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ky/10081685.json

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+"{\"id\": \"10081685\", \"name\": \"Ralph BAKER, Appellant, v. COMMONWEALTH of Kentucky, Appellee\", \"name_abbreviation\": \"Baker v. Commonwealth\", \"decision_date\": \"1972-06-30\", \"docket_number\": \"\", \"first_page\": \"766\", \"last_page\": \"769\", \"citations\": \"482 S.W.2d 766\", \"volume\": \"482\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Kentucky Court of Appeals\", \"jurisdiction\": \"Kentucky\", \"last_updated\": \"2021-08-11T01:03:55.769618+00:00\", \"provenance\": \"CAP\", \"judges\": \"All concur.\", \"parties\": \"Ralph BAKER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.\", \"head_matter\": \"Ralph BAKER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.\\nCourt of Appeals of Kentucky.\\nJune 30, 1972.\\nLester H. Burns, Jr., Somerset, for appellant.\\nEd W. Hancock, Atty. Gen., Jackson D. Guerrant, Asst. Atty. Gen., Frankfort, for appellee.\", \"word_count\": \"1227\", \"char_count\": \"7136\", \"text\": \"MILLIKEN, Judge.\\nThe appellant, Ralph Baker, was indicted for the murder of his brother-in-law, Robert Jones, in a shoot-out in Leslie County, and was found guilty of voluntary manslaughter and sentenced to serve twenty-one years in the penitentiary, the maximum penalty for the offense. We affirm the conviction.\\nThe victim, Robert Jones, and his brother, Russell Jones, two young men in their early twenties, drove to town around noon in Robert's truck to purchase a stereo tape player for installation in one of their vehicles, and about 2 P.M. returned to a store operated by another brother-in-law, Claude Henninger. They left there but returned about 6 P.M. By this time, it was clear that the Jones brothers had drunk their fill of beer. Whatever happened while they were in the store is not clear, but apparently the visit was unpleasant, for they left the store and bought gasoline from a merchant across the road and not from Hen-ninger. They returned about 10 P.M., parked the truck across the road where they had bought gasoline, Henninger went out to meet them, and as to what happened from that point on two conflicting tales have been told.\\nAccording to the accused both Jones boys were drunk and were holding Hen-ninger at gunpoint, and Henninger's wife urged him to intercede. He said he was about to drive his own wife and baby to their home when Henninger's wife asked him, but delayed his departure, took time to get a scuttle of coal and stoke a stove, then got into his Chevrolet and drove to the scene of the confrontation, opening the car window en route so that he could talk to the Jones brothers. He stated that Robert fired his rifle at him, piercing the windshield, and he returned the fire through the open window of his car. He admitted that he fired four shots rapidly, but said Robert fired the first and last shots. Baker said that the other brother, Russell Jones, also fired at him, which Russell denied when he had his turn to testify. Baker said he saw Robert stoop by his truck and feared he was reloading his rifle, so he (Baker) left, gathered up his wife and baby and drove to his father's home several miles away from where he tried unsuccessfully to notify the police by telephone, so went to bed and went to sleep. He said he did not know that Robert had been killed. His wife corroborated his version of events even to Baker's telling Henninger that he was driving to his father's to phone the police.\\nOn the other hand, the surviving brother, Russell Jones, testified that Baker fired first, that he (Russell) had no gun and did not take part in the fracas. Russell said as soon as Baker drove up, Claude Henninger left. Russell also said that after Robert had gotten out of his truck he reached back into it to get his rifle when he saw Baker arriving. At one point Russell said Robert fired first, but on redirect examination he reasserted that Baker fired first.\\nIn the face of such conflicting testimony, the admitted exchange of gunfire, the bullet riddled Chevrolet of Baker's, the unquestionable identification of the firearms used and the coroner's testimony as to the cause of Robert's death, a case for the jury was made out. What became of Claude Henninger is an unanswered question except that he left the community while Baker was in jail before he made bail.\\nIn view of the verdict finding Baker guilty of the lesser offense of voluntary manslaughter instead of murder, we can not accept the contention that the jury acted through passion or prejudice despite the fact that they assessed the highest penalty for voluntary manslaughter, nor can we find the presence of the coroner and another witness in the courtroom during part of the trial before they testified, was a sufficient reason to justify a new trial. The coroner told only the cause of Robert's death and the other witness testified in rebuttal to the effect that it was impossible for one of the defense witnesses to see what she said she saw from where she said she was when she saw it.\\nOne of the numerous issues raised in Baker's motion for a new trial concerned the refusal of the trial court to permit the introduction of evidence of good reputation for peaceableness on the part of the accused. This sort of evidence is admissible in a criminal trial if properly introduced. Shell v. Commonwealth, 245 Ky. 223, 53 S.W.2d 524; Pickelseimer v. Commonwealth, 217 Ky. 608, 290 S.W. 498; Perara v. United States, 8 Cir., 235 F. 515, 10 A.L.R. 1. In the case at bar, the issue was raised in this way in questioning the accused:\\n\\\"Q. Have you ever in your lifetime been indicted for any violation of any law?\\nObjection by Mr. Hieronymous (Commonwealth Attorney).\\nSustained by court.\\nQ. Mr. Burns: I cannot open this up, his character?\\nObjection by Mr. Hieronymous.\\nSustained by court.\\nTo which ruling of the court the defendant objects and excepts.\\\"\\nWhether Baker had ever been indicted was not relevant, but there was no avowal placed in the record as to what the accused or any of his reputation witnesses would say which, of course, counsel was entitled to have inserted in the record if he wished, RCr 9.52. The purpose of an avowal is to advise the trial court fully of the nature of the proposed evidence and to place it in the record for the scrutiny of a reviewing court in case of an appeal, and where the offer involves not only the witness on the stand, but other witnesses, counsel should have such other witnesses present in court or within call. In fact, error can not be predicated on rejection of evidence when no avowal is made which would disclose what answers would be given if the witness or witnesses were permitted to testify. (For collection of cases on this point, see Ky.Digest, Criminal Law, Section 670.)\\nAppellant asserts that the trial court's instruction, \\\"If you find the defendant guilty of wilfull murder you will fix his punishment at death or confinement in the state penitentiary for life in your discretion,\\\" was highly prejudicial in that it emphasized \\\"death\\\" by stating it first whereas the statute (KRS 435.010) says, \\\" shall be punished by confinement in the penitentiary for life, or by death, in your discretion.\\\" As stated in Stanley on Instructions, Section 869, of the 1971-72 Supplement, the instruction should be worded in conformity to the statute, but it is not prejudicial to list \\\"death\\\" first, Anderson v. Commonwealth, Ky., 353 S.W.2d 381 (1962). The order of punishment was reversed in the general statutory revision of 1942 in order to establish uniformity and consistency with other criminal statutes in the listing of alternative penalties.\\nThe jury saw the witnesses, judged their credibility, weighed the evidence, and reached its verdict. There was sufficient evidence to support the verdict, and we find there were no prejudicial errors committed at the trial.\\nThe judgment is affirmed.\\nAll concur.\"}"

ky/10131252.json

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+"{\"id\": \"10131252\", \"name\": \"Gary HERNDON, Appellant, v. John W. WINGO, Warden, etc., Appellee\", \"name_abbreviation\": \"Herndon v. Wingo\", \"decision_date\": \"1966-06-24\", \"docket_number\": \"\", \"first_page\": \"453\", \"last_page\": \"455\", \"citations\": \"404 S.W.2d 453\", \"volume\": \"404\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Kentucky Court of Appeals\", \"jurisdiction\": \"Kentucky\", \"last_updated\": \"2021-08-10T23:04:50.866130+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Gary HERNDON, Appellant, v. John W. WINGO, Warden, etc., Appellee.\", \"head_matter\": \"Gary HERNDON, Appellant, v. John W. WINGO, Warden, etc., Appellee.\\nCourt of Appeals of Kentucky.\\nJune 24, 1966.\\nW. E. Rogers, III, Hopkinsville, for appellant.\\nRobert Matthews, Atty. Gen., Frankfort, for appellee.\", \"word_count\": \"754\", \"char_count\": \"4616\", \"text\": \"HILL, Judge.\\nAppellant, Gary Herndon, presently confined in the Kentucky State Reformatory under a five-year sentence for taking an automobile of another without the owner's consent, filed this action against the warden of the reformatory asking that he be released from prison on the theory the order revoking his probation and imposing sentence was illegal because of waiver of jurisdiction. After a hearing, the circuit court entered judgment dismissing his petition. He appeals.\\nAppellant in the presence of his court-appointed counsel was arraigned, entered a plea of guilty, and applied for probation, which was granted, in Calloway Circuit Court February 11, 1963. About two hours after his probation, and while he was still in the custody of the jailor of Calloway County, officers from the State of Tennessee appeared with a warrant issued in that State. Appellant voluntarily waived extradition and was returned to Tennessee, convicted and served about two and one-half years in prison.\\nAfter he was released from prison in Tennessee, he was again arrested in Callo-way County in connection with another car theft in the State of Florida. He was served with notice to show cause why his probation of February 1963 should not be revoked. After a hearing, it was revoked and appellant was imprisoned, from which he now seeks an avenue of escape.\\nAppellant admits he voluntarily waived extradition, but he maintains on this appeal that the Calloway Circuit Court waived its jurisdiction by acquiescing to his removal by the Tennessee authorities from Kentucky to Tennessee. However, the trial judge of the Calloway Circuit Court at the time of his conviction and probation testified appellant was released, free to \\\"walk away\\\" if he desired, as soon as he was probated insofar as the circuit court was concerned. Apparently what actually did occur was that appellant was released on probation in circuit court but by previous arrangement with officials of Tennessee the county judge and jailor held appellant until the arrival of transporting officers from Tennessee some two hours later.\\nThe bare act of probation cannot be construed as a waiver of jurisdiction. His probation contained all the usual conditions, and others, and was for a term of five years. He was then free so far as Calloway Circuit Court was concerned. He was thereafter required to do nothing in Kentucky but respect the conditions of his probation.\\nOur case law on this question is based upon some idea of \\\"forfeiture\\\" or waiver in the construction of KRS 440.330, a statute headed: \\\"Extradition may be granted persons accused or convicted in this state; conditions.\\\"\\nIn a thorough discussion of the question of \\\"forfeiture\\\" or waiver of jurisdiction, it is written in Crady v. Cranfill, Ky., 371 S.W.2d 640, 643:\\n\\\"On further reflection we have concluded that the question is not one-'of constitutional rights, but of state policy. If it were otherwise, for example, that portion of the Uniform Criminal Extradition Act providing that in no case shall the surrender of a prisoner be construed as a complete relinquishment of jurisdiction by the asylum state, but the prisoner shall be returned after trial in the demanding state 'or the completion of sentence therein, as the case may be,' (emphasis ours) probably would be unconstitutional.\\\"\\nThis court in Jones v. Rayborn, Ky., 346 S.W.2d 743, made the following comment on the question of \\\"forfeiture\\\" or waiver of jurisdiction:\\n\\\"The big question seems to be: Can the state through any of its officers by its acts waive a right which belongs to it? All the cases assume that it can. A waiver, as we all know, is the 'voluntary surrender of a known right.' There must be 'a clear, unequivocal and decisive act of the party showing an intention to relinquish the right.' \\\"\\nIn the case before us, there was no act or conduct evincing the relinquishment of any right by any Kentucky official. This state retained the supervision of appellant during the period of his probation. He was not \\\"handed over\\\" to the authorities of the demanding state. He voluntarily waived extradition, and all was going well until it was thought he violated a condition of his probation.\\nIt is concluded there was no \\\"forfeiture\\\" or waiver of jurisdiction and that the Calloway Circuit Court had jurisdiction to revoke appellant's probation and commit him to prison.\\nThe judgment is affirmed.\"}"

ky/10140283.json

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+"{\"id\": \"10140283\", \"name\": \"MODERN HEATING & SUPPLY CO., Inc., Appellant, v. OHIO BANK BUILDING & EQUIPMENT COMPANY, a Corporation, and Insurance Company of North America, a Corporation, and Peoples Bank of Fleming County, a Corporation, Appellees\", \"name_abbreviation\": \"Modern Heating & Supply Co. v. Ohio Bank Building & Equipment Co.\", \"decision_date\": \"1970-03-06\", \"docket_number\": \"\", \"first_page\": \"401\", \"last_page\": \"404\", \"citations\": \"451 S.W.2d 401\", \"volume\": \"451\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Kentucky Court of Appeals\", \"jurisdiction\": \"Kentucky\", \"last_updated\": \"2021-08-10T21:15:42.453284+00:00\", \"provenance\": \"CAP\", \"judges\": \"All concur.\", \"parties\": \"MODERN HEATING & SUPPLY CO., Inc., Appellant, v. OHIO BANK BUILDING & EQUIPMENT COMPANY, a Corporation, and Insurance Company of North America, a Corporation, and Peoples Bank of Fleming County, a Corporation, Appellees.\", \"head_matter\": \"MODERN HEATING & SUPPLY CO., Inc., Appellant, v. OHIO BANK BUILDING & EQUIPMENT COMPANY, a Corporation, and Insurance Company of North America, a Corporation, and Peoples Bank of Fleming County, a Corporation, Appellees.\\nCourt of Appeals of Kentucky.\\nMarch 6, 1970.\\nPhilip Hargett, Marysville, for appellant.\\nRichard Hinton, Flemingsburg, Homer W. Ramsey, Whitley City, for appellee Ohio Bank Building & Equip. Co.\\nJohn C. Fogle, Bryan & Fogle, Mt. Sterling, for appellee Insurance Co. of North America.\\nLloyd A. MacDonald, MacDonald & Walton, Flemingsburg, for appellee Peoples Bank of Fleming County.\", \"word_count\": \"1080\", \"char_count\": \"6599\", \"text\": \"EDWARD P. HILL, Jr., Chief Justice.\\nOn November 9, 1961, Peoples Bank of Fleming County contracted with Louis C. Smeltzer to remodel its bank building in Flemingsburg. Smeltzer, doing business as Ohio Bank Building & Equipment Company, then subcontracted with Modern Heating & Supply Company, Inc., the appellant herein, to do the heating and air conditioning work.\\nOn October 26, 1963, the appellant Modern Heating, filed a suit in Fleming Circuit Court seeking to enforce a mechanic's lien against the bank building owned and occupied by the defendant-appellee, Peoples Bank of Fleming County. Also named as defendants were Smeltzer, d/b/a Ohio Bank Building & Equipment Company, the general contractor engaged by the bank to improve its building, and the Insurance Company of North America (hereinafter referred to as INA), the surety on Ohio Bank Building & Equipment Company's performance bond. Modern Heating alleged that a balance of $7,-603.02 for labor and materials was due it from the subcontract work.\\nIn its answer Ohio Bank Building & Equipment Company denied it owed Modern Heating the $7,603.02 alleged by the plaintiff to be due it. It was admitted that Modern Heating was awarded a subcontract. However, upon completion of the subcontract work, Peoples Bank of Fleming County notified the defendant general contractor that the heating and air conditioning system was not satisfactory and would not work. Modern Heating was notified but failed to correct its work. The defendant-general contractor was therefore required to find another company to correct the difficulty and to comply with the specifications of the contract. Hence, a counter-claim was filed against Modern Heating in the sum of $15,180.\\nThe answer of Peoples Bank of Fleming County contained a cross-complaint against INA and another cross-complaint against Louis C. Smeltzer, d/b/a Ohio Bank Building & Equipment Company, for indemnity if Modern Heating recovered any judgment from the defendant bank.\\nDefendant, INA, admitted in its answer to the complaint of Modern Heating and in reply to the cross-claims of the other two defendants that it was surety for Louis C. Smeltzer, an individual doing business under the firm name of Ohio Bank Building & Equipment Company, However, INA denied being liable to Modern Heating for any amount and filed a copy of the performance bond in support of its position.\\nOn March 3, 1964, INA moved for judgment on the pleadings on the ground the plaintiff-subcontractor had no standing to maintain an action against INA relating to its performance bond written to indemnify Peoples Bank.\\nINA contended that no right of action is given anyone on the bond except the obligee, which in this case is the Peoples Bank. The following condition is found in the surety bond: \\\" express condition that no right of action shall accrue upon or by reason hereof, to or for the use of benefit of anyone other than the Obligee.\\\"\\nINA cited Massachusetts Bonding and Ins. Co. v. United States Radiator Corp., 265 Ky. 661, 97 S.W.2d 586, as authority since an almost identical provision was held to preclude a suit on the bond by an unpaid materialman. INA pointed out that there are two types of bonds: (1) a performance bond, and (2) a payment bond. The type bond found in this case is clearly a performance bond, since it attempts only to insure that the contract will be performed. The second type bond is a payment bond, which is intended to secure payment of subcontractors or materialmen. INA cited Standard Accident Ins. Co. of Detroit v. Rose, 314 Ky. 233, 234 S.W.2d 728, as clearly spelling out the distinction between the two types of bonds.\\nThe bond in this case is a performance bond as evidenced by the bond itself. The bank in its answer stated it had made payment in full for the work that was done. Therefore, when performance of the contract was completed the obligation of INA ended.\\nDue to the failure of the parties to report to the court concerning the outcome of an arbitration attempt, the case was dismissed on April 11, 1964; however, on plaintiff's motion the case was redocketed. Finally, on June 5, 1967, the circuit court dismissed the plaintiff's action for laches and for failure to prosecute.\\nAppellant now appeals from the order dismissing its action for failure to prosecute. In its brief it called the court's order drastic under CR 41.02. Appellant argues that it tried to proceed with the matter in an orderly fashion. Appellant next attempts to show the defendants as not desiring to try the case by referring to a motion by the attorney for Ohio Bank & Building Company to grant an extension of time since counsel had to appear in another court. Yet appellant does not mention that it asked for five extensions of time.\\nAs noted above, appellant's suit was filed October 26, 1963. The judgment dismissing for want of prosecution was entered June 5, 1967 (over three and one-half years after its filing). During the pen-dency of this action, plaintiff was granted one extension of time after another. True, the attorney for the plaintiff received serious injuries in an automobile accident which contributed to the delay, but after his recovery plaintiff had ample time to prosecute. The misfortune of plaintiff's attorney, with whom we have great sympathy, did not excuse appellant from the duty to prosecute. See Higgins v. Gose, 144 Ky. 123, 137 S.W. 1038.\\nIn Gorin v. Gorin, 292 Ky. 562, 167 S.W. 2d 52, 55 this court said:\\n\\\"A litigant may not employ an attorney and then wash his hands of all responsibility. The law demands the exercise of due diligence by the client as well as by his attorney in the prosecution or defense of litigation.\\\"\\nThe trial court was vested with a broad discretion in determining the question of whether the action should be dismissed for want of diligent prosecution. Unless that discretion is abused this court will not intervene. Here we find no abuse of that discretion.\\nThe judgment is affirmed.\\nAll concur.\"}"

ky/10150759.json

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+"{\"id\": \"10150759\", \"name\": \"Carl CABE, Commissioner of Labor, Commonwealth of Kentucky, Custodian of the Special Fund, Appellant, v. Ervin POPHAM, Appellee\", \"name_abbreviation\": \"Cabe v. Popham\", \"decision_date\": \"1969-02-21\", \"docket_number\": \"\", \"first_page\": \"910\", \"last_page\": \"913\", \"citations\": \"444 S.W.2d 910\", \"volume\": \"444\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Kentucky Court of Appeals\", \"jurisdiction\": \"Kentucky\", \"last_updated\": \"2021-08-11T00:41:07.810844+00:00\", \"provenance\": \"CAP\", \"judges\": \"All concur.\", \"parties\": \"Carl CABE, Commissioner of Labor, Commonwealth of Kentucky, Custodian of the Special Fund, Appellant, v. Ervin POPHAM, Appellee.\", \"head_matter\": \"Carl CABE, Commissioner of Labor, Commonwealth of Kentucky, Custodian of the Special Fund, Appellant, v. Ervin POPHAM, Appellee.\\nCourt of Appeals of Kentucky.\\nFeb. 21, 1969.\\nAs Modified on Denial of Rehearing Sept. 19, 1969.\\nStuart E. Alexander, Louisville, Thomas R. Emerson, Dept, of Labor, Frankfort, for appellant.\\nJames Levin, Hanish & Hanish, Louisville, for appellee.\", \"word_count\": \"1463\", \"char_count\": \"8748\", \"text\": \"GEORGE O. BERTRAM, Special Corn-missioner.\\nAppellant, hereafter called Special Fund, was defendant in the trial court and appel-lee, hereafter called Ervin, was plaintiff. Ervin sustained certain alleged injuries January 21, 1963, while attempting to use a public telephone of Southern Bell Telephone and Telegraph Company, hereafter called Southern Bell. At the time of the accident Ervin was in the employ of the Prudential Heating and Air Conditioning Company, hereafter called Ervin's Employer.\\nErvin filed claim against Ervin's Employer with the Workmen's Compensation Board of Kentucky, hereafter called Board. Ervin also instituted an action in the Jefferson Circuit Court on July 15, 1963, against Southern Bell to recover for the same injuries which were the subject of the compensation claim.\\nOn August 31, 1964, the Board entered an order granting Ervin an award to be paid by Ervin's Employer. However, under the provisions of KRS 342.120(4) the Board directed the Special Fund to reimburse Ervin's Employer $28.50 per week for 425 weeks. The Jefferson Circuit Court in the action filed July 15, 1963, permitted the Special Fund and Ervin's Employer both to intervene seeking subrogation under KRS 342.055.\\nThe July 15, 1963, action filed in the Jefferson Circuit Court by Ervin against Southern Bell was removed to the United States District Court for the Western District of Kentucky. The District Court on July 5, 1966, determined that the Special Fund was not a proper party to such action under KRS 342.055 and dismissed the intervening complaint of Special Fund. Thereafter, Southern Bell, Ervin, and Ervin's Employer entered into a settlement agreement by the terms of which Ervin's Employer was released of any further liability to Ervin under the award by the Board, and Ervin received a sum from Southern Bell in excess of the unpaid balance of the award by the Board. Special Fund refused any further payments to Ervin or Ervin's Employer. Ervin on December 5, 1966, filed complaint in the Jefferson Circuit Court seeking a balance of $2,605.47 from Special Fund which was the amount remaining unpaid under the award by the Board. Special Fund by answer contends there is now no liability under the award by the Board.\\nNo evidence was heard and it appears that the trial court entered judgment on the pleadings adjudging the $2,605.47 balance be paid by Special Fund to Ervin. Therefore, this appeal.\\nWe conclude that the trial court was authorized to enter judgment on the pleadings as provided by CR 12.03. However, we turn our concern now to the correctness of the trial court in the judgment it did enter.\\nErvin contends that the dismissal of the intervening complaint of Special Fund by the District Court operates as res judicata to the December 6, 1966, action filed in the Jefferson Circuit Court. If this were so the defense of Special Fund would have been adjudicated. Ervin also contends that Special Fund is not entitled to be subro-gated to any recovery Ervin may receive from a third party tort-feasor for the reason the Kentucky Compensation Act limits such to an employer or his insurance carrier only as provided by KRS 342.055 and Special Fund is neither.\\nWe think the sole question is: Can Ervin recover from both Special Fund under the Workmen's Compensation award of August 31, 1964, and from a third party tort-feasor for the same injuries arising from the same accident? Looking at the award of the Board, it provides in part:\\n\\\" and such compensation awarded against the Special Fund shall be paid directly to the plaintiff by the defendant employer or its compensation carrier and they shall be reimbursed for such payments by the Special Fund as required by KRS 342.120(4).\\\"\\nLooking at KRS 342.055, it provides:\\n\\\"Whenever an injury for which compensation is payable under this chapter has been sustained under circumstances creating in some other person than the employer a legal liability to pay damages, the injured employe may either claim compensation or proceed at law by civil action against such other person to recover damages, or proceed both against the employer for compensation and such other person to recover damages, but he shall not collect from both. If the injured employe elects to proceed at law by civil action against such other person to recover damages, he shall give due and timely notice to the employer of the filing of such action. If compensation is awarded under this chapter, either the employer or his insurance carrier, having paid the compensation or having become liable therefor, may recover in his or its own name or that of the injured employe from the other person in whom legal liability for damages exists, not to exceed the idemnity paid and payable to the injured employe.\\\"\\nViewing KRS 342.120(4) and the Board award of August 31, 1964, we are convinced the Board followed the direction of the statute in providing that the portion of the award to be paid out of the Special Fund should be paid directly to Ervin by Ervin's Employer or the carrier, who should thereafter be reimbursed by Special Fund. We are also convinced that KRS 342.055 clearly provides that any settlement by Ervin with his employer and releasing his employer from any further liability likewise settles and releases Special Fund from any further liability to reimburse Ervin's Employer. If no payments are made by Ervin's Employer or its insurance carrier to Ervin, how then, can it be reimbursement? If such were allowed it would in effect permit Ervin to recover from both his employer and some other person contrary to KRS 342.055.\\nWe have examined the case of Orth v. Shiely Petter Crushed Stone Company, 253 Minn. 142, 91 N.W.2d 463, relied on by appellee. It was therein held that the custodian of a special compensation fund (which was similar to our Special Fund) did not have the right of subrogation under a statute similar to KRS 342.055 which gave the right only to an employer. The Minnesota court took a strict construction view of the statute and decided that since the special compensation fund was not named in the statute, it did not have the rights granted the employer. We are not inclined to follow the reasoning of that opinion. It is the apparent policy of our statute to deny the employee any workmen's compensation, regardless of who is required to pay it, in the event he recovers from a third party tort-feasor as much or more than the total amount of compensation recoverable.\\nIt may be observed that the original act, which was the predecessor of KRS 342.055, named only the employer as the party entitled to subrogation or reimbursement in the event of a damage recovery against a tort feasor. After this court held in Henderson Tel. & Tel. Co. v. Owensboro Home Tel. & Tel. Co., 192 Ky. 322, 233 S.W. 743, that its provisions did not extend to an insurance carrier, the act was amended to include such carrier, thus showing a legislative intent to deny the employee what would be in effect a double recovery for the same injury, regardless of who paid the compensation. It cannot be denied that an award against the Special Fund is work-men's compensation. The assets of this Fund are created by assessments against employers and insurance carriers. In a certain sense the Fund is in privity with the employer and the insurance carrier. Considering the general legislative policy and the fact that KRS 342.120(4) requires the employer to pay the award against the Special Fund (with a right of reimbursement), we are of the opinion that the Special Fund may be fairly said to be covered by the provisions of KRS 342.055 which relate to the employer and the insurance carrier.\\nThe order of dismissal by the District Court did not in our opinion operate as an adjudication upon the merits as provided by CR 41.02 simply because the Board ordered reimbursement and there was nothing to reimburse.\\nWe are aware and have examined the many citations by appellee in his brief in support of his contention. However, we cannot see how any are applicable to the facts we have involved in this appeal.\\nFor the reasons given we think the trial court should have refused to grant judgment on the pleadings in favor of Ervin and should have dismissed the complaint filed by Ervin.\\nThe judgment is reversed, with directions to dismiss Ervin's complaint against Special Fund.\\nAll concur.\"}"

ky/10153436.json

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+"{\"id\": \"10153436\", \"name\": \"NORTH STAR COMPANY et al., Appellants, v. J. W. HOWARD et al., Appellees; HARRIS COAL CORPORATION, Appellants, v. J. W. HOWARD et al., Appellees; J. W. HOWARD et al., Appellants, v. NORTH STAR COMPANY, Inc., et al., Appellees; J. W. HOWARD et al., Cross-Appellants, v. HARRIS COAL CORPORATION, Cross-Appellee; J. W. HOWARD et al., Cross-Appellants, v. NORTH STAR COMPANY et al., Cross-Appellees\", \"name_abbreviation\": \"North Star Co. v. Howard\", \"decision_date\": \"1960-11-23\", \"docket_number\": \"\", \"first_page\": \"251\", \"last_page\": \"257\", \"citations\": \"341 S.W.2d 251\", \"volume\": \"341\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Kentucky Court of Appeals\", \"jurisdiction\": \"Kentucky\", \"last_updated\": \"2021-08-11T00:41:10.481476+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"NORTH STAR COMPANY et al., Appellants, v. J. W. HOWARD et al., Appellees. HARRIS COAL CORPORATION, Appellants, v. J. W. HOWARD et al., Appellees. J. W. HOWARD et al., Appellants, v. NORTH STAR COMPANY, Inc., et al., Appellees. J. W. HOWARD et al., Cross-Appellants, v. HARRIS COAL CORPORATION, Cross-Appellee. J. W. HOWARD et al., Cross-Appellants, v. NORTH STAR COMPANY et al., Cross-Appellees.\", \"head_matter\": \"NORTH STAR COMPANY et al., Appellants, v. J. W. HOWARD et al., Appellees. HARRIS COAL CORPORATION, Appellants, v. J. W. HOWARD et al., Appellees. J. W. HOWARD et al., Appellants, v. NORTH STAR COMPANY, Inc., et al., Appellees. J. W. HOWARD et al., Cross-Appellants, v. HARRIS COAL CORPORATION, Cross-Appellee. J. W. HOWARD et al., Cross-Appellants, v. NORTH STAR COMPANY et al., Cross-Appellees.\\nCourt of Appeals of Kentucky.\\nNov. 23, 1960.\\nJ. Blaine Nickell, Ralph N. Walter, Nick-ell & Walter, West Liberty, for North Star Co. and Buchanan Coal Co.\\nJ. W. Howard, Howard & Francis, Joe Hobson, Prestonsburg, for J. W. Howard and Florence Howard.\\nPaul C. Shafer, Jr., C. F. Taplin, Jr., Arthur G. Taylor, Cleveland, Ohio, Earli R. Cooper, Salyersville, James W. Stites, Lively M. Wilson, Stites, Wood, Helm & Peabody, Louisville, for Harris Coal Corp. C. A. Noble, Sr., Hazard, for Peoples Bank of Hazard.\\nJo M. Ferguson, Atty. Gen., William S. Riley, Asst. Atty. Gen., John L. Ward, Special Asst. Atty. Gen., for Commonwealth of Kentucky, Department of Revenue, amicus curiae.\", \"word_count\": \"2769\", \"char_count\": \"16271\", \"text\": \"WADDILL, Commissioner.\\nThe several appeals and cross-appeals question the correctness of: (1) The trial court's interpretation of certain provisions of a lease executed by J. W. Ploward and his wife to the North Star Company; (2) the adjudication of the claims of the creditors of the North Star Company; and, (3) the order directing the sale of the .real property owned by the North Star Company.\\nr 'dn September 1, 1951, J. W. Howard and 'his wife executed a lease on an 8,000 acre tract of land which they owned in Breathitt County to North Star Company (hereinafter referred to as Star). This lease provided for the payment of royalty of 15\\u215c\\u215e a ton of coal mined and a minimum of $7,200 a year and was amended in August of 1953 to 20^ per ton. Star subleased to Buchanan Coal Company (hereinafter called Buchanan), which was engaged in the mining of coal. These companies were entirely owned by I. H. Buchanan, Sr. and his family. Star's business enterprise consisted solely of acquiring property and leasing it to Buchanan. The operations of both companies were interdependent.\\nThe financial condition of Buchanan had been unstable since 1949. Under its contract with the United Mine Workers Union, Buchanan was required to pay 40\\u215e\\u215b per ton of coal mined to the Union's Welfare and Retirement Fund. When Buchanan was unable to pay this obligation the Union ordered the miners to stop work, and as a consequence the mines were shut down June 17, 1955. The insolvency of Buchanan resulted in an assignment for the benefit of its creditors.\\nSubsequent to the execution of the lease by the Howards to Star in 1951, Harris Coal Company (hereinafter called Harris), which acted as the sales agent for Buchanan, advanced money to Buchanan to use in furtherance of its mining operations on the Howards' property.\\nWhen Harris refused in 1953 to advance further money to Buchanan unless its existing debt was secured, Star executed a mortgage to Harris on the coal and mining rights which it owned on 258 acres and on an additional 1083 acres which it owned in fee. These tracts of land adjoined the Howards' property and are referred to in the proceedings as Items 33 and 34.\\nOn August 22, 1955, the Howards filed an action against Star and numerous other parties who were asserting claims against both Star and Buchanan's assignee. In their complaint they sought certain amounts allegedly due them under their lease and asserted a lien on all properties of Star and Buchanan. On October 31, 1955, an order was entered consolidating the proceeding which Buchanan had instituted for the benefit of its creditors with this action.\\nAfter hearing proof the trial court entered judgment for the Howards on December 21, 1955, for $11,640.60, which represented unpaid royalties on coal removed from the Howards' land from April 25, 1955 to July 25, 1955. The Howards were adjudged a lien on all properties of Star both .real and personal.\\nOn October 9, 1956, following further hearing, judgment was entered for the Howards in the additional amount of $43,-200. This award was for damages the court found that the Howards sustained by reason of Star's failure to diligently mine Howards' coal from July 25, 1955 to March 17, 1956, the date Buchanan's equipment was sold by order of the court.\\nOn November 2, 1956, the Howards were adjudged a first lien on the real estate identified herein as Items 33 and 34. Harris was adjudged a second lien on Items 33 and 34 to secure a judgment it obtained against Star. Peoples Bank of Hazard, which also asserted a claim against Star, was awarded a first lien on fifty mine cars and a second lien on two power shovels belonging to Star. The Howards were awarded a second lien on the mine cars. Three drop bottom Euclids which were being used in connection with the mining operations were adjudged to be property of Katie Buchanan.\\nPursuant to order of court a sale of Star's property was held on November 26, 1956. I. H. Buchanan, Jr. was the high bidder on certain property identified by the judgment as the mining unit which consisted of the leasehold and parts of Items 33 and 34. When I. H. Buchanan, Jr. was unable to provide surety, J. W. Howard's bid of $46,000 was accepted. That part of Items 33 and 34 which was not included in the mining unit was sold to Harris for $42,000.\\nThe Howards contend that the court erred in failing to assess damages for loss of royalties after the sale of Buchanan's mining equipment, notwithstanding the fact that they did not object to this sale. The trial court correctly refused to allow the Howards damages for the period between the date of this sale and the final decree. To hold otherwise would permit the Howards to recover damages after they had not objected to a sale that, as the court has found, prevented further mining operations under the lease.\\nAppellants Star and Harris urge that the Howards are not entitled to recover damages against Star because of Star's failure to diligently mine the Howards' coal, but are limited to the minimum royalty specified in the Howards' lease. The lease contains not only a provision for the payment of minimum royalty but also a covenant requiring Star to diligently mine the Howards' coal. The parties to the lease obviously did not intend the minimum royalty provision as a limitation on the specific covenant requiring Star to mine diligently. Any other interpretation would render the requirement of diligence meaningless. The damages awarded for the breach of this specific covenant were warranted under the record. Freeport Sulphur Co. v. American Sulphur Royalty Co. of Tex., 117 Tex. 439, 6 S.W.2d 1039, 60 A.L.R. 890.\\nThe Howards maintain that the trial court erred in not finding the amount of coal lost by improper mining. Their claim is based on the following clause of their coal lease:\\n\\\" should any coal be lost through negligent, careless or improper mining by the Lessee, or in any manner destroyed, the Lessee shall pay for same as if mined and removed. \\u00bb\\nWith reference to this clause of their lease, they claim that due to the augering operations of their coal it has become economically unfeasible to mine 800,000 tons of coal in back of the augered area and another 95,000 tons in unnecessarily large pillars. However, Star maintains that the coal back of the augered area is mineable and the coal pillars are not so large as to constitute wasteful mining practices. The trial court found that the evidence as to the quantity of coal lost by alleged improper mining practices was too indefinite to assess damages. The record supports this finding.\\nHarris contends that the court erred in concluding that a provision of the lease gave the Howards' a lien on the real estate of Star identified herein as Items 33 and 34. The provision in question reads:\\n\\\"And the Lessors shall have and are hereby given a first and prior lien upon all the property of the Lessee, both real and personal, of every kind and character whatsoever, whether now owned or hereafter acquired, which is in or upon the premises hereby leased or adjacent thereto at the time any default occurs, including, but without limitation, im provements, betterments, equipment, ; machinery, supplies and merchandise, as further security for the payment of royalties, rentals and other payments in this lease agreed to be' paid when and as the same become due and pay- able, and for the performance of each and every of the covenants in this lease contained upon the part of the said Lessee to be observed, kept and performed.\\\"\\nHarris urges that the Howards' lien extends only to personal property of Star. It is argued that \\\"in or upon,\\\" as appears in the lease, refers only to personal property because real estate can be neither \\\"in or upon\\\" other premises. We agree. However, this interpretation does not give meaning to the words' \\\"or adjacent thereto\\\" which follows as an alternate phrase to \\\"in or upon.\\\" Since both real estate and personal property can be adjacent to other real property, the question that arises is what did the parties to the lease intend by the language used. When the intention of the parties can reasonably be ascertained from the language used in the lease as a whole it is the duty of the court to effectuate such intention even though their purpose was inarticulately expressed. Ratliffe v. Ratliffe, 182 Ky. 230, 206 S.W. 478; 12 Am.Jur., Contracts, Section 227, page 745. As was said in Black Star Coal Corp. v. Napier, 303 Ky. 778, 199 S.W.2d 449, 451:\\n\\\" The primary rule is to ascertain and give effect, if possible, to the mutual intention of the parties. 17 C.J.S., Contracts, \\u00a7 295, p. 5 [689]. Words will be construed in the sense they are employed by the parties, and unless a contrary intention appears, they will be given their ordinary meaning, 17 C.J.S. Contracts, \\u00a7 300 and \\u00a7 301, pp. 717 and 718. If the contract contains inconsistent clauses, they should be reconciled if possible, but the clause contributing most essentially to the contract is entitled to the greater consideration; if they both cannot stand, the first' will ordinarily prevail over the second. \\u2022\\nThe provision of the lease in question-contains three other expressions of intention to include real property within the lien. These are: (1) \\\"All the property,\\\" (2) \\\"both real and personal,\\\" and, (3) \\\"of every kind and character whatsoever.\\\" The intention of the parties is further demonstrated by the fact that the purpose of the lien-was to furnish security for the performance of the covenants of the lease. The expressions used to include real property within the lien would be given no-meaning if only personal property is subject to the lien. Whatever may be the inaccuracy of expression or the inaptness of the words used in a legal sense, the intention of the parties was ascertainable, and we have concluded that the trial court correctly effectuated it by including both the-real and personal property of Star within the lien of the lease. In view of this conclusion, the arguments to the contrary which advance subsidiary rules of construction are unavailing.\\nThree drop bottom Euclids were being used on the leased premises at the time the mining operations were discontinued. The Howards contend that the trial court erred in finding that the Euclids were owned by Katie Buchanan and had been leased by her to Star. We will not disturb this finding since it is supported by probative evidence.\\nTh\\u00e9 Peoples Bank of Hazard was adjudged a first lien on 50 mine cars which-Star owned and used in connection with-the mining operations upon the Howards' property. The Howards insist that they were entitled to a first lien on these cars under the terms of their lease. The Howards recorded their lease in Breathitt County while the Peoples Bank recorded its chattel mortgage on these cars in Perry County. In view of the fact that Star is a Kentucky corporation with its principal offices in Perry County, it was incumbent upon the Howards to file their lien-instrument in Perry County to obtain priority over the Peoples Bank's mortgage. KRS 382.670 and 382.630; 10 Am.Jur., Chattel Mortgages, Section 93, page 775; 14 C.J.S. Chattel Mortgages \\u00a7 151, p. 755; Jones on Chattel Mortgages, Volume 1, Section 253, page 429; Fletcher, Cyclopedia of Private Corporations, Volume 8, Section 4048, page 517.\\nThe Howards contend that the officers of the Peoples Bank had actual knowledge of the lien provided in their lease when the Bank accepted a chattel mortgage on the mine cars. The contention is not supported in fact because there is no evidence that the Bank's officers had such knowledge.\\nThe Howards also contend that they were entitled to be adjudged a landlord's lien on the mine cars under the provisions of KRS 383.070. Since the judgment obtained by the Howards included the rent due under the lease, which was adequately secured, they were not prejudiced by the trial court's failure to adjudge them a landlord's lien on the mine cars. Therefore, we will not disturb the judgment in tihis respect.\\nThe Howards urge that the execution of the chattel mortgage on the mine cars by Star to the Peoples Bank was ultra vires, because it was executed to secure a debt of Buchanan, and therefore the mortgage was void. The power of a corporation to act as surety or guarantor exists whenever it is reasonably necessary in the conduct of its business. M. V. Monarch Co. v. Farmers' & Traders Bank, 105 Ky. 430, 49 S.W. 317; Fletcher, Cyclopedia of Private Corporations, Volume 6, (1950 Ed.) Section 2591, pages 546-550. It appears from the evidence that it was necessary for Star to secure the obligation of Buchanan to prevent its financial collapse and in that way enable Star to continue its mining operation on the Howards' premises. Under these circumstances the transaction in question was within the corporate power of Star and the trial court did not err in sustaining the validity of this mortgage.\\nHarris and Star urge that the trial court erred in adjudging that the leasehold, a portion of Items 33 and 34, and the mining equipment located thereon constituted an inseparable mining plant, and also erred in ordering a sale of this mining plant subject to the terms of the Howards' lease. The grounds relied upon are: (1) There is no rule of law that permits real estate to be included within a mining plant; (2) sale of real estate in this manner destroys the right of redemption accorded by KRS 426.-530; and, (3) the sale of real estate in this manner subjects it to an unwarranted extension of the Howards' lien.\\nThese contentions are unavailing for two principle reasons. The lease from the Howards to Star subjected Star's real estate (Items 33 and 34) to a lien to secure the performance of the covenants of their lease. Since the Howards did not seek a cancellation of their lease but the enforcement of its terms, the lease must be enforced as written. When Harris obtained a mortgage on Items 33 and 34, the security it obtained for its debt was subject to the lien and the covenants of the Howards' lease. The only way the trial court could order a sale of the lease without impairing the security pledged for its performance, was in the manner directed by the judgment. National Bank of Kentucky v. Kentucky River Coal Corporation, 230 Ky. 683, 20 S.W.2d 724. Hence, the judgment directing the sale of the lease and certain portions of Items 33 and 34 as a mining plant was proper under the circumstances.\\nThe second reason is that Harris and Star waived their right to object to the sale of certain portions of Items 33 and 34 being included as a part of the mining plant by obtaining, pursuant to their motion, the order of sale of which they now complain.\\nCounsel appearing on behalf of the Commonwealth of Kentucky have filed a brief amicus curiae wherein it is urged that the trial court failed to adjudicate its claim against Buchanan for certain unpaid taxes. While the Commonwealth has filed no appeal or cross-appeal, we will observe that since Buchanan made an assignment for the benefit of its creditors in 1955, the Commonwealth's claim should have been asserted against Buchanan's assignee.\\nJudgment affirmed.\"}"

