death of plaintiff’s decedent resulted from a bruise received when his wagon was struck by defendant’s trailer and defendant’s physician admitted the possibility of such being the cause of death, but considered it highly improbable, the evidence was sufficient, not only to carry the question of the injury as the proximate cause of death to the jury, but also to sustain a verdict for the plaintiff.</p> <p>5. Trial — Instruction There was no Evidence Which Would Legally Excuse Collision in City Street Held Correct. — An instruction which stated that there were in the testimony no facts which legally excused the collision was correct, notwithstanding testimony by one witness that the left rear wheel of decedent’s wagon was to the left of the middle of the street, and that there was not sufficient room to pass the wagon on the left side without running over the curbstone, which was completely refuted by the fact that defendant’s truck had plenty of room to pass decedent’s wagon, and did pass it without running over the curb, and that the trailer struck the wagon because it skidded and did not follow the truck.</p>

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

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

<p>Licenses — City May Require License ot Non-Residents Doing Auto Truck Business Within the City. — Though a city cannot require non-residents, who merely pass through it in their automobiles, to pay a license iee, it can require a license oí non-residents who do an auto truck business within the city, and can enforce the payment of such license by non-residents engaged in hauling freight and passengers by automobile from a railroad station within the city, where they solicited patronage, to another town, where the persons engaged in that business lived.</p>

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

<p>1. Appeal and Error — Instructions Not Objected or Excepted to and Not in Bill of Exceptions, or in Record, Cannot be Considered.— Instructions to which appellant failed to object or except when they were given, and which he failed to incorporate in the bill of exceptions, or have made a part of the record by an order of the court, cannot be considered.</p> <p>2. Corporations — Evidence Held to Sustain Finding Contract was Modified to Allow for Extra Work, Notwithstanding Manager’s Testimony that he Made Contract on His Own Behalf and Not for Corporation. — Evidence that the manager of a corporation agreed to modify a contract so as to pay for the extra work required to deliver logs in one yard instead of two, with circumstantial evidence showing he was acting within the scope of his employment and on its behalf held to sustain an allowance by the jury for the extra work, notwithstanding the manager’s testimony that he was acting on his own behalf in making the agreement, and not for the corporation.</p> <p>3. Logs and Logging — Evidence Held to Sustain Verdict that Plaintiffs did not Make Unconditional Agreement to Haul all Logs' Necessary for Defendant’s Mill. — Conflicting evidence as to conversations betwen the parties held to sustain a verdict finding that plaintiffs did not make an unconditional agreement to haul all logs necessary to keep defendant’s mill in full operation, for breach of ■which defendant sought recovery by counterclaim, but that the agreement was conditional and the failure -to perform it was excused by defendants failure to furnish the teams required .and by the weather conditions.</p>