ky/10155769.json

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+"{\"id\": \"10155769\", \"name\": \"Emma MULLINS, Adm'x of Estate of David Mullins, Deceased, Appellant, v. William Thomas BULLENS et al., Appellees\", \"name_abbreviation\": \"Mullins v. Bullens\", \"decision_date\": \"1964-10-09\", \"docket_number\": \"\", \"first_page\": \"130\", \"last_page\": \"134\", \"citations\": \"383 S.W.2d 130\", \"volume\": \"383\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Kentucky Court of Appeals\", \"jurisdiction\": \"Kentucky\", \"last_updated\": \"2021-08-11T02:19:32.926035+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Emma MULLINS, Adm\\u2019x of Estate of David Mullins, Deceased, Appellant, v. William Thomas BULLENS et al., Appellees.\", \"head_matter\": \"Emma MULLINS, Adm\\u2019x of Estate of David Mullins, Deceased, Appellant, v. William Thomas BULLENS et al., Appellees.\\nCourt of Appeals of Kentucky.\\nOct. 9, 1964.\\nCharles R. Coy, James S. Chenault, Richmond, for appellant.\\nGeorge T. Ross, Richmond, for appellees.\", \"word_count\": \"2205\", \"char_count\": \"12795\", \"text\": \"DAVIS, Commissioner.\\nJust after midnight in June, 1961, David Mullins was killed when he was struck by an automobile, owned by appellee Bullens, driven by appellee Gatliff. Bullens was riding in his car at the time of the accident. Upon trial of this wrongful death action (KRS 411.130) a jury returned a verdict for appellant for $21,197, which included funeral expenses and damages for decedent's automobile. Following entry of judgment upon the verdict, the trial court sustained ap-pellees' timely motion for judgment n. o. v. The n. o. v. motion was coupled with an alternative motion for new trial. CR 50.03. The court granted the n. o. v. motion, and further ordered that in the event the court's ruling for judgment n. o. v. should be reversed, then the appellees' motion for new trial is sustained. Appellant challenges the rulings of the trial court on these grounds: (1) Decedent was not as a matter of law guilty of contributory negligence, (2) the doctrine of \\\"last clear chance\\\" requires submission of the case to a jury, (3) appel-lees' negligence 'precludes -their reliance upon \\\"sudden emergency doctrine,\\\" (4) proof of appellee driver's intoxication reflects such wanton conduct as to deprive appellees Of the defense of contributory negligence, (5) decedent did not as a matter of law assume the risk when making repairs to his disabled car, and (6) the conditional granting of a new trial was error.\\nAbout 11:45 p. m. on June 16, 1961, the decedent, accompanied by his brother and Frank Cope, left Richmond en route for their homes in Rockcastle County. All of them had had some beer to drink, although the quantity consumed is in dispute. When they had gone about four miles the hood on decedent's car came up so as to obstruct the view of the driver. Thereupon decedent brought the car to a stop \\u2014 parking it with its left wheels on the traveled portion of the highway in its travel lane. The parking and tail lights were burning (according to evidence for appellant). Decedent and the other occupants of his car alighted from it and removed the hood from the vehicle. For about fifteen minutes they were in the process of trying to place the hood into the trunk of the car when appellee Gatliff, driving the automobile of appellee Bullens, drove the car so as to strike decedent, fatally injuring him. The appellees were also coming from Richmond and headed in the same direction as decedent.\\nAppellee Gatliff said that he first saw decedent's car when it was 125 to 150 feet in front of him. According to Gatliff, his headlights were working properly. The evidence for appellant reflects that the appel-lee's car laid down skid marks of 97 feet before colliding with Mullins and his parked car. After the impact, appellee's car crashed into a tree just off its left side of the highway; the tree is located about forty feet beyond the point of impact. The Mullins car was knocked about thirty feet forward as the result of the collision.\\nThere was evidence that blood' samples taken from appellee Gatliff shortly after the accident indicated blood alcohol content of 0.13% by weight. Similar tests revealed 0.15% blood alcohol content for appellee Bullens. A test performed upon the corpse of Mullins, under circumstances challenged by appellant as failing to show that proper precautions were taken for accuracy, indicated a blood alcohol content of 0.21%.\\nCompetent medical evidence disclosed at the trial that an individual of comparable size with those involved in the case will eliminate alcohol, in terms of blood weight, at the rate of 0.015% per hour. Using this factor, the witness deposed that appellee Gatliff's blood weight alcohol content was 0.15% at the time of the accident. Evidence was adduced that the driving ability of all persons will be impaired when the blood alcohol content is as high as 0.15%. See KRS 189.520(4) as to effect of various percentages in criminal prosecutions.\\nThe accident occurred in a designated 35 mph speed zone. It is noted that some evidence was heard that the zone was designated as having a speed limit of 50 mph; the court submitted to the jury the question whether it was 35 mph or 50 mph. The weather was clear; the road was a dry bituminous blacktop concrete pavement. A qualified engineer, particularly trained in the' matter of relating required stopping distances to the speed of automobiles, gave evidence relating to the required stopping distance for appellee's car. According to that evidence, the car of appellee would have come to a dead stop just as it reached decedent's car assuming a speed of 45 mph coupled with the skid mark of 97 feet. According to the same witness, under the prevailing conditions, if traveling at 35 mph, the car of appellee would have stopped after 57 feet of skidding \\u2014 this, of course, would have left the car forty feet short of striking the decedent or his car. Appellee Gatliff testified that he was driving 46 mph when he first saw decedent's car, which was then 125 to 150 feet ahead of him. Gatliff said that the headlights on',the Bullens car were functioning properly, but it was not developed whether they were on high or low beam. Appellee Gatliff had 800 feet of unobstructed vision to decedent's car after topping a grade in the highway. Conversely, decedent could have observed the approach of appellee's car during the same distance.\\nWe are of the view that the decedent was guilty of contributory negligence as a matter of law; hence, it was error to submit the question of his contributory negligence to the jury. We are mindful that KRS 189.450(1) (a) provides that a vehicle may be stopped or left standing on the main traveled portion of a highway when the vehicle \\\"has been disabled while on the * . highway in such a manner and to such extent that it is impossible to avoid the occupation of the main traveled portion or impracticable to remove it from the highway until repairs have been made However, under the circumstances of this case we hold that the disabled condition of decedent's car was not of such nature as to warrant its being left standing in the highway for the nearly fifteen minutes between its first stopping and the collision. The quoted language of KRS 189.450(1) (a) evinces the principle that the nature of the car's disablement must be such as to make it \\\"impossible\\\" or \\\"impracticable\\\" to get the car off the road. We are not holding that it was a violation of the statute to stop the car momentarily on the highway when the hood flew up and obstructed the driver's vision\\u2014 but we do hold that the nature of the difficulty with the car was neither of the extent nor type warranting stopping on the highway for such an extended time. The emergency simply did not last that long. The evidence is uncontradicted that the car could have been driven off the traveled portion of the road with a bare minimum of care. Under these conditions, decedent was in violation of KRS 189.450(1) in permitting his car to partially block the highway. We conclude that decedent's violation of the statute, under the circumstances here, was negligence per se. -The exception provided by KRS 189.450(1) (a) applied only so long as it was necessary for the Mullins car to be left standing on the pavement. The statute is intended to protect motorists (including appellee Gatliff) against the risk of the type of harm which occurred here. See treatment of effect of statutory violation as negligence in Ross v. Jones, Ky., 316 S.W.2d 8-15, and Prosser's Law of Torts, 2nd Ed., p. 161, et seq.\\nMoreover, it was negligence for decedent to remain standing on the highway, in an obviously perilous place, under the conditions at bar. Carlisle v. Reeves, Ky., 294 S.W.2d 74. We believe it beyond cavil that decedent would be regarded contributo-rily negligent as a matter of law had he simply stood in the highway, where he did stand, had there been no automobile there. We cannot perceive that the presence of the illegally parked automobile diminished his negligence, even though there was evidence that the tail lights of the car were on.\\nIt is our conclusion, however, that the appellant was entitled to the jury determination of whether recovery is due under the last clear chance doctrine. We need not embark upon renewed consideration of the last clear chance cases as to the effect of peril which is discovered vis-a-vis peril which should have been discovered. The facts before us show that appellee Gatliff discovered decedent's car at least 125 to 150 feet ahead. There was no oncoming traffic confronting Gatliff. For the appellant it was shown that had Gatliff been driving at 45 mph (he testified he was traveling 46 mph) the vehicle would have come to' a stop after sliding 98 feet. At 35 mph, it would have stopped in 57 feet\\u201440 feet short of decedent. There is no showing for appellees why Gatliff was unable to go around the decedent's car. The subject is thus treated by Gatliff in evidence, on cross-examination:\\n\\\"D64 How far did you see the Mullins car ahead of you for the first time?\\n\\\"A A hundred and twenty-five 'to fifty feet.\\n\\\"D65 From 125 to 150 feet, and what did you do when you saw the car?\\n\\\"A Throwed the brakes on as hard as I could.\\n\\\"D66 Was anything coming from the opposite direction?\\n\\\"A No.\\n\\\"D67 Did you make any effort to turn your car to the left?\\n\\\"A I made an effort.\\n\\\"D68 And it wouldn't turn ?\\n\\\"A No.\\\"\\nClearly Gatliff is in no position to urge that antecedent negligent speed by him prevented his driving to his left to safely pass the decedent and his car\\u2014because Gatliff disclaims antecedent exorbitant speed. We believe the jury had a right to evaluate the conduct of Gatliff when he testified, \\\"I made an effort\\\" to turn to the left and the car would not turn. We deem Riley v. Horn-buckle, Ky., 366 S.W.2d 304, dispositive of the question of last clear chance here.\\nAppellant objected to a sudden emergency instruction given by the trial court. The argument is pressed here that the negligence of appellees precludes this defense. We hold that no sudden emergency instruction should have been given, nor should one be given upon another .trial of this case if the evidence is substantially the same. KRS 189.040(3) (a) required Gatliff to have head lights of sufficient intensity to reveal persons and vehicles at least 350 feet ahead (with certain exceptions not pertinent here). Accepting Gatliff's testimony that he first saw the Mullins car 125 to 150 feet ahead, it amounts to admission that either his head lights were inadequate, or he was derelict in his lookout duty. Premising the test on Gatliff's duty to see the decedent and his car 350 feet ahead, we believe that distance precludes any thought of sudden emergency. Since he failed to see until. 125 to'150 feet from the .decedent's car, f\\u00f3r'this test, there was such faulty lookout for 200 to 225 feet to foreclose a claim of sudden emerg\\u00e9ncy. One may not create \\u2022an emergency by his own negligence and then take defensive refuge therein. Ellis v. McCubbins, 312 Ky. 837, 229 S.W.2d 992.\\nAppellant argues that the negligence of Gatliff was so gross as to amount to wanton misconduct, thereby depriving appellees of the defense of contributory negligence. In support of this position, our attention is directed to Bickel v. Bennett, 267 Ky. 232, 101 S.W.2d 943, and Basham v. White, Ky., 298 S.W.2d 316.\\nWe think one answer to this question lies in the fact that, upon the trial the issue of gross negligence as a basis for punitive damages was submitted to the jury \\u2014at the behest of the appellant. The jury resolved that issue adversely to appellant by returning its verdict for compensatory damages only. CR 59.01 authorizes the granting of a new trial \\\"on all or part of the issues.\\\"' There is no basis made evident wherein any purpose is to be served by a retrial of the gross negligence issue. Clearly there was sufficient conflict in evidence to make a jury issue of whether the negligence, if any, was ordinary or gross. Therefore, we limit a new trial herein to the issue of simple negligence. See Clay CR 59.01, Comment 4.\\nWhat has been said obviates necessity for discussion of assumption of risk and propriety of granting a conditional new trial.\\nWe decline consideration of certain claimed errors in instructions as presented in brief for appellees. No cross-appeal has been filed; these claimed errors are not before us. for review. CR 74; Lainhart v. Rural Doxol Gas Co., Ky., 376 S.W.2d 681.\\nThe judgment is reversed for proceedings consistent with the opinion.\"}"

ky/10157738.json

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+"{\"id\": \"10157738\", \"name\": \"ADAMS CONSTRUCTION CORPORATION, Appellant, v. Mitchell SHORT, Appellee\", \"name_abbreviation\": \"Adams Construction Corp. v. Short\", \"decision_date\": \"1959-05-08\", \"docket_number\": \"\", \"first_page\": \"118\", \"last_page\": \"120\", \"citations\": \"324 S.W.2d 118\", \"volume\": \"324\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Kentucky Court of Appeals\", \"jurisdiction\": \"Kentucky\", \"last_updated\": \"2021-08-11T00:49:41.425332+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"ADAMS CONSTRUCTION CORPORATION, Appellant, v. Mitchell SHORT, Appellee.\", \"head_matter\": \"ADAMS CONSTRUCTION CORPORATION, Appellant, v. Mitchell SHORT, Appellee.\\nCourt of Appeals of Kentucky.\\nMay 8, 1959.\\nBaird & Hays, Pikeville, for appellant.\\nPaul E. Hayes, Bert T. Combs, Pres-tonsburg, for appellee.\", \"word_count\": \"1442\", \"char_count\": \"8310\", \"text\": \"STEWART, Judge.\\nThis appeal by defendant, Adams Construction Corporation, is from a judgment awarding plaintiff, Mitchell Short, the sum of $10,000 against it for property loss and personal injuries growing out of an automobile accident. The sole ground urged for reversal is that the trial court erred in failing to direct a verdict in its favor, the contention being that plaintiff was guilty of contributory negligence as a matter of law. We shall hereinafter refer to the parties as they were designated in circuit court.\\nOn October 25, 1956, the date of the accident, defendant, under contract with the Department of Highways, was patching the surface of State Highway No. 122 in Floyd County, near Hi Hat on Left Beaver Creek. This highway runs generally north and south, and on this occasion work was progressing in a northerly direction and traffic at the section being repaired was limited to one-way. Defendant had a roller and a grader on this job and, in addition, several of its trucks were hauling patch-work material to the point of activity. There was a rather pronounced curve in the highway at this location. The pavement was the customary width of 18 feet and the day was clear and dry.\\nAt the time of the accident, northbound traffic was being stopped to allow southbound traffic to go through on the easterly side of the highway. The first vehicle that had been stopped after it passed the curve was an Oldsmobile passenger car driven by W. M. Bowling; the next was a Chevrolet pick-up truck, with a \\\"homemade\\\" top on its body, owned and operated by Ermal Scutchfield. These two vehicles had been stopped for only a few minutes, a short distance apart, when plaintiff, Short, came around the curve from the south at considerable speed. In an effort to check the movement of his car, after seeing the situation ahead, he skidded his car 96 feet. However, he ran into the rear of the Scutchfield truck, demolishing its top and knocking it 47 feet forward into the back of the Bowling car. As a result of the accident, plaintiff received serious injuries and his car was almost a total loss.\\nThere is a contrariety in the evidence concerning how much unobstructed view plaintiff had forward when he rounded the curve from the south. The proof introduced for defendant was that he had a clear range of vision at least 300 feet ahead. According to plaintiff's testimony, he was about 122 feet away from the two stopped vehicles when he was first able to see them. Scutchfield stated it was not possible to see the stopped Bowling car until he was a distance of 130 feet from it.\\nThe evidence is also in dispute on the questions of whether a caution sign or a flagman, or both, was placed at the south end of the stretch of highway under repair to warn those traveling northwardly. Defendant's foreman, Ollie Montgomery, testified that a \\\"Road Under Construction\\\" sign had been located on the Indian Creek Mountain, south of the place of the accident. However, this witness admitted on cross-examination that a motorist who started from Buckingham to proceed north-wardly would follow a road that eventually connected with State Highway No. 122 and would not pass by that sign if he continued on toward where the highway was being repaired. It is uncontradicted that plaintiff on the date of the mishap came from Buckingham on a road that intersects State Highway No. 122, north of the site of the sign, and then traversed the latter highway until he was involved in the wreck.\\nPlaintiff testified he observed neither a warning sign nor a flagman at any time on the highway during his approach to the point where he collided with the truck. Two other witnesses said the flagman, who was supposed to flag down traffic coming from the south, did not make his appearance on th@ scene until after the accident, and then was seen coming from the road equipment beyond the wrecked cars down to the location where the accident occurred. Defendant's evidence placed the flagman on the westerly side of the highway, about midway between the Bowling car and the Scutchfield truck, where he was said to have made an effort to wave plaintiff to a stop as the latter approached. Plaintiff stated one reason why he skidded so far, namely, 96 feet, was that gravel particles were present on the stretch of the highway where he started braking his car. Plaintiff estimated the speed he was traveling on the occasion was between 45 and 50 miles per hour, and this statement stands uncontra-dicted in the evidence.\\nIn the case at bar, defendant concedes negligence upon its part as regards the occurrence of the accident, but the position is taken that plaintiff was guilty of contributory negligence as a matter of law. In this connection it is claimed plaintiff failed to maintain a proper lookout, and that, when approaching the curve, he did not keep his automobile under reasonable control as required by KRS 189.-410.\\nIn determining the question of the negligence of a person in failing to observe the presence of a standing or moving vehicle in time to stop or avoid it in safety, no hard and fast rule can be laid down, and the surrounding conditions and circumstances of the particular case must be considered. De Buyser v. Walden, Ky., 255 S.W.2d 616. Generally speaking, a car operator is chargeable with seeing what is ordinarily within the range of his vision and, where his view is obstructed by some unusual condition, he must exercise greater care than is customarily expected of him. A motorist, however, has the right to assume the highway upon which he is driving his vehicle is reasonably safe for ordinary travel and does not have to anticipate the presence of an extraordinary hazard such as plaintiff encountered in the case at bar. See Crawford Transport Co. v. Wireman, Ky., 280 S.W.2d 163.\\nDefendant argues that plaintiff should have brought his car to a stop within the length of 122 feet, at which distance he admitted he was from the truck when he first saw it. The implication here is that if plaintiff had been keeping a proper lookout he could have arrested the movement of his car short of its contact with the truck. Simple arithmetic will refute this contention. A car traveling at 60 miles per hour will cover 88 feet per second; at 30 miles per hour, 44 feet per second; and at 45 miles per hour, 66 feet per second. As has been pointed out, the greatest speed plaintiff's car was attaining was 45 to 50 miles per hour, which was shown by his own undisputed testimony. Assuming he was going 45 miles per hour, or 66 feet per second, plaintiff had less than two seconds to bring his car to a stop within the space of 122 feet.\\nAlso it is contended the fact that his car skidded 96 feet, and knocked the truck forward 47 feet with enough force to dismantle its top, indicates plaintiff did not have his car under reasonable control. On the other hand, a jury could well believe that the length plaintiff's car skidded could mean he was alert because of the rapidity with which he applied his brakes upon seeing danger ahead. A state patrolman, called as a witness for plaintiff, testified that under ideal conditions a car traveling 40 miles per hour, after the application of its brakes, will skid 82 feet, but at a speed of 50 miles per hour it will skid 128 feet when its movement is arrested. If gravel is considered as being on the pavement at the time, which point was brought out by plaintiff's testimony, we have an additional factor that tends to explain the extent of skidding in this instance as not unusual.\\nWe cannot say contributory negligence as a matter of law was shown upon the part of plaintiff under the facts presented. We conclude the jury could determine from the evidence, although certain portions of it are in conflict, that plaintiff acted as an ordinarily prudent man in the operation of his vehicle in the face of the extraordinary hazard with which he was confronted. Certainly we must hold it was not error to allow the jury to pass on the contributory negligence question.\\nWherefore, for the reasons given the judgment is affirmed.\"}"

ky/10166107.json

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+"{\"id\": \"10166107\", \"name\": \"Dora G. MASON, Appellant, v. Marilyn Mason FORREST, Executor of Rob Mason, Deceased, Appellee\", \"name_abbreviation\": \"Mason v. Forrest\", \"decision_date\": \"1959-04-24\", \"docket_number\": \"\", \"first_page\": \"634\", \"last_page\": \"636\", \"citations\": \"332 S.W.2d 634\", \"volume\": \"332\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Kentucky Court of Appeals\", \"jurisdiction\": \"Kentucky\", \"last_updated\": \"2021-08-11T01:00:52.621123+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Dora G. MASON, Appellant, v. Marilyn Mason FORREST, Executor of Rob Mason, Deceased, Appellee.\", \"head_matter\": \"Dora G. MASON, Appellant, v. Marilyn Mason FORREST, Executor of Rob Mason, Deceased, Appellee.\\nCourt of Appeals of Kentucky.\\nApril 24, 1959.\\nRehearing Denied March 25, 1960.\\nMilburn C. Keith, Hopkinsville, Nat Ryan Hughes, Murray, for appellant.\\nWells Overbey, Murray, for appellee.\", \"word_count\": \"900\", \"char_count\": \"5107\", \"text\": \"CULLEN, Commissioner.\\nDora G. Mason appeals from a judgment which granted her a divorce from her husband, Dr. Rob Mason, awarded her $3,000 as lump sum alimony and required tile husband to pay one-half of the court costs and one-fourth of the wife's attorney's fee (which fee was fixed at $1,000). Dora's grounds of error are that the award of alimony is insufficient and that the hus band should have been required to pay all of the court costs and all of her attorney's fee. Dr. Mason died pending the appeal and his executrix has been substituted as appellee.\\nWe are faced at the outset with the question of whether the appeal must be dismissed because, before the appeal was taken, Mrs. Mason's trial attorney accepted payment of the amounts required by the judgment to be paid by her husband, and noted satisfaction of the judgment upon the docket.\\nMrs. Mason was represented upon the trial of the action by an attorney of Murray, Kentucky. Immediately after the judgment was entered, which was on April 19, 1957, he discussed with her a proposed method of disposition of the money due under the judgment, to which she consented, and a few days later he sent her a letter outlining this proposed method to which she did not respond. On April 24 or 25 Dr. Mason's attorney delivered to .Mrs. Mason's trial attorney checks to cover the amounts due from Dr. Mason under the judgment. On May 1, Mrs. Mason's trial attorney endorsed on the margin of the judgment, in the clerk's office, a receipt acknowledging payment of the alimony and one-fourth of his fee, \\\"pursuant to judgment.\\\" He also paid to the clerk the one-half of the court costs required by the judgment to be paid by Mrs. Mason. He then sent his personal check to Mrs. Mason for the balance that remained of the alimony payment after deducting the amount paid for court costs and the amount of his fee that was owed by Mrs. Mason.\\nIn the meantime, on or about April 26, Mrs. Mason had employed two new attorneys, who prepared for her a motion and grounds for a new trial. Copy of the motion and grounds was received by the attorney for Dr. Mason on April 27, but no copy was sent to Mrs. Mason's trial attorney, and he was never informed by Mrs. Mason or by the new attorneys that he had been discharged or his authority to represent Mrs. Mason had been terminated. At the time he endorsed satisfaction of the judgment in the clerk's office, he had not been informed of the motion for a new trial, or that Mrs. Mason had employed new attorneys.\\nWhile the motion for a new trial was pending, Mrs. Mason's new attorneys filed a motion to strike the satisfaction of the judgment, and tendered restitution of the money that had been paid by Dr. Mason under the judgment. This motion, and the motion for a new trial, were both overruled.\\nSince Mrs. Mason's trial attorney had not been discharged, and had not received any notice of her employment of new attorneys, at the time he accepted the payment from Dr. Mason and entered satisfaction of the judgment on the court records, and since his actions in so doing were in strict accordance with what he had advised Mrs. Mason, both orally and by letter, that he would do, we must conclude that his action.* were with full authority of Mrs. Mason and therefore were binding upon her.\\nThe situation then is, that Mrs. Mason is attempting to appeal from a judgment after having voluntarily accepted the benefits of the judgment and having entered a formal satisfaction of the judgment on the court record. The rule in this jurisdiction, and the general rule in other jurisdictions, is that an appeal cannot be prosecuted under such circumstances. Complete Auto Transit, Inc. v. Louisville & Nashville R. Co., Ky., 273 S.W.2d 385; 2 Am.Jur., Appeal and Error, secs. 214, 216, 219, pp. 975, 976, 977, 979, 981; Annotation, 169 A.L.R. 985. The rule applies in divorce cases. 2 Am.Jur., Appeal and Error, sec. 219, p. 981; Annotation, 169 A.L.R. 985, at page 999. There is also a rule that acceptance of the payment of costs awarded to a party by a judgment operates to bar his right to appeal from the judgment. Annotation, 169 A.L.R. 985, at page 1047.\\nMrs. Mason's tender of restitution of the money accepted by her in satisfaction of the judgment did not have the effect of restoring her right to appeal. Paine v. Woolley, 80 Ky. 568, 4 Ky.Law Rep. 489; 2 Am.Jur., Appeal and Error, sec. 216, p. 979.\\nThe appellee has not made a formal motion to dismiss the appeal. However, this Court has held that where a party attempting to appeal has procured all the relief he sought in the action, the appeal may be dismissed on the Court's own motion. Light v. Miller, 187 Ky. 57, 218 S.W. 307. We think the .situation here is analogous, and warrants dismissal of the action on the Court's own motion.\\nThe appeal is dismissed.\"}"

ky/10170852.json

@@ -0,0 +1 @@
+"{\"id\": \"10170852\", \"name\": \"CITY OF COVINGTON, etc., et al., Appellant, v. E. B. MEYER, Appellee\", \"name_abbreviation\": \"City of Covington v. Meyer\", \"decision_date\": \"1964-03-13\", \"docket_number\": \"\", \"first_page\": \"679\", \"last_page\": \"680\", \"citations\": \"376 S.W.2d 679\", \"volume\": \"376\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Kentucky Court of Appeals\", \"jurisdiction\": \"Kentucky\", \"last_updated\": \"2021-08-10T18:52:24.396351+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"CITY OF COVINGTON, etc., et al., Appellant, v. E. B. MEYER, Appellee.\", \"head_matter\": \"CITY OF COVINGTON, etc., et al., Appellant, v. E. B. MEYER, Appellee.\\nCourt of Appeals of Kentucky.\\nMarch 13, 1964.\\nE. H. Henry, Rodney S. Bryson, Coving-ton, for appellant.\\nStanley Chrisman, Covington, for appel-lee.\", \"word_count\": \"356\", \"char_count\": \"2119\", \"text\": \"PALMORE, Judge.\\nIn this action the Kenton Circuit Court adjudged that the appellee, Meyer, an electrician in the fire department of the City of Covington, could not be required to work on the basis of eight hours per day five days a week, Monday through Friday, in view of KRS 95.500(3), which was amended in 1962 to read as follows:\\n\\\"The fire department of each second class city shall be divided into three platoons. Each platoon shall be on duty for twenty-four consecutive hours, after which the platoon serving twenty-four hours shall be allowed to remain off duty for forty-eight consecutive hours, except in cases of dire emergency. The chief of the fire department shall arrange the schedule of working hours to comply with the provisions of this section. The pay, rank or benefits of the members and officers of the fire department, shall not be reduced as a result of this subsection.\\\"\\nIt is argued that under familiar rules of statutory construction designed to avoid an absurd or impracticable result the term \\\"fire department\\\" should be held to encompass only those whose primary duties are to fight fires, of so-called \\\"line firemen.\\\" It would be very difficult to do this in the face of KRS 95.010(2) (c) : \\\" 'Fire department' means and includes all officers, firemen, and clerical or maintenance employes of the fire department.\\\"\\nThe aforementioned rule of construction rests upon a presumption that the legislative body surely would not have intended an awkward result. Such a presumption is impossible when it is clear that the legislative body did in fact intend the result in question. The statutes applicable to this case are too plain to leave any room for doubt.\\nOn the question of injunctive relief, we are of the opinion that the loss of his rights under KRS 95.500(3) constituted an irreparable injury for which Meyer had no adequate remedy at law.\\nThe judgment is affirmed.\"}"

ky/10173741.json

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+"{\"id\": \"10173741\", \"name\": \"Haynes E. ROBINSON, Petitioner, v. COMMONWEALTH of Kentucky et al., Respondents\", \"name_abbreviation\": \"Robinson v. Commonwealth\", \"decision_date\": \"1956-05-11\", \"docket_number\": \"\", \"first_page\": \"473\", \"last_page\": \"474\", \"citations\": \"290 S.W.2d 473\", \"volume\": \"290\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Kentucky Court of Appeals\", \"jurisdiction\": \"Kentucky\", \"last_updated\": \"2021-08-10T18:48:17.242042+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Haynes E. ROBINSON, Petitioner, v. COMMONWEALTH of Kentucky et al., Respondents.\", \"head_matter\": \"Haynes E. ROBINSON, Petitioner, v. COMMONWEALTH of Kentucky et al., Respondents.\\nCourt of Appeals of Kentucky.\\nMay 11, 1956.\\nHaynes E. Robinson, pro se.\\nJo M. Ferguson, Atty. Gen., Wm. F. Simpson, Asst. Atty. Gen., for respondents.\", \"word_count\": \"252\", \"char_count\": \"1453\", \"text\": \"STANLEY, Commissioner.\\nHaynes E. Robinson has filed in this court a self-prepared paper styled, \\\"Petition for Writ of Habeas Corpus,\\\" the Commonwealth of Kentucky being named as respondent.\\nThe petitioner states that he has been confined in the Jefferson County jail for more than two years under a judgment of guilt of assault and battery with a penalty of twelve months in jail and a fine of $2,-500. It appears he has not been able to pay his fine and is laying it out at the rate of $2 a day. No part of the record of the circuit court is filed. We have only the petitioner's statements as to his conviction, his innocence of the offense and several errors which he claims were committed in his trial.\\nA habeas corpus proceeding must be initially filed with a circuit judge, or, in the absence of such a judge from the county, with a court of lesser jurisdiction. Sec. 399, Criminal Code. The jurisdiction of the Court of Appeals is limited to- appeals from any judgment entered by such court. Sec. 429-1, Criminal Code. The petition must be dismissed since this court has no jurisdiction to entertain an original application for a writ of habeas corpus. Foster v. Buchannan, Ky., 253 S.W.2d 377.\\nPetition dismissed.\"}"

ky/10175906.json

@@ -0,0 +1 @@
+"{\"id\": \"10175906\", \"name\": \"A. J. CROLEY et al., Appellants, v. ROUND MOUNTAIN COAL COMPANY et al., Appellees\", \"name_abbreviation\": \"Croley v. Round Mountain Coal Co.\", \"decision_date\": \"1964-01-24\", \"docket_number\": \"\", \"first_page\": \"852\", \"last_page\": \"854\", \"citations\": \"374 S.W.2d 852\", \"volume\": \"374\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Kentucky Court of Appeals\", \"jurisdiction\": \"Kentucky\", \"last_updated\": \"2021-08-10T21:03:40.134133+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"A. J. CROLEY et al., Appellants, v. ROUND MOUNTAIN COAL COMPANY et al., Appellees.\", \"head_matter\": \"A. J. CROLEY et al., Appellants, v. ROUND MOUNTAIN COAL COMPANY et al., Appellees.\\nCourt of Appeals of Kentucky.\\nJan. 24, 1964.\\nE. B. Wilson, Pineville, for appellants.\\nT. E. Mahan, Williamsburg, William Hays, Winchester, Robert H. Hays, Lexington, for appellees.\", \"word_count\": \"1209\", \"char_count\": \"6985\", \"text\": \"CULLEN, Commissioner.\\nA. J. Croley and wife, owners of the surface of a tract of mountain land, brought this action against Round Mountain Coal Company and others, seeking to enjoin the defendants from conducting strip and auger mining on the tract and to recover damages for such mining already done. Judgment was entered dismissing the complaint on the ground that it did not state a claim upon which relief could be granted. The Croleys have appealed.\\nThe question presented is whether, under the terms of a reservation of mineral rights in favor of the grantor, in a deed by which the surface was conveyed to the Croleys' predecessor in title, the grantor and his lessees have the right to remove the coal by strip and auger mining.\\nAt one time Greasy Brush Coal Company owned the tract in fee. In 1948 the company deeded the tract to the Croleys' predecessor in title, with this reservation:\\n\\\"Reserving all coal, oil, gas, stone, water and any other minerals in, on or under the land, together with the right of ingress and egress to take, enter, mine, cut and remove any and all minerals in, on or under the land. In the event any of the operation in the reservation aforesaid injures or damages any growing crop on the surface, then the person so damaging the growing crop shall pay for the damage done. Second party is given the right to mine for his own use only in his dwelling only coal from the premises, provided his action in so doing does not interfere in any operation of the first party under the reservation, or anyone under it.\\\"\\nS\\u00f3m\\u00e9 13 years later Greasy Brush Coal Company leased the mineral rights to Ro\\u00fand Mountain Coal Company and that company then commenced the strip and afo'ger mining operations that gave rise to this suit\\nIn Buchanan v. Watson, Ky., 290 S.W.2d 40, this Court held that under the terms of the so-called \\\"Mayo\\\" form of mineral lease, which was prevalent in Kentucky in the early 1900's, the lessee has the right to strip and auger mine. The Mayo form of lease differs in several respects from the reservation clause here in question. The appellants maintain that because of those differences, and because the Mayo lease involves a grant of mineral rights (which will be construed most strongly in favor of the rights) whereas the instant case involves a reservation of mineral rights (which will be construed most strongly against the rights), the Buchanan case is not controlling here. (Buchanan has been followed in Blue Diamond Coal Co. v. Neace, Ky., 337 S.W.2d 725; Kodak Coal Co. v. Smith, Ky., 338 S.W.2d 699; Ritchie v. Midland Mining Co., Ky., 347 S.W.2d 548; and Blue Diamond Coal Co. v. Campbell, Ky., 371 S.W.2d 483.)\\nThe Mayo form of lease provides that the lessee has the right to \\\"use and operate the same and surface thereof in any manner that may be deemed necessary or convenient for mining\\\" and it contains a release by the grantor of any claim for damages in the use of the land and the surface by the grantee. The appellants contend that these two provisions were of controlling consideration in the Buchanan case.\\nIt is true that the opinion in the Buchanan case does make mention of the release of damages clause. However, it does not treat this clause as a controlling factor, and it does not attach any special significance to the other clause above mentioned. An examination of the opinion discloses that the decision was based simply on the proposition that the parties clearly intended to convey the coal; that the purpose of the conveyance was to enable the grantee to remove the coal from under the surface of the land; and that to deny the grantee the right to remove the coal by the only feasible process would defeat the principal purpose of the conveyance.\\nThe reservation in the instant case not only reserves \\\"all\\\" coal, but also oil, gas, stone, water, and \\\"any other minerals in, on or under the land,\\\" with the right to \\\"take, enter, mine, cut and remove any and all minerals in, on or under the land.\\\" Obviously, all coal could not be removed by the deep mining process. Removal of stone normally would require substantial destruc- . tion of the surface. We think the parties must have intended that the minerals could be removed by any recognized method or . process.\\nIn 1948, when the deed in question was made, strip mining was fairly common, so it cannot be said that the parties could not have contemplated the use of that method of mining.\\nSince we think the meaning of the reservation is plain, there is no occasion to apply the rule that in case of ambiguity a deed will be construed most strongly against the grantor.\\nIn the opinion in Blue Diamond Coal Co. v. Neace, Ky., 337 S.W.2d 725, there is the' suggestion of a possible rule that the surface owner's right to subjacent support should not be considered to have been surrendered by a mineral conveyance' unless there be fairly positive language in the conveyance indicating that intent, such as ' the language in the Mayo lease conferring upon the lessee the right to use the surface in \\\"any manner that may be deemed necessary and convenient.\\\" However, we think the language in the reservation here in issue expresses with the same force the intention of the parties that the owner of the minerals shall have the right to destroy the surface to the extent necessary to remove the minerals.\\nIt is our conclusion that the appel-lees here have the right under the terms of the reservation to remove the coal by strip and auger mining. Having that right, they are not liable for any damage to the surface (except to growing crops as specified in the reservation) unless they act arbitrarily, wantonly or maliciously. Buchanan v. Watson, Ky., 290 S.W.2d 40. The trial court, therefore, properly dismissed the complaint, except as hereinafter stated.\\nIn addition to the allegations seeking relief on the ground that the defendants had no right to do strip and auger mining, the complaint alleged that the defendants were casting waste material on the plaintiffs' tract from other lands, and were carrying on their strip and auger mining on the plaintiffs' tract in an arbitrary, wanton and malicious manner. The appellees admit that the latter allegations state claims upon which relief could be granted. The trial court erred in dismissing so much of the complaint as set forth those allegations.\\nThe judgment is affirmed to the extent it dismissed so much of the complaint as undertook to assert a claim on the basis of a lack of right of the defendants to carry on strip and auger mining; the judgment, is reversed to the extent it dismissed the other portions of the complaint, with directions to enter an order overruling the motion to dismiss as to those portions.\"}"