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

<p>1. Carriers — Petition Held to State Cause of Action for Assault if Not for False Imprisonment. — A petition alleging that plaintiff was a passenger on defendant’s train, that three employes of defendant wrongfully and maliciously assaulted her, and finally dragged her from the train and maliciously preferred a charge of carrying a concealed weapon and had her incarcerated in jail, even if insufficient to allege a cause of action for malicious prosecution or false imprisonment because it does not allege the acts of the employes were without probable cause, was not subject to general demurrer, since it clearly stated a cause of action for assault and battery.</p> <p>2. Carriers — Whether Special Officers Assaulting and Arresting Passenger Were Acting Within Scope of their Employment for Carrier Held for Jury. — Evidence that three employes of a railroad company, were also peace officers, were employed by the company to keep order about the station and meet incoming trains and to arrest persons who were drunk or disorderly, is Sufficient to make it a question for the jury whether the officers were acting in the scope of their employment in going upon a train to arrest a passenger, notwithstanding testimony by one of them that it was not their duty to go upon the train unless requested by the conductor, and they had not been so requested.</p> <p>3. Breach of the Peace — Wearing Male Costume by Woman is Not Breach of the Peace as Matter of Law. — It is not a breach of the peace as a matter of law for a woman to appear in public in male attire, even though that may be an act of indecorum, so that the court properly submitted to the jury whether a woman dressed in a man’s overalls was liable to arrest for breach of the peace.</p> <p>4. False Imprisonment — Cannot be Justified by What Officers Learned by Search After Arrest. — An arrest of a passenger cannot be justified on the ground that she was carrying concealed 'a deadly weapon, where that fact was unknown when the officers made the arrest, and it was learned only by search of her possessions without warrant after she had been arrested without justification-.</p> <p>5. Carriers — Liable for Effects of Passenger Lost as Result of Wrongful Assault, Arrest and Ejection from Train. — Though a carrier is not liable on its contract for loss of a passenger’s effects which the passenger keeps in her own possession, it is liable for a loss sustained as a result of the wrongful acts of its servants in assaulting and arresting the passenger and ejecting her from the train, as a result of which she was separated from her effects and they were lost.</p> <p>6. Carriers — Evidence of Previous Threats by Passenger Against Employes Who Subsequently Assaulted Her is Incompetent. — In , an action against a carrier for the wrongful acts of its employes, who were also peace officers, in arresting a passenger and ejecting her from the train, evidence that the passenger had previously made threats against the officers in connection with another transaction is incompetent, since those threats could not excuse nor palliate their wrongful assault upon her.</p> <p>7. Appeal and Error — Instructions Requiring Want of Probable Cause for Arrest, Not Alleged in Pleading, Held Favorable to Defendant in Action for Assault. — Where a passenger’s petition did not charge that her arrest by defendant’s employes was without probable cause, but did state a cause of action for assault and battery by the employes,- instructions requiring proof of want of probable cause as a condition to recovery were favorable to defendant, and it may not complain on appeal that they were unsupported by tbe pleadings.</p> <p>8.' False Imprisonment — Damages for Humiliation and Mental and Physical Pain Warranted by Evidence. — Testimony by a passenger that she was assaulted while on a train by employes of defendant who wrongfully and forcibly ejected her therefrom and incarcerated her in jail is sufficient to. warrant a reasonable inference that she suffered humiliation and pain in consequence thereof, so as to authorize a recovery therefor, notwithstanding her failure to testify directly to such humiliation and pain.</p>

<p>Brokers — Evidence Held Not to Show Owner Sold to Parties Interested by Broker. — Testimony by broker that he showed the property to John Davis, who stated he would see his brother and brother-in-law about it, without testimony that John Davis was in partnership with his brother and brother-in-law or was acting for the firm, if there was one, held not to show that a sale to the - brother and brother-in-law by the owner direct was procured by the broker, so as to entitle him to a commission.</p>

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

<p>1. Wills — Paper Intended as Codicil is Such. — If instrument signed by testator, and stating that home place was left to A. and his children, was intended as codicil to his will, it was such; his intention being controlling where admittedly he had testamentary capacity.</p> <p>2. Wills — Instrument Held Mere Memorandum and Not Testamentary. — Instrument signed by testator, who had already made will and codicils, and delivered to A., stating, “This duplicate I leave to Mr. A. that my home place is left to him and his children . . . and my codicil is held by my executor,” held mere memorandum indicating at most intention to make codicil and not itself testamentary.</p> <p>3. Wills — Instrument Referring to Existence and Contents of Codicil Not Provable as Copy of Lost Codicil. — Instrument executed by testator and reading “This duplicate I leave to Mr. A. that my home place is left to him and his children . . . and my codicil is held by my executor,” could not be probated as duplicate of lost codicil, as it was not copy thereof.</p> <p>4. Wills — Instrument Showing Intent to Leave Property to Persons Named Not Testamentary Unless Intended as Medium of Making Such Intention Effective. — Though instrument signed by testator indicated intent to leave home place to A. and his children, it was not testamentory in character unless testator intended it as the vehicle or medium of making such intention effective.</p>