ky/10177687.json

@@ -0,0 +1 @@
+"{\"id\": \"10177687\", \"name\": \"Willis Clay HENRY, Appellant, v. COMMONWEALTH of Kentucky, Appellee\", \"name_abbreviation\": \"Henry v. Commonwealth\", \"decision_date\": \"1958-10-10\", \"docket_number\": \"\", \"first_page\": \"864\", \"last_page\": \"865\", \"citations\": \"316 S.W.2d 864\", \"volume\": \"316\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Kentucky Court of Appeals\", \"jurisdiction\": \"Kentucky\", \"last_updated\": \"2021-08-11T00:52:41.048607+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Willis Clay HENRY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.\", \"head_matter\": \"Willis Clay HENRY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.\\nCourt of Appeals of Kentucky.\\nOct. 10, 1958.\\nLewis A. White, Mt. Sterling, for appellant.\\nJo Ferguson, Atty. Gen., William F. Simpson, Asst. Atty. Gen., for appellee.\", \"word_count\": \"433\", \"char_count\": \"2598\", \"text\": \"BIRD, Judge.\\nAppellant was tried and convicted on a charge of possessing intoxicating liquors in violation of the Local Option Law, KRS 242.010 et seq. For reversal he states three grounds: (1) The affidavit upon which a search warrant issued was insufficient in form and substance; (2) The search was not conducted as directed by the warrant; and, (3) The court erred in permitting the affidavit and search warrant to be read to the jury.\\nThe Court finds that the search was made in substantial compliance with the law of the Commonwealth. The Court further finds that the trial court erred in permitting the affidavit and search warrant to be read to the jury and it is a reversible error. For authority the Court cites Vanmeter v. Commonwealth, 232 Ky. 404, 23 S.W.2d 594, 595, in which it was said:\\n\\\"But it is insisted that the affidavit made for the purpose of procuring the search warrant stated that defendant possessed intoxicating liquor, and which affidavit was introduced at the trial over the objections and exceptions of defendant. It requires no argument to show that the affidavit made to procure the search warrant was and is wholly incompetent to prove the guilt of the defendant on his trial of an indictment procured upon the evidence found by the officers who executed the warrant. The affidavit in this case was relevant only for the purpose of establishing the validity of the search warrant, a preliminary question to the admission of the discoveries of the officers who executed it. On the issue of any fact to establish defendant's guilt, it was and is the rankest hearsay, and violates defendant's constitutional right to be confronted face to face with the witnesses against him, and the court erred in admitting the affidavit as evidence to prove defendant's guilt on the trial of the indictment against him.\\\"\\nSee also Section 11, Ky. Constitution and Foley v. Commonwealth, 228 Ky. 691, 15 S.W.2d 444. The reasons set forth in the foregoing authorities are controlling here.\\nWhen, as here, a constitutional right has been violated the question of prejudice is immaterial. Preservation of the right is and should be the court's paramount concern and not the actual effect of the violation on the outcome of the trial.\\nThe motion for appeal is sustained and the judgment is reversed for proceedings not inconsistent with this opinion.\"}"

ky/10179645.json

@@ -0,0 +1 @@
+"{\"id\": \"10179645\", \"name\": \"CITY OF LOUISVILLE, Appellant, v. Stella KLUSMEYER, Appellee\", \"name_abbreviation\": \"City of Louisville v. Klusmeyer\", \"decision_date\": \"1959-05-29\", \"docket_number\": \"\", \"first_page\": \"831\", \"last_page\": \"834\", \"citations\": \"324 S.W.2d 831\", \"volume\": \"324\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Kentucky Court of Appeals\", \"jurisdiction\": \"Kentucky\", \"last_updated\": \"2021-08-11T00:49:41.425332+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"CITY OF LOUISVILLE, Appellant, v. Stella KLUSMEYER, Appellee.\", \"head_matter\": \"CITY OF LOUISVILLE, Appellant, v. Stella KLUSMEYER, Appellee.\\nCourt of Appeals of Kentucky.\\nMay 29, 1959.\\nNorris W. Reigler, Louisville, for appellant.\\nJames M. Graves, Raymond O. Harmon, John C. Fogle, Boehl, Stopher, Graves & Deindoerfer, J. L. Richardson, Jr., J. L. Richardson, III, Louisville, for appellee.\", \"word_count\": \"1167\", \"char_count\": \"6937\", \"text\": \"STANLEY, Commissioner.\\nThe question presented is the constitutionality of an Act of 1956, Chapter 20, published as KRS 381.445, which imposes primary liability upon the owner of property abutting a sidewalk in a city of the first class (Louisville) for injuries to persons or property arising out of a failure of the property owner to repair a defect in the sidewalk. The circuit court held the act unconstitutional upon two grounds, namely, (1) specifically, that it is special legislation contrary to the prohibition of Section 59, subsection 29, of the Kentucky Constitution; and (2) generally, that the Act is arbitrary and constitutes a violation of the due process provisions of the Constitution.\\nThe ruling of the court came in awarding a summary judgment for a property owner, the appellee, Mrs. Stella Klusmeyer, in an action against her and the city by Mrs. Carrie Crick for damages for injuries alleged to have been sustained by a fall on a sidewalk on Third Avenue in Louisville because of a defect therein. The defect is described as a displacement of bricks, which caused a depression in the pavement. The City of Louisville, a co-defendant, filed a cross-action against Mrs. Klusmeyer, pleading that under KRS 381.-445 she was primarily liable for any injury sustained by the plaintiff and that the city, being only secondarily liable, should recover of her as indemnity a sum equal to any recovery the plaintiff might recover against the city. The present appeal is by the city against its codefendant below, Mrs Klus-meyer. An appeal by Mrs. Crick was dismissed for procedural defect.\\nThe judgment dismissed \\\"with prejudice\\\" the complaint against the property owner and the cross-claim of the city against her. It is stated to be a final judgment; so, an appeal is permitted upon the one claim without awaiting a determination of all claims in accordance with CR 54.02.\\nThe provision of our Constitution, \\u00a7 59, relating to uniformity of laws, is that \\\"The General Assembly shall not pass local or special acts\\\" concerning a number of specific purposes. It concludes with an om-nium-gatherum, subsection 29: \\\"In all other cases where a general law can be made applicable, no special law shall be enacted.\\\" The Constitution, \\u00a7 156, provides that the cities and towns of the Commonwealth, for the purposes of their organization and government, shall be divided into six classes according-to specified populations, and that the organizations and powers of each class shall be defined and provided for by general laws so that municipal corporations of the same class shall possess the same powers and be subject to the same restrictions. The question often arises, as it does here, whether legislation made applicable to only one class of city and not to the others comes within the ban of local or special laws defined by \\u00a7 59.\\nThe term \\\"local act\\\" means, at least in part, a law confined to territorial limits other than that of the whole state or a law applicable to some political subdi visions and not to others. And the term \\\"special law\\\" is legislation which arbitrarily or beyond reasonable justification discriminates against some persons or objects and favors others. King v. Commonwealth, 194 Ky. 143, 238 S.W. 373, 22 A.L.R. 535. Both are prohibited not only by \\u00a7 59 of our Constitution but by the guarantees of equal protection of the Fourteenth Amendment of the federal Constitution and \\u00a7 3 of the Kentucky Constitution. Markendorf v. Friedman, 280 Ky. 484, 133 S.W.2d 516, 127 A.L.R. 416, appeal dismissed 309 U.S. 627, 60 S.Ct. 610, 84 L.Ed. 987.\\nThe fact that there is only one city of the class to which the legislation is applicable, does not necessarily render unconstitutional an act pertaining to that city. James v. Barry, 138 Ky. 656, 128 S.W. 1070; 37 Am.Jur., Municipal Corporations, \\u00a7 97. The Constitution permits special legislation that is made local to a particular class of city where it pertains to the organization and government of such cities. It prohibits other legislation which is made applicable to a single class if the legislation is not based upon a natural, real or substantial distinction inhering in the subject matter, or does not bear some relevant and logical relation to the classification of cities. Chandler v. City of Louisville, 277 Ky. 79, 125 S.W.2d 1026; Mannini v. McFarland, 294 Ky. 837, 172 S.W.2d 631; 12 Am,Jur., Constitutional Law, \\u00a7 480, 481; 50 Am.Jur., Statutes, \\u00a7 7.\\nAlthough density of population and the size of a city may be a proper basis of valid classification of some subjects, the basis must have a rational or reasonable relation to the differentiating conditions. James v. Barry, 138 Ky. 656, 128 S.W. 1070; Sims v. Reeves, Ky., 261 S.W.2d 812. Upon a review of this particular concept as to legislation confined in its operation to one class of city, we found it necessary to overrule in part cases intermediate of earlier cases and to restate what the court deems a proper and sound construction of the constitutional provisions. Mannini v. McFarland, supra, 294 Ky. 837, 172 S.W.2d 631. In that case we held a statute prohibiting a pool room or bowling alley to be operated in a room where alcoholic liquors were sold by retail to be unconstitutional because there was no rational basis for assuming the evil sought to be prohibited in a city of the fourth class did not or would not exist in cities of other classes. Another like case in which the same conclusion was reached is Chandler v. City of Louisville, supra, 277 Ky. 79, 125 S.W.2d 1026.\\nThe city takes the position that, having a population of some 400,000 and many miles of sidewalks over its \\\"vast area,\\\" its problem is unique; that it is impossible for its staff employees to discover all defects in sidewalks and for policemen, who now patrol their districts in motor vehicles, to have opportunity to do so. The \\\"bigness\\\" of Louisville does not, in our opinion, afford a reasonable difference or a ground for the special legislation. All cities have sidewalks which any person may use for proper purposes. As stated by Mr. Justice Holmes in Engel v. O'Malley, 219 U.S. 128, 31 S.Ct. 190, 193, 55 L.Ed. 128: \\\"It is true, no doubt, that where size is not an index to an admitted evil, the law cannot discriminate between the great and small.\\\" It is obvious that a general and uniform law dealing with the subject could be made applicable to all cities.\\nAs stated, the trial court also regarded generally the statute to be unconstitutional upon the grounds of arbitrary legislation and deprivation of due process. We do not reach the question.\\nThe judgment is affirmed.\"}"

ky/10191471.json

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+"{\"id\": \"10191471\", \"name\": \"CITIZENS FIDELITY BANK & TRUST CO. v. SCHELLBERG et al.\", \"name_abbreviation\": \"Citizens Fidelity Bank & Trust Co. v. Schellberg\", \"decision_date\": \"1951-03-23\", \"docket_number\": \"\", \"first_page\": \"142\", \"last_page\": \"145\", \"citations\": \"238 S.W.2d 142\", \"volume\": \"238\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Kentucky Court of Appeals\", \"jurisdiction\": \"Kentucky\", \"last_updated\": \"2021-08-10T18:17:28.373668+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"CITIZENS FIDELITY BANK & TRUST CO. v. SCHELLBERG et al.\", \"head_matter\": \"CITIZENS FIDELITY BANK & TRUST CO. v. SCHELLBERG et al.\\nCourt of Appeals of Kentucky.\\nMarch 23, 1951.\\nSteinfeld & Steinfeld, Louisville, for appellants.\\nRobert Hubbard, Stanley Briel, Louisville, for appellees Mary L. Schellberg and others.\\nRoplce, Goldstein, Lampe & Poynter, and Bernard S. Goldstein, all of Louisville, for appellee Pauline Schellberg Kifer.\", \"word_count\": \"1226\", \"char_count\": \"7311\", \"text\": \"LATIMER, Justice.\\nWe are concerned here particularly with the third clause of the will of Anna M. Schneider:\\n\\\"All the balance of my estate of whatever it consists, I give and bequeath to the Fidelity and Columbia Trust Company of Louisville, Kentucky, to be held by them as trustee for the benefit of Pauline Schellberg and Mary Julia Schell-berg, daughters of my niece, Mary Louisa Schellberg.\\n\\\"I further give the Fidelity and Columbia Trust Company, my executor, the power and discretion to use this money for the education of Mary Julia Schellberg and Pauline Schellberg. I hereby appoint the Fidelity and Columbia Trust Company executor of this my last will with power in them to sell any real or personal property that I may leave, for the purpose of carrying out this my last will.\\\"\\nThis action was brought by the Citizens Fidelity Bank and Trust Company, Executor of, and Trustee under the will of Anna M. Schneider, deceased, under the Declaratory Judgment Act, to determine whether or not the trust created in the clause of the will above had become a dry or passive trust and further, to determine the rights of all the parties defendant. Among those named as defendants in the action were Pauline Schellberg, now Pauline Schellberg Kifer, and Mary Julia Schell-berg, who are named as beneficiaries in the residuary clause of the will above; August Ferdinand Schneider, a brother of the deceased Schneider who had disappeared many years before, and his heirs-at-law Ella Schneider Carle, Leona Getz, Mary Elizabeth Brown, William Frederick Schneider, Jr. and Clarence Byrne.\\nThe court upon consideration of the matter adjudged:\\n\\\"1. That August Ferdinand Schneider is dead and that the defendants, Ella Schneider Carle, Leona Getz, Mary Elizabeth Brown, William Frederick Schneider, Jr. and Clarence Byrne, are the heirs-at-law of said August Ferdinand Schneider.\\n\\\"2. That the trust provided for in the will of Anna M. Schneider is not ended and plaintiff cannot be discharged as trustee under said will.\\n\\\"3. That said trust created by the third clause of the will of the decedent, Anna M. Schneider, is not a dry trust hut is an active trust.\\n\\\"4. That the defendants, Mary Julia Schellberg and Pauline Schellberg Kifer are not entitled to receive the estate now in the hands of the plaintiff as trustee, as they are life tenants only and at the death of the survivor of them the remaining estate of Anna M. Schneider passes by intestacy to her heirs-at-law.\\n\\\"5. That said estate of Anna M. Schneider, both real and personal, passes under the third clause of said decedent's will; said third clause of the will is construed to mean that a life estate is given to Pauline Schellberg, now Pauline Schellberg Kifer, and Mary Julia Schellberg during their life time, and that on their death the remainder estate of Anna M. Schneider, both real and personal, passes to her heirs-at-law.\\n\\\"6. That the defendants, Ella Schneider Carle, Leona Getz, Mary Elizabeth Brown, William Frederick Schneider, Jr. and Clarence Byrne, have no right at this time to share in the estate -of Anna M. Schneider.\\\"\\nThe Citizens Fidelity Bank and Trust Company prosecutes this appeal. The defendants and cross petitioners, Ella Schneider Carle, Leona Getz, Mary Elizabeth Brown, William Frederick Schneider, Jr. and Clarence Byrne, prosecute a cross appeal.\\nAll parties are in agreement that the trust has now become dry and passive and that there is no reason for a continuation thereof since the purpose for which the trust was created has been accomplished.\\nIt will be noted that the lower court held the trust created by the third clause of the will above to- be an active trust; that the two beneficiaries named in the third clause are not entitled to receive the estate now in the hands of the trustee because they are life tenants only; and that at the death of the survivor of them the remaining estate of the decedent passes by intestacy to her heirs-at-law.\\nThe general rule is that if all the beneficiaries of a trust, none of whom is under an incapacity, consent thereto they can compel a termination of the trust unless the continuance thereof is necessary to carry out a material purpose of the trust. It is stated in American Law Institute, Trusts, paragraph 337, page 1021:\\n\\\"(1) Except as stated in Subsection (2), if all of the beneficiaries of a trust consent and none of them is under an incapacity, they can compel the termination of the trust.\\n\\\"(2) If the continuance of the trust is necessary to carry out a material purpose of the trust, the beneficiaries cannot compel its termination.\\\"\\nIn view of the language of the third clause of the will above and this general rule, we are of the opinion that the court erred in refusing to terminate the trust.\\nHowever, the serious contention arises when we reach the point where it becomes necessary to determine the rights of the parties defendant. Pauline and Mary Julia Schellberg take the position that upon the termination of the trust they become the sole beneficiaries of the residuary estate under the residuary clause above. The heirs-at-law of August Ferdinand Schneider, the brother who disappeared, take the position that upon the fullfillment and termination of the trust the property reverts to the estate of the deceased, Anna M. Schneider, and should then go according to the laws of descent and distribution.\\nWe come face to face with the general rule first that there is a presumption against partial intestacy. Lester's Adm'r v. Jones, 300 Ky. 534, 189 S.W.2d 728; Chrisman v. Allman, 302 Ky. 144, 194 S.W.2d 175; Kurrie v. Kentucky Trust Co. of Louisville, 302 Ky. 592, 194 S.W.2d 638. We observe that in the first paragraph of the third clause of the will the testatrix gave the sum of $25 each to her two nieces, Ella Schneider Carle and Mary Elizabeth Brown, and to her nephew, William Frederick Schneider, Jr. We observe that three of the heirs of the disappearing brother were given specific gifts. Then follows the latter part of the third clause quoted above, which clearly stated that it was for the benefit of Pauline Schellberg and Mary Julia Schellberg, daughters of her niece, Mary Louisa Schellberg. We have consistently held that in cases of doubt as to the character of the estate devised, that doubt should be resolved in favor of an absolute rather than a qualified estate; and generally it is only where the language of testator will admit of no other reasonable construction will the court declare otherwise. Carroll v. Carroll's Ex'r, 248 Ky. 386, 58 S.W.2d 670; Simons v. Bowers, 258 Ky. 755, 81 S.W.2d 604; Borders v. Skiles, 295 Ky. 670, 175 S.W.2d 353. Clearly it was the intention of the testatrix that these two named beneficiaries receive the benefits of this residuary estate. Consequently, upon the termination of the trust, it becomes theirs absolutely and in fee simple.\\nThe judgment is reversed with directions to enter judgment consistent herewith.\"}"

ky/10204877.json

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+"{\"id\": \"10204877\", \"name\": \"WELLS et al. v. JEFFERSON COUNTY et al.\", \"name_abbreviation\": \"Wells v. Jefferson County\", \"decision_date\": \"1953-02-20\", \"docket_number\": \"\", \"first_page\": \"462\", \"last_page\": \"463\", \"citations\": \"255 S.W.2d 462\", \"volume\": \"255\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Kentucky Court of Appeals\", \"jurisdiction\": \"Kentucky\", \"last_updated\": \"2021-08-10T23:28:28.867124+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"WELLS et al. v. JEFFERSON COUNTY et al.\", \"head_matter\": \"WELLS et al. v. JEFFERSON COUNTY et al.\\nCourt of Appeals of Kentucky.\\nFeb. 20, 1953.\\nJohn L. Knopf, Louisville, for appellants.\\nLawrence G. Duncan, Ray H. Kirch-dorfer and Robert E. Hogan, Louisville, J. D. Buckman, Jr., Atty. Gen., and Squire N. Williams, Jr., Asst. Atty. Gen., for ap-pellee. ' . .\", \"word_count\": \"1096\", \"char_count\": \"6515\", \"text\": \"CULLEN, Commissioner.\\nThis appeal raises the question of constitutionality of a 1952 amendment to the Kentucky Workmen's Compensation Act. In a declaratory judgment proceeding between certain employes and their employers, the circuit court held the amendment .valid. The appeal is by the employes.\\nBy Chapter 82 of the Acts of 1952, the legislature amended KRS 342.395, relating to acceptance of the Compensation Act by employes. Prior to 1952, and dating back to the time of the enactment of the present Act in 1916, the Compensation Act had provided that an employe must indicate his elections to accept the Act by signing a written notice of acceptance. . The 1952 amendment provides, in substance, that an employe is deemed to have accepted the Act unless and until he files with his employer a written notice of rejection.\\nUnder the terms of the Compensation Act, both before and after the 1952 amendment, an employe who accepts the Act is barred of the right to sue his employer for damages for personal injuries, guaranteed by Section. 54 of the Constitution, and his personal representative is barred of the right to sue the employer for damages for wrongful death, guaranteed by Section 241 of the Constitution, with certain exceptions not important to this case. It was established by the decision in Greene v. Caldwell, 170 Ky. 571, 186 S.W. 648, that the rights guaranteed by Sections 54 and 241 of the Constitution could be waived by an employe if he made a voluntary, affirm\\u00e1tiv\\u00e9 election to accept the benefits of -the Workmen's Compensation Act in lieu of the constitutional rights. The question now before us is whether a waiver of the constitutional rights may be effected by means of the failure of the employe to elect affirmatively to retain those rights.\\nThe first workmen's compensation law enacted in Kentucky, in 1914, which contained a provision concerning acceptance of the Act by employes similar to that in the 1952 amendment to the present law, was held un'constitutiohal, by a divided 'court, in Kentucky State Journal Co. v. Workmen's Compensation Board, 161 Ky. 562, 170 S.W. 437, 1166, L.R.A.1916A, 389. The original majority opinion was susceptible to the interpretation that the Act was unconstitutional both as to employers and employes, because it did not give either of them a free, fair choice whether to come under the Act or to retain their common-law rights. However, in a modification of the opinion on rehearing, published in 162 Ky. 387, 172 S.W. 674, L.R.A.1916A, 402, the court made clear that the Act was valid as to employers, and also would have been valid as to employes if it had provided for voluntary acceptance of the Act by employes. The modified opinion contained this statement:\\n\\\"Some provision should 'be made in the act whereby the employe .signifies his acceptance of the provisions of the act by some affirmative act on, his part. Silence on this subject. should not be construed into acceptance.\\\"\\nThis Court, as presently constituted, is of the opinion that the requirement of an affirmative act of election to accept the Compensation Act, as laid down in the modified opinion in the State Journal case,., has no sound basis in reason or logic, and that the opportunity of the employe to reject the Act by affirmative action on his part assures him adequate freedom of choice as to whether be will accept or reject the Act.\\nIn those states in which compulsory workmen's compensation laws are not permissible under the -state constitution, it has been held almost uniformly that a requirement that the employe act affirmatively in order to reject the.law does not make the law compulsory in nature. See Ann.Cas.l915C, 308.\\nIn Matheson v. Minneapolis St. Ry. Co., 126 Minn. 286, 148 N.W. 71, at page 75, L.R.A.1916D, 412, the Minnesota Supreme Court said:\\n\\\" The choice is no less voluntary and optional because a party is deemed to have accepted these provisions, unless he give notice to the contrary, than it would be if he were deemed not to have accepted them until he gave notice to that effect.\\\"\\nIn Mackin v. Detroit-Timkin Axle Co., 187 Mich. 8, 153 N.W. 49, 53, the Michigan court said:\\n\\\"No constitutional provision is pointed out which prohibits the Legislature, in framing this law to best avoid uncertainty and contention tending to litigation, from adopting a rule of conclusive presumption upon the question of notice so long as the employe was left in the first instance'free to forestall, overcome, or prevent such presumption by his own act if he so desired. This being true, the constitutional objections raised, which are necessarily founded upon the idea of coercion, disappear because the employe has had a free choice, and, by having 'failed to give notice, must be held to have elected his remedy under the Workmen's Compensation Law. Such legal presumptions are not unconstitutional nor uncommon. A familiar illustration is the conclusive presumption that a party entitled to jury trial in a civil action has waived his right and elected to go to trial, without a jury unless he took some affirmative action and -made demand before a certain time or point or progress in the case arrived.\\\"\\nTo the same effect, see Sayles v. Foley, 38 R.I. 484, 96, A. 340; Young v. Duncan, 218 Mass. 346, 106 N.E. 1; Dietz v. Big Muddy Coal & Iron Co., 263 Ill. 480, 105 N.E. 289; Sexton v. Newark Dist. Tel. Co., 84 N.J.L. 85, 86 A. 451; Middleton v. Texas Power & Light Co., 108 Tex. 96, 185 S.W. 556; and Carbonneau v. Hoosier Engineering Co., 96 N.H. 240, 73 A.2d 802.\\nThe fact' that other states may not have constitutional provisions similar to Sections 54 and 241 of our Constitution does not detract from the weight to be given the decisions of the courts of those states on' the basic question of whether a presumed acceptance, accompanied -by an opportunity for affirmative rejection, constitutes a voluntary acceptance.\\nIt is our opinion that the 1952 amendment to KRS 342.395 adequately preserves the right of the employe to make a voluntary election as to whether he will come under the Compensation Act. To the extent that the State Journal case is in conflict with this opinion it is overruled.\\nThe judgment is affirmed.\"}"

ky/10212122.json

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+"{\"id\": \"10212122\", \"name\": \"BROCK v. SMITH\", \"name_abbreviation\": \"Brock v. Smith\", \"decision_date\": \"1954-05-28\", \"docket_number\": \"\", \"first_page\": \"947\", \"last_page\": \"948\", \"citations\": \"268 S.W.2d 947\", \"volume\": \"268\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Kentucky Court of Appeals\", \"jurisdiction\": \"Kentucky\", \"last_updated\": \"2021-08-11T00:38:07.850349+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"BROCK v. SMITH.\", \"head_matter\": \"BROCK v. SMITH.\\nCourt of Appeals of Kentucky.\\nMay 28, 1954.\\nRussell Jones, Somerset, Van Sant & Young, Frankfort, for appellant.\\nFritz Kreuger, Somerset, for appellee.\", \"word_count\": \"795\", \"char_count\": \"4537\", \"text\": \"COMBS, Justice.\\nThe judgment of the trial court is for $800 entered on a jury's verdict in an automobile collision case. The only ground relied on for reversal is the alleged misconduct of one of the jurors.\\nAt the conclusion of the evidence for the defendant, but before plaintiff introduced his rebuttal testimony, the court, preparatory to recessing for luncheon, gave to the jury the usual admonition not to talk about the case among themselves or permit any other person to talk to them about it during the recess.\\nDuring the luncheon hour, as related in the affidavit of W. N. Lovins filed in support of the motion and grounds for a new trial, the juror, Bessie Brown, accompanied by her husband, visited the scene of the accident in the husband's truck and made an inspection of the premises. The juror's husband got out of the truck and questioned Lovins \\u2014 whose presence at the scene is not explained \\u2014 about where the vehicles involved came to rest after the accident, where defendant's truck left the highway, and about other facts at issue in the trial. It is also stated in the Lovins' affidavit that he was in the courtroom when the case was submitted to the jury and while the jury were deliberating; that after the jury had deliberated for about one hour, the juror Bessie Brown came to the door of the jury room and asked for a photograph of the accident scene which had been introduced as an exhibit; that the photograph was delivered to her and some ten minutes later the jury returned the verdict which is the basis for this appeal. We note, for what it is worth, that the signature of Bessie Brown appears first on the jury's verdict.\\nIt is stated in appellant's original brief, filed by Honorable Campbell Van Sant, a former Commissioner of this court, now deceased, that the affidavit of W. N. Lovins, relating to the activities of the juror Bessie Brown, was not controverted. On the other hand, it is said in the brief of Mr. Krueger, attorney for appellee, that the affidavit of Lovins was controverted by the affidavits of Bessie Brown and her husband. But there is no affidavit of Mrs. Brown or her husband in the record before us. A reply brief was filed by Mr. Jones, appellant's other attorney, but the situation was not clarified. It is conceded in the reply brief that the counter affidavits of Bessie Brown and her husband were filed and apology is made for the original statement that there were no counter affidavits. In reconciling the statements of the three attorneys we assume that the counter affidavits were filed but that by oversight they were omitted from the record on appeal.\\nSince this appeal must be tried upon the record before us, we must accept the statements in Lovins' affidavit as true. Although it is conceded in the reply brief that counter affidavits were filed by Mrs. Brown and her husband, the contents of the affidavits are not admitted and we cannot speculate on that point. With only Lovins' affidavit before us, it is apparent that the judgment must be reversed because of the actions of the juror Bessie Brown. While we do not ascribe any improper motives or intentional misconduct to her or to her husband, the litigants were entitled to have their case tried upon the evidence received in open court in the presence of the judge, the jury, and the counsel. Wooldridge v. White, 105 Ky. 247, 48 S.W. 1081; Ironton Lumber Co. v. Wagner, 119 S.W. 197 (no Kentucky citation). It not only was improper for the individual juror to examine the scene of the accident out of the presence of the court and the other jurors, but the situation was aggravated by the presence of her husband, who was not under oath and whose interest in the case is not shown. Although the actions of Mrs. Brown and her husband may have been inspired by the best of motives, we are not at liberty to- condone the error. Such activities present the opportunity for improper influence upon a juror and are calculated to arouse the suspicions of the adverse party. There is sound basis for the well-worn cliche that it is important not only that every litigant have a fair trial, but also that he have no reason to believe he did not have a fair trial.\\nIn view of what has already been said, it is unnecessary to discuss the affidavits filed by the other jurors.\\nThe judgment is reversed for proceedings consistent with this opinion.\"}"

ky/10221584.json

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+"{\"id\": \"10221584\", \"name\": \"VANMETER et al. v. CITY OF PARIS, et al.\", \"name_abbreviation\": \"Vanmeter v. City of Paris\", \"decision_date\": \"1953-05-08\", \"docket_number\": \"\", \"first_page\": \"909\", \"last_page\": \"911\", \"citations\": \"257 S.W.2d 909\", \"volume\": \"257\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Kentucky Court of Appeals\", \"jurisdiction\": \"Kentucky\", \"last_updated\": \"2021-08-10T18:48:34.124394+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"VANMETER et al. v. CITY OF PARIS, et al.\", \"head_matter\": \"VANMETER et al. v. CITY OF PARIS, et al.\\nCourt of Appeals of Kentucky.\\nMay 8, 1953.\\nBradley & Blanton, Paris, Ogden, Gal-phin & Abell, Louisville, for appellants.\\n- ' Raymond Connell and Dodge L. Whipple, Paris, for appellees.\", \"word_count\": \"1142\", \"char_count\": \"6714\", \"text\": \"CULLEN, Commissioner.\\nThe Kentucky Utilities Company and three voters and taxpayers of the City of Paris,' who were plaintiffs in an action seeking to compel the board' of commissioners of the city to submit to a popular vote the question of adopting an ordinance for the sale of an electric franchise, have appealed from a judgment dismissing the action as having been prematurely brought.\\nIn 1944, the City of Paris sold to Kentucky Utilities Company an electric franchise having a ten-year term. The franchise will expire on July 1,1954. The city also owns a municipal electric plant, which operates in competition with the private utilityi\\nUnder KRS 96.010, a city is required to provide for the sale of a new franchise at least 18 months before the expiration of an existing franchise; however, the statute by its own terms does not apply in the case of a city (other than one of the first class) which owns and operates a municipal plant. Therefore it is agreed that the City of Paris is not required by the statute to offer a new electric franchise, nor is it governed by the statute if it elects (as it may do) to offer a new franchise.\\nThe City of Paris is of the fourth class, operating under the commission form of government, and accordingly is subject to the initiative and referendum provisions embodied in KRS 89.230 to 89.260.\\nIn July 1952 an initiative petition, containing the required number of signatures, was presented to the board of commissioners, requesting that an ordinance be passed providing for the sale of a new electric franchise. KRS 89.250 provides that upon the filing of an initiative petition, if the requested ordinance is one that the board has a legal right to pass, the board either must pass the ordinance within ten days or must submit the question of passage to the voters at the next regular election. The board of commissioners of the City of Paris took no action at all on the petition, and on August 28, 1952, the present suit was instituted, seeking a declaration of rights and a mandatory injunction compelling the board to submit the ordinance to the voters at the next regular election.\\nThe case was set for hearing on October 11, 1952, and on that day. the defendants asked leave to withdraw a general demurrer which they previously had filed, and to file a motion to dismiss the action as prematurely brought; On the same day the plaintiffs asked leave to file an amended petition, in which they stated that by reason of the refusal of the board of commissioners to submit the ordinance, and the delay incident to a trial of the pending action, it was too late for the ordinance to be submitted at the November election m 1952. It therefore was prayed, in the amended petition, that the board of commissioners be required to submit the ordinance at the next regular election following the entry of final judgment in the action.\\nJudgment was entered on November 17, 1952, denying the plaintiffs' motion for leave to amend their petition, and sustaining the defendants', motion that the action be dismissed as prematurely brought.\\nIt appears that the theory .upon which it was concluded that the action was premature was that the initiative petition, in July 1952, was filed too far in advance of the expiration date of the existing franchise in July 1954.\\nWe are unable to concur in the view that the action was premature. The policy of the state, as concerns the granting of new franchises, is expressed by KRS 96.-010, and that policy is that a new franchise shall be offered for sale at least 18 months before the expiration of an existing franchise. The obvious purpose of the 18 month period is to prevent an interruption of service in the event the holder of the existing franchise is not the successful bidder for the new franchise, or in the event the terms of the new franchise require a change of facilities.\\nWhile the statute does not apply in the particular case before us, it does furnish a standard for measuring prematurity. If the ordinance here in question had been submitted to and approved by the voters of Paris at the November 1952 election, and the new franchise had been offered immediately, the offer would have taken place only 19 months before the expiration of the existing franchise, closely conforming to the statute.\\nThe appellees suggest that the case is moot, because the initiative petition sought ony a submission of the question at the November 1952 election, which has passed. However, we find that the initiative petition merely requested that the board of commissioners pass the ordinance. Submission of the question to the voters at the next general election, in the event 'th\\u00e9 board of commissioners chose not to pass the ordinance, was a duty imposed by the statute, KRS 89.250, rather than a re quest contained in the initiative petition. The failure of the board of commissioners to comply with the statute cannot be given the effect of completely nullifying the initiative petition. It is our opinion that the real question in issue is whether the board of commissioners must submit the proposed ordinance to a popular vote, at some general election, and the mere passing of the date designated in the statute for holding the election does not render the question moot. Certainly the question whether the ordinance must be submitted at the November 1953 election is a most vital one, far from moot.\\nIt is true that the plaintiffs' pleadings do not present the question of whether the ordinance must be submitted at the 1953 election, specifically, unless the tendered amended petition is accepted. The appel-lees maintain that the amended petition represented a \\\"departure\\\" from the original action, and the court was justified in denying permission to file the amended petition. We see no merit in this argument. The ultimate relief sought in the amended petition, namely, the submission of the ordinance to a popular vote, was the same as in the original petition. The only change was with respect to the date of the election, and this was ^necessitated by the conduct of the board of commissioners and the unavoidable delay in obtaining a hearing in the suit. Under these circumstances, we think that the amended petition should have been permitted to be filed.\\nThe judgment is reversed, with directions to set it aside and to enter an order overruling the defendants' motion to dismiss the action, and an order sustaining the plaintiffs' motion for leave to file their amended petition.\"}"

ky/11292955.json

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+"{\"id\": \"11292955\", \"name\": \"Ernie William ROSTON, Appellant, v. COMMONWEALTH of Kentucky, Appellee\", \"name_abbreviation\": \"Roston v. Commonwealth\", \"decision_date\": \"1986-09-19\", \"docket_number\": \"\", \"first_page\": \"221\", \"last_page\": \"223\", \"citations\": \"724 S.W.2d 221\", \"volume\": \"724\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Kentucky Court of Appeals\", \"jurisdiction\": \"Kentucky\", \"last_updated\": \"2021-08-10T18:47:36.514087+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before DYCHE, HOWARD and LESTER, JJ.\", \"parties\": \"Ernie William ROSTON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.\", \"head_matter\": \"Ernie William ROSTON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.\\nCourt of Appeals of Kentucky.\\nSept. 19, 1986.\\nRehearing Denied Nov. 7, 1986.\\nDiscretionary Review Denied by Supreme Court March 4,1987.\\nJ. David Niehaus, Deputy Appellate Defender of the Jeff. Dist. Public Def., Daniel T. Goyette, Jefferson Dist. Public Def., Louisville, for appellant.\\nDavid L. Armstrong, Atty. Gen., David W. Mossbrook, Asst. Atty. Gen., Frankfort, for appellee.\\nBefore DYCHE, HOWARD and LESTER, JJ.\", \"word_count\": \"1070\", \"char_count\": \"6710\", \"text\": \"HOWARD, Judge.\\nIn this case, the appellant appeals from his conviction of manslaughter in the second degree.\\nThe appellant was charged with shooting and killing Josephine McCray on December 23, 1984. The shooting occurred at approximately 4:30 a.m. in the parking lot of King's Fast Foods in Louisville, Kentucky. A verbal dispute broke out between the appellant and McCray at King's drive-thru window. This dispute carried over to the parking lot. The appellant claims that when the two were arguing near her parked car, McCray pulled a knife and began swinging it at him. At that point, the appellant claims he pulled a pistol from his coat and shot at her three times. The first shot was apparently a misfire. One bullet struck her wrist and then proceeded to her abdomen, creating a superficial wound. Another bullet struck her in the chest, causing her death. Although some of the eyewitnesses stated that McCray did not have a knife, a knife was found beside her body.\\nOn October 16 and 17, 1985, a trial was held in Jefferson Circuit Court. The appellant did not dispute that he shot McCray, instead relying on the defense of self-protection. At the close of the evidence, the Commonwealth proposed instructions on every degree of homicide found in Chapter 507 of the Kentucky Revised Statutes. An objection to an instruction on wanton murder was upheld and that instruction was not given. Thus, the jury viewed instructions on intentional murder, first-degree manslaughter, second-degree manslaughter and reckless homicide. The jury found the appellant guilty of second-degree manslaughter. He received a sentence of eight years in prison.\\nThe appellant contends that it was error to convict of second-degree (wanton) manslaughter on the grounds that there was no evidence that his actions were wanton.\\nThe appellant did not object to the second-degree manslaughter instruction. In Wallen v. Commonwealth, Ky., 657 S.W.2d 232 (1983), the defendant had not objected to a wanton murder instruction at trial, yet, on appeal, argued that the giving of this instruction was prejudicial error. The Court stated that \\\"[i]n Eversole v. Commonwealth, Ky., 550 S.W.2d 513 (1977), we held that this Court will not review alleged error in instructions on alternative mental states to murder unless the error is properly preserved for review by appropriate objections at the trial level.\\\" Wallen, supra, at 234. In the instant case, the appellant concedes that the alleged error was not preserved by an objection, but maintains that this Court should review this issue under the palpable error rule, pursuant to RGr 10.26.\\nThe appellant argues that he made no objection at trial because of the undecided state of the law regarding such instructions at the time of his trial.\\nKRS 503.120(1) provides that the justification of self-defense is not available to a defendant who unreasonably believes that force, or the degree of force used, was necessary, when wantonness or recklessness are the mental states required to establish culpability. In Blake v. Commonwealth, Ky., 607 S.W.2d 422 (1980), the defendant in a homicide prosecution claimed the defense of self-protection but was convicted of first-degree manslaugh ter. The Court held that in such a case, if the defendant had been wanton or reckless in believing that force was necessary, then the defendant could have been convicted of second-degree manslaughter or reckless homicide. Therefore, the trial court should have instructed the jury on first-degree manslaughter, second-degree manslaughter and reckless homicide.\\nIn Baker v. Commonwealth, Ky., 677 S.W.2d 876 (1984), the Court overturned Blake, supra, holding that instructions on specific offenses should only be given when there is some evidence present in the case to support them. Thus, a defendant who claims an act was done in self-defense, but was unreasonable in the belief that force, or the degree of force used, was necessary, could not be convicted of unintentional reckless homicide because an act in self-defense is necessarily intentionally done. Id. at 879.\\nIn Gray v. Commonwealth, Ky., 695 S.W.2d 860 (1985), the Court specifically applied its ruling in Baker, supra, to second-degree manslaughter. Thus, a defendant who committed a homicide and unreasonably believed his actions were necessary for his protection, could not be found guilty of second-degree (wanton) manslaughter.\\nThe appellant points out that Gray, supra, was rendered on September 5, 1985, only a few days before trial. As a result, he claims that he was unaware of a necessity to object to the second-degree manslaughter instruction.\\nAs stated in Wallen, supra, we are not bound to decide the issue of alternative mental states in regard to the instructions when that error was not properly preserved. However, any error in giving the wantonness instruction did not result in a \\\"manifest injustice\\\" as required by RCr 10.26, for we believe the instruction was justified under the evidence.\\nA person acts wantonly when he is aware of and consciously disregards a substantial and unjustifiable risk that a result will occur. KRS 501.020(3). The risk must be of such a nature and degree that disregard of it constitutes a gross deviation from the conduct of a reasonable man in such circumstances. Id. A person acts intentionally when his conscious objective is to cause a result or engage in a conduct described in a statute defining an offense. KRS 501.020(1)\\nThe evidence shows that the appellant intentionally shot McCray, but it does not show that his conscious objective was to kill her. The appellant testified at trial, but did not state that he intended to kill McCray. Thus, the jury could reasonably infer from the evidence that the appellant was aware of a substantial risk that shooting McCray might kill her and consciously disregarded it. A verdict based on instructions encompassing alternative mental states for murder will not be overturned when the evidence supports each of the alternatives. Wallen, supra, at 234.\\nTherefore, even if the alleged error had been properly preserved, the instructions were proper under the circumstances.\\nThe judgment is affirmed.\\nLESTER, J., concurs.\\nDYCHE, J., dissents.\"}"

ky/12129086.json

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+"{\"id\": \"12129086\", \"name\": \"MARSHALL vs. MADDOCK\", \"name_abbreviation\": \"Marshall v. Maddock\", \"decision_date\": \"1809-12-06\", \"docket_number\": \"\", \"first_page\": \"106\", \"last_page\": \"106\", \"citations\": \"1 Litt. Sel. Cas. 106\", \"volume\": \"16\", \"reporter\": \"Kentucky Reports\", \"court\": \"Kentucky Court of Appeals\", \"jurisdiction\": \"Kentucky\", \"last_updated\": \"2021-08-10T18:19:00.835853+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"MARSHALL vs. MADDOCK.\", \"head_matter\": \"MARSHALL vs. MADDOCK.\\nDec. 6.\\nTo support an action for malicious prosecution, want of probable cause & malice must have combined in the prosecution.\\nAn appeal from a judgment of the Shelby Circuit Court, overruling a motion for a new trial in an action for malicious prosecution.\", \"word_count\": \"146\", \"char_count\": \"881\", \"text\": \"Opinion of\\nthe Court.\\nTHE action for malicious prosecution must be supported by the want of probable cause, and by malice, conjoined. The law will infer malice from the want probable cause; but the most vindictive and express malice in the prosecution, apart from the other constituent of the action, will not do.\\nIn the present case, the evidence offered on the part of the appellant, shows probable cause for the prosecution for larceny, by the appellee, complained of, neither does the evidence exhibit any express malice on the the part of the appellant.\\nJudgment reversed, and new trial ordered.\"}"

ky/12657804.json

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+"{\"id\": \"12657804\", \"name\": \"KENTUCKY BAR ASSOCIATION, Complainant v. Kenneth Joseph BADER, Respondent\", \"name_abbreviation\": \"Ky. Bar Ass'n v. Bader\", \"decision_date\": \"2018-11-01\", \"docket_number\": \"2018-SC-000376-KB\", \"first_page\": \"472\", \"last_page\": \"475\", \"citations\": \"558 S.W.3d 472\", \"volume\": \"558\", \"reporter\": \"South Western Reporter Third Series\", \"court\": \"St. Louis Court of Appeals\", \"jurisdiction\": \"Kentucky\", \"last_updated\": \"2021-08-27T21:08:06.449669+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"\", \"parties\": \"KENTUCKY BAR ASSOCIATION, Complainant\\nv.\\nKenneth Joseph BADER, Respondent\", \"head_matter\": \"KENTUCKY BAR ASSOCIATION, Complainant\\nv.\\nKenneth Joseph BADER, Respondent\\n2018-SC-000376-KB\\nSupreme Court of Kentucky.\\nENTERED: November 1, 2018\\nOPINION AND ORDER\", \"word_count\": \"1359\", \"char_count\": \"8101\", \"text\": \"Kenneth Joseph Bader was admitted to the practice of law in the Commonwealth of Kentucky on October 22, 1980. His bar roster address is 544 Baxter Avenue, Suite 200, Louisville, Kentucky 40204-1154, and his Kentucky Bar Association (KBA) number is 02455. The KBA charged Bader with violations of several of the Kentucky Rules of Professional Conduct (SCR). Bader has failed to file responses to any of these charges. Finding sufficient cause, we adopt the recommendation of the Board of Governors (Board) and suspend Bader for two (2) years. The facts of each disciplinary case are summarized below.\\nKBA File 16-DIS-0304 - Mattingly Representation\\nLinda Mattingly hired Bader to represent her in a personal injury case. Bader filed a complaint on Mattingly's behalf in Jefferson County, but the action was dismissed eight months later for lack of prosecution. Bader got the dismissal set aside and the case was ultimately transferred to Nelson County for further proceedings. The Nelson Circuit Court filed a Notice to Dismiss for Lack of Prosecution which was uncontested. The case was dismissed on November 17, 2014, and Bader failed to inform Mattingly of the dismissal. Mattingly only learned of the dismissal when she sought representation by another attorney.\\nThe Inquiry Commission issued a three-count charge against Bader on February 16, 2017, asserting violations of SCR 3.130 (1.3) for failing to perform work in Mattingly's case, SCR 3.130 (1.4)(a)(3) for failing to inform Mattingly that her case was dismissed, and SCR 3.130 (8.1)(b) for failing to respond to the bar complaint. Bader was personally served with the bar complaint on November 30, 2016, and the charge on February 16, 2017, by sheriff. He did not file any responses.\\nKBA File 17-DIS-0018 - Rhea Representation\\nBader agreed to represent Michelle Rhea in a legal matter and Rhea paid Bader a $400 retainer on April 18, 2016. Bader deposited the check into his law practice's bank account in the name of Kenneth J. Bader, LLC. Bader then used the bank account for personal expenses. After being unable to contact Bader, Rhea went to his office, informed Bader that she wanted to terminate his services and requested a refund. Bader told Rhea that his secretary would mail her a check. Bader did not perform any work on Rhea's behalf nor did he return the retainer fee.\\nThe Inquiry Commission issued a five-count charge against Bader on August 18, 2017, asserting violations of SCR 3.130 (1.3) for failing to perform any work in Rhea's case, SCR 3.130 (1.4)(a)(4) for failing to respond to Rhea's requests for information, SCR 3.130 (1.15)(a) for failing to keep his client's money in a separate account from his own property, SCR 3.130 (1.16)(d) for failing to return the unearned fee, and SCR 3.130 (8.1)(b) for failing to respond to the bar complaint.\\nBader was personally served with the bar complaint by sheriff on March 2, 2017. He was served with the charge through the Executive Director, pursuant to SCR 3.035(2). Bader did not file a response.\\nKBA File 17-DIS-0220 - Hall Representation\\nRex Hall contacted Bader in May 2017 to represent his son, Ryan Hall, in a criminal matter. Bader agreed to the representation and Rex Hall gave him a $500 retainer. Candace Pollack, Ryan Hall's girlfriend, also gave Bader a $200 retainer. Bader deposited both checks into an account for Renaissance By Design, LLC (owned by Bader's wife), which is an antique boutique and estate sales company. This was not an escrow or trust account maintained for representing clients. Rex Hall made several attempts to obtain information from Bader, with little to no response. Bader did not perform any work in Ryan Hall's criminal case and did not refund any of the unearned fees to Rex Hall or Pollack.\\nThe Inquiry Commission issued a six-count charge against Bader on December 19, 2017, asserting violations of SCR 3.130 (1.3) for failing to perform work on Hall's case, SCR 3.130 (1.4)(a)(4) for failing to return messages from Rex Hall regarding the representation of his son, SCR 3.130 (1.15)(a) for commingling client funds with his own, SCR 3.130 (1.16)(d) for failing to return the unearned fee to Rex Hall, SCR 3.130 (1.16)(d) for failing to return the unearned fee to Pollack, and SCR 3.130 (8.1)(b) for failing to respond to the bar complaint.\\nBader was served with the bar complaint by the Executive Director pursuant to SCR 3.035(2) on August 1, 2017, and served with the charge by the Executive Director on February 27, 2018. Bader has not filed any responses.\\nKBA File 17-DIS-0413 - Glaab Representation\\nBader was suspended from the practice of law for thirty days on September 28, 2017. On October 20, 2017, the Office of Bar Counsel objected to Bader's automatic reinstatement because he failed to pay costs, and the charges listed above in the Mattingly, Rhea, and Hall representations were pending. On November 7, 2017, Bader was indefinitely suspended by this Court.\\nBader previously represented Rickie Glaab in a criminal case in 2016 but withdrew as counsel due to a conflict. On October 26, 2017, during his suspension, Bader appeared in Jefferson District Court on a redocket request filed on behalf of Glaab. Opposing counsel brought up the fact that Bader was previously removed from the case due to a conflict. The judge refused to hear Bader's motion, and subsequently informed the Office of Bar Counsel. On December 22, 2017, Bader again appeared in Jefferson District Court but the judge informed him that he was not authorized to practice law pursuant to his suspension order.\\nThe Inquiry Commission filed a four-count charge against Bader, alleging violations of SCR 3.130 (1.7)(a) for filing a redocket request and appearing on behalf of a client in a matter in which he had a conflict, SCR 3.130 (5.5)(a) for practicing law while suspended, SCR 3.130 (5.7)(a)(2) for appearing on behalf of clients while suspended, and SCR 3.130 (8.1)(b) for failing to respond to the bar complaint.\\nBader was served with the bar complaint by the Executive Director pursuant to SCR 3.035(2) on January 29, 2018, and served with the charge by the Executive Director on April 18, 2018. Bader has not filed any responses.\\nDiscussion\\nThese matters are not the first time Bader has been disciplined for misconduct as an attorney. In 2014, he received a private admonition. In September 2017, he was suspended for thirty days and after attempting to practice law during that suspension, he was suspended indefinitely on November 2, 2017. Bader failed to participate in either of those disciplinary proceedings.\\nBy majority vote, the Board found Bader guilty on all of the eighteen charges outlined above. The Board considered a two-year suspension and a five-year suspension. The Board voted 15-6 to suspend Bader for two years and require him to pay the costs in this action. Given Bader's previous discipline and failure to participate in these proceedings, we agree with the Board's recommendation.\\nFor the foregoing reasons, it is hereby ORDERED:\\n1. Kenneth Joseph Bader is found guilty of the violations of the various rules of the Kentucky Supreme Court as set forth above.\\n2. Bader is hereby suspended from the practice of law for a period of two (2) years.\\n3. Bader must notify all courts and clients of his suspension in accordance with SCR 3.390. Those notifications must be made by letter in the United States mail within ten (10) days from the date of entry of this Opinion and Order. Bader must also simultaneously provide a copy of all notification letters to the Office of Bar Counsel. Also, to the extent possible, Bader must cancel and cease any advertising activities in which he is engaged.\\n4. In accordance with SCR 3.450, Bader is directed to pay the costs of this action in the amount of $1,015.32 for which execution may issue from this Court upon finality of this Opinion and Order.\\nJohn D. Minton, Jr.\\nCHIEF JUSTICE\\nAll sitting. All concur.\"}"

ky/12658930.json

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+"{\"id\": \"12658930\", \"name\": \"Brandon JONES, Appellant v. COMMONWEALTH of Kentucky, Appellee\", \"name_abbreviation\": \"Jones v. Commonwealth\", \"decision_date\": \"2019-02-01\", \"docket_number\": \"NO. 2017-CA-001538-MR\", \"first_page\": \"922\", \"last_page\": \"928\", \"citations\": \"567 S.W.3d 922\", \"volume\": \"567\", \"reporter\": \"South Western Reporter Third Series\", \"court\": \"Court of Appeals of Kentucky\", \"jurisdiction\": \"Kentucky\", \"last_updated\": \"2021-08-27T21:08:20.492750+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"BEFORE: LAMBERT, JONES, AND MAZE, JUDGES.\", \"parties\": \"Brandon JONES, Appellant\\nv.\\nCOMMONWEALTH of Kentucky, Appellee\", \"head_matter\": \"Brandon JONES, Appellant\\nv.\\nCOMMONWEALTH of Kentucky, Appellee\\nNO. 2017-CA-001538-MR\\nCourt of Appeals of Kentucky.\\nFEBRUARY 1, 2019; 10:00 A.M.\\nBRIEFS FOR APPELLANT: Kathleen K. Schmidt, Assistant Public Advocate, Department of Public Advocacy, Frankfort, Kentucky.\\nBRIEF FOR APPELLEE: Andy Beshear, Attorney General of Kentucky, Stephen F. Wilson, Assistant Attorney General, Frankfort, Kentucky.\\nBEFORE: LAMBERT, JONES, AND MAZE, JUDGES.\", \"word_count\": \"2107\", \"char_count\": \"13191\", \"text\": \"MAZE, JUDGE:\\nOn March 28, 2017, a Russell County grand jury returned an indictment charging Brandon Jones and a co-defendant, Tabitha Morgan, with three counts of trafficking. The first count was for first-degree trafficking in methamphetamine (second or greater offense); the second count was for third-degree trafficking of tramadol (second or greater offense); and the third count was for trafficking in a legend drug (second or greater offense). Following a trial, a jury convicted Jones of all three counts and fixed his sentence at a total of ten years' imprisonment. The trial court entered a judgment imposing the jury's sentence. Jones now appeals to this Court.\\nWe conclude that there was sufficient evidence that Jones was in constructive possession of the drugs to submit the issue to the jury. We also conclude that there was sufficient evidence to support a jury instruction that Jones intended to traffic in the drugs. However, we conclude that the trial court erred by allowing the Commonwealth to introduce evidence of a prior trafficking conviction as additional proof of intent to traffic. Finally, we conclude that the Commonwealth failed to prove that the capsules contained a legend drug. Consequently, Jones was entitled to a directed verdict on the charge of trafficking in a legend drug. Hence, we reverse all three trafficking convictions and we remand for a new trial on the counts of trafficking in methamphetamine and trafficking in tramadol.\\nThe charges in this case arose on November 21, 2016, when Kentucky State Police Trooper Billy Begley and several Russell County Sherriff's deputies went to the home of Sheldon Grider to serve arrest warrants on Jones and Morgan. Jones's aunt, Pamela Hammonds, opened the door and admitted the officers to look for Jones and Morgan. Trooper Begley found Jones and Morgan sleeping in the rear bedroom. The officers entered the room, woke up Jones and Morgan, and told them about the warrants. After turning on the lights, Trooper Begley saw a pill bottle on the dresser and a corner of an open baggie sticking out with a white substance in it. There was no label on the bottle. Trooper Begley also saw tablets and capsules laying on the dresser next to the pill bottle.\\nAt trial, the Commonwealth presented the testimony of Rebecca Stone, a forensic chemist employed by the Kentucky State Police's Central Laboratory. Stone testified that the white powder weighed 3.024 grams and tested positive for containing methamphetamine. Stone also testified that there were fourteen white tablets which she identified from their markings as tramadol, a Schedule IV controlled substance. Finally, Stone testified that there were forty-three capsules, which she did not submit to testing. However, Stone testified that the capsules \\\"possibly\\\" contained gabapentin. Gabapentin is not a federally-scheduled controlled substance, but the Food & Drug Administration prohibits dispensing it without a prescription.\\nJones primarily argues that the Commonwealth failed to prove an essential element of all three offenses beyond a reasonable doubt. On appellate review, the test of a directed verdict is, if under the evidence as a whole, it would be clearly unreasonable for a jury to find guilt, only then is the defendant entitled to a directed verdict of acquittal. Commonwealth v. Benham , 816 S.W.2d 186, 187 (Ky. 1991) (citing Commonwealth v. Sawhill , 660 S.W.2d 3 (Ky. 1983) ). When ruling on a directed verdict motion, the trial court must assume the evidence for the Commonwealth is true and draw all fair and reasonable inferences from the evidence in favor of the Commonwealth. Id. But to survive a motion for a directed verdict, the Commonwealth must produce more than a mere scintilla of substantive evidence. Sawhill , 660 S.W.2d at 5.\\nFirst, Jones argues that the Commonwealth failed to prove that he actually or constructively possessed any of the drugs found in the bedroom where he and Morgan were sleeping. Possession may be proven through either actual possession or constructive possession. Johnson v. Commonwealth , 90 S.W.3d 39, 42 (Ky. 2002), overruled on other grounds by McClanahan v. Commonwealth , 308 S.W.3d 694 (Ky. 2010). \\\"Constructive possession exists when a person does not have actual possession but instead knowingly has the power and intention at a given time to exercise dominion and control of an object, either directly or through others.\\\" Id. (quoting United States v. Kitchen , 57 F.3d 516, 520 (7th Cir. 1995) ).\\nJones points out that the drugs were all found on the top of a dresser in Grider's house, with nothing to readily identify who owned them or who placed them there. Jones also contends that other people in the house had equal or greater access to the guest bedroom. However, Jones and Morgan were found sleeping in the bedroom where the drugs were found. Moreover, the drugs were in plain sight and, thus, were in Jones's immediate control. Consequently, we conclude that the trial court properly submitted the issue of possession to the jury.\\nSecond, Jones argues that the Commonwealth failed to prove any intent to sell or traffic in the drugs. KRS 218A.010(55) provides that the term \\\"traffic\\\" \\\"means to manufacture, distribute, dispense, sell, transfer, or possess with intent to manufacture, distribute, dispense, or sell a controlled substance....\\\" KRS 218A.1431(3) similarly defines the term with respect to trafficking in methamphetamine. The parties in this case agree that intent to traffic is an essential element of the offenses with which Jones was charged. Commonwealth v. Adkins , 331 S.W.3d 260, 264 (Ky. 2011).\\nJones correctly points out that officers did not find any paraphernalia, scales, baggies, or large amounts of money in the room or the house. Consequently, Jones argues that there was no evidence indicating that he was engaged in trafficking the drugs for sale or distribution. However, intent to traffic may be inferred where the quantity of drugs is inconsistent with personal use or accompanied by circumstances that are inconsistent with personal use. Dawson v. Commonwealth , 756 S.W.2d 935, 936 (Ky. 1988) (citing Whisman v. Commonwealth , 667 S.W.2d 394 (Ky. App. 1984) ).\\nThe Commonwealth notes that Jones was found in constructive possession of more than three grams of methamphamine, as well as fourteen tablets and forty-three capsules which were not in their original containers. Trooper Begley testified that the quantity of methamphamine and pills was not consistent with personal use. Although the evidence of intent to traffic was not overwhelming in this case, we conclude that the trial court did not clearly err by denying Jones's motion for directed verdict on this issue.\\nIn a related argument, Jones argues that the trial court erred when it allowed the jury to hear about his prior convictions for trafficking and the arrest warrant during the guilt phase of the trial. We find that the Commonwealth properly referred to the arrest warrant to explain the circumstances, why the police were at the Grider residence looking for Jones and Morgan. See Kerr v. Commonwealth , 400 S.W.3d 250, 260-61 (Ky. 2013). However, we cannot find that Jones's prior convictions were admissible under the circumstances present in this case.\\nThe Commonwealth argues that Jones's 2009 trafficking conviction was admissible under KRE 404(b)(1) as probative of his knowledge and absence of mistake or accident concerning the presence of the drugs. We agree that the prior conviction was marginally relevant to show absence of mistake or accident concerning his possession of the drugs. Nevertheless, the Commonwealth also sought to use the prior conviction to establish Jones's intent with respect to trafficking.\\nWhile before the trial court, the Commonwealth cited to Walker v. Commonwealth , 52 S.W.3d 533 (Ky. 2001), as allowing the admission of a prior trafficking conviction to prove intent to traffic in the current charge. But in Walker , the defendant was found attempting to dispose of drugs in a house where a drug transaction had taken place the day before. Id. at 535-36. In this case, the Commonwealth did not offer any evidence that a drug sale or transaction had occurred at the Grider residence. Rather, the Commonwealth sought to infer that Jones was trafficking based only upon the amount of drugs found and his prior history of engaging in trafficking.\\nKRE 404(b) makes it clear that \\\"[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.\\\" Evidence of other crimes may be admissible to show a common scheme or plan. KRE 404(b)(1). As a prerequisite to the admissibility of prior bad acts evidence, the rule requires that the proponent of the evidence demonstrate a factual commonality between the prior bad act and the charged conduct \\\"that is simultaneously similar and so peculiar or distinct that there is a reasonable probability that the two crimes were committed by the same individual.\\\" Clark v. Commonwealth , 223 S.W.3d 90, 97 (Ky. 2007). See also Commonwealth v. Buford , 197 S.W.3d 66, 71 (Ky. 2006) ; Dickerson v. Commonwealth , 174 S.W.3d 451, 469 (Ky. 2005). In this case, the Commonwealth offered no evidence that the circumstances surrounding Jones's 2009 trafficking conviction were substantially similar to the charged offenses in this case.\\nAlthough the prior conviction may have been marginally relevant to Jones's knowledge of the presence of the drugs, any relevance on that point was far outweighed by the unfair prejudice of admitting the prior conviction to prove his intent to traffic in those drugs. KRE 403. Therefore, we must conclude that the trial court erred by admitting the evidence. Furthermore, given the less-than-overwhelming evidence proving Jones's intent to traffic, we cannot find the error harmless. Therefore, we must reverse the convictions and remand this matter for a new trial.\\nFinally, Jones argues that the Commonwealth failed to prove that the capsules contained gabapentin. He separately argues that the trial court failed to instruct the jury to determine whether gabapentin is a legend drug as defined by KRS 217.015(28). Jones concedes that he failed to object to the sufficiency of the evidence or the jury instruction on this issue.\\nWith respect to the issue concerning the jury instructions, RCr 9.54(2) prohibits a party from raising an error relating to the giving or failure to give an instruction \\\"unless the party's position has been fairly and adequately presented to the trial judge by an offered instruction or by motion, or unless the party makes objection before the court instructs the jury, stating specifically the matter to which the party objects and the ground or grounds of the objection.\\\" Under the rule, this Court is not authorized to review the failure to give an instruction unless the defendant requested and submitted an appropriate instruction to the trial court. Martin v. Commonwealth , 409 S.W.3d 340, 344-45 (Ky. 2013). Since Jones did not request jury instructions on whether the capsules were gabapentin or defining it as a legend drug, this issue is not subject to review for palpable error.\\nOn the other hand, we may review for palpable error an unpreserved issue relating to the sufficiency of the evidence. Schoenbachler v. Commonwealth , 95 S.W.3d 830, 836 (Ky. 2003). A palpable error is one of that \\\"affects the substantial rights of a party\\\" and will result in \\\"manifest injustice\\\" if not considered by the court. Id. (citing RCr 10.26 ). The Commonwealth's failure to prove every element of the charged offense beyond a reasonable doubt is an error which would affect Jones's substantial rights. Id. at 836-37.\\nAs noted above, Stone did not test the capsules, but she stated that, based on her experience, they \\\"possibly\\\" contained gabapentin. Stone did not testify concerning the basis for her opinion. The Commonwealth does not point to any other evidence supporting a reasonably certain inference that the capsules contained gabapentin. In the absence of more certain evidence on this point, we must conclude that the trial court erred in denying Jones's motion for a directed verdict on the charge of trafficking in a legend drug.\\nAccordingly, we reverse Jones's convictions for trafficking in methamphetamine, trafficking in tramadol, and trafficking in a legend drug. We remand the first two charges to the Russell Circuit Court for a new trial without the inadmissible evidence. We remand the charge of trafficking in a legend drug with instructions to enter a directed verdict of acquittal.\\nALL CONCUR.\\nKentucky Revised Statutes.\\nKentucky Rules of Evidence.\\nKentucky Rules of Criminal Procedure.\"}"

ky/1311663.json

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+"{\"id\": \"1311663\", \"name\": \"McLean County Precinct v. Deposit Bank of Owensboro\", \"name_abbreviation\": \"McLean County Precinct v. Deposit Bank\", \"decision_date\": \"1883-06-14\", \"docket_number\": \"\", \"first_page\": \"254\", \"last_page\": \"262\", \"citations\": \"81 Ky. 254\", \"volume\": \"81\", \"reporter\": \"Kentucky Reports\", \"court\": \"Kentucky Court of Appeals\", \"jurisdiction\": \"Kentucky\", \"last_updated\": \"2021-08-10T21:42:27.561905+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"McLean County Precinct v. Deposit Bank of Owensboro.\", \"head_matter\": \"Case 39 \\u2014 EQUITY\\nJune 14, 1883.\\nMcLean County Precinct v. Deposit Bank of Owensboro.\\nAPPEAL PROM M\\u2019LEAN CIRCUIT COURT.\\n1. Under an act of the general assembly, the Livermore precinct, in McLean county, subscribed stock in the Owensboro and Russellville Railroad Company. The county judge is required to appoint a \\u201ccollector of taxes so levied for said precinct.\\u201d He attempted and failed to find a collector. Appellees sought the aid of the circuit court to compel payment by the \\u2022 tax-payers, and the court adjudged that payment be made through its receiver.\\n2. Held \\u2014 The power to levy or collect taxes is not one of the inherent powers of any judicial tribunal. The duty and the power is legislative.\\n3. If, when the legislature fails to enact proper legislation, or to provide \\u2022the means of collecting taxes imposed, the judiciary may interpose, the theory of the government and the distribution of powers are destroj'ed.\\n4. The chancellor exceeded his power in appointing a collector of taxes in the precinct, and in rendering judgment against the tax-payers.\\nCHARLES EAVES, M. C. GIVENS, and C. W. COOK for appellant.\\nAlthough the county judge has the power, by the express terms of the act of 1869, to appoint a collector of the tax levied for the Liver-more precinct, yet, if he fails to appoint, or no one will accept, it is not in tbe power or jurisdiction of the circuit court to assume the right to appoint a collector or receiver, and thus compel payment of such taxes. It is an usurpation by the judiciary of a legislative power. (19 Wall., 655; 102 U. S., 472; 19 Wall., 665; Thompson v. Allen County, decided by Justice Matthews, Supreme Ct-., 4 Ky. Law Rep., 99; Pennington v. Woolfcflk, 79 Ky., 13; Johnson v. Louisville, 11 Bush, 557; Acts 1867-\\u20198, vol. 1, 435; Acts 1869, vol. 2, 576-\\u20197.)\\nSWEENEY & SON for appellee.\\n1. A remedy for the collection of taxes may be presented by statute, either directly or by implication. If no adequate remedy is given, the presumption that a remedy by suit was intended is but reasonable. (Dillon on Mun. Corp., sec. 653; 8 Texas, 384; 39 lb., 146.)\\n2. The legislature may create a district for the purpose of taxation or assessment. (5 Bush, 229.)\\n3. In cases like this, a court of equity will afford a remedy. To administer the right, courts of equity were brought into existence. (Acts 1867-\\u20198, vol. 1, 435; 15., 436; Acts 1869, vol. 2, 576-\\u20197; 2 Potter\\u2019s Law Corp., sec. 414; High on Receivers, 304-\\u20195; 18 Wall., 154; 4 15., 535; 7 Otto, 293; Acts 1871-\\u2019:-!, vol. 1, 197; 9 Am. Law Reg., 415; 16., vol. 9 (No. 10), 603 ; 4 Ky. Law Rep., 99.)\", \"word_count\": \"2734\", \"char_count\": \"15581\", \"text\": \"JUDGE PRYOR\\ndelivered the opinion of the court.\\nThe charter of the Owensboro and Russellville Railroad Company was so amended as to authorize the voters of any precinct of any county through which the road might be located to vote a tax, in the way of a subscription or by a majority petition, upon themselves in aid of its construction, and the county judge was required \\\"to levy a tax, when voted, on the taxable property of the precinct to meet the interest and a reasonable amount of the principal annually.\\\"\\nBy the third section of an amendment to the charter, approved the 14th of March, 1869, the county judge, when the precinct had made a subscription to the capital stock of the company, was required \\\"to appoint a collector of said tax so levied for such precinct,\\\" and he shall appoint such person or persons as the justices of said precinct may recommend; and if the justices, when notified, neglect to recommend, the presiding judge shall appoint some discreet person residing in the precinct as collector aforesaid, taking bond from him for the discharge of his duties, &c.\\nThe Livermore precinct No. 3, of McLean county, on a petition of a majority of its voters, subscribed $50,000 of stock, and issued its bonds to the railroad company in payment. ' The Company sold the bonds, and the road, it seems, was never completed. The appellees, holding a number of the bonds, and being unable, as is alleged, to recover in an ordinary action, instituted the present action in equity, seeking the aid of the chancellor upon the ground that the county judge had, in good faith, endeavored to find some discreet person residing in said district to act as collector of the taxes, and could .find no one willing to accept the position, or discharge the duties of collector, and further averring that no one in the precinct would undertake to discharge the duties of such an office. The plaintiff asks that the tax-payers be required to pay the respective sums due by them into court, or to some one appointed by the court as receiver or collector, alleging that it was a trust fund held for the discharge of the bonds and coupons issued by the precinct. A rule was issued against the tax-payers, requiring them to pay the money or taxes owing by them into court. They responded to the rule, and also filed demurrers, general and special, to the proceeding. Their demurrers were overruled, and the response filed deemed insufficient, the rule made absolute, and the tax-payers (the appellants) required to pay the money into court, and upon their failure to do so, executions were directed to be issued, and a receiver appointed and invested by the judgment with all the power and authority of a tax-collector, as conferred by the act and its amendments authorizing such an appointment by the county judge, &c.\\nThe real question presented by the record, and the only one necessary to be determined, is, had the chancellor the power to collect the taxes by his receiver or the tax-collector appointed by him, when it appeared that the county judge could find no one in the precinct willing to accept the office?\\nThat the remedy afforded by the act under which the vote was taken and the stock subscribed was ample and complete for the collection of the taxes imposed for the payment of the subscription, if the county judge could have found some one within the precinct willing to make the collection, is not controverted; but the chancellor below, seeing that the appellee had been prevented from pursuing that remedy, has exerciged the power of appointing a collector, and investing that officer with the power of collecting the taxes. That the remedy had been suspended by reason of the failure or refusal of those living within the precinct to accept the office, or had been temporarily obstructed by reason of a defect in the law under which the collection was to be made, did not enlarge the jurisdiction of the chancellor, or confer upon him the exercise of such an extraordinary power.\\nIn the case of Heine v. Levee Commissioners, 19th Wallace, the court said: \\\"But the hardship of the case, and the failure of the mode of procedure established by law, is not sufficient to justify a court of equity to depart from all precedent, and assume an unregulated power of administering abstract justice at the expense of well settled principles.\\\" It may be said in this case, as in the case cited, if the juris diction of the chancellor is sustained at all, it must be on the broad ground that, because the plaintiff-finds himself unable to collect his debt by the proceedings given him by the act, it is the duty of a court of equity to devise some mode by which it can be done. It will be conceded that it is not one of the inherent powers of any judicial tribunal, whether state or federal, to levy or collect taxes, and when the instrumentalities selected by the law-making power for making such collections cease to exist, or decline to act, the remedy is in the legislative department of the state government, and not with the judiciary. If the legislation in regard to the collection of taxes, whether for the purpose of affording revenue for the state, or of satisfying a debt due to a corporation by reason of a county or precinct subscription, proves defective or inadequate for that purpose, the remedy is not by applying to a court of equity to cure the defect, but the legislature, under the constitution, can alone supply the defect by amended legislation. The judiciary has no power to levy taxes or to collect taxes when the officer appointed to collect refuses to do so; or if no one is appointed to collect, the judiciary is powerless to supply the defect. These are all legislative duties, and when the department of the government to- which these duties are confided neglects to discharge them, neither the judicial or executive department of the government can execute such powers. If, when the legislature fails to make proper laws, or provide the means of collecting taxes imposed, the judiciary may intervene and perform such duties, there is an end to the theory of the powers belonging exclusively to each of the three departments of the government, and the necessity for keeping each within its proper sphere for its successful administration no longer exists. It is not necessary to discuss the powers confided to each department \\u2014 those which are legislative to one, those which are executive to another, and those which are judicial to another \\u2014 as we regard it as now authoritatively settled that no such jurisdiction belongs to a court of equity.\\nCounsel for the appellees argue that a state court may exercise such a power, when a federal court must decline to take jurisdiction. This brings us back to the doctrine contended for by counsel, that as the defect in the law exists by reason of state legislation, it is the duty of the state courts to furnish the remedy.\\nThe extent of federal jurisdiction over such cases is not a question at issue in this case, and besides, the decisions of the supreme court are based alone upon the ground that a court of equity cannot entertain such a jurisdiction. In the case of Rees v. The City of Watertown, reported in 19th Wallace, Rees was the owner of certain bonds of the town, issued by authority of the state to the Watertown and Madison Railroad Company, and by that company sold for its benefit. A judgment was obtained by Rees, a citizen of Illinois, and mandamus after mandamus issued to compel the levy and collection of the tax for the payment of the subscription, and the city officials defeating the efforts of the plaintiff to coerce payment by resigning their offices, a court of equity was applied to, in which the federal court was asked to appoint its marshal to levy and collect the tax, and the supreme court held that a court of equity had no such power.\\n\\\"A court of equity (says the court) cannot, by avowing that there is a right, but no remedy known to the law, create a remedy in violation of law, or even without the author ity of law. It acts not only upon established principles, but through established channels.\\\"\\nIn the case of Heine v. The Levee Commissioners, reported in the same volume, the doctrine was again recognized. The commissioners to make the levy having resigned, and a court of equity applied to for relief, it was held that the power to collect and levy taxes is a legislative function, and does not belong to a court of equity.\\nIn Barkley v. Levee Commissioners, where the officers authorized to make the levy resigned, or ceased to exist, the court said: \\\"Nor can the court authorize the marshal to levy taxes in such a case, nor in any case, except where a specific law authorizes such a proceeding.\\\" (3 Otto, page 258.)\\nIn the case of Meriwether v. Garret, the legislative act chartering the city of Memphis having been repealed, and taxes having been levied before the repeal, an attempt was made to enforce the collection by bill in equity in the United States circuit court for the district of Tennessee, and on an appeal to the supreme court, it was held that no such power existed, and that the remedy, and the only remedy, was by an appeal to the legislature to grant the relief. A distinction was taken by some of the members of that court, and ~a very proper one, too, between mere contract obligations and the collection of taxes for the support of the government, or for some special purpose authorized by it. The right of a court of equity to enfore the contracts of the corporation, and subject to the payment of the debt the property of the corporation, was recognized in the opinion of Justice Field, upon the ground that its property was a trust fund, pledged to the payment of its creditors, and, on the other hand, that taxes levied, but not collected, when the dissolution of the corporation took place, were not the property of the corporation, and a court of equity, through officers of its own appointment, could not proceed to the collection in order to satisfy the demands for the payment of which the taxes had been levied.\\nIn the case of Wolf v. The City of New Orleans, where bonds had been issued by the city in aid of a railroad company under legislative authority, and the power of taxation given to enable the city to pay the debt, it was held that this delegation of power could not be revoked so as to prevent the bondholder from compelling the city to make the levy by its properly constituted authorities; but this case does not determine or recognize the power in the chancellor to appoint municipal officers, whose duty it was to levy and collect the tax in the event they had resigned, but only recognizes the right of compelling those in authority to execute the law. We perceive no distinction between the present case and that of Rees v. The City of Watertown, or Heine v. The Levee Commissioners.\\nIn the case of Thompson v. Allen County, Justice Matthews, of the supreme court, then holding the United States circuit court, held, where a special tax had been levied in pursuance of a mandamus, and where no suitable person could be found as collector in the county, and that fact appearing, that the holder of the bonds was not entitled to relief upon such a ground, \\\" the collection of a tax belonging as much to the authorities of the state as its levy and assessment, and the reasons which forbid a court to supply the latter, apply with equal force to the former. The jurisdiction of courts is confined to compelling the state officers to perform their duties under state laws, and no substitute can be invented. \\\"\\nIn Pennington v. Woolfolk, 79th Ky., this court said the power to impose taxes is legislative, and cannot be confided, under our constitution, to a judicial tribunal.\\nIn Johnson v. The City of Louisville, the right to proceed in any other mode than that provided by the statute was denied, and where a judgment for taxes has been rendered by a judicial tribunal in any of the cases referred to .in the consideration of this question, it has been by reason of some legislative authority providing such a remedy, where the ordinary remedy proves inadequate. Nor is it to be presumed that the legislative tribunal to which the appeal must be made, after authorizing the imposition of the taxes for a special purpose', will permit the credit of the state, or of a portion of the state, to be impaired or affected by refusing to lend its aid to the creditor to enable him to collect a debt, whether by taxation or otherwise, entered into in good faith, and acquired by the creditor from the corporation for a valuable consideration. What may be the legislative action on the subject is not, however, a question for this court, and we are satisfied the chancellor exceeded his power in rendering a personal judgment against the tax-payers, and in appointing a collector of taxes for the precinct.\\nThe entire judgment is therefore reversed, with directions to dismiss the petition without prejudice.\"}"