<p>1. Wills — Division “Equally,” or “Share and Share Alike,” Means Per Capita Division. — Unless a contrary intention is manifested by the will, a provision for a division “equally,” or “share and share alike,” between or among two or more persons or groups, means a per capita, and not a per stirpes, distribution.</p> <p>2. Wills — Provision for Division Jointly and “Equally” Among Heirs of Testator and His Wife Held to Require Per Capita Division, “Share and Share Alike.” — Where a will provided that the property should be divided among the children of testator’s son, share and share alike, and, if there were no children, it should be divided jointly and equally among the heirs of testator and of his wife, the provision for joint and equal division requires a distribution per capita, and not per stirpes, there being no significance in the use of different expressions in the two provisions, since provisions for equal division and share and share alike are generally regarded as synonymous.</p> <p>3. Wills — Gift to Body of Persons Uncertain in Number at Time of Gift is to a Class. — A gift to a body of persons uncertain in number at the time of the gift is a gift to a class, and not to individuals.</p> <p>4. Wills — Extraneous Pacts Held Not to Indicate Intention to Make Per Stirpes Division. — The fact that wife’s brothers and sisters were in number about equal to the brothers and sisters of the husband, but that the wife’s mother survived her, so as to be her sole heir, held not to show an intention to make a per stirpes division by a gift of the husband, to be divided jointly and equally among his heirs and those of his wife, in view of the fact that the wife’s separate estate was about equal in value to the husbands’ estate, and was given to her heirs, so that a more equal distribution of the joint property resulted from a per capita distribution than would have resulted from a per stirpes distribution.</p> <p>5. Wills — Testator’s Intention must be Ascertained from What He Plainly Said. — It is the court’s duty to ascertain the testator’s intention from what he plainly said, without reference to extraneous facts.</p>

<p>1. Statutes — Provision for Joint City and County Construction of Hospital Held Valid Under Title. — Even if Acts 1922, c. 59, could be construed as authorizing the construction of a tuberculosis hospital by a city alone without the assistance of a county and thereby would be broader than its title, which refers to the joint construction of such hospital by a city and county, the act is not thereby invalidated in so far as it permits a joint construction of such hospital, as it clearly does permit, by funds contributed by both the city and county.</p> <p>2. Constitutional Law- — Doubts as to Sufficiency of Title Resolved in Favor of Constitutionality. — Though Constitution, section 51, requires the title to be a true index of what an act contains, doubts must be resolved in favor of constitutionality.</p> <p>3. Statutes — Only Portion of Act Not Indicated by Title is Invalid. —Where the body of an act is broader than its title, only so much thereof as is not indicated by the title is void unless the elimination of that portion would so emasculate the whole act that it cannot reasonable be presumed the legislature would have passed it in such condition.</p> <p>4. Hospitals — Petition Held Not to Show City was Acting Under Invalid Portion of Act. — Even if Acts 1922, c. 59, was invalid in so far as it authorized a city to construct a tuberculosis hospital without co-operation by a county, a petition to restrain the issuance and delivery of city bonds for the construction of such hospital was not sufficient on demurrer, where it did not allege that the county has refused or failed to perform its part in the joint enterprise, since it cannot be presumed that the city is acting alone under the invalid provision.</p> <p>5. Statutes — Act Authorizing Joint Erection of Hospital Held Not to Revise, Amend, Extend, or Confer Existing Law by Reference Contrary to Constitution. — Acts 1922, c. 59, authorizing the joint erection by a city and county of a tuberculosis hospital through the agency of the board of tuberculosis hospital created by Ky. 'Stats., section 3037c, and conferring on the board temporary powers with reference to such construction, but which expressly recited that it was enacted agreeably to the earlier statute, did not revise, amend, extend, or confer the earlier statute by reference contrary to Constitution, section 51.</p>

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

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

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

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