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+"{\"id\": \"1312814\", \"name\": \"Harris, &c., v. Berry\", \"name_abbreviation\": \"Harris v. Berry\", \"decision_date\": \"1884-05-29\", \"docket_number\": \"\", \"first_page\": \"137\", \"last_page\": \"145\", \"citations\": \"82 Ky. 137\", \"volume\": \"82\", \"reporter\": \"Kentucky Reports\", \"court\": \"Kentucky Court of Appeals\", \"jurisdiction\": \"Kentucky\", \"last_updated\": \"2021-08-10T21:46:21.612486+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Harris, &c., v. Berry.\", \"head_matter\": \"Case 22 \\u2014 GUARDIAN AND WARD\\nMay 29, 1884.\\nHarris, &c., v. Berry.\\nAPPEAL PROM MARION CIRCUIT COURT.\\n'1. The law requires of a guardian that he should act in good faith toward his ward, and transact his fiducial business with the same prudence and discretion that a prudent man is accustomed to exercise in the management of his own business affairs.\\n\\u25a02. It is the right and the duty of a guardian residing with his wards in Kentucky, to employ competent counsel in Missouri, where the wards own real and personal estate.\\n,15. If the attorney, aeting in good faith in the discharge of his duties, commit an error of judgment affecting injuriously the interest of the wards, the guardian continuing to act in good faith can not be held liable for the injury to the wards. Having done his utmost, he can not reason ably be required to do any more.\\n4. By the Missouri statute, a female arriving at the age of eighteen years-is of full age, and she, although a minor in Kentucky, has the right, as an adult in Missouri, to control the judgment and execution against the executor of her father, inasmuch as she was one of the parties in interest.\\nW. B. HARRISON, JNO. McOHORD, and W. LINDSAY nor appellant.\\n1. Appellee has been guilty of gross neglect as guardian.\\n2. He neither compelled the executor of Phillips to settle his accounts, annually as the law of Missouri requires, nor did ho so much as examine any settlement, or see what his wards were entitled to until May, 1870, five years after the executor qualified. Then with a judgment in favor of his wards against the executor, and he in failing circumstances, two of the sureties dead, appellee took no stops to enforce payment until March, 1872.\\n3. This is gross and inexcusable negligence. Story\\u2019s Conflict Laws, soc. 65; Hanna v. Spotts, 5 B. Mon., 365; McDonald v. Meadows, 1 Met., 508; Smith v. Smith, 7 J. J. Mar., 239; Hemphill v. Lewis, T Bush, 21G; Morris v. Beauchamp, 4 B. Mon., 74.\\nROUNTREE & LISLE and A. DUYALL nor appellee.\\n1. The law requires reasonable diligence on the part of guardians. A fiduciary is required to act as a prudent man would in- relation to his own affairs\\n2. Nothing more should be required of a guardian than that he should act-in good faith, and with the same prudence and discretion that a prudent man acts on matters pertaining to himself.\\n3. To say that although you may manage your wards\\u2019 as you do your own, you are, nevertheless, to answer out of your pocket for every error of' judgment or mistake of law is harsh beyond measure. This is not. the law. Thomas v. White, 3 Litt., 184; Mory v. Fenwick, 4 B. M., 309; Cross v. Peter, 7 lb., 413; Story\\u2019s Eq. In., sections 1272, 1269; Seller v. Dunn, 6 Bush, 638; 4 Johnson\\u2019s Ch\\u2019y. Rep., 619; Hill on Trustees, 572; Chaplin v. Moore, 7 Mon., 166; 21 Grattan, 199; 21 Ohio St., 444; 1 Strobbatt\\u2019s Eq.', 170; 10 Johns., 272; 16., 578; 3 Atkyns, 480; 1 Penn. & Watts, 207; Maria v. Kirby, 12 B-Mon., 545; 8 Wall, 168; Cosby Court.Lim., 16; 4 Wash. C. C., 380;; 5 Howard, U. S., 255.\", \"word_count\": \"2675\", \"char_count\": \"15024\", \"text\": \"JUDGE PRYOR\\ndelivered the opinion on ti-ie court.\\nIn the year 1864, Robert Phillips died in Perry-county, Missouri, the owner of a large estate, real and', personal. He left a last will and testament, by which; he devised Ms estate to Ms widow and children. He-had been twice married, leaving surviving him four-children by his first and one child by his last wife.\\nHenry L. Caldwell, of Missouri, and the appellee, N. T. Berry, of Lebanon, Kentucky, were appointed as. his executors, Caldwell alone qualifying. In his will he gives to his children certain portions of Ms real estate, and to some more valuable than that given to-, others, and requires his executors as soon as .practicable-to have the property devised - to his children valued, and in the distribution of his personalty due regard is. to ~be had to said valuation so as to. malee all the-share of his children equal. He appointed the appellant, N. T. Berry, the testamentary guardian of his children by his first wife, and requested .that each of' them and their estates should be transferred to Kentucky as soon as practicable.\\nIt was also his wish that- the county court shoxild make division according to-his will without waiting for-three years to expire as -required by the statute of Missouri. In 1865, -the appellee, N. T. Berry, - qualified as. guardian for the-four children-in-the-Marion county court, in this State, and the children were removed by him to Kentucky, and their domicile was in this State-from that time until the appellants, the daughters, married ; one of them, Laura, married S. L. Gray, and the other, Lunette, married T. M. Harris.\\nThe grandfather of - these children died in. the .year-1866, and Berry, the appellee, ,as their guardian, made, a settlement before the Marion county judge in 1869 of' the estate coming to his hands from their grandfather.\\nIn 1869 and 1871 the appellee made settlements in. -\\u2022the same court of what came to his hands from both estates. In 1872 he made a final settlement of his .accounts as guardian of Lunette, who married Harris, -she being 21 years of age, and in 1874, after Laura \\u2022 became of age, made a settlement of her accounts.\\nThis action is brought by the two daughters and their husbands seeking to make the guardian liable for assets that came into the hands of the Missouri executor, and \\u2022were unaccounted for by him, it being alleged in the petition that the same was lost to the appellants by \\u2022reason of the want of diligence on the part of their .\\u2022guardian in collecting it in the attempt to collect their -estate for distribution. Each distributee of this estate 'was entitled to about $11,000, and failed to get that much by some three thousand dollars.\\nIt is alleged in the petition that the judgment obtained against Caldwell in .the Marion county court in his final settlement that was not made until 1870, was \\\"$9,072 to each one of the children, and the amount of this judgment the appellants say was concealed from them by the guardian, and for this they ask a judgment. It is evident that this sum was the entire \\u2022 amount due to each child from the personal estate, .-and that the greater portion of that judgment had been paid to the guardian and by him accounted for in his \\u00a1 settlement with his wards. The judgment seems to have been rendered, or the final addition made, without reference to what had been paid by the executor, Cald- ' well, to the guardian. Berry had, in fact, received for his four wards near $17,000 before the settlement of 1870 was made, and after that time collected other \\u00a1sums, all of which he has settled or accounted for in Ms settlements. The only question is, should he be-compelled to account for the assets that never reached his- hands. If he used such diligence as a prudent business man would have exercised under the circumstances, he should not be held liable. He undertook to collect the estate of the infants in Missouri, and having-done so he was required to use such diligence at least-as he would have used in reference to his own affairs.\\nIt was not required of him that he should remain in Missouri and watch this estate as a resident guardian' or fiduciary should have done, but he was required to-have some vigilant, prudent agent or attorney to aid him in the collection of the moneys due his wards, and to take such steps as seemed to be necessary for that purpose.\\nWe think the general rule as to the diligence-required of trustees and guardians when applied to the facts of this case, releases the guardian from any liability for the default of the executor. The rule is: \\\"That nothing more should be required of a trustee-than that he should act in good faith and with the same-prudence and discretion that a prudent man is accustomed to exercise in the management of his own affairs.\\\" To subject a guardian to losses that he could not anticipate, and when the evidence shows that he is-acting in good faith and with at least ordinary judgment, would be inequitable and unjust.\\nThe case of Hemphill v. Lewis, reported in 7 Bush, is. relied on by counsel for the appellants in this case, wheie one guardian sued a former guardian but omitted to sue his surety, and the guardian becoming insolvent, and the claim not being prosecuted in time against the- surety, the estate of the infant was lost, the guardian was held responsible. There is a seeming hardship in that case in making the guardian liable, as this court has in many cases recognized the general rule already given, that a trustee who in the faithful discharge of his duties, has, in a matter of judgment or discretion, erred so as to expressly affect the parties in interest, he will not in general be held liable unless guilty of gross negligence, &c. Cross v. Petre, 7 B. M. In that case, however, it might well be said that the failure to sue the surety and thereby permitting him to be released by lapse of time was a gross neglect of duty, and for that reason the guardian should be held liable.\\nThe executor had three years in this instance in which to make distribution by the law of the State where he qualified. He made a final settlement in 1870, and during a great part of the time he acted as executor, having qualified in 1864, the country was in such confusion, and the business interests of the State of Missouri so much crippled, as to render it difficult to settle, collect, and distribute, a large estate with the facilities that would be required of a fiduciary under ordinary circumstances. The appellee, Berry, had sought the advice and employed as his agent the best counsel that part of the State afforded, and when the settlement was made in 1870, upon which an execution might have been issued for the amount due in accordance with the law of that State, the appellee was advised by his counsel that he had better not issue the execution ; that more could be made by delay than by \\u2022attempting to coerce payment. Acting upon professional advice and being placed in such a condition 'as absolutely required of tlie guardian that he should seek such advice, it would be unjust to hold him responsible when living in Kentucky. He could not be presumed to know as much of the business affairs of the executor and his ability to pay as those who lived in that State and was familiar with his surroundings.\\nLunette, in 1870, one of the wards, by the law of Missouri was sui juris, and the other became so in a short time thereafter. The execution had to issue in the name of one of the children at least, and was so issued, she having the same right tp control it as she would have had if of full age under the law of that State. The status of all persons who seek the aid of the courts of law or equity in Missouri must conform to the law of that State, and if the female at the age of eighteen is empowered by law to sue and be sued, the fact that she is not of age by the law of the State where she lives, will not authorize her guardian to sue for her or permit the mode of procedure in Kentucky to control the manner of relief in Missouri.\\nThe law of Missouri gave to the children a lien on all the real estate of the executor to secure them in the amount of their judgment, and by the advice of counsel the issuing of the execution was delayed, as it was manifest in the opinion of counsel that if executions issued the property would not pay the judgment. He gave no authority to his attorney to hold up the execution longer than he thought prudent, as .Berry states, and to use such judgment on his part as would enable him the more certainly to make the money. His actions and conduct should not be judged, and the same responsibility attached to his acts as would be the case if he had lived in the county and State, and as a business, prudent man would have been required to exercise his own judgment in regard to a matter about which he was as capable of. judging as the attorney employed by him. The testator knew when he selected the appellee as the guardian for his children that the latter must necessarily select some one to act for him in Missouri in winding up this estate. If, then, he selected a prudent advisor and counsellor, he ought not to be made liable even if his agent acted improperly in not issuing his execution sooner, the execution having been issued in 1872.\\nThe fact also appears that the attorney did collect without the aid of an execution more than two thousand dollars after the settlement was made. Beside his lawyer died, and the guardian then employed other able counsel to defend an action in equity with an injunction that the executor had obtained against the collection of the execution issued from the county court. That injunction was dissolved, the executor obtaining a credit for a small sum that by mistake had been charged against him.\\nThe judge of the circuit court testified that \\\"during all of his professional experience he never saw a man more diligent and attentive to the interests intrusted to his care than Mr. Berry during the entire litigation, or who under like circumstances used greater efforts to protect those interests than he did then and afterwards.\\\" This statement is corroborated by all familiar with the business connected with the settlement of this estate, and the acts of appellee with reference to it.\\nAfter Berry, appellee, had settled with these appellants, he informed them of the condition of the estate in Missouri. They knew of the equity action; the liability of the surety in the injunction bond as well as the sureties in the bond as executor. He had employed counsel to prosecute the claim against the sureties, and these appellants were unwilling to look to the sureties and sought relief against their guardian, whose acts so far as we are able to judge from this record evidence not only the best of faith, but that degree of prudence that he would doubtless have exercised in reference to his own business interests,, and measuring his conduct by the standard of common-prudence and judgment, no responsibility should rest, upon him in the form of a judgment in favor of these appellants.\\nThe county court of Missouri alone had the power to-make the division between the children as required by the will of the testator. The division was made, and the valuation fixed upon the real estate so, as to produce equality between, them, or if not the guardian should not be held responsible, besides giving to the appellants the interests they did get on the moneys paid them by the guardian to make them equal with those having real estate of more value, and giving to those having this real estate its income, and those receiving the money when settlement was made have now more income by way of interest than the income realized from the realty by those whose share in the personalty was lowered by having received it. So there is no such unjust division as calls for relief, and the guardian has-, received no more compensation than he was entitled to receive.\\nThe judgment below is therefore affirmed.\"}"

ky/1402661.json

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+"{\"id\": \"1402661\", \"name\": \"Mariah Avery v. J. M. Elder, et al.\", \"name_abbreviation\": \"Avery v. Elder\", \"decision_date\": \"1876-03-01\", \"docket_number\": \"\", \"first_page\": \"623\", \"last_page\": \"624\", \"citations\": \"8 Ky. Op. 623\", \"volume\": \"8\", \"reporter\": \"Kentucky Opinions, containing the unreported opinions of the Court of Appeals\", \"court\": \"Kentucky Court of Appeals\", \"jurisdiction\": \"Kentucky\", \"last_updated\": \"2021-08-10T23:04:21.728262+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Mariah Avery v. J. M. Elder, et al.\", \"head_matter\": \"Mariah Avery v. J. M. Elder, et al.\\nDecedent\\u2019s Estates \\u2014 Widow\\u2014Suit of Creditor.\\nWhere there is no administration of a decedent\\u2019s estate and a suit is brought,against the widow who has taken the property no recovery can be had where no averment is made that the personal property of decedent received by the widow was of greater value than she had a right by law to have set apart to her, before the payment of debts.\\nAPPEAL PROM CLINTON CIRCUIT COURT.\\nMarch 1, 1876.\", \"word_count\": \"370\", \"char_count\": \"2006\", \"text\": \"Opinion by\\nJudge Peters :\\nAlthough it is alleged that W. C. Avery died intestate, it is not alleged that no administration had been granted on his estate, nor is appellant sued as executrix de son tort, but she is sued as the widow, and it is alleged that after the death of her husband, she took into her possession all of his personal estate, worth over the amount of the judgments of appellees. It is also alleged that decedent was a soldier of the U. S. government in the late war and that appellant received the amount due him for a horse, for his back pay and the bounty due him for his services in the army to a greater amount than would be sufficient to satisfy said judgments. But it is not alleged in the petition that the personal estate of decedent, which was received by the widow, was of greater value than she had a right by law to have set apart to her before the payment of debts. As to the back pay and bounty received by her for the services of her husband in the late war, this court has repeatedly held that in such cases where the government has paid the money to the widow, or to the children of a soldier, it becomes the money of the widow, or children, and is not subject to the debts of the deceased soldier.\\nI. T. Montgomery, for appellant.\\nJ. A. Brents, for appellees.\\nThe allegations of the petition, therefore, are not sufficient to authorize a recovery against appellant in any aspect of the case presented. Wherefore the judgment is reversed and the cause remanded with directions to dismiss the petition.\"}"

ky/1405764.json

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+"{\"id\": \"1405764\", \"name\": \"Richard Raley v. Commonwealth\", \"name_abbreviation\": \"Raley v. Commonwealth\", \"decision_date\": \"1876-11-14\", \"docket_number\": \"\", \"first_page\": \"189\", \"last_page\": \"191\", \"citations\": \"9 Ky. Op. 189\", \"volume\": \"9\", \"reporter\": \"Kentucky Opinions, containing the unreported opinions of the Court of Appeals\", \"court\": \"Kentucky Court of Appeals\", \"jurisdiction\": \"Kentucky\", \"last_updated\": \"2021-08-10T23:27:32.411305+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Richard Raley v. Commonwealth.\", \"head_matter\": \"Richard Raley v. Commonwealth.\\nCriminal Law \\u2014 Plea of Former Conviction.\\nWhere there are two indictments against the accused, the first charging him with stealing a horse from J. B. Simpson in October, 1872, and the other with stealing the same horse from J. B. Simpson in December, 1874, and he is tried and convicted on the second charge, such conviction is a bar to a prosecution under indictment No. 1.\\nTime Stated in an Indictment.\\nThe time when an offense is charged to have been committed is not material except to show that it was committed before the finding of the indictment, except where time is an ingredient in the offense, and hence proof that one stole a described horse in October, 1872, or in De- . cember, 1874, would warrant the conviction of the accused under either one of two indictments.\\nAPPEAL FROM MARION CIRCUIT COURT.\\nNovember 14, 1876.\", \"word_count\": \"875\", \"char_count\": \"5043\", \"text\": \"Opinion by\\nJudge Cofer :\\nAt the February term, 1875, of the Marion Circuit Court, two indictments were found against the appellant for the crime of horse stealing. One, which we shall designate as number one, charged him with stealing a horse from J. B. Simpson in October 1872; and the other, which we will designate as number two, charged him with stealing a horse from J. B. Simpson in December, 1874. He was first tried under indictment number two, and a general verdict of guilty was found against him. He was then put upon trial under number one, to which he pleaded not guilty and a former trial and conviction.\\nThe evidence conduced to prove that the appellant stole a mare from J. B. Simpson in October, 1872, and sold her h> Huddleston; that in December, 1874, she escaped from Huddleston and returned to Simpson and in a day or two thereafter was again stolen by'the appellant and returned to Huddleston.\\n\\\"The statement in the indictment as to the time at which an offense was committed is not material further than as a statement that it was committed before the time of finding the indictment, except where the time is a material ingredient in the offense.\\\" Sec. 130, Cr. Code. It is therefore evident that proof that the appellant stole the mare either in October, 1S72, or in December, 1874, would have warranted his conviction under either indictment.\\nOn the last trial he gave in evidence the record of the first, and the evidence showed without contradiction that the J. B. Simpson named in the two indictments was the same person. The evidence also showed that on the first trial evidence was given against his objections conducing to prove the stealing of the mare by the appellant in 1872, but it also showed that the court told the jury that they should not consider any evidence except such as related to the stealing in December, 1874. The record of that trial, however, showed that the court instructed the jury that they should find the appellant guilty if they believed from the evidence that he stole the mare before the finding of that indictment, and refused, when asked to instruct them that they should find him not guilty unless they believe from the evidence beyond a reasonable doubt that he stole the mare about the time charged in that indictment, viz., December 16, 1874. It is, therefore, impossible to say that the evidence heard by the jury on that trial, in regard to the stealing of the mare in 1872, did not contribute to the verdict. It is-.true the court told the jury not to consider that evidence, but they were permitted to hear it, and when the court told them to find the appellant guilty if they believed lie stole the mare before the finding of the indictment, and especially after the court had refused to instruct them that they should find him not guilty unless he stole the mare in December, 1874, they may well have regarded the oral admonition not to consider evidence respecting the stealing of her at any other time as withdrawn.\\nC. S. Hill, J. W. Jones, for appellant.\\nMoss, for appellee.\\nBut aside from this consideration the plea was clearly sustained upon another ground. It appearing that the animal alleged in the indictments to have been stolen was the same, and that the same person owned her at the time each stealing took place, the same evidence necessary to convict him under indictment number one would have authorized his conviction under number two.\\n\\\"If the first indictment or information were such that the accused might have been'convicted und\\u00e9r it on proof of the facts by which the second is sought to be sustained, then the jeopardy which attached upon the first must constitute a protection against a trial on the second.\\\" Cooley's Const. Limitations, 328. The court should therefore have sustained the plea of former conviction.\\nIt did not matter that judgment had not been rendered on the verdict in the case number two. A motion had been made for a new trial and overruled, and the first case was thereby so far finally disposed of as to support the plea. 1 Bishop's Crim. Procedure, Sec. 581-\\nJudgment reversed, and cause remanded for further proceedings not inconsistent with this opinion.\"}"

ky/1418077.json

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+"{\"id\": \"1418077\", \"name\": \"J. W. Smizer, Gdn., et al. v. W. H. Inskeep\", \"name_abbreviation\": \"Smizer v. Inskeep\", \"decision_date\": \"1884-06-19\", \"docket_number\": \"\", \"first_page\": \"668\", \"last_page\": \"670\", \"citations\": \"12 Ky. Op. 668\", \"volume\": \"12\", \"reporter\": \"Kentucky Opinions, containing the unreported opinions of the Court of Appeals\", \"court\": \"Kentucky Court of Appeals\", \"jurisdiction\": \"Kentucky\", \"last_updated\": \"2021-08-10T19:04:15.811795+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"J. W. Smizer, Gdn., et al. v. W. H. Inskeep.\", \"head_matter\": \"J. W. Smizer, Gdn., et al. v. W. H. Inskeep.\\nJudicial Sale of Real Estate.\\nWhen one buys real estate at a judicial sale and the title is good he can not prevent the confirmation of the sale simply because he then thinks he offered too much for the property.\\nService on Minor.\\nWhere in a suit to sell real estate one minor defendant was not served by process but appeared by a guardian ad litem, and the omission is discovered before sale, the irregularity may be cured -by supplementary pleadings and proceedings so as to bind such minor\\u2019s interest.\\nAPPEAL FROM PAYETTE CIRCUIT COURT.\\nJune 19, 1884.\", \"word_count\": \"1117\", \"char_count\": \"6228\", \"text\": \"Opinion by\\nJudge Hargis :\\nThis action was brought by the guardians of the infant heirs of James M. Fisher and by his adult heirs to sell land descended to them. The infants were made defendants, process served, a guardian ad litem appointed who accepted and defended for them, and the statutory requirements complied with in every respect to authorize the sale except as to Lizzie Fisher. It is claimed that because she was not properly served with process the purchaser of the land sold under a decree rendered in the proceeding should be released from his purchase. The defect in the service was this: She was under fourteen years old and, no father, mother or guardian being found, the officer summoned W. C. Fisher who had her in charge to defend for her. The process was not served on her, and it seems the persons conducting the suit had overlooked or did not know of the Act of January 16, 1882. On exceptions being filed by the purchaser the plaintiffs immediately proceeded by supplemental pleadings and process to bring her before the court and to cure the irregularity. She was served with process according to the Act of January 16, 1882, and every essential statutory requirement again complied with so that no irregularity in the proceedings before confirmation of the sale was asked can be shown except the defective service of process as above stated.\\nAfter all this was done and a good and sufficient title presented through the court to the purchaser he resisted confirmation of the sale, and the court below adjudged that he was not bound by his bid and discharged him from his purchase. From that judgment the heirs and guardians have appealed. The purchaser bid the full value of the land if not more than its value. The record shows that the sale is highly beneficial to the infants and that those nearest to them in blood and interest are anxious for the sale to be confirmed. So it may be safely inferred that the purchaser is trying to escape confirmation because he thinks he made a bad bargain. Had exceptions been filed and the sale confirmed without the supplemental proceedings, the sale would not have been void, but voidable, and the decree of sale and confirmation subject to reversal. See Bustard v. Gates, 4 Dana (Ky.) 429; Spencer v. Milliken, 4 Ky. L. 856; Miller v. Rogers, MSS. opinion, June 4, 1883; Downing's Heirs v. Ford, 9 Dana (Ky.) 391.\\nThe guardian ad litem appeared and accepted the appointment and filed an answer under the first or defective service of process. Fie appears to have acted in good faith, and the infant, Lizzie, received at his hands all the protection she could have had even if the summons had been served on the guardian ad litem as provided for by the Act of January 16, 1882. Civil Code, \\u00a7 52, and that act recognize the practical suggestions made in the. case of Benningfield v. Reed, 8 B. Mon. (Ky.) 102, citing Bustard v. Gates and wife, 4 Dana (Ky.) 429, where it is said in substance that service on an infant under fourteen years old can not be of any practical value to it, and that its rights must at least depend upon the good faith of its guardian and the fidelity and care of the court. If any doubt existed, and we entertain none, about the meaning of the line of decisions alluded to, still we do not think that under our statutes of amendment and for curing errors in fiducial proceedings, and under the chancery practice prevalent in this state, that it was beyond the jurisdiction or power of the chancery court to cure the defects alleged in this case by the supplemental steps that were taken. According to the case of Marshall v. Marshall, 4 Bush (Ky.) 248, the act of January 12, 1866, reviving or continuing in force the acts of September 30, 1861, and March 1, 1862, applied to future as well as past cases; and in the light of Mahoney v. McGee, 4 Bush (Ky.) 527; Boyce v. Sinclair, 3 Bush (Ky.) 261, and Thornton v. McGrath, 1 Duv. (Ky.) 349, and the existence of the inherent and the essential power of courts of chancery curing irregularities in proceedings, we see no good reason for overruling that case. As no statute is found in the general statutes providing for curing irregularities of the kind now before us or upon that subject, the act of January 12, 1866, does not stand repealed, but is in force by virtue of the act of March 17, 1876.\\nBronston & Kinkead, J. Q. Ward, for appellants.\\nBuckner & Allen, Woolley & Buckner, for appellee.\\nThis being so the supplemental proceedings were authorized, and according to the case of Gates v. Kennedy, 3 B. Mon. (Ky.) 167, binding upon the purchaser who was tendered a good and valid title before his bids were decided not to be binding by the court below. How could the perfection of the title have injured the purchaser before he was required to accept it? If the title was not marketable it was when the purchaser made his bid, and at a time it must have operated in his favor, if it affected the sale at all. When his bid was asked to be confirmed the title was good in law and equity, and as he would have secured the land and a good title by his purchase, how can he be injured by a confirmation of the sale, unless by his own act in bidding more than he afterwards came to think the land was worth? The title, as offered through the court, was sound and marketable, and there can be no legal or equitable reason for litigation about it hereafter, and indeed it is presumed there will be none in the absence of an affirmative showing to the contrary.\\nWherefore the judgment is reversed and cause remanded with directions to confirm' the sale and for other proper proceedings.\"}"

ky/1418113.json

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+"{\"id\": \"1418113\", \"name\": \"Samuel Head v. Commonwealth\", \"name_abbreviation\": \"Head v. Commonwealth\", \"decision_date\": \"1883-03-08\", \"docket_number\": \"\", \"first_page\": \"11\", \"last_page\": \"12\", \"citations\": \"12 Ky. Op. 11\", \"volume\": \"12\", \"reporter\": \"Kentucky Opinions, containing the unreported opinions of the Court of Appeals\", \"court\": \"Kentucky Court of Appeals\", \"jurisdiction\": \"Kentucky\", \"last_updated\": \"2021-08-10T19:04:15.811795+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Samuel Head v. Commonwealth.\", \"head_matter\": \"Samuel Head v. Commonwealth.\\n[Abstract Kentucky Law Reporter, Vol. 4 \\u2014 824.]\\nCriminal Law \\u2014 Cutting with Intent to Kill.\\nAn instruction is erroneous which informs the jury that if the accused wilfully and maliciously cut and wounded the prosecuting witness with a knife they should find him guilty, in a case where the accused was charged with cutting with intent to kill, for it is not a felony unless the cutting was with the intent to kill and the charge to the jury said nothing about intent with which the cutting was done.\\nAPPEAL FROM MARION CIRCUIT COURT.\\nMarch 8, 1883.\\nCooper, McChord & Thomas, for appellant.\\nP. W. Hardin, for appellee.\\n[Cited, Bailey v. Commonwealth, 24 Ky. L. 1114, 70 S. W. 838.]\", \"word_count\": \"342\", \"char_count\": \"2012\", \"text\": \"Opinion by\\nJudge Hargis:\\nThe appellant was indicted, tried and convicted of the offense of wilful and malicious cutting and wounding with intent to kill, and sentenced to the penitentiary for the period of one year. From this sentence he appealed.\\nThe serious error committed against his substantial rights was in giving the first instruction, by which the jury were told if the appellant wilfully and maliciously cut and wounded James A. Wathen with a knife, etc., they should find him guilty,-etc. The acts set forth in the instruction did not constitute the statutory offense with which appellant was charged. It is a felony under our statute (Gen. Stat. [1881] Ch. 29, Art. 6, Sec. 2) to wilfully and maliciously cut or stab another with intent to kill, but it is not a felony to wilfully and maliciously cut or stab without such intent where death does not ensue; hence the instruction ought to- have contained the additional words \\\"with intent to kill\\\" or their equivalent. The jury were authorized to find appellant guilty of a felony on facts which constituted a misdemeanor only, and which did not constitute the offense for which he was indicted.\\nFor these- reasons the instruction was erroneous and the judgment is reversed and cause remanded with directions to grant appellant a new trial.\"}"

ky/1420423.json

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+"{\"id\": \"1420423\", \"name\": \"Kentucky Central R. R. Co. v. E. M. Thomas, Admr.\", \"name_abbreviation\": \"Kentucky Central R. R. v. Thomas\", \"decision_date\": \"1885-02-14\", \"docket_number\": \"\", \"first_page\": \"269\", \"last_page\": \"273\", \"citations\": \"13 Ky. Op. 269\", \"volume\": \"13\", \"reporter\": \"Kentucky Opinions, containing the unreported opinions of the Court of Appeals\", \"court\": \"Kentucky Court of Appeals\", \"jurisdiction\": \"Kentucky\", \"last_updated\": \"2021-08-10T20:01:30.394908+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Kentucky Central R. R. Co. v. E. M. Thomas, Admr.\", \"head_matter\": \"Kentucky Central R. R. Co. v. E. M. Thomas, Admr.\\n[Abstract Kentucky Law Reporter, Vol. 6\\u2014599.]\\nContributory Negligence.\\nIf an injury is occasioned entirely by the negligence of the defendant then the plaintiff is entitled to recover; but if the plaintiff (or decedent) so far contributed to it by his own neglect, that but for it the misfortune would not have occurred, then the defendant should not be made to suffer.\\nPrima Facie Negligence.\\nWhen there is ample room in the passenger cars of a railroad company but a passenger places himself in a more dangerous position upon the train, his negligence is prima facie shown and the burden is cast upon him to avoid it.\\nKnowledge of Railroad Company That Passenger is in an Exposed Position.\\nIf a passenger on a railroad train takes his position outside of a passenger coach and the employes of the company charged with running the train know it and either consent or do not object to it and injury thereby results, the railroad company will be held liable.\\nAPPEAL FROM HARRISON CIRCUIT COURT.\\nFebruary 14, 1885.\", \"word_count\": \"1984\", \"char_count\": \"10975\", \"text\": \"Opinion by\\nJudge Holt:\\nThe appellee's intestate, Edwin M. Thomas, was an Adams Express Messenger over the appellant's road, and while not on duty, but when on a return trip for the purpose of again going out in charge of freight, and when riding in the express car, he was killed by a collision, which wrecked the engine, and the baggage and express, but not the passenger cars.\\nWhether the wreck was caused by the negligence of the appellant's agents in charge of the train, is in dispute; but as to it, the testimony is conflicting, and hence so far as this court is concerned the verdict must be regarded as conclusive, and the main question presented by the appeal in this action which was brought under section 1, chapter 5, of the General Statutes for damages for the killing of Thomas, is whether he was guilty of such contributory negligence, but that for it, he would not have lost his life. The rule upon this point is well settled. If it was occasioned entirely by the negligence of the appellant, then the plaintiff is entitled to recover; but if the decedent so far contributed to it by his own neglect, that but for it the misfortune would not have occurred, then the defendant should not be made to suffer; and the rule applies equally whether the decedent's negligence exposed. him to the injury, or whether it aided in causing the accident from which the injury resulted.\\nAlthough by the contract between the two companies, the appellant was to transport the express messengers, yet when they were not in charge of freight and on duty, they must be regarded as passengers.\\nThe decedent when there was ample room in the passenger cars, voluntarily placed himself in a more dangerous position upon the train, and when this appears as to a passenger, his negligence is prima facie shown and the burden is cast upon him to avoid it; but ihe appellant had a right to carry passengers in its express car if it saw proper to do so, and they had a right to be there by appellant's consent. We are aware that it has been held in some cases that the managers of a train are not bound to restrict the passengers as to their proper place, and from imprudent acts, and if not induced by the managers to take exposed positions, and they do so without occasion, it is at their own risk, even if it be with the consent of the managers, but in our opinion the proper rule is that if the latter know of it, and consent or do not object to it, and injury thereby results, liability should accrue. Burns v. Bellefontaine R. Company, 50 Mo. 139.\\nUndoubtedly it ought not to be required of the agents of a railroad company to keep passengers in their proper place, but if they know that they are in exposed and improper places on the train, it is their duty to forbid it, and if they do not, and injury accrues, the company should be held responsible although it may not in express terms by its agents have invited or required the passenger to take such position. In the case of O'Donnel v. Alleghany Valley R. Company, 50 Penn. 239, this question was fully discussed. It was a case much like this one. O'Donnel was a laborer and by a contract between his employer and the railroad company, he was carried back and forth as a passenger to the place of labor. While riding in the baggage car with the knowledge of and without objec tion by the conductor, he was injured when he would not have been, if he had been in the passenger coach.\\nIt was proven that it was customary with him to so ride, and that the conductor knew it and never objected. The testimony showing that he was in the habit of so riding was admitted, and it was held that the passenger travels under the charge of the conductor, and that the jury had a right to presume from the evidence that O'Donnell was in the baggage car by the permission of the conductor, and therefore rightfully there.\\nThis case has been once before in this court upon an appeal by the present appellant (79 Ky. 160), and upon the first trial of the case below, the counsel for the appellant judging from the instructions then asked by them seem to have recognized what we regard as the correct rule; but upon that trial there was no evidence showing that the officer in charge of the express car when Thomas was killed, and the baggage master knew of' his presence there!\\nUpon the last trial, however, this was clearly proven, and the effort then upon appellant's part was by the instructions to the jury to confine this knowledge to the conductor, and it is now urged that this should be the rule. It is true he is, as to the train under his charge, the general agent of the company, but the baggage master might well have the control of the express or mail car as indeed is shown by rule 44 of appellant. It reads thus: \\\"Conductors and baggag\\u00e9 masters must not allow any person to ride in the baggage, mail or express cars, whose duty does not require them to be there.\\\"\\nThe testimony shows that while the conductor did not know that the deceased was in the express car, yet the baggage master did, and that the latter by an agreement between him and the conductor and with the consent of the appellant's superintendent, had control of the baggage and express cars.\\nThe jury had a right to infer from this knowledge of the agent of appellant, who was in control of the car, that Thomas was there by his consent, and the testimony tending to show that the deceased was in the habit of riding there, even when not on duty was competent to go to the jury for the same purpose.\\nThis court in its former opinion in this case, through its lamented then Chief Justice used this language: \\\"But if the nature of the accident be such that the danger of injury was not enhanced in consequence of the position occupied by the passenger, or if the accident was of such a nature as was as likely to occur in one portion of the train as another, or if he occupied the place with the knowledge or consent of the conductor, his right of recovery will not be affected by the fact that he was at an improper place.\\\"\\nWe still adhere to this rule, and it of course applies equally whether the conductor or some other agent of the company is in charge of the particular car or cars into which the passenger may improperly go; and in the former opinion the conductor alone was named, because the record then did not show that the car in which the decedent was when he was killed, was then under the control of another agent of the appellant.\\nIt is perhaps needless to review the instructions that were given to the jury. It is alleged in the petition that the appellant by its contract with the express company, \\\"undertook and agreed for a stipulated valuable consideration to transport upon its \\u2022 said cars (speaking of its cars generally) the agents of said company and the freight consigned to them.\\\"\\nThe response in the answer to this is as follows: \\\"The defendant denies that there was any contract at the time when the said plaintiff's intestate was killed between the said Adams Express Company and the defendant whereby the defendant undertook or agreed to carry the messengers of the said express company in the said car provided by the said defendant for the transportation of the freight in charge of the messengers of the said express company, except such messenger or messengers as might for the time being be on duty and have the said freight in charge.\\\"\\nIt can hardly be said that there was no issue whatever as to the terms of the contract, and yet the first instruction given at the instance of the plaintiff perhaps gave undue prominence to the contract and the fact that the decedent was the messenger of the express company; but even if this be so, it was fully cured by instruction \\\"F\\\" which distinctly told the jury that he occupied the relation of a passenger and if anything inclined too far to the view of appellant's counsel by telling the jury that it was the decedent's duty to have occupied a passenger car unless the appellant's agent in charge of the train had assigned him a different place, and if he voluntarily and for his own convenience and not by the direction of the defendant's agent in charge of the train, went to a more dangerous place to ride and thereby lost his life, he could not recover.\\nO'Hara & Bryan, for appellants.\\nJ. Q. Ward, C. W. West, for appellee.\\n[Cited, Louisville & N. R. Co. v. Beard, 28 Ky. L. 922, 90 S. W. 944.]\\nThe third instruction is like one given upon the first trial and which this court upon a former appeal approved.\\nThe amendments made by the court to instruction \\\"A\\\" asked by the appellant were proper because without them the jury were limited to finding whether the decedent was riding in the express car with the knowledge or consent of the conductor, even if the baggage master was then in charge of that car; and for the same reasons instructions \\\"C\\\" and \\\"D\\\" asked by the appellant were properly refused.\\nAn inspection of the record discloses that the last named instruction is not equivalent to instruction \\\"A\\\" asked by the appellant upon the first trial, and which this court upon the evidence then in the record, held should have been given. Upon the contrary, instruction \\\"F\\\" given upon the last trial conforms in substance to said instruction \\\"A.\\\" Instruction \\\"B\\\" asked by the appellant was properly refused as it simply told the jury that if at the time of the accident the decedent was voluntarily and for his own convenience, in the express car, there could be no recovery. It should also have. embraced the question whether he was there with the knowledge or by the consent of the appellant's agent then in charge of the car, and by reason of not doing so, was calculated to mislead the jury. The appellant has \\\"twice\\\" had its day in both this and the court below, and so we perceive no error connected with the last trial prejudicial to its substantial right the judgment is affirmed.\\nJudgment affirmed.\"}"

ky/2056998.json

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+"{\"id\": \"2056998\", \"name\": \"Kerley vs. Hume & Hume vs. Gillespie\", \"name_abbreviation\": \"Kerley v. Hume\", \"decision_date\": \"1825-04-17\", \"docket_number\": \"\", \"first_page\": \"181\", \"last_page\": \"184\", \"citations\": \"3 T.B. Mon. 181\", \"volume\": \"19\", \"reporter\": \"Kentucky Reports\", \"court\": \"Kentucky Court of Appeals\", \"jurisdiction\": \"Kentucky\", \"last_updated\": \"2021-08-10T19:44:14.640080+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Kerley vs. Hume & Hume vs. Gillespie.\", \"head_matter\": \"Kerley vs. Hume & Hume vs. Gillespie.\\nApril 17.\\nCross writs of error to the Madison Circuit; George Shannon, . Judge.\\nNolle Prosequi. Judgment. Pleading. Officers. Executions. Evidence.\\nReplevin. Case 66.\\nAction of replevin by John flume vs. Kerley, a Constable, & Gillespie.\\nCognizance by the constable, alleg, ing tho goods were the property of a third person, againstwhom he had a ft. fa. under which ho made the seizure.\\nPlaintiff\\u2019s replication,\\nGillospie\\u2019s plea of no property in plaintiff.\\nRonlioation to Gillospie\\u2019s plea.\\nKolU prosequi as to Kerley. Judgment of tho circuit court as to Kerley.\\nJury, verdict and judgment as to Gillespie.\\nWritsoferror,\", \"word_count\": \"1638\", \"char_count\": \"9323\", \"text\": \"Judge Owsley\\ndeliyered the Opinion of the Court.\\nThis was an action of replevin, brought in the \\u2022circuit court by John Hume, against Kerley and Gillespie, for the taking of a horse, saddle &c.\\nTho sheriff executed the writ by delivering the horse &c. to Hume; and both Hume and Gillespie appeared to the action and made separate defences.\\nThe defendant Kerley made cognizance by acknowledging the taking of the property, but alleged that he did so as constable of Madison county, under a writ of fieri facias, which issued from a justice of the peace for that county, against the estate of Charles Hume, to whom the property takeu belonged, in favor of William Robinson and Lewis H, Gillespie, for \\u2014-\\u2014 dollars, &c.\\nHume replied, that the horse, saddle &c. were pot the property of Charles Hume, as alleged by Kerley, and tendered an issue to the country, which was joined by Kerley.\\nGillespie pleaded that the horse, saddle, See. were not the property of the plaintiff John Hume, at the time of the taking mentioned in the declaration, but were the property of Charles Hume, &c.\\nIn reply to this plea, John Hume alleged, that the horse, saddle, &c were his property, and not the property of Charles Hume, &c.\\nThe plaintiff, John Hume, then entered a nolle prosequi as to Kerley, and judgment was thereupon entered, \\\" that as to Kerley, the canse be dismissed, ami that he recover of the plaintiff, his cost expended, See.\\nA jury was then caljod to try the issue as to Gillespie, and a verdict was found for him; whereupon the court rendered judgment in bar of.the plaintiff John Hume's action.\\nTo reverse this latter judgment, John Hume has prosecuted a writ of error, and to reverse the judgment entered in favor of Kerley, a writ of error has also been prosecuted by Kerley.\\nWhore the plaintift' in replevin enters a nolle prosequi as to a defendant, ivho has made cognizance and claimed the right to the possession of the property, there shall ho judgment for a return of the property, unless it appears by the record, defendant is not entitled to it.\\nDenial of plaintiff' by his replication that defendant had right, has no effect after nolle prosequi\\nif it appear in replevin, against ;ui officer who had seized the goods by execution a-g;itinst a tin it 1 [/cr&on, lhat i-aeh person Uad not right, there shall hot be a judgment for rejurn of the vruads.\\nWhen the tiolle prosequi was entered as to Kerley, it was undoubtedly correct to render a judgment of some sort against the. plaintiff John flume. It was not only correct to enter judgment dismissing the suit as to Kerley, but it was moreover strictly proper to award to him, cost against Hume. This, in ordinary cases, would be all that a defendant could regularly demand upon a nolle prosequi being entered by the plaintiff; but in an action of .replevin, such as the present, the judgment ought, we apprehend, to go further. The defendant in replevin, as well as the plaintiff, is actor, and according to the well settled principles of the, common law, judgment should, in (he general, upon the dismission of the action, be given for a return of the property to the defendant. There may be, and probably are exceptions to this general rule: as for example, if, when the suit is dismissed, it should appear from the record, that the defendant is not entitled to the possession of the property, it might perhaps be irregular for the court to render judgement for the property to be returned to him.\\nRut as respects Stho right of Kerley, nothing of that sort appears from the record in this case. It is true, that by the replication which v/as put in by John Hume to the statements contained in the cognizance made by Kerley, it is denied that the right of the property was in Charles Ilmne, against whom the execution issued, under which Kerley took the property.\\nAnd we readily admit, that as an officer of the law, claiming the property under a levy of the execution against Charles \\u00edlume, the defendant Kerley is not entitled to the possession, if the property' were in fact not the property of Charles Hume.\\nBut we are not to infer, from the denial of John Hu me, that the property did not belong to Charles Hume; for that denial amounts to nothing more than a traverse of what had been previously alleged by Kerley; ami not only so, but by entering a nolle prosequi, Hume put it out of the power of Kerley to disprove the denial, and establish the right of property to be. in Charles Ki?nu\\\\\\nIn the cognizanco of a constable in such case', the statement of tlio amount of \\u00fcis fi. fa. from the justice in Wank, will not be fatal after issue &voidict.\\nNor is it an available objection alter verdict in such case, that there is no prayer for return of the property.\\nThe judgment is the conclusion of law from the facts, which \\\" the court will draw and pronounce, whether demanded in pleading or not.\\nTbe record contains nothing, therefore, to fake the case out of the general principle of the common law; and of course judgment should have been rendered in favor of Keriey for a return of tbe property, so that he may be enabled to dispose thereof, under the execution by which it was taken.\\nIt was contended in argument, that the cognizance of Keriey is insufficient to shew that the property was taken by him under a fieri facias which issued from competent authority, and as such, not sufficient to entitle him toa return of the property. We however think differently. The fieri facias is' alleged to have issued from a justice of the peace, and the only objections to which, even in point of form, the allegations of the cognizance is liable, consists in the omission to state the precise amount of the demand contained in the execution. But though not stated, the cognizance contains a blank space for the amount, and after issue joined upon other facts, it would be indulging a technical strictness, not calculated to attain the justice of the cause, to adjudge the omission a fatal objection to the cognizance.\\nIt was also objected, that the cognisance contains no prayer for a return of the' property, without which, it was contended, there can he regularly no judgment in favor of Keriey for a return.\\nIf, however, we are correct in the opinion, that' tbe cognizance contains enough to shew a light in Keriey to the possession of the property, bis failure to pray for a return, cannot he admitted a sufficient X'eason for not rendering judgment for a return. It would be more strictly conformable to technical precision, for a cognizance to conclude with a prayer for a return of the property, but without such a prayer, the cognizance may contain matter sniff-, cient to authorize a judgment in favor of the defendant for a retiu'n.\\nIn replevin, as in other actions, tbe judgment which it is incumbent upon the court to render, is ' the conclusion of law upon the facts of the case, and not the result of any demand or prayer that cither party may think proper to make in the pleadings.\\nOn the trial of tlic issue of property or not in plaintiff, it is not necessary for him to prove defendant-took the property eat of his possession.\\nMandate for judgment against llume for return of property to Keriey. New trial between Hume and Gillespie, &c.\\nGaperton for Keriey and Gillespie: Turner for Hume.\\nThe judgment in favor of Keriey ought therefore to have gone further, and directed the property to be returned to him.\\nWitin respect to the judgment recovered by Gillespie, we are also of opinion, that the court erred in its instructions to the jury on the trial of the issue made up between him and the plaintiff John Hume. By that issue, the right of property, and the right, only, was drawn in question,* and whatever might have been the rule in a different state of pleading, it cannot have boon necessary, under the issue joined between the parties, lor Hume to have proved that he was actually possessed of the property when it was taken. It was consequently incorrect for the court to instruct the jury, that the plaintiff John Hume could not recover, unless he had actual possession of the property when it was taken by the defendant.\\nThe judgment in favor of Keriey, as well as that in favor of Gillespie must, therefore, be reversed, and the cause remanded to the court below, and a judgment there rendered in favor of Keriey in conformity to this opinion; and such further proceedings had upon the issue made up between Hume and Gillespie, as may not be inconsistent with the principles of this opinion. Keriey must recover cost in this court in the writ of error prosecuted by him against Hume; and flume must recover cost in the writ of error prosecuted by him against Gillespie.\"}"

ky/2442543.json

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+"{\"id\": \"2442543\", \"name\": \"Commonwealth v. Loeb; Same v. Marks\", \"name_abbreviation\": \"Commonwealth v. Loeb\", \"decision_date\": \"1932-11-15\", \"docket_number\": \"\", \"first_page\": \"843\", \"last_page\": \"848\", \"citations\": \"245 Ky. 843\", \"volume\": \"245\", \"reporter\": \"Kentucky Reports\", \"court\": \"Kentucky Court of Appeals\", \"jurisdiction\": \"Kentucky\", \"last_updated\": \"2021-08-10T18:43:06.306404+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Commonwealth v. Loeb. Same v. Marks.\", \"head_matter\": \"Commonwealth v. Loeb. Same v. Marks.\\n(Decided Nov. 15, 1932.)\\nBAILEY P. WOOTTON, Attorney General, H. HAMILTON RICE, Assistant Attorney General, and PETER, LEE, TABB, KRIEGER & HEYBURN for appellant.\\nGROVER G. SALES for appellees.\", \"word_count\": \"1815\", \"char_count\": \"10593\", \"text\": \"Opinion op the Court by\\nCreal, Commissioner\\u2014\\nAffirming.\\nThese cases involve the validity of sections 2 and 3 of an ordinance of the city of Louisville entitled: \\\"An Ordinance regulating the sale at public auction of tangible personal property to consumers.\\\" They were heard together in the trial court and here. The lower court found that sections 2 and 3 of such ordinance were invalid, and from that judgment this appeal is prosecuted.\\nAs its title states, the ordinance is designed to regulate the sale of personal property at public auction in the city of Louisville. Section 1 of the ordinance forbids any person, firm, or corporation from selling, disposing, or offering for sale at public auction in the city of Louisville any tangible personal property, whether his own or that of another, except in the manner prescribed by the ordinance.\\nSection 2, which is attacked, provides:\\n\\\"No retail or wholesale merchant shall sell or offer for sale at.public auction, to consumers, any of his stock of goods on hand unless he has been engaged in such business in the City of Louisville continuously for at least one year next preceding such sale, and such public auction shall be held at a place where such merchant shall have been engaged in such business for at least' ninety (90) days immediately preceding such sale.\\\"\\nThe rest of the section provides for the obtention of a license, the payment of a license fee, and the execution of a bond, and prohibits the sale at such auction of any goods other than those owned by the merchant.\\nSection 3 of the ordinance, also attacked, provides:\\n\\\"Licensed pawnbrokers may sell at public auction their unredeemed pledges in the manner provided for by law at their regular licensed place of busi ness only and shall not sell unredeemed pledges of anyone else. Auction sales conducted by such pawnbrokers to dispose of unredeemed pledges shall be held on successive days, Sundays and legal holidays excepted, and shall not continue for more than a thirty (30) day period at any one time, and sixty (60) days shall elapse between ending of any such period and the beginning of another. ' '\\nSection 4 provides for the tagging of articles offered at auction, giving a description of the character and quality of the goods offered for sale, together with other details not here material. Section 5 is aimed at the prevention of by-bidding. Section 6 provides for the details of the bond referred to in section 2. Section 7 provides the penalties for the violation of the ordinance. Section 8 exempts from the provisions of the ordinance judicial sales, sales by executors or administrators, and sales by persons other than merchants or pawnbrokers of their personal or household effects. Section 9 provides that, if any section or parts of sections of the ordinance shall be declared void, that shall not operate to invalidate any other provision, section, or part of the ordinance. Section 10 provides for the repeal of inconsistent ordinance.\\nThe general principle by which this case must be decided is not in dispute. It is settled that the business of selling by auction is subject to reasonable regulations by the state or municipality under its police power, and the question in each case is whether or not the regulations provided by the state or municipality are reasonable. Biddles v. Enright, 239 N. Y. 354, 146 N. E. 625, 39 A. L. R. 766; Mogul v. Gaither, 142 Md. 380, 121 A. 32; Holsman v. Thomas, 112 Ohio St. 397, 147 N. E. 750, 39 A. L. R. 760; Carrollton v. Bazzette, 159 Ill. 284, 42 N. E. 837, 31 L. R. A. 522; People v. Gibbs, 186 Mich. 127, 152 N. W. 1053, Ann. Cas. 1917B, 830; Miller v. City of Greenville, 134 S. C. 314, 132 S. E. 591, 46 A. L. R. 155; Dusenbury v. Chesney, 97 Fla. 468, 121 So. 567, 569. It is in the application of this principle to the situation here presented that the parties sharply differ. Addressing ourselves to section 2 of the ordinance, we find that it is applicable, first, to\\\" all retail and wholesale merchants, and, secondly, to all classes of personal property which may be sold by a retail or wholesale merchant. A sale by auction of any such property by any such merchant is forbidden unless such merchant shall have been in business at least one year next preceding such auction and unless such auction be conducted where the merchant has been in business for at least 90 days immediately preceding such sale. We have no hesitancy in holding unreasonable the provision that the sale must be conducted in a place where the merchant shall have been in business for at least 90 days preceding the sale. Of course, the purpose of this section is to protect the public from fraud too often practiced by itinerant merchants, irresponsible people who come to a town at a certain period of the year, remain a short while, sell their goods, and are gone. But, in the effort to obtain that object, this ordinance goes so far as to prevent a merchant who may have been in business for a number of years in Louisville, but who through some fortuitous circumstance has been compelled to change his place of business, from-conducting an auction sale until he shall have been in his new place of business at least 90 days.. It would also prohibit those established merchants whose business is conducting auction sales of their goods throughout the year from .moving their places of business save under a penalty of suspension of such business for a period of 90 days. As well said in appellee's brief:\\n\\\"There are a great many merchants now holding auction sales to stimulate sales. Furniture stores have been holding them. Everyone concedes that an auction sale is a perfectly legitimate and proper way of disposing of merchandise. They can be properly conducted, and in many instances they are properly conducted. But surely the place where the auction is held is a matter of entire indifference, except to competing merchants and these have no right to complain. Everyone knows that we have fake clearance sales and fraudulent liquidating sales by regular retail merchants. Against such sales the public has no protection but the Better Business Bureau and its own common sense. Auction sales, on the oth\\u00e9r hand, are regulated by law because of the nature of the transaction. The haste with which the article is sold, the competitive spirit between buyers \\u2014 all these make proper the requirements of a special license, a special tag and a special bond. But a requirement that a resident of Louisville may not move his auction location or open a branch auction house, or sell his goods at one place rather than another is so unreasonable and arbitrary and illogical with reference _ to the public protection that it leads one to the belief that this ordinance was sponsored, in part at least, for the purpose of eliminating auction competition.\\\"\\nWe are further of the opinion that the requirement of this section 2 of the ordinance that the merchant, before he is authorized to conduct an auction sale, must have been in business for at least one year, is likewise unreasonable. It is true that such a provision as to auction sales of gold, silverware, and jewelry has been upheld in the Maryland case of Mogul v. Gaither, supra, and the Ohio case of Holsman v. Thomas, supra, but, as well said in the Florida case of Dusenbury v. Chesney, supra, where an ordinance applicable to auction sales of all classes of merchandise was involved, in distinguishing the Maryland case supra:\\n\\\"Auction sales of the latter class of merchandise (gold, silverware and jewelry) are usually recognized as affording a reasonable basis of independent classification in the exercise of the regulatory police power for the purpose of preventing fraud and deception.\\\"\\nHowever, here, as in the Florida case, the ordinance is applicable to all kinds of personal property, not only to that which is peculiarly subject to fraudulent or deceptive auction sales, such as jewelry and silverware, but also to that concerning which any complaining of fraud or deception is rarely if ever heard, and the sale of which by auction is rarely if ever conducted by itinerant merchants. To assure the public of the bona fides of the sale and the responsibility of the merchant, the state or municipality can prescribe a reasonable period of time for sales in ordinary course prior to auction sales, the reasonableness of which time may perhaps be different as to different classes of property, depending on the inherent or known evils connected with auction sales of such property. But a blanket prohibition for a year applicable to all classes of property, such as we have here, is unreasonable. It would prevent a bona fide merchant who is dealing in property concerning auction sales of which fraud or deception is practically never heard from holding such sale to clear his stock, or to liquidate his affairs, even though say six months had elapsed since he had entered upon his business. The scope of the prohibition is too broad, and so, unreasonable. We do not regard the other provisions of section 2 as unreasonable, nor indeed is it argued that they are.\\nComing to section 3, we are also of opinion that, in so far as it prohibits licensed pawnbrokers from selling-their unredeemed pledges at any place except at their regular licensed place of business and confining their auction sales to 30-day periods with lapses of 60 days between such auction sales, it too is unreasonable. So far as the place where the unredeemed pledges are sold, no reason is pointed out how such a prohibition as we have here serves to prevent fraud or deception. The regulation of these auction sales is under the police power \\u2014 to protect the public from fraud and deception and from irresponsible merchants. The place where the pledge is sold has no relation to any of these ends. Nor does the periods within which these sales may be conducted as herein set out have any such relation. Section 3790 of the Kentucky Statutes gives to any pawnbroker the right to sell any article pawned after the expiration of 90 days from the maturity of the loan. The statutory right thus given to sell unredeemed pledges by any method known to business should not be circumscribed unless clearly in the interest of the public welfare.\\nIt follows from what we have said that the judgment of the lower court is correct, and it is affirmed.\"}"

ky/2461793.json

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+"{\"id\": \"2461793\", \"name\": \"Martin v. Commonwealth\", \"name_abbreviation\": \"Martin v. Commonwealth\", \"decision_date\": \"1937-06-04\", \"docket_number\": \"\", \"first_page\": \"688\", \"last_page\": \"698\", \"citations\": \"269 Ky. 688\", \"volume\": \"269\", \"reporter\": \"Kentucky Reports\", \"court\": \"Kentucky Court of Appeals\", \"jurisdiction\": \"Kentucky\", \"last_updated\": \"2021-08-10T19:04:28.998527+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Martin v. Commonwealth.\", \"head_matter\": \"Martin v. Commonwealth.\\n(Decided June 4, 1937.)\\n(Rehearing Denied Oct. 1, 1937.)\\nC. R. LTJKER and A. T. W. MANNING for appellant.\\nHUBERT MEREDITH, Attorney General, and JESSE K. LEWIS, Assistant Attorney General, for appellee.\", \"word_count\": \"3979\", \"char_count\": \"22089\", \"text\": \"Opinion op the Court by\\nMorris, Commissioner\\u2014\\nAffirming.\\nThe grand jury of Lanrel connty returned a true bill charging Dan Martin and his wife with the murder of Charley Benge. The indictment is out of the ordinary, since it charges the shooting occurred in Clay county, but that after the mortal wounds were inflicted Benge died, as a result thereof in Laurel county. Upon a separate trial appellant was found guilty of manslaughter and his punishment fixed at confinement in the penitentiary for twenty-one years. He appeals.\\nThe shooting occurred in Clay county not far from the Laurel county line, shortly after dark on Saturday, May 30, 1936. On that afternoon, according to appellant's testimony, two or three of appellant's boys had gone to a meeting at the cemetery down the creek from his home. They were delayed in getting home, and his wife and granddaughter had gone down the road to look for them. About a half hour after the two had' left, appellant says he heard some shooting from the direction in which they had gone. He went to a rack,- procured an automatic shotgun, and, after seeing that there were loaded shells in the .magazine, started down the creek. The shells were loaded with buckshot, or a large size shot. As he proceeded, he says he heard more shooting and could hear some one begging, and a voice or voices telling some one to go back up the road or die. As he got nearer, he saw his wife coming up the road and behind her two boys on a mule, driving her up the road. He watched for several moments, the boys on the mule still driving her, and occasionally shooting around her. As they got nearer to where he was, in the road or in a field just off the road, he said to the boys, ' ' Go on down the road and let this old woman alone,\\\" and at this time they began to shoot at him.\\nAppellant admits that he then fired two shots from his shotgun; saw the mule drop. He says that he recognized Benge, but did not know who was with him. He also says that he did not know that Benge was down the road that night, and that he had theretofore had no trouble with him or Cupp, who was one of Benge's companions. It was admitted by appellant that he had theretofore been actively interested in the prosecution of a brother of deceased for the killing of appellant's son-in-law. His testimony, in the main, was substantiated by his grandchild, who was with his wife.\\nIt was shown by the commonwealth that deceased and Dan Cupp were riding a mule, Raymond Cornett on another mule, accompanying them, down the creek. They came to where appellant's wife and Ollie Hammond were standing on the right side of the road. The three eyewitnesses say that the following conversation took place: \\\"She [Mrs. Martin] said, 'Where are you going? and Benge told her he was going to Bob Houses,' and she said, 'You had better go back up that road,' and Benge said, 'No, we have started to Bob's house. ' \\\" At this point the witnesses say that appellant, who was in the field just off the road, spoke up and said, \\\"You better go back up that road,\\\" and the wife said, \\\"Kill them,\\\" and appellant at once fired. His first shot missed, and he then fired two other shots which took effect mainly on Benge and the mnle. Cupp received one buckshot wound. The mule, which was also killed, went down throwing Benge on his back. Cupp says he then fired in appellant's direction five or six times, and Benge who was lying on his back fired several times in the air. Cornett and Cupp left Benge lying on the ground and went to a neighbor's home seeking aid for him.\\nThe only other evidence which tended to throw any light on the occurrence was that of persons living in the neighborhood who heard the sounds made by the firing of the weapons. A number testified for the commonwealth and were positive from the reports that the shotgun was fired first; some say two and others three times, and that the pistol shots came afterwards, thus bearing out the testimony of the commonwealth's eyewitnesses. Others \\u2014 and the numbers are about equal \\u2014testify that the pistol shots came first, then the shotgun, and then more pistol shots. The testimony of the witnesses for the commonwealth appears to have been more direct and positive.\\nOn motion for a new trial, a number of grounds were urged in support, and in brief few if any are abandoned. It is first urged that the case did not stand for trial on the day it was tried. Counsel says (and the record shows) that appellant and his wife were indicted on June 10, 1936, on which day a bench warrant was issued, with bond indorsed at $3,000. The sheriff executed the bench warrant on July 3, and took bond. It is arg'ued that the bond did not fix any time or place when appellant should appear, and there had been no order of court assigning the case for trial. The bench warrant directed the accused to answer an indictment in the Laurel circuit court, the bond obligating the appellant to appear before the court, and therein stated the time and place to answer said charge. On October 27, the case was called for trial and the commonwealth am swered \\\"ready\\\" and the defendant \\\"not ready\\\" and moved for a continuance, filing in support thereof his affidavit.\\nThe affidavit, as far as we observe, made no reference to any alleged defect in the bench warrant, bond, or to any omission of an order fixing the date of trial. The affidavit set out the fact that appellant's wife was a necessary witness and that she was ill at the time and could not appear. He also named other witnesses who would truly testify to facts showing his innocence, and says that the proper effect of their testimony could not be had without their presence. The court overruled the motion for a continuance, and we think properly so, first on the ground that on appellant's separate trial the wife could not testify, and that the affidavit as to what she, or other named witnesses would testify, disclosed nothing more than conclusions, without any attempt to detail facts.\\nAs said, the motion did not raise any question of improper or illegal procedure, nor did the affidavit make any reference thereto. The procedure here was in strict conformity with sections 186 and 187 of the Criminal Code of Practice, and opinions construing same. Breeding v. Com., 190 Ky. 207, 227 S. W. 151. Aside from this, appellant was present in court when his case was called, and he had from July 3 to October 27, to make preparation for his trial. We conclude that there was no error in respect to the matter urged.\\n2. It is contended that the court did not have jurisdiction to try appellant because the deceased was \\\"shot and killed in Clay county,\\\" the argument being that there was not sufficient proof that Benge died in Laurel county. As disclosed by the evidence, the shooting occurred in Clay county near the Laurel line. One Cor-nett procured a truck and placed Benge in same for the purpose of taking him to a hospital in London. At the time he placed him in the truck, Benge could be heard breathing; as witness proceeded on his way, he says: \\\"He moved his arm before we got to Johnson hill, lifted his arm'up.\\\" On being asked \\\"Whereabouts did he die, in Clay county or Laurel county?\\\" he answered, \\\"He died in Laurel county.\\\" \\\"Q. As a matter of fact do you know he was in Laurel county before he died? A. Yes .sir.\\\"\\nSection 1147, Kentucky Statutes, provides:\\n\\\"If a mortal wound or other violence or injury be inflicted in one county and death ensues in another, the offense may be prosecuted in either. ' '\\n'The appellant was indicted and arrested in Laurel county, and without seeming objection executed bond and subjected himself to the jurisdiction of that court. The case cited by appellant Com. v. Apkins, 148 Ky. 207, 146 S. W. 431, 39 L. R. A. (N. S.) 822, Ann. Cas. 1913E, 465, is not applicable here. More nearly ap plicable and conclusive of the contention are Spradlin v. Com., 221 Ky. 372, 298 S. W. 952; Clemons v. Stoll, 197 Ky. 208, 246 S. W. 810. The unequivocal statement of the witness was to the effect that Benge died in Laurel county. No contrary proof was offered.\\n3. This ground is that after trial had proceeded the-court should have continued the case to another day,, and in support appellant filed affidavit, in which he shows that Laura Benge had been subpoenaed, and had failed to appear, through no fault on his part. It was. claimed that this witness would say that the day after-the shooting Dan Cupp, who was an eyewitness to the-homicide, had stated in her presence that at the time appellant shot and killed Benge he (Benge) was shooting-over the head of appellant's wife, and cursing her. This, was said to have been important, because appellant had no other witnesses by whom he could prove these facts.,\\nIt will be noted that this affidavit was filed after the-trial had progressed for some time. \\u2022 A warrant of arrest had issued against Laura Benge and h\\u00e1d been served, bond being taken for her appearance, but -she failed to appear. Appellant called Dan Cupp, a wit'-' ness for the commonwealth, and he was asked out of the-hearing of the jury if he had made the statement attributed to him by Laura Benge. He denied this. Here-the evidence to be procured was not of substantive nature. The purpose of procuring the attendance of' Laura Benge or of reading her affidavit was to impeach the witness Cupp. It is in the discretion of the court to allow continuance, or reading the affidavit of an absent witness, where the evidence is of this nature alone. Sizemore v. Com., 108 S. W. 254, 32 Ky. Law Rep. 1154; Phelps v. Com., 209 Ky. 318, 272 S. W. 743. See particularly Hays v. Com., 140 Ky. 184, 130 S. W. 987; Mullins v. Com., 79 S. W. 258, 25 Ky. Law Rep. 2044; Miller v. Com., 200 Ky. 435, 255 S. W. 96. The court did not abuse that discretion in refusing continuance.\\n4. It is complained that the commonwealth was allowed a severance of trial after the jury was sworn. On-this point the record shows that when the case was called for trial the commonwealth announced \\\"ready\\\" and the defendant \\\"not ready\\\" and appellant moved for continuance and filed his affidavit showing that his wife was ill and could not attend court.\\nAnother order of the same day recites that the de fendants each announced ready for trial, and the selection of the jury was begun. Only ten of the regular panel was present. By agreement of parties the judge drew from the wheel. On the next day the jury was completed and at this point an order recites:\\n\\\"On yesterday, the commonwealth by counsel moved the court for a severance of the trial, at which time Maggie Martin was not in court, but she is present in court today, and the jury is sworn as to both defendants. The commonwealth is insisting upon a severance and to this the defendants and each of them object. Maggie Martin was not in court on yesterday when the selection of the jury was begun; seven of the jury having been selected by both sides. The court is of the opinion that the motion to sever should be and is sustained, and the defendant Dan Martin was elected by the commonwealth to be tried first. To all of which the defendants object and except. \\\"When the selection of seven of the jury was perfected on yesterday, Maggie Martin was not present, therefore Dan Martin alone was on trial.\\\"\\nAppellant thereupon waived arraignment, entered a plea of not guilty, but at this point made no motion for continuance, or to discharge the jury. Appellant complains that motion for severance comes too late after the jury is sworn, and cites the case of Radley v. Com., 121 Ky. 506, 89 S. W. 519. In that case it was found that motion for a severance was not made by the accused until after the jury was sworn, and we held that it was too late, because jeopardy began with the swearing of the jury. In this case the order recites, that the motion was made prior to the selection of the jury. It was reasonable for the court not to pass on it at that time, because of the affirmative showing made by appellant as to his wife's absence .on account of illness. The codefendant may be able to make complaint on her trial that she has once been in jeopardy, a matter not now considered. \\\"We have held that the commonwealth may claim a severance, which the court in his discretion may allow. Jenkins v. Com., 167 Ky. 544, 180 S. W. 961, 3 A. L. R. 1522; Drake v. Com., 214 Ky. 147, 282 S. W. 1066; Hoffman v. Com., 134 Ky. 726, 121 S. W. 690.\\n5. There are nine pages of appellant's brief taken up by argument on alleged incompetent evidence, and several as to rejected evidence. It would take too much time and space to discuss each contention separately. We have read the evidence including, the rebuttal testimony, but can find no instance of any evidence admitted or rejected which appears to us to have been so admitted or rejected to the prejudice of the substantial rights of the accused. Counsel in pressing many of his objections seems to have overlooked the fact that appellant admitted that he shot some person, unknown to him, on the occasion, but who was without doubt Charley Benge. Much of the complained of rejected evidence was in effect cumulative.\\n6. It is here complained that the wife was not permitted to testify. She did testify before the court in the absence of the jury, and the court, after hearing her testimony, declined to permit her to testify before the jury. Under section 606 of the Civil Code of Practice, which is applicable in criminal trials, we have held that where a husband and wife are jointly indicted for an offense and tried together, each may testify for himself or herself, but if they are separately tried, then one cannot be a witness for the other. Allen v. Com., 134 Ky. 110, 119 S. W. 795, 20 Ann. Cas. 884. The general rule is that a wife may not testify for her husband in a criminal case. Turk v. Com., 239 Ky. 55, 38 S. W. (2d) 937; Winstead v. Com., 236 Ky. 154, 32 S. W. (2d) 749.\\nWe have above set out in detail what occurred in regard to the severance of trials, and it is clear from that statement that at no time in the procedings did appellant conceive that his wife was really on trial, and counsel's only insistence that her testimony was competent is based on the ground that though there was a severance it came too late, and the wife was on trial. Our conclusion on the severance argument is decisive of this contention.\\n7. It is argued that instruction No. 1 was prejudicial because the court told the jury that if they should believe from the evidence beyond a reasonable doubt that appellant willfully and feloniously shot and wounded Benge in Clay county, and that from such shooting he thereafter, within a year and a day, died in Laurel county, they should find him guilty of murder, if the shooting was with malice aforethought; of manslaughter if in sudden heat and passion.\\nThe whole argument here is predicated upon the idea that the court had no jurisdiction, as argued in ground No. 2. It is contended that the court should have instructed the jury to find defendant not guilty under this state of facts, though we note the lack of motion for peremptory. We pass this contention with the comment that the ground urged is sufficiently answered in a discussion of ground No. 2 supra.\\nInstruction No. 3 on self-defense is criticized. That instruction reads:\\n\\\"If you shall believe from the evidence that at the time the defendant, Dan Martin shot and killed the deceased, Charley Benge, if he did so do, he believed, and had reasonable grounds to believe that he, or his wife, or his grandchild, or either of them, was, or were then and there in danger of death, or the infliction of some great bodily harm at the hands of the deceased, Charley Benge, or Dan Cupp, or Raymond Cornett, or either of them, and that it was necessary, or was believed by the defendant, in the exercise of reasonable judgment to be necessary to shoot and kill the said Charley Benge, in order to avert that danger, real or to the said defendant apparent, then you will find the defendant, Dan Martin, not guilty on the ground of self-defense or apparent necessity therefor, or the defense of another or others and apparent necessity therefor.\\\"\\nThe criticism here is directed to the court's use of the words \\\"either of them\\\" with reference to appellant, his wife, and grandchild, and likewise with reference to Benge, Cupp, and Cornett. In other words, counsel insists on the substitution of the words \\\"or any one or more of them,\\\" in each instance for the words \\\"or either of them.\\\" This contention is one more with relation to a choice of words rather than error which would be calculated to- prejudice the rights of the accused. In a strict grammatical sense, \\\"either\\\" is properly used with reference to each of the two, or one or the other; one of the two. However, the word may be, was formerly, and is now frequently used with reference to more than two; for any one of a group more than two. The court is fully satisfied that a jury of ordinary intelligence would understand from th.e instruction that the appellant had the right to use such means as appeared necessary to defend himself, his wife, or grandchild, or- any one of the three; likewise the jury would have no difficulty in concluding that the right to defend applied to an assault by any one of the three. It is difficult for us to believe that the jury would halt in its deliberations to go into an analysis of the correct use or application of the words \\\"either of them.\\\" Beyond this, we find appellant saying that any shooting that was done on the occasion was done by Benge, and if any one else fired, it was from behind the mule on which Cupp and Benge were riding. It was not shown by any witness that Cornett fired a shot.' Again appellant does not claim that he shot Benge in protection of his wife or grandchild. He very definitely said: \\\"I shot to save my life.\\\" However, we need not discuss this point further since it is apparent that the instruction as a whole was not such as to prejudice any right of the accused.\\n8. One of the grounds in support of the motion for a new trial was the discovery of new evidence, not known to appellant or his counsel at the time of the trial, not discovered or discoverable by them until after the verdict.\\nThe supporting affidavit filed by two witnesses, Dan Smith and Tommy Hinkle, is to the effect that they with Calvin Smith were fox hunting the night of the homicide, and had gone into the neighborhood where the shooting occurred, looking for one of their dogs. They claim that they were within 200 yards of the point when they heard the first shooting, and that it occurred 50 to 100 yards from where the second shooting took place; that shortly after the first shooting they heard an un-. known man's voice cursing and telling some one to \\\"get on up the road or I will kill you,\\\" the command accompanied by oaths. That this, in substance, was repeated several times. They also say they heard a woman's voice saying, \\\"Lord have mercy, don't do that, I am going down the road looking for my boys.\\\" During this time they heard numerous pistol shots and then the report of two louder shots, which they took to have been fired from a shotgun, in rapid succession. They then heard other pistol shots and some talking. They say they did not know who was doing the shooting, and that after it was oyer they agreed not to talk so that they would not be witnesses; that being surprised at the verdict of the jury they then told their story to a brother of appellant. Appellant and counsel filed their separate affidavits in which they show that they had never heard of either of these witnesses, nor of the facts which they related in affidavit.\\nThe commonwealth filed the affidavit of Calvin Smith in which it was shown that he was not present on the night in question, and an affidavit of Alex Bruner, who says that Calvin 'Smith was at his home about 15 miles distant from the place of the homicide on the night it occurred. Sherman Benge also testified that he knew both Smith and Hinkle and that their general reputations for truth and veracity were bad; that they would swear to anything for a small compensation. The court correctly ruled that appellant's affidavit did not sufficiently warrant a new trial. His conclusion was based on a consideration of the allegations of the affidavit and counter-affidavit. The court below was no doubt disinclined to believe a witness who had knowledge of facts which they might believe to be of aid to a fellowman, and who concealed them because he did not desire to testify. The affidavit bears the stamp of an afterthought, and lacks the marks of verity.\\n9. It is finally contended that the verdict is flagrantly against the evidence.- There was ample evidence to take the case to the jury. It is true the evidence was sharply conflicting. In such cases we will not disturb the verdict unless it is apparent that injustice has been done by the rendition of the verdict. Murphy v. Com., 255 Ky. 676, 75 S. W. (2d) 341; Barney v. Com., 258 Ky. 432, 80 S. W. (2d) 513; Jordan v. Com., 260 Ky. 11, 83 S. W. (2d) 855, and numerous cases cited in 6 Kentucky Digest, Criminal Law. The defendant had his defense placed fairly before the jury by instruction No. 3. He admitted the homicide, but said it was done in selfrdefense.\\nIn this state of case the jury had the right to accept the proof of commonwealth or of defendant; there was sufficient evidence to support the jury's conclusion that the act was not committed in defense of appellant or members of his family. Under the state of facts, we cannot take the place of the jury, or assume its prerogative of weighing the evidence or passing on the credibility of the witnesses. Wireman v. Com., 268 Ky. 339, 104 S. W. (2d) 1083, decided April 30, -1937, and cases therein cited.\\nJudgment affirmed.\"}"

ky/2486493.json

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+"{\"id\": \"2486493\", \"name\": \"Whitney Transfer Co. v. Rigsby\", \"name_abbreviation\": \"Whitney Transfer Co. v. Rigsby\", \"decision_date\": \"1936-06-05\", \"docket_number\": \"\", \"first_page\": \"217\", \"last_page\": \"219\", \"citations\": \"265 Ky. 217\", \"volume\": \"265\", \"reporter\": \"Kentucky Reports\", \"court\": \"Kentucky Court of Appeals\", \"jurisdiction\": \"Kentucky\", \"last_updated\": \"2021-08-10T19:36:49.516905+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Whitney Transfer Co. v. Rigsby.\", \"head_matter\": \"Whitney Transfer Co. v. Rigsby.\\n(Decided June 5, 1936.)\\nJ. FRANK DENTON for appellant.\\nSTOUT & HERDMAN for appellee.\", \"word_count\": \"569\", \"char_count\": \"3213\", \"text\": \"Opinion of the Court by\\nDrury, Commissioner\\u2014\\nAffirming.\\nA. M. Whitney, engaged in business as the Whitney Transfer Company, has appealed from a $1,385.63 judgment recovered against him by Clinton Rigsby for services rendered under a contract between them.\\nThe making of the contract is admitted, but these men do not agree about the provisions of it. This was an oral contract, and these two men are the only ones who testify about its terms. Under such circumstances, we cannot disturb the chancellor's finding in that regard.\\nHe found Rigsby was to be paid $35 per week and 10 per cent, of the excess if any'of the net profits for 1930 over the net profits for 1929.\\nA correct understanding of this contract will best be reached by putting ourselves as nearly as we can in the position of the contracting parties when they made it. This contract was made just after Rigsby had finished making for Whitney an income tax return for 1929. The net profits for 1929 were shown by that report to be $7,403.56, therefore we shall take that as the basis from which the gain in profits in 1930 is to be estimated. That report was made upon the basis of receipts and expenditures during- that year; hence these parties must have contemplated that the income for 1930 was to be determined in the same way.\\nMr. Rigsby made up an income statement on that basis for the year 1930, and it showed a net profit of $19,712.86 or a gain of more than $12,000 over 1929.\\nMr. Whitney disputed the correctness of these figures, and upon his insistence a firm of accountants was employed and that firm reported a net profit for 1930 of $19,860.14. The court adopted $19,712.86 as the net income for 1930, and calculated Mr. Rigsby's 10 per cent, upon that basis, added to that a balance he found due Rigsby on his salary, and thus reached the sum for which he gave judgment as stated in the outset.\\nMr. Whitney insists the result reached is erroneous because he was forced to pay out in 1931, about $4,000 to settle claims for damages, then determined and paid but which claims grew out of the operations of 1930. In view of the fact that these reports were made upon the basis of reecipts and expenditures during the year, we conclude this item .was properly excluded, and that the parties contemplated they were to be excluded when they made their contract.\\nMr. Whitney contends that depreciation on the trucks should have been estimated at 30 per cent, in the year 1930, but in the year 1929 depreciation had been estimated at 20 per cent., and we conclude that was the basis they then contemplated would be used in estimating the depreciation in 1930, and that 20 per cent, was the proper basis to be used in the accounting between these parties.\\nMr. Whitney wants to reduce these net profits by about $3,500 for bills payable, but if that were done it would also be right to increase it by about $3,700 for the bills receivable. Both these items were properly eliminated in' view of the circumstances under which this contract was made.\\nWe find no prejudicial error in the record, hence the judgment is affirmed.\"}"

ky/2684328.json

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+"{\"id\": \"2684328\", \"name\": \"Tackett v. Inland Steel Co. et al.\", \"name_abbreviation\": \"Tackett v. Inland Steel Co.\", \"decision_date\": \"1940-01-16\", \"docket_number\": \"\", \"first_page\": \"313\", \"last_page\": \"317\", \"citations\": \"281 Ky. 313\", \"volume\": \"281\", \"reporter\": \"Kentucky Reports\", \"court\": \"Kentucky Court of Appeals\", \"jurisdiction\": \"Kentucky\", \"last_updated\": \"2021-08-11T00:51:26.705406+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Tackett v. Inland Steel Co. et al.\", \"head_matter\": \"Tackett v. Inland Steel Co. et al.\\nJan. 16, 1940.\\nWheeler & Wheeler for appellant.\\nJ. Woodford Howard for appellee Inland Steel Co.\\nE. L. Allen for other appellee.\", \"word_count\": \"1531\", \"char_count\": \"8942\", \"text\": \"Opinion op the 'Court by\\nJudge Rees\\n\\u2014 Affirming,\\nOn September 28,1935, Arthur Tackett was injured in an automobile accident in Floyd County. He was driving an automobile on the road from Wheelwright to Martin, accompanied by his wife, Rhuie Tackett, and his daughter, Eloise Tackett, when the accident occurred. On a curve near the town of Martin he met an \\u2022ambulance driven by H. B. Sims. The two cars collided, and the three occupants of the Tackett car were injured. Each of them brought an action against the Inland Steel Company and the Beaver Valley Hospital to recover damages on the theory that Sims, the driver \\u2022of the ambulance, was the agent or servant of the two defendants. The three cases were heard together below, but separate appeals have been prosecuted. At the conclusi\\u00f3n of plaintiff's evidence the motion of the Inland Steel Company for a directed verdict in its favor was \\u2022sustained in each of the cases, and the petitions were dismissed as to it. At the conclusion of all the evidence the court sustained the motion of the Beaver Valley Hospital for a directed verdict in its favor in each of the cases. On this appeal it is argued on behalf of appellant, Arthur Tackett, that H. \\u00cdB. Sims was the servant and agent of the Inland Steel Company and the Beaver Valley Hospital, and the trial court erred in sustaining the respective motions of the defendants for a peremptory instruction.\\nThe Inland Steel Company owns and operates a large coal mine at Wheelwright, in Floyd county It has about 900 employees. A large number of residents \\u2022of Wheelwright and vicinity, including a majority of the employees of the Inland Steel Company, organized an \\u2022association, known as the Wheelwright Employees' Association, for the purpose of furnishing medical and hospital services to the members and their families. Married members paid $1.50 monthly dues, and unmarried members paid $1 monthly. The dues of the members who were employees of the Inland Steel Company were deducted from the employees' wages by the company and paid'to the association. The dues of members who were not employees of the Inland Steel Company were paid direct to the association. The evidence shows, that the company had no control over and no connection-with the association. Its act in deducting the dues of its-, employees from their wages and paying same to the association was by agreement with its employees, and was, 'done for the convenience of its employees and the association. The Beaver Valley Hospital was owned and operated by a number of physicians and surgeons, who-entered into a contract with the Wheelwright Employees ' Association by the terms of which members of the association and members of their families were to-receive hospitalization and medical treatment for a certain fixed sum to be paid to the hospital monthly by the-members of the association. An ambulance owned by the hospital was turned over to the association, and was' kept by it at Wheelwright and used to transport patients: to and from the hospital at Martin, a distance of about 20 miles. The association employed the driver of the ambulance, and paid for all repairs and operating _ expenses. There is no proof that the hospital exercised any control or supervision over the ambulance or its driver.\\nOn Sunday, September 28,1935, a young boy, a son. of an employee of the Inland Steel Company, was injured at Wheelwright. His father was a member of the-Wheelwright Employees' Association. The boy was. taken to- the Beaver Valley Hospital at Martin in the-ambulance operated by the association, and it was on the-return trip that the accident happened in which appellant was injured. Most of the evidence was directed, to the question of negligence on the part of the driver-of the ambulance, and to the nature and extent of the injuries received by the plaintiff. Only one witness was-introduced by plaintiff in an effort to establish any duty-on the part of the defendants with respect to the operation of the ambulance at the time of the accident. This-witness was Robert Miller, who was an employee of the-Inland Steel Company and a member of the Wheelwright Employees' Association. He testified that the association, through a committee, entered into a contract with the Beaver Valley Hospital for hospitalization and medical treatment of its members and members of their families, and maintained at Wheelwright an ambulance for the purpose of transporting patients to and from the hospital. The association had complete custody and control of the ambulance, employed the driver, and paid for all repairs, and operating expenses. Neither the Inland Steel Company nor the Beaver Valley Hospital had anything to do directly or indirectly with the employment of the driver, nor did either of them have any control over the operation of the ambulance. H. B. Sims, driver of the ambulance, testified that he was employed and paid by the association, and that neither the Inland Steel Company nor the Beaver Valley Hospital exercised any control over the operation of the ambulance. The Inland Steel Company operated under the \\\"Workmen's Compensation Act, Kentucky Statutes, Section 4880 et seq., and when one of its employees was injured in the course of his employment and needed hospitalization, which it was its duty to furnish, it would employ the \\\"Wheelwright Employees' Association to transport him to the hospital. It was under no duty, however, to furnish an ambulance for members of its employees' families. That duty was assumed and performed by the Employees' Association. The plaintiff's own proof established conclusively that neither of the defendants occupied a relationship to the driver of the ambulance that would render it liable for his negligence.\\nAppellant argues that Sims, as driver of the ambulance, was the servant of the Inland Steel Company and the Beaver Valley Hospital even though he was employed and paid by another, and he cites and relies upon Paducah Box & Basket Company v. Parker, 143 Ky. 607, 136 S. W. 1012, 43 L. R. A., N. S., 179; Keen's Adm'r v. Keystone Crescent Lumber Company, Ky., 118 S. W. 355; Postal Telegraph-Cable Company v. Murrell, 180 Ky. 52, 201 S. W. 462, L. R. A. 1918D, 357, and Adams Express Company v. Schofield, 111 Ky. 832, 64 S. W. 903, 23 Ky. Law Rep. 1120, but none of these cases is in point. In Paducah Box & Basket Company v. Parker, supra, the defendant was held liable for injury to a person who had been employed by the defendant's servant to assist him. The employment of the injured person was with the master's consent. In Keen's Adm'r v. Keystone Crescent Lumber Company and Postal Telegraph Cable Company v. Murrell, supra, the question was whether the injured party was a servant or an independent contractor. In Adams Express Company v. Schofield, supra, the question was whether the negligent party was an employee or an independent contractor, and the proof showed that he was in the employ of the defendant^ was subject to its orders, and was transacting its business at the time of the accident. Necessarily the court found that the relationship of master and servant existed.\\nThe test of the relationship of master and servant or employer and employee is the right of control on the part of the alleged employer. McCoy v. Griffith, 196 Ky. 406, 244 S. W. 871; Corbin Fruit Company v. Decker, 252 Ky. 766, 68 S. W .(2d) 434; Slusher v. Hubble, 254 Ky. 595, 72 S. W. (2d) 39. In American Savings Life Insurance Company v. Riplinger, 249 Ky. 8, 60 S. W. (2d) 115, 117, it was said:\\n\\\"A servant is a person subject to the command of his master as to the manner in which he shall do his work, and the master is the one who not only prescribes the work but directs, or may direct, the manner of doing the work. Bowen v. Gradison Construction Company, 236 Ky. 270, 32 S. W. (2d) 1014; Jarvis v. Wallace, 139 Va. 171, 123 S. E. 374. A master within the doctrine of respondeat superior is the one who cannot only order the work, but also how it shall be done. Carter v. King County, 120 Wash. 536, 208 P. 5. The doctrine applies only where the relationship of master and servant exists at the time and in respect to the thing causing the injury, and from which it arose (Tilburne v. Burton, 86 Cal. App. 627, 261 P. 334; Martin v. Greensboro-Fayetteville Bus Line, 197 N. C. 720, 150 S. E. 501; Kennedy v. Wolf, 221 Ky. 111, 298 S. W. 188), and then only when the one sought to be charged has some right in some way to control the conduct of the party having caused the injury. ' '\\nThe evidence fails to show that either of the defendants had any right of control over the driver of the ambulance, and the trial court properly sustained the motion of each for a directed verdict in its favor.\\nThe judgment is affirmed.\"}"

ky/2703057.json

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+"{\"id\": \"2703057\", \"name\": \"Tackett v. Commonwealth\", \"name_abbreviation\": \"Tackett v. Commonwealth\", \"decision_date\": \"1940-10-22\", \"docket_number\": \"\", \"first_page\": \"83\", \"last_page\": \"88\", \"citations\": \"285 Ky. 83\", \"volume\": \"285\", \"reporter\": \"Kentucky Reports\", \"court\": \"Kentucky Court of Appeals\", \"jurisdiction\": \"Kentucky\", \"last_updated\": \"2021-08-10T23:21:22.719798+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Tackett v. Commonwealth.\", \"head_matter\": \"Tackett v. Commonwealth.\\nOct. 22, 1940.\\n\\\" Astor Hogg, Harry L. Moore and Enimett G. -Fields for appellant.\\nHubert Meredith, Attorney General, and H. Appleton Federa, Assistant Attorney General, for appellee.\", \"word_count\": \"1545\", \"char_count\": \"8964\", \"text\": \"Opinion of the Court by\\nJudge Cammack\\nAffirming.\\nThe appellant, W. H. Tackett, and M. D. Bates, Charlie Kiser and W. M. Russell, deceased, were election officers in the Kona voting precinct in Letcher county for the primary election held August 6, 1939. Tackett, Bates and Kiser were indicted for forgery under Section 1581 of the Statutes at the October, 1939, term of the Letcher circuit court. Demurrers to those indictments were sustained. A new indictment was returned on April 6, 1940. The case was set for trial on April 10th. On that day the accused parties asked for a continuance of the case until the next term. It was continued until April 19th. The parties having, asked for separate trials, Tackett was tried on that day. He was found guilty and his punishment fixed at three years in the State Reformatory. He is appealing.\\nThe grounds urged for reversal are: (1) The demurrer to the indictment should have been sustained; (2) the court should have granted a continuance of the case; (3) Tackett was entitled to a peremptory instruc tion; (4) the swearing of the jury should have been set aside and the case continued; and (5) the verdict is flagrantly and palpably against the evidence.\\nSection 1581 of the Statutes provides:\\n\\\"Any officer or other person who shall wilfully alter, obliterate, or wilfully secrete, suppress or destroy the certified poll book, return or certificate of an election, wilfully and unlawfully alter the poll book before it is certified; or any officer who shall make, or aid in making, or authorize the making up of any false or fraudulent poll book, or certificate of an election or election return, shall be deemed guilty of forgery, be confined in the penitentiary from one to five years, forfeit any office he then holds, and be disqualified from ever holding any office. (1892, c. 65, p. 106, Art. XIII, \\u00a7 16.)\\\"\\nThe appellant has raised the question as to whether or not the crime with which he is charged comes within the purview of the statute just quoted, since the present election laws do not provide for a poll book. It is to be noted that the section under consideration was a part of c. 65 of the Acts of 1892. A previous-provision of that chapter, Article III, Section 26, provided in part:\\n\\\"Any person desiring to vote and legally entitled to vote at such election shall give his name and residence to the clerk holding the ballots, who shall write the same upon the main stub of the ticket in the blank places provided therefor. Such officer shall then mark upon the secondary stub the elector's registered number in all precincts in which a registration law is in force and in all other precincts the elector's full name, and the stub-book for this purpose shall take the place of a poll-book.\\\" See Section 1471 of the Statutes.\\nIt can be seen from the foregoing that the stub book was to take the place of the poll book. Clearly the alleged crime comes within the scope of Section 1581. See Commonwealth v. Duff, 87 Ky. 586, 9 S. W. 816, 10 Ky. Law Rep. 617.\\nIt is the contention of the appellant that the accusatory part of the indictment charges the officers with forgery, while the descriptive part charges them with conspiring, confederating, banding themselves together and agreeing with, each other to make up a false and fraudulent poll book. An examination of Section 1581 reveals that an officer who makes, or aids in making, or authorizes the making of any false or fraudulent poll book, shall be deemed guilty of forgery. A careful examination of the indictment leaves no question as to the crime with which the officers were charged. It first charges them with the \\\"crime of forgery, committed in manner and form as follows.\\\" It then sets forth that the parties \\\"unlawfully, wilfully and feloniously conspired, confederated, banded themselves together and agreed with each other to make up a false and fraudulent poll book\\\" to be used in the Republican primary, and \\\"to that end to commit the forgeries hereinafter set out. #\\\" It then charges that some one or more of the 'accused, pursuant to the conspiracy, confederation, banding together and agreement, forged and wrote the names of certain persons on the stubs of official ballots, which persons neither voted nor offered to vote at said election. Lastly it charges that the accused were the duly appointed and qualified election officers; that the ballots in question were voted as official ballots for certain candidates and counted as such; and that the alleged felonious 'acts were done to perpetrate a fraud on certain of the candidates. When the indictment is viewed as a whole (Drury v. Commonwealth, 162 Ky. 123, 172 S. W. 94), it is obvious that there is no conflict between the accusatory and descriptive portions of it. There is only a charge of forgery as defined in Section 1581. See Wallace v. Commonwealth, 229 Ky. 776, 18 S. W. (2d) 290.\\nAs to the second ground urged for reversal, we have noted that the trial judge continued the case on motion of the accused parties from April 10th to April 19th. We find no basis for the contention that the case should have been continued until the next term. As indicated above, it is our view that an examination of the indictment shows clearly the offense with which the parties were charged.\\nWe come now to the contention that a peremptory instruction should have been given in favor of Tackett. We have frequently held that it is not within the province of the trial court to take a criminal prosecution from the jury, if there is any evidence, however slight it may be, showing that the defendant is guilty of the of fense charged. Commonwealth v. Ramey, 279 Ky. 810, 132 S. W. (2d) 342; Roaden v. Commonwealth, 248 Ky. 154, 58 S. W. (2d) 364; Tussey v. Commonwealth, 241 Ky. 91, 43 S. W. (2d) 351. The question is, was there any evidence showing that Tackett was guilty of the offense charged? Considerable proof was offered tending to show that Russell was master of ceremonies at the Kona precinct, and that he had made plans to have illegal votes cast in favor of candidates of his choice. There is also proof that bad feeling existed between Russell and Tackett. One witness testified that Tackett wrote out the stubs on the Republican ballots and another that he handled the Republican book. Against this there is proof that other parties had access to this book. Tackett admitted that he wrote the names of certain voters in the stub book, but denied that he wrote others. The attention of the jury was called to the handwriting on these two sets of stubs. In addition Tackett was asked during the trial to write two names which appeared in the stub book. The jury was also shown this writing, along with that in the stub book. It is obvious that there' is a marked similarity in the handwriting on the stubs that Tackett admitted he wrote and those that he denied writing. Notwithstanding the testimony that Russell was drinking and had a gun and voted the illegal ballots, there remains the circumstance that Tackett continued to serve as an election officer through the day, though he said that he was absent from the voting place on several occasions. We can not escape the conclusion that there was sufficient evidence to warrant the submission of the ease to the jury.\\nOver the objection of Tackett the court admitted testimony as to conversations Russell had with certain parties about the election when Tackett was not present. Before Tackett began the introduction of his evidence, the court admonished the jury not to consider the evidence as to these conversations. A motion was made to set aside the swearing of the jury and to continue the case on the ground that the evidence the court took from the jury had a pronounced effect on its members and was highly prejudicial. This motion was overruled. Most of this evidence was to the effect that Russell was planning to conduct an illegal election at the Kona precinct. Some reference was made in the alleged conversations that Tackett would be used as an election officer and that he would be paid some money. We think under the circumstances, in view of the description of the crime denounced in Section 1581, that the admonition of the 'court was sufficient.\\nOur comments on the question as to whether Tackett was entitled to a peremptory instruction makes it unnecessary for a second review of the evidence in connection with the contention that the verdict-is palpably and flagrantly against the weight of the evidence. The jury found Tackett guilty and fixed his punishment at three years in prison. \\\"We do not think- this finding is palpably and flagrantly against the weight of the evidence.\\nFinding no error prejudicial to the appellant's substantial rights, the judgment is affirmed.\"}"

ky/2706067.json

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+"{\"id\": \"2706067\", \"name\": \"Chesnut v. McPhetridge et ux.\", \"name_abbreviation\": \"Chesnut v. McPhetridge\", \"decision_date\": \"1941-02-28\", \"docket_number\": \"\", \"first_page\": \"550\", \"last_page\": \"552\", \"citations\": \"285 Ky. 550\", \"volume\": \"285\", \"reporter\": \"Kentucky Reports\", \"court\": \"Kentucky Court of Appeals\", \"jurisdiction\": \"Kentucky\", \"last_updated\": \"2021-08-10T23:21:22.719798+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Chesnut v. McPhetridge et ux.\", \"head_matter\": \"Chesnut v. McPhetridge et ux.\\nFeb. 28, 1941.\\nC. R. Luker for appellant.\\nT. H. Webb for appellees.\", \"word_count\": \"889\", \"char_count\": \"5154\", \"text\": \"Opinion op the Court by\\nJudge Fulton\\nAffirming.\\nThis action, filed by the appellant, Steve Chesnnt, against the appellees, William McPhetridge and his wife, is the same character of action in all respects as that in Chesnnt v. Allen, 282 Ky. 703, 139 S. W. (2d) 729, and the issues are identically the same except that here there is no question of alteration of the deed. Reference is made to the opinion in that case for a full and complete statement of the issues and the nature of evidence.\\nNot only are the questions the same but we have the same character of evidence, largely by the same witnesses. This action merely involved another tract of land, containing 12 acres, conveyed by Jacob Chesnut to William McPhetridge on October 29, 1932, the 12 acres being a part of the land covered by appellant's unrecorded deed which was executed in September, 1931. Here, as in the other case, appellant testified that he informed McPhetridge of his unrecorded deed before the execution of McPhetridge's deed. This was denied by McPhetridge. We have here the same surrounding facts and circumstances as in the other case supporting the chancellor's finding that McPhetridge, when he accepted his deed, had no actual knowledge of appellant's unrecorded deed.\\nIn this case, however, we have the testimony of R. B. Johnson, which did not appear in the other case, and great stress is placed on this testimony as showing Mc-Phetridge's actual knowledge of the unrecorded deed. Mr. Johnson, an attorney, drafted appellant's unrecorded deed from Jacob Chesnut and also drafted Mc-Phetridge's deed for the 12 acres. He testified that Mc-Phetridge and his father, who was acting with McPhetridge in the purchase of the 12 acres, came to his office with Jacob Chesnut to have the deed drafted. Remembering that he had previously drafted appellant's unrecorded deed covering the same land, he mentioned this fact to Jacob Chesnut and asked Mm how he was going to reconcile the 12-acre deed with the previous deed he had executed to appellant. He was given to understand that Jacob Chesnut considered that he had a right to convey the 12 acres by reason of the fact that he had not delivered the previous deed to appellant. Mr. Johnson also testified that it was his judgment that Jacob Chesnut, by virtue of the provisions of the previous deed to appellant, had the right to convey any part of the land during his lifetime and therefore proceeded to draft the deed conveying the 12 acres to McPhetridge.\\nWhen asked if there was anything said by him to McPhetridge's father at the time of the execution of the deed regarding the execution of appellant's prior deed, Mr. Johnson said that he did not think there was anything said to him but that something was said to old man Chesnut and that, he thought McPhetridge, Sr. was there all the time. When asked whether McPhetridge, Sr. heard his conversation with Jacob Chesnut he said \\\"I don't know whether he heard it\\\" and when asked \\\"Was he there in the room\\\" replied \\\"My impression was that he was there.\\\" Mr. Johnson also testified that at one time after the execution of McPhetridge's deed he was requested by one or both of the McPhetridges to try to get a quitclaim deed to the 12 acres from appellant and that he did talk to appellant about it and tried to get the matter settled. He did not know whether this was before or after Jacob Chesnut died.\\nWe do not regard the testimony of Mr. Johnson as sufficient to justify a finding that appellant or Ms father had actual knowledge of the unrecorded deed in view of the witnesses's uncertainty as to whether or not the conversation with Jacob Chesnut was heard by either of the McPhetridges. As a matter of fact the witness stated William McPhetridge had left his office when this, conversation occurred and states positively that he did not know whether the elder McPhetridge heard the conversation. Mr. Johnson's testimony that he later attempted to get a quitclaim deed from appellant is obviously insufficient to indicate that William McPhetridge at the time of the execution of his deed knew of the unrecorded deed. Probably several years had intervened at this time and he may have learned of appellant's unrecorded deed from many sources.\\nWe cannot escape the conclusion that here, as in the other case, the chancellor correctly decided that the evidence was insufficient to establish actual knowledge of the unrecorded deed. At the most, we might be willing to say that the evidence is such as to leave in our minds a doubt on this question and under our well known rule of practice it is clearly our duty, when such is the case, to affirm the chancellor's finding.\\nThere was an utter failure to establish that undue influence was exerted on Jacob Chesnut in obtaining the deed for the 12 acres. Further, there was an utter lack of evidence establisMng mental incompetency of Jacob Chesnut. The evidence merely showed that he got drunk quite frequently but it also established that he was not drunk at the time of the execution of the deed.\\nJudgment affirmed.\"}"

ky/2768940.json

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+"{\"id\": \"2768940\", \"name\": \"Barnes v. Anderson Nat. Bank of Lawrenceburg and five other cases\", \"name_abbreviation\": \"Barnes v. Anderson Nat. Bank\", \"decision_date\": \"1943-03-16\", \"docket_number\": \"\", \"first_page\": \"592\", \"last_page\": \"603\", \"citations\": \"293 Ky. 592\", \"volume\": \"293\", \"reporter\": \"Kentucky Reports\", \"court\": \"Kentucky Court of Appeals\", \"jurisdiction\": \"Kentucky\", \"last_updated\": \"2021-08-10T20:04:07.693226+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Barnes v. Anderson Nat. Bank of Lawrenceburg and five other cases.\", \"head_matter\": \"Barnes v. Anderson Nat. Bank of Lawrenceburg and five other cases.\\nMarch 16, 1943.\\nHubert Meredith, Attorney General, and Jesse K. Lewis, Assistant Attorney General, for appellant.\\nJames P. Helm, Jr. and Robert E. Hatton for Anderson etc.\\nL. W. Morris for Farmers Bank etc.\\nJackson & Woodward for Peoples-Liberty etc.\\nCharles W. Milner and Hubert Willis for Kentucky Title etc.\\nRobert E. Hatton and Kammere \\u2019& Hatton for Ideal Savings and Greater Louisville etc.\", \"word_count\": \"3889\", \"char_count\": \"23704\", \"text\": \"Opinion of the Court by\\nVan Sant, Commissioner\\nAffirming in part and reversing in part.\\nThe Federal Social Security Act of 1935, 42 U. SC. A. Section 301 et seq., exempted from its provisions any services performed in the employ of the United States government or any instrumentality of the United. States government. The act was amended in 1939 to become effective January 1,' 1940. The amendment granted to the several states authority to tax instrumentalities of th\\u00e9 United States under the provisions of Unemployment Compensation laws. The first Kentucky Unemployment Compensation Act passed by the General Assembly of 1936 exempted instrumentalities of the United States from its provisions. Acts 1936, 4th Ex. Sess., c. 7. The 1938 Act and the 1940 amendment omitted the exemption.- Acts 1938, c. 50; Acts 1940, c. 193. The Federal Social Security Board and the Unemployment Compensation Commission construed the federal act and the state law, enacted to conform thereto, to exempt from their provisions, because they were instrumentalities of the United States, national banks, federal building and loan associations, state banks holding membership in the Federal Reserve System, building and loan associations owning stock in the Home Owners Loan Corporation, and, financial institutions appointed as agencies of the board administering the provisions of the Federal Housing Act, 12 U. S. C. A. Section 1701 et seq. They,construed the act not to exempt from its provisions state banks which are not members of the Federal Reserve Bank, although their deposits are insured with the Federal Deposit Insurance Corporation. After the 1939 amendment to the Social Security Act, acting under advice of the Attorney General, the Unemployment Compensation Commission reversed its former \\u2022decisions and construed the Unemployment Compensation Acts of 1936 and 1938 to be applicable to the aforesaid institutions without exception.\\nThis action was instituted by the Anderson National Bank of Lawrenceburg, suing for itself and all national banks of Kentucky, seeking a declaration of the right of national banks to be exempt from the provisions of the 1936 and 1938 Acts. The Farmers Bank and Capital Trust Company of Frankfort, representing state banks not members of the Federal Reserve System, but whose deposits nevertheless are insured with the Federal Deposit Insurance Corporation; the Peoples-Liberty Bank and Trust Company of Covington, representing state banks claiming exemption by reason of membership in the Federal Reserve System; the Kentucky Title Trust Company, representing trust companies with membership in the Federal Reserve System; the Ideal Savings, Loan and Building Association of Newport, representing institutions holding membership in the Federal Home Loan Bank under the provisions of the Home Owners' Loan Act, 12 U. S. C. A. Section 1461 et seq., and the Greater Louisville First Federal Savings and Loan Association, representing institutions appointed as agencies for the Federal Housing Administration, were permitted to intervene and assert their various contentions in respect to their claims of exemption from the provisions of the Acts.\\nThe chancellor entered judgment declaring: (1) All national hanks and federalized building and loan associations to be exempt from the provisions of the acts, because they are instrumentalities of the United States; (2) state banks holding membership in the Federal Reserve System to be exempt from the provisions of the 1936 unemployment compensation law but not to be exempt after the effective date' of the 1938 amendment; and (3) neither state bank members of the Federal Reserve System, nor state chartered-building and loan association members of the Federal Home Owners Bank, to be exempt because, in his opinion, they were not instrumentalities of the federal government. All of the parties adversely affected have appealed from the judgment.\\nWe will discuss first the question of whether national banks are entitled to the immunity claimed, and, later in the opinion, will draw' analogies and distinctions in respect to the other defendants.\\nAll rules for the interpretation and construction of statutes of doubtful meaning have been adopted and- applied for the sole purpose of endeavoring to discover the legislative intent. This intention must be gleaned, if possible, from the words used in the act; but, if the language is ambiguous or doubtful, other circumstances must be taken into consideration to arrive, as nearly as possible, at the legislative intent. Some of the extraneous matters helpful to a fair interpretation of the intention of' the Legislature are: legislative history, legislative construction, judicial construction, and the administrative construction placed on the act by those intrusted to enforce its provisions. 25 R. C. L. sections 265, 271, 272, 273, 274 and cases annotated thereunder. With these principles in mind we will undertake to determine whether it was the intention of the Legislature, and if so, if it legally could without the consent of Congress, require the defendants or either, of them to make contributions to the Unemployment Compensation Commission.\\nCouns\\u00e9l for the Commission first insists that the law was enacted under the police power of the state and not under its power to levy taxes. He argues, upon this premise, that whatever immunity, if any, from taxation the. defendants might have, they are not exempt from payment of a sum exacted in the state's capacity to exercise its police power. This argument is vain, because we have heretofore determined that the power exercised by the state in the enactment of this law is in the exercise of its right to levy taxes. Being definitely committed to this view, it is unnecessary to iterate or reiterate the reasons underlying this conclusion. The reader may find them clearly expressed in the following opinions: Barnes v. Indian Refining Company, 280 Ky. 811, 134 S. W. (2d) 620; Unemployment Compensation Commission v. Savage, 283 Ky. 301, 140 S. W. (2d) 1073. Therefore, the question must be determined in the light of the law in respect to taxation. .\\nCounsel for the Commission contends that national banks are private corporations operated primarily for private profit and therefore cannot be deemed to be instrumentalities of the federal government. He argues that the opinion of Chief Justice Marshall in McCulloch v. Maryland, 4 Wheat. 316, 4 L. Ed. 579, has been misinterpreted in a great number of Supreme Court cases following the rendition of that' opinion. The controversy in that action concerned the right of the state of Maryland to impose a tax on the Bank of the United States in the exercise of the right granted to it by Congress to issue bank notes. It was held that in issuing the notes the bank was exercising a governmental function and the operation was immune from taxation. The \\u2022 Court additionally reasoned that since the provisions of the act were confined to the banks not chartered under the laws of Maryland, the tax was discriminatory. The decision in that case went no further than the recitation above; but, with that as a commencement, the trend of judicial thought developed into the conclusion that national banks (apparently in all of their functions) are to be considered to be instrumentalities of the government, and, by reason of that fact, the states are without power to tax them in any respect, unless cons\\u00e9nt first shall have been obtained from the Congress of the United States.\\nIn Osborn v. President, etc. of Bank of U. S., 9 Wheat. 738, 860, 6 L. Ed. 204, in an opinion by Chief Justice Marshall, the court said:\\n\\\"The whole opinion of the court, in the case of McCulloch v. Maryland is founded on, and sustained by, the idea that the bank is an instrument which is 'necessary and proper for carrying into effect the powers vested in the government of the United States.' \\\"\\nIn both McCulloch v. Maryland and Osborn v. President, etc., of Bank of U. S., the bank involved was the' second National Bank of the United States, which was partially owned by the United States Government. It was not until the year 1864 that Congress passed the first National Banking Act which, as amended, is now in force. 12 U. S. C. A. Section 21 et seq. Whereas, previous to that time there had been only two national banks, after the passage of the act of 1864 many sprang into existence. The Supreme Court construed the Act of 1864 in Farmers & Mechanics National Bank v. Dearing, 91 U. S. 29, 33, 23 L. Ed. 196, wherein it was held:\\n\\\"The constitutionality of the act of 1864 is not questioned. It rests on the same principle as the act creating the second bank of the United States. The reasoning of Secretary Hamilton and of this court in McCulloch v. Maryland, 4 Wheat. 316 [4 L. Ed. 579], and in Osborne v. [President, etc., of] Bank of U. S., 9 Wheat. 738 [16 L. Ed. 204], therefore, applies. The national banks organized under the act are instruments designed to be used to aid the government in the administration of an important branch of the public service. They are means appropriate to that end. Of the degree of the necessity which existed for creating them Congress is the sole judge.\\\"\\nIn Owensboro National Bank v. Owensboro, 173 U. S. 664, 19 S. Ct. 537, 538, 43 L. Ed. 850, which cited with approval Davis v. Elmira Savings Bank, 161 U. S. 275, 16 S. Ct. 502, 40 L. Ed. 700, the court said:\\n\\\" 'National banks are instrumentalities of the federal government, created for a public purpose, and as such necessarily subject to the paramount authority of the United States. ' It follows, then, necessarily from these conclusions, that the respective states would be wholly without power to levy any tax, either direct or indirect, upon the national banks, their property, assets, or franchises, were it not for the permissive legislation of congress.\\\"\\nIn First National Bank v. Anderson, 269 U. S. 341, 46 S. Ct. 135, 138, 70 L. Ed. 295, it was held:\\n\\\"National banks are not merely private moneyed, institutions, but agencies of the United States created under its laws to promote its fiscal policies; and hence the banks, their property, and their shares cannot be taxed under state authority, except as Congress consents, and then only in conformity with the restrictions attached to its consent.\\\"\\nCounsel for the Commission admit the existence of the opinions above cited but insist that the more recent decisions of the Supreme Court have a tendency to depart from the rule established. But we are of tire opinion that he is in error .in this respect. On April 22, 1940, in an opinion prepared and delivered by Mr. Justice Reed of Kentucky, the Supreme Court said:\\n\\\" Congress may intervene to protect its instrumentalities [national banks] from any other tax which threatens their usefulness.\\\"\\nColorado National Bank of Denver v. Bedford, 310 U. S. 41, 60 S. Ct. 800, 804, 84 L. Ed. 1067. By any other tax the court referred to any tax other than the ones Congress permits the states to levy. As recently as March 1, 1943, an opinion was rendered by the Supreme Court under the style of Maricopa County v. Valley National Bank of Phoenix, 63 S. Ct. 587, 87 L. Ed. 537. Tire Valley National Bank sued Maricopa County, its treasurer, and its tax collector to restrain the collection of state, county, school district, and municipal taxes on its shares owned by the Reconstruction Finance Corporation for the years 1935 and 1936. The opinion pointed out that prior to March 9, 1933, national banks were not authorized to issue preferred shares, but, on that date, they were given authority and the Reconstruction Finance Corporation was authorized to subscribe therefor. In pursuance of that authority the bank issued to the Reconstruction Finance Corporation certain shares valued at $1,240,000 at par. \\\"When the shares were acquired by the Reconstruction Finance Corporation the act of Congress permitting real estate and bank shares to be taxed by states was in effect. Section 5219, Revised Statutes, 12 U. S. C. A. Section 548. Previous to March 20, 1936, the Supreme Court held that preferred shares of national banks held by the Reconstruction Finance Corporation were subject to taxation by reason of the consent given by Congress in section 5219, supra., Baltimore National Bank v. State Tax Commission, 279 U. S. 209, 56 S. Ct. 417, 80 L. Ed. 586., On March 20, 1936, Congress enacted a statute providing that shares of preferred stock of national banks theretofore and, thereafter acquired by the Reconstruction Finance Corporation shall not be the subject of taxation, as long as owned by the Corporation. 49 Stat. 1185, 12 U. S. C. A. Section 51d. On the authority of that act, the district court issued a permanent injunction against the collection of the taxes. Judgment was affirmed by the Circuit Court of Appeals. Maricopa County v. Valley Nat. Bank of Phoenix, 9 Cir., 130 F. (2d) 356. Certiorari was granted because of the public importance of the question raised. In affirming the decision of the Circuit Court the Supreme Court said,[63 S. Ct. 588, 87 L. Ed. 537]: -\\n\\\"Little need be said in answer to the argument that the Act violates the Tenth Amendment. The authority by which the taxes'in question were levied did not stem from the powers 'reserved to the-States' under the Tenth Amendment. It was conferred by Congress which has under the Constitution exclusive authority to determine whether and to what extent its instrumentalities, such as the Reconstruction Finance Corporation, shall be immune from state taxation.\\\"1\\nThere follows citation of authorities, and the opinion resumes:\\n\\\"Hence when Congress withdrew the privilege-which it had previously granted, it was not curtailing-any political power which the Constitution had reserved to Arizona.\\\"\\nThe opinion then cites Owensboro National Bank v. Owensboro, supra. Thus, it will be seen, that within three years last past the Supreme Court has reaffirmed its determination that national banks are instrumentalities of the United States and within two weeks last past it has reaffirmed its determination that Congress has, under the Constitution, exclusive authority to determine-whether and to what extent its instrumentalities shall be immune from state taxation. These decisions have been adhered to by the vast majority of courts of last resort. In respectful regard of those authorities, this court arrived at a like decision in City of Shelbyville v. Citizens Bank of Shelbyville, 272 Ky. 559, 114 S. W. (2d) 719, wherein it was said:\\n\\\"That neither a state nor a subdivision thereof can impose a license or franchise tax on a national bank is firmly established by decisions of the Supreme Court of the United States. National Banks were first established by Congress in 1864, and by an act passed in 1868, Congress granted a qualified permission to the states to tax them. This act, with slight changes, has continued in force to the present time, and is now section 5219, U. S. Rev. Stats., as amended, U. S. C. A. title 12, Section 548.\\\"\\nThus, it will be seen, the judicial construction of the question is to the effect, not only that instrumentalities of the United States are not subject to taxation by the individual states, except by the consent of Congress, but also, that national banks are such instrumentalities. That the federal legislative construction is identical with the judicial construction is clearly established by the amendment to the Social Security Act which became effective January 1, 1940, wherein, for the first time, Congress declared that instrumentalities, of the United States could be subjected by the states to contributions to Unemployment Compensation funds. That the National Social Security Board and the State Unemployment Compensation Commission charged with the enforcement of the' Acts, by bulletins and letters contemporaneously construed the Acts in like manner is admitted. Were we in doubt as to the legislative intent, because of ambiguity in- the wording of the Acts, we would not disregard nor lightly overturn the contemporaneous construction given by those charged with their execution and operation. 25 R. C. L. section 274, page 1043, and cases annotated thereunder. That the Kentucky Legislature intended the law to be so construed is almost manifest by the very enactment of the law. When originally enacted in 1936, the Act recited that if the federal act providing for unemployment compensation should become inoperative, the state law, by virtue of that fact, shall likewise become inoperative. This provision plainly shows that the law was enacted in pursuance to the federal act and to conform thereto. The Federal Social \\u2022Security Act provides that the state enactment shall con form to the federal law as a condition precedent to the latter's participation in the administration of the state-law. The federal act provides for a tax of 3 per cent., upon all covered employers in all of the states. It contains a further provision that upon the enactment by a state of an Unemployment Compensation law conforming to the Social Security- Act, the federal government will remit to the state Commission 90 per cent of the 3: per cent collected from the employers and will defray the-expenses of operation incurred by the Commission out of the remaining 10 per cent. If the Act of 1936 or the-1938 Amendment should be construed to include instrumentalities'of the government, the act would not, to that, extent, conform to the federal,law; and, since it was enacted for the purpose of conforming to the Social Security Act, the Legislature certainly could not have-intended to enact a law upon which a construction could' be placed which might deprive the Commission of the benefits of the taxes paid by the employers. We therefore conclude that national banks are not covered employers within the meaning of the Act.\\nWe now turn to the analogies and distinctions between national banks and the classes of institutions represented by the other defendants in the case. Most of' the judicial decisions characterizing national banks as. instrumentalities of the government were decided previous to the establishment of the Federal Reserve System by the Federal Government. We deem it unnecessary to detail the functions of this system because they are so well known as to be deemed matters of common knowledge. The point we desire to make is: that since-the establishment of the Federal Reserve System, the-member banks, to a greater extent than ever before, are-engaged in the performance of governmental functions directed toward the vital public purpose of the government to stabilize economic and social conditions. The same policy was the principle which motivated Congress in the establishment of the Home Owners. Loan Corporation, the Federal Housing Corporation, and similar federal agencies. And while the Federal Deposit Insurance Corporation was created to perform a function in furtherance of these principles, banks, receiving the benefits of its functions are not members of'the corporation, nor do they themselves perform any act for the corporation, as its agent. They merely pay to the corporation, as they might to any insurance company, a premium in consideration of a contract insuring deposits placed in their custody. What we have said in regard to national banks therefore applies equally and as- forcibly to state banks which are members of the Federal Reserve System, and to all other corporations, state or national, which by exercise of membership in, or contract with, a federal agency perform functions in furtherance of the purposes underlying the creation of the agency. This principle has been stated by the Supreme Court in Westfall v. United States, 274 U. S. 256, 47 S. Ct. 629, 71 L. Ed. 1036. While that case was directly \\u2022concerned with the jurisdiction of the United States Courts over criminal prosecutions of officers and employees of federal instrumentalities (specifically an employee of a state bank which was a member of the Federal Reserve System), the question for decision turned -directly on a determination of the question under consideration in this case. The court said:\\n\\\" And if a State bank chooses to come into the System [i. e., Federal Reserve System] created by the United States, the United States may punish acts injurious to the System, although done to a corporation that the State also is entitled to protect. The general proposition is too plain to need more than statement. That there is such a System and that the Reserve Banks are interested in the solvency and financial condition of the members also is too obvious to require a repetition of the careful analysis presented by the Solicitor G-eneral. The only suggestion that may deserve a word is that the statute applies indifferently whether there is a loss to the Reserve Banks or not. But every fraud like the one before us weakens the member bank and therefore weakens the System. Moreover, when it is necessary in order to prevent an evil to make the law embrace more than the precise thing to be prevented it may do so. It may punish the forgery and utterance of spurious interstate bills of lading in order to protect the genuine commerce. United States v. Ferger, 250 U. S. 199, 39 S. Ct. 445, 63 L. Ed. 936. See further Southern Ry. Co. v. United States, 222 U. S. 20, 26, 32 S. Ct. 2, 56 L. Ed. 72. That principle is settled. Finally Congress may employ state corporations with their consent as instrumentalities of the United States, Clallam Coun ty v. United States, 263 U. S. 341, 44 S. Ct. 121, 68 L. Ed. 328, and may make frauds that impair their efficiency \\u2022 crimes, United States v. Walter, 263 U. S. 15, 44 S. Ct. 10, 68 L. Ed. 137 .\\\" This proposition requires ho further elucidation.\\nWe are now faced with the final contention of the Farmers Bank and Capital Trust Company that the act, in so far as it purports to tax state banks and to exempt national banks, is violative of the state constitution, because it is a discrimination denounced and forbidden by sections 171, 172, 174, and 202 of the Constitution. This question was .squarely before us in the case of City of Shelbyville v. Citizens Bank of Shelbyville, supra. There it was decided that national banks are exempt from taxation by the Constitution of the United States and the Acts of Congress; and, if immunities are granted by Congress, the Legislature has not violated, any provision of the state or national constitution by enforcing its power - of taxation on institutions not immunized by the federal government. We will not further extend the reasoning by which we arrive at this conclusion, because it would merely be an iteration of the reasoning contained in the Shelbyville case, and to which the reader 'may refer at his discretion.\\nWherefore, the judgment as to the Anderson National Bank, Farmers Bank and Capital Trust Company, and the Greater Louisville First Federal Savings and Loan Association is affirmed; but, as to the Peoples-Liberty Bank and Trust Company, the Kentucky Title Trust Company, and the Ideal Savings, Loan and Building Association, it is reversed for proceedings 'consistent with this opinion.\"}"

ky/2839234.json

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+"{\"id\": \"2839234\", \"name\": \"Collier et al. v. Commonwealth\", \"name_abbreviation\": \"Collier v. Commonwealth\", \"decision_date\": \"1947-01-17\", \"docket_number\": \"\", \"first_page\": \"670\", \"last_page\": \"673\", \"citations\": \"303 Ky. 670\", \"volume\": \"303\", \"reporter\": \"Kentucky Reports\", \"court\": \"Kentucky Court of Appeals\", \"jurisdiction\": \"Kentucky\", \"last_updated\": \"2021-08-10T17:46:13.220231+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Collier et al. v. Commonwealth.\", \"head_matter\": \"Collier et al. v. Commonwealth.\\nJanuary 17, 1947.\\nS. V. Little and Murray L. Brown for appellants.\\nEldon S. Dummit, Attorney General, and H. K. Spear, Assistant Attorney \\u2022 General, for appellee.\", \"word_count\": \"1053\", \"char_count\": \"5952\", \"text\": \"Opinion op the Court by\\nJudge Sims\\nAffirming.\\nG-lenn Collier and Dewey Brown, upon a joint trial, were convicted of armed robbery and the punishment of each was fixed at 21 years in the penitentiary. On this appeal they argue but two grounds for a reversal of the judgment;\\n(1) Incompetent evidence was introduced over their objection;\\n(2) The verdict is not supported by the evidence and is the result of passion and prejudice.\\nThe evidence of the Commonwealth is to the effect that between 10 and 11 o 'clock on the night of April 15, 1945, Walter Beams, a truck driver, met appellants by chance at the White Cabin Camp in Laurel County. They agreed to procure some whiskey for Beams and he got into a car with appellants, who drove him several miles in the country to get the whiskey. Arriving at their destination, the three men left the car and entered a field. They were standing near a tree when some mention was made by one of the appellants that a dangerous bull was in the field. Beams turned to look at an approaching \\\"cow brute\\\" and at th\\u00e1t moment was knocked unconscious by a severe blow on his head with some blunt instrument, which raised a big knot above his left ear and cut a place on his head. When Beams was struck Collier was to the right of him and Brown was to the left and behind Beafbs.\\nWhen he regained consciousness, Beams was still in the field, his head was bloody and a billfold that was strapped to his belt had been cut therefrom and between $30 and $35 contained in it were gone, as well as the two men lie identified as appellants. Reams immediately reported the matter to the officers giving them a description of Collier and Brown and the car in which, they drove him to the country.\\nThe officers went to Collier's home the day following the robbery but he evaded them and his mother falsely informed the officers that he was in Ohio. About a week after the robbery, and when he knew the officers were looking for him, Collier did go to Ohio. Brown testified that a week after the robbery he knew the officers were looking for him and had been to his home in his absence. Brown did not leave the community but it was not until the following August that the officers were able to apprehend and arrest him, which they did by a ruse. Both appellants denied robbing Reams and offered evidence to the effect that they went fox hunting about dark on the night of the robbery and remained on the hunt until around 2 o'clock the next morning.\\nThe incompetent evidence complained of is that John Black (a highway patrolman) was permitted to testify that the day following the robbery he saw automobile tracks near the point where Reams testified the car in which appellants took him to the country was stopped, which tracks were made by a car with \\\"mud grip tires,\\\" the character of tires on the Collier car. Appellants rely on the case of Appalachian Stave Co. v. Pickard, 260 Ky. 565, 99 S. W. 2d 472, as supporting their contention that this evidence was incompetent. A reading of that case shows it has no application here. This testimony was not introduced to show the position of the ear on the road as pointed out to Black by Reams, which the Pickard opinion condemns as hearsay, but to establish a link in the circumstantial chain by proving that a car with tires similar to those on the Collier car had been at the place near the scene of the robbery.\\nBlack was asked if the description given him by Reams of the men who robbed him and of the car in which they traveled indicated anything to him, and he answered, \\\"Yes, I thought it was these boys here.\\\" Appellants complain that this evidence expresses a mere surmise or opinion on the part of the witness rather than a fact. It has been written that such expressions as \\\"I thought,\\\" \\\"I suppose\\\" and \\\"I believe\\\" do not always indicate a conjecture or guess at the facts, but that such expressions, are often an idiomatic or colloquial way of stating a fact according to the best judgment of the witness. See annotation 4 A. L. R. 979. It is patent the thought which Black meant to convey by his answer was that the description of the men and of the car given by Reams identified the appellants to the witness. Reams definitely identified appellants as the two men present when he was knocked unconscious and robbed.\\nFurther complaint is made of the fact that after appellants testified what persons composed their hunting party, they were confronted with affidavits made by them for continuances wherein persons different from those named in their testimony were set out in the affidavits as the ones who went hunting with appellants. It would have been competent for the Commonwealth to introduce any statements made by appellants which tended to contradict their testimony. Therefore, it was certainly competent for the Commonwealth to contradict appellants by introducing their statements made in affidavits for a continuance as to who accompanied them on their alleged hunting'trip.\\nThere is perhaps other .evidence which appellants argue was erroneously admitted, but it is so devoid of merit that we do not deem it necessary of discussion.\\nThere is no force in appellants' second contention that the verdict is not supported by the evidence and that it was result of passion and prejudice on the part of the jury. The evidence as a whole is conflicting. It would have supported a verdict for appellants or one for the Commonwealth. Therefore, the case was peculiarly one for the jury, which is the judge of the credibility of the witnesses and the weight to be given their evidence, and we cannot disturb the verdict. Alexander v. Commonwealth, 262 Ky. 93, 89 S. W. 2d 867.\\nFinding no error prejudicial to appellants' substantial rights, the judgment is affirmed.\"}"

ky/2870805.json

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+"{\"id\": \"2870805\", \"name\": \"Treas et al. v. Stilley\", \"name_abbreviation\": \"Treas v. Stilley\", \"decision_date\": \"1948-12-17\", \"docket_number\": \"\", \"first_page\": \"834\", \"last_page\": \"836\", \"citations\": \"308 Ky. 834\", \"volume\": \"308\", \"reporter\": \"Kentucky Reports\", \"court\": \"Kentucky Court of Appeals\", \"jurisdiction\": \"Kentucky\", \"last_updated\": \"2021-08-10T23:03:44.320030+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Treas et al. v. Stilley.\", \"head_matter\": \"Treas et al. v. Stilley.\\nDecember 17, 1948.\\nLovett & Lovett for appellants.\\nH. B. Holland for appellee.\", \"word_count\": \"768\", \"char_count\": \"4227\", \"text\": \"Opinion op the Court by\\nMorris, Commissioner\\nReversing.\\nDr. V. A. Stilley by a will written in his o-wn hand, provided for payment of debts and bequeathed to his wife $1,000. As to other property, which included a house and lot in the City of Benton, he provided:\\n\\\"The remainder of my estate, real, cash or other personal property, bank stock notes, certificates of deposit, be divided equally between my daughter Mary Carter Treas and my grandson Van Albert Stilley III. But it is my will and desire that the said Mary Carter Treas and my grandson do not sell any of my real estate or bonds until after the death of my beloved wife, and it is further my wish, will and desire that the said Mary Carter Treas and Van Albert Stilley III, or his guardian, pay to my beloved wife the sum of $75 each and every month so long as she lives, then after her death my daughter and grandson, or his guardian, may sell or do with the entire estate as they deem best. It is my further will and desire that my son-in-law Cliff Treas, in whom I have the utmost confidence, assist Mary C. Treas and my grandson or his guardian in carrying out this my last will and testament.\\\"\\nThe petition alleges that. Nulena Stilley Vicks was the duly appointed guardian of Van Albert Stilley. She joined as plaintiff with the daughter and executor. The wife of testator died in February 1948. The grandson is over 17 years of age; he was a son of Dr. Y. A. Stilley, Jr., who had predeceased his father.\\nIt is alleged that the daughter, the guardian and executor and advisor deemed it to the best interest of the owners to sell, and had mutually agreed to convey a portion of the lot to J. P. Stilley (defendant and appellee) at a price, the sale and consideration having been approved by Cliff Treas, executor of the will. It is alleged that defendant refused to accept a deed executed by the daughter and guardian, \\\"because the will of testator does not give to the daughter and guardian the right to sell the interest of the grandson without a judicial determination of their rights under the will. ' ' Contending that the will does grant such power, upon approval by the advisor, appellants ask the court to hold that the guardian had the right to dispose of the interest of the infant, and to pass a good title. The answer admitted all facts alleged in the petition but controverted the conclusion that testator's will gave the powers to sell or to pass a good title without judicial sanction.\\nUpon submission the Chancellor -adjudged that the will in question gave to the guardian of the grandson power to sell and convey any of the real estate devised by the will, \\\"but no power to convey until the price therefor is submitted to the court and approved, but when the price is submitted and approved by the court, then and in that event the will is so construed as to give to the guardian power to sell and convey the real estate owned by testator at his death, and when such price is approved to pass good title to said property free from any defects.\\\"\\nSince no question has been made concerning the Chancellor's holding that full power was given a guardian to sell with the approval of the person in whom testator had great confidence, the only question for our determination is: Must the consideration for the sale of this portion of real estate be approved by the court in order to pass good title?\\n\\\"We assume that the Chancellor in requiring the price to be submitted to and approved by him was impressed by the provisions of subsection 8 of Sec. 489 of the Civil Code of Practice. But we are of the opinion that this section does not apply in cases where the un limited power of disposition is granted by the terms of the will, as it is in this case. Johnson v. Harris, 202 Ky. 193, 259 S. W. 35.\\nWe are of the opinion that here, where the right to sell was without condition or restriction except the approval of the son-in-law, the sale so approved could be made and good title passed without the court's approval, of the consideration; hence so much of the judgment as holds to the contrary is erroneous.\\nThe judgment is reversed.\"}"

ky/2875449.json

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+"{\"id\": \"2875449\", \"name\": \"Davis, Sheriff, v. Becker\", \"name_abbreviation\": \"Davis v. Becker\", \"decision_date\": \"1949-02-08\", \"docket_number\": \"\", \"first_page\": \"775\", \"last_page\": \"779\", \"citations\": \"309 Ky. 775\", \"volume\": \"309\", \"reporter\": \"Kentucky Reports\", \"court\": \"Kentucky Court of Appeals\", \"jurisdiction\": \"Kentucky\", \"last_updated\": \"2021-08-10T17:36:01.858236+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Davis, Sheriff, v. Becker.\", \"head_matter\": \"Davis, Sheriff, v. Becker.\\nFebruary 8, 1949.\\nA. E. Funk, Attorney General, Hal Williams, Assistant Attorney General, and Maurine Sharp, Attorney for Department of Revenue for appellants.\\nT. E. Mahan for appellee.\", \"word_count\": \"1229\", \"char_count\": \"7344\", \"text\": \"Opinion of the Court by\\nMorris, Commissioner\\u2014\\nReversing.\\nAppellee, who was plaintiff below, prior to July 1, 1946, had inherited from her husband certain properties including 300 shares of U. S. Steel Corporation. In her petition she alleges that her husband had always attended to the listing of property for taxation; that she was inexperienced in such matters, and as a result failed to list at the time required by law.\\n\\\"When she went to pay her tax bill in November 1947, it was discovered that the 300 shares of stock had been omitted. Upon advice of her counsel the stock was listed with the county clerk and the State Revenue Department, as is authorized by applicable statute. The clerk had valued the stock and fixed the amount of the tax due at $135, and certified the amount to the sheriff; he accepted the amount and reported and remitted to the State Revenue Department. That body refused to accept or approve the payment, and because of the failure to list in the required period, assessed a 100 per cent penalty and directed the sheriff to take steps to collect an additional $135.\\nAppellee declined to pay the additional assessment, and alleging that the sheriff was preparing to adopt coercive measures to enforce collection, instituted suit, alleging the facts as substantially stated and asked that the court enjoin the sheriff from acting. Appellant filed general and special demurrers, the first on the usual Code grounds; the latter on the ground that the statute provides that any taxpayer dissatisfied with the finding or ruling of the Revenue Department may appeal to the Franklin Circuit Court, and upon adverse ruling there, to this cpurt. 1946 KRS 132.320(2).\\nUpon submission on demurrers the chancellor overruled \\\"both the general and special demurrers, and the defendant declining to pleadf further\\\" enjoined the sheriff from undertaking to collect the additional assessment of $135. ' , . - i\\nAs we read the briefs there are two questions presented, the application of the section of the statute above mentioned, and whether or not one who voluntarily lists property after the time fixed by statute, 'and pays the tax before the time fixed by statute may-escape .the penalty. In other words, if the taxable property has been omitted, does the payment of tax within the period satisfy the statute? We have no difficulty in determining that Mrs. Becker omitted the listing of the 300 shares of stock; and as a consequence, if her payment, of the tax prior to March 1, 1947 (KRS 134.020) as argued by appellee, did not excuse the penalty, then the taxpayer if aggrieved by the Department's action in the premises, should have followed the statute by appeal to the Franklin Circuit Court, which is given exclusive jurisdiction, and the chancellor erroneously overruled the special demurrer.\\nAppellee to avoid the effect of the statute, strenuously contends that the assessment of the penalty was illegal and void, hence the Whitley Circuit Court had jurisdiction. This argument is based on appellee's construction of other sections of the statute, in short, that section 132.290, KRS, has no application in cases where the taxpayer without action by the Department, or as claimed, pays the tax within the tax paying period.\\nAppellee directs attention to portions of Section 132.290, which provides that when intangible property, liable to assessment, is in any year omitted from assessment it may be assessed retroactively within a period of ten years, \\\"either voluntarily or by action, and a penalty of one hundred percent of the amount of the taxes, and interest at six percent per annum from the time the taxes should have been paid, shall be paid.\\\" It is then provided that if assessment be by action, an additional penalty of 20 per cent shall be recovered.\\nCounsel argues that since the taxes were paid without action or voluntarily, the penalty could not attach. We do not so construe the section. The reference to the \\\"time when the taxes should be paid\\\" relates to the matter of payment of the 6 per cent interest.\\nSection 132.320(2) relied upon by appellee, provides substantially that a person who has failed to list intangibles because he was not called upon by the assessing officer, or any other reason, may at any time and shall after the commissioner has returned his books, list the property with the State Department, and the Department shall determine the taxable value and certify to the clerk. This provision was not precisely followed in this case, and had it been it would not have relieved the taxpayer of the penalty imposed because of the omission of listing, or the omission from assessment. We say this because subsection (4) provides that all property listed under this section shall be liable for payment of taxes, interest and penalties provided by law for failure to list the property with the county tax commissioner or other assessing board within the tim\\u00e9 and in the manner prescribed by law, \\\"except that if the taxpayer voluntarily lists property under this section the twenty percent penalty provided to be paid to the department shall not apply, unless the taxpayer on an appeal from the action of the department attempts to reduce the assessment and is unsuccessful.\\\" This section seems to make it clear that there must be an appeal from the Department's action, whether it involves the question of valuation, fixing the interest or applying the penalty. A reading of Klosterman v. Johnson, 226 Ky. 192, 10 S.W.2d 602, 603, relied upon by appellee, does not justify the conclusion that voluntary payment of taxes on property omitted from assessment, or which had not been listed as required by law, would avoid the payment of the 100 per cent penalty.\\nIn that case we held that under the then applicable statute there were three ways of assessing property for taxation, and that the penalties authorized by statute upon a coercive assessment did not apply to a voluntary assessment made by the taxpayer in the manner and within the time provided by law. \\\"The only penalty visited upon a taxpayer who lists his property in either of the ways provided is the one arising from a default in payment the purpose of the legislature was to secure, insofar as possible, a voluntary listing of all property.\\\" The argument that the 100 per cent penalty should not be paid until, the time when the 6 per cent interest attaches (ostensibly for failure to pay taxes when due) seems to be answered by the opinion in City of Cincinnati v. Commonwealth ex rel. Reeves, 292 Ky. 597, 167 S.W.2d 709.\\nIt is alleged that the property in question was not listed, and was omitted from assessment within the time fixed by law, and this failure on the part of the taxpayer justified the Department in assessing the 100 per cent penalty. This being so, it was the duty of the taxpayer aggrieved \\\"by the finding or ruling of the Department\\\" to prosecute appeal to the Franklin Circuit Court, the forum given first appellate jurisdiction, hence the court was in error in overruling appellant's special and general demurrers.\\nJudgment reversed for proceedings consistent herewith.\"}"

ky/2905088.json

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+"{\"id\": \"2905088\", \"name\": \"Clark v. Riehl et al.\", \"name_abbreviation\": \"Clark v. Riehl\", \"decision_date\": \"1950-05-30\", \"docket_number\": \"\", \"first_page\": \"142\", \"last_page\": \"147\", \"citations\": \"313 Ky. 142\", \"volume\": \"313\", \"reporter\": \"Kentucky Reports\", \"court\": \"Kentucky Court of Appeals\", \"jurisdiction\": \"Kentucky\", \"last_updated\": \"2021-08-10T22:03:13.993909+00:00\", \"provenance\": \"CAP\", \"judges\": \"Franklin S. Fitch, Judge.\", \"parties\": \"Clark v. Riehl et al.\", \"head_matter\": \"Clark v. Riehl et al.\\nMay 30, 1950.\\nFranklin S. Fitch, Judge.\\nRopke, Goldstein, Lampe, & Poynter, for appellant.\\nWilliam F. Clarke, Freeman L. Robinson, and Randolph A. Brown for appellees.\", \"word_count\": \"1653\", \"char_count\": \"9869\", \"text\": \"Van Sant, Commissioner.\\nReversing.\\nOn September 30, 1949, a group of persons, being the owners of more than fifty one per centum of. the property abutting upon Fairy Drive and Elfin Avenues, public, but not County or State, roads in Jefferson County outside of Louisville, filed a petition in the Jefferson County Court for the creation of a public road district under Chapter 184, KRS. The district, if established, would commence on Fairy Drive 140 feet east of its intersection with Chenowith Lane and extend eastwardly to the intersection of Fairy Drive with Chippawa Trail, an approximate distance of 1600 feet, and on Elfin Avenue it would commence at a point approximately 763 feet east of its intersection with Chenowith Lane and extend eastwardly to its intersection with Chippawa Trail an approximate distance of 900 feet. Neither the beginning point of the proposed district on Fairy Drive nor that on Elfin Avenue is at an intersection of either of those streets with any other street, road, or thoroughfare; each beginning point, however, commences at the terminal point of an existing pavement in the course of each of the roads mentioned in the description of the district.\\nAppellants, who are owners of property abutting upon the roads comprising the district, demurred specially to the jurisdiction of the Court, filed a general de-' murrer to the petition, and answered, protesting the creation of the district. Evidence was heard on the protest and judgment entered by the County Court in accordance with the prayer of the petition.\\nFour arguments are advanced in support of appellants' contention that the judgment should be reversed. In view of our conclusion in respect to the first point argued, it is unnecessary for us to discuss the other three. The first- contention is that the petition fatally is defective and the judgment creating the district is erroneous because the district, as described in the petition and which was incorporated by reference in the judgment, does not comply with the requirements of KRS 184.020 in respect to boundary lines. That Section reads:\\n\\\"Sponsorship of road district; preparation of map, estimate of cost, and petition. A public road district may be established in the following manner: Any person or group of persons owning property abutting upon any public road (which is neither a county road nor a state road) in counties outside of and containing cities of the first class may sponsor the creation of such a road district. The sponsors shall first prepare or have prepared for them a map of that section of such public road which they desire to have improved. Such map shall show the boundary lines of the road, the intersections with other roads and the terminal points on the road desired to be improved, which shall always be center lines of intersections with other roads, and shall set forth on such map the names of the owners of all property and the number of linear feet owned by them abutting upon such road. The sponsors of said road district shall also have estimated for them by an engineer, who must be a private engineer licensed by the Commonwealth of Kentucky pursuant to KRS Chapter 322, the approximate cost of constructing the improvements desired, together with a statement of the approximate cost which shall be borne by each owner of property abutting on the road, determined by the number of linear feet of property owned by each abutting property holder. Said sponsors of said road district shall also prepare a petition and shall attach to said petition the aforesaid maps and statements of cost.\\\" (Our emphasis.)\\nIn many cases, from the earliest decisions of this Court to now, we have construed the words \\\"shall\\\" and \\\"must\\\" as the case may have been, to have the meaning of \\\"may\\\" and \\\"might,\\\" where the context indicates such was the intention of the Legislature or the draftsman of the instrument under consideration at the time. But where other words are used in connection with \\\"shall,\\\" \\\"must,\\\".\\\"may\\\" or \\\"might,\\\" which clearly indicate mandatory or directory construction, as the case may be, we have never ignored the force of the descriptive or qualifying language.\\nKRS 184.020, supra, provides that the sponsors of the road district shall prepare or have prepared for them a map of that section of a public road which they desire to have improved, and that the map shall show the boundary line of the road, its intersection with other roads, and the terminal points on the road desired to be improved. Then, without break in thought or sentence, the Legislature incorporated in the Act the following words: \\\"which (terminal points on the road) shall always be center lines of intersections with othe\\\\r roads, (Our emphasis.) The use'of the words \\\"shall always be\\\" clearly manifests to ns that it was the intention of the Legislature to mandatorily require the district to commence at the center line of the junction of the described road and another road pursuing a different course.\\nIt is conceded that no other road intersects Fairy Drive or EMn Avenue at their western terminal points; but it is contended that, since Fairy Drive has been paved for a distance of 140 feet east of its intersection with Chenowith Lane, and. Elfin Avenue has been paved for a distance of 763 feet east of its intersection with that lane, the requirements of the statute have been complied with, or, at least, substantially so. In support of this contention, appellees argue that the unpaved portion of Fairy Drive intersects, by joining with, the paved portion of the Drive and the unpaved portion of Elfin .Avenue intersects, by joining with, the paved portion of that Avenue. We are of the opinion that two expressions in the section under consideration preclude such construction; the first is \\\"center lines of intersections,\\\" which clearly indicates that the intersection referred to is such as would not be the mere extended portion of the road described; the other expression is \\\"other roads\\\" which we construe to mean different roads from, in contradistinction to mere extended portions of, described roads.\\nAs authority for their position, appellees cite a part of the text in 25 Am. Jur., Section 209, Page 509, wherein it is said: \\\"The weight of authority is to the effect that the junction of two streets or highways may form an intersection, within the meaning of a traffic statute or regulation, although one of them extends only to and not beyond the other, at least where the spirit and purpose of the regulation extend to such- a locus. ' '\\nThis section of the text refers to a place where one street ends or deadends at its. angular junction with another, and does not refer to a given point in a street or highway which is not touched by a different street or highway. Even if this construction were not apparent, an unquoted portion of the text immediately preceding the portion quoted clearly defines the term \\\"intersection of a street or public highway ' ' to mean ' ' the space of the street or highway, common to both ways. The center of the intersection is the point where the centerline of one street or road meets the centerline of the other, both lines being drawn parallel to and halfway between the curbs and projected to the point of meeting.\\\"\\nNeither' do we construe the definition cited from Winston's Dictionary to indicate a different meaning. That definition of \\\"intersection\\\" is:\\n\\\"The place where two lines or two surfaces meet.\\\" Integrated, segments of one line do not constitute two lines; neither do two such segments of a street constitute two streets. The word \\\"intersect\\\" means: \\\"T(o pierce or divide by passing through or athwart; cut across; cross; as, any two diameters of a circle intersect each other.\\\" The word \\\"intersection\\\" means: \\\"Act, state, or place of intersecting.\\\" Webster's New International Dictionary. We have been unable to find any definition of the word intersection sufficiently elastic to incorporate the meaning given it in the argument of counsel for appellees.\\nThe judgment of the County Court, approving the creation of the district, recites :\\n' ' The proof further shows that the 140 feet- omitted on Fairy Drive and the 763 omitted on Elfin Avenue are public roads and that they are paved roads.\\n' ' The technical wording of the statutes contemplates road districts with the streets or roads extending to the center of the intersecting roads. The obvious purpose is to provide for a completion of streets or roads to the natural length and not to a dead end.\\n\\\"Here, however, the abutted property owners, without forming a road district, have completed and incurred the expense incident to parts of these two streets. It would indeed be a foolish thing to require that these two sections of streets which are already paved be taken up and rebuilt under-the proposed district. This would in deed be a duplication of work. The law does not require a foolish or non-essential thing to be done.\\\"\\nThe County Judge Pro Tern., who pronounced judgment, ignored the rule of statutory construction that the Legislative intent must be determined from the language used in the statute. Department of Revenue et al. v. Mellvain et al., 302 Ky. 558, 195 S. W. 2d 63. Courts should be extremely careful to accord to the Legislature the power to exercise those matters of discretion which are preserved to it by the Constitution. Thus the wisdom or folly of Legislative enactments, within constitutional bounds, may not be weighed in judicial construction of a statute free of ambiguity.\\nWe are of the opinion that the Court erred in approving the creation of the district, for which reason the judgment must be, and hereby is, reversed.\"}"

ky/2910406.json

@@ -0,0 +1 @@
+"{\"id\": \"2910406\", \"name\": \"Pratt Fruit Co. v. Sparks Bros. Bus Co.\", \"name_abbreviation\": \"Pratt Fruit Co. v. Sparks Bros. Bus Co.\", \"decision_date\": \"1950-10-06\", \"docket_number\": \"\", \"first_page\": \"593\", \"last_page\": \"596\", \"citations\": \"313 Ky. 593\", \"volume\": \"313\", \"reporter\": \"Kentucky Reports\", \"court\": \"Kentucky Court of Appeals\", \"jurisdiction\": \"Kentucky\", \"last_updated\": \"2021-08-10T22:03:13.993909+00:00\", \"provenance\": \"CAP\", \"judges\": \"Edward P. Hill, Judge.\", \"parties\": \"Pratt Fruit Co. v. Sparks Bros. Bus Co.\", \"head_matter\": \"Pratt Fruit Co. v. Sparks Bros. Bus Co.\\nOctober 6, 1950.\\nEdward P. Hill, Judge.\\nHoward and Combs for appellants.\\nJ. K. Wells and Combs & Combs, for appellee.\", \"word_count\": \"653\", \"char_count\": \"3722\", \"text\": \"Clay, Commissioner\\nAffirming.\\nIn this motor vehicle collision case, a jury awarded appellee $1650 for damage to, and loss of the nse of its bus. Appellant contends (1) it should have had a directed verdict because appellee's driver was guilty of contributory negligence gs a matter of law; (2) an \\\"emergency instruction\\\" should not have been given; and (3) there was no proof of damage 'by reason of the loss of use.\\nEarly one afternoon appellee's bus was traveling on an 18 foot highway. Appellant's one and one-half ton truck was parked in front of a grocery store on the left-hand side of the highway as the bus approached, two or three feet off the paved surface. Another automobile proceeding in a direction opposite to that of the bus passed the truck, and immediately thereafter the latter's driver pulled out onto the highway and angled the vehicle over to the right hand side of the road. The bus struck the truck squarely in the rear.\\nIt appears the bus driver did not observe the presence of the truck on or near the highway until just before the collision took place. On the basis of this proof, appellant argues the bus driver was guilty of contributory negligence as a matter of law because he was not keeping a lookout.\\nIt may have been negligence on the part of the bus driver in failing to observe the presence of the truck and anticipate that it might be driven onto the highway. On the other hand, the approach of the automobile created such a condition that the bus driver may have been justified in concentrating his attention on his own side of the highway. In addition, one could reasonably conclude that, even if he should have seen the truck before it moved, he had the right to assume it would not be driven blindly onto the highway. Whether or not his actions constituted contributory negligence was clearly a jury question.\\nAppellant also suggests the bus driver should have stopped the bus more .quickly, but this was likewise an issue properly submitted to the jury.\\nInstruction No. 2 advised the jury that if the bus driver was suddenly and unexpectedly confronted with an imminently dangerous situation caused by the truck driver's negligence, the former was not required to adopt the best possible course to avoid the impending collision, although he was still required to operate the bus in a reasonably prudent manner. While we- do not think it was necessary for the court to have given such an instruction, it was not improper under the circumstances. The truck did pull out in front of the bus from behind another vehicle, and there was a \\\"sudden appearance.\\\" If, as the instruction set out, the emergency was created by the negligence of the truck driver, the bus driver was not under a duty to select the best means of avoiding the danger. This instruction did not absolve him of negligence, but simply defined in greater detail his duties under the preceding contributory negligence instruction.\\nA witness for appellee testified that the reasonable rental value of a bus, such as the one involved, was $60 a day, but that would include operating expenses of $20 to $25 a day. Prom this proof and other testimony, the jury could reasonably find that the net rental value was $25 to $35 per day. Appellee lost the use of this bus for 76 days. It is apparent the jury allowed the sum of $217.43 for the loss of use. How the precise figure was arrived at we are unable to determine, but there was sufficient evidence upon which the jury could find this a reasonable rental value for a reasonable time.\\nThe judgment is affirmed.\"}"

ky/3201160.json

@@ -0,0 +1 @@
+"{\"id\": \"3201160\", \"name\": \"Shannon vs. Clark---Sheriff\", \"name_abbreviation\": \"Shannon v. Clark\", \"decision_date\": \"1835-06-03\", \"docket_number\": \"\", \"first_page\": \"152\", \"last_page\": \"153\", \"citations\": \"3 Dana 152\", \"volume\": \"33\", \"reporter\": \"Kentucky Reports\", \"court\": \"Kentucky Court of Appeals\", \"jurisdiction\": \"Kentucky\", \"last_updated\": \"2021-08-10T17:35:34.332124+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Shannon vs. Clark-\\u2014-Sheriff.\", \"head_matter\": \"Shannon vs. Clark-\\u2014-Sheriff.\\nMotion.\\n[Mr. Owsley for Plaintiff: Messrs. Morehead and Brown for defendant.]\\nFrom the Circuit Court for Franklin County.\\nJune 3.\\nference of the requesting33 that the ex\\u2019on may salehelpostp\\u00f3ned3 or the like, the ed from^the penalty for such fail-vacation or mod-creditor\\u2019s \\u00b0direo8 tions,after the redm\\u201d him Hable1 And \\u2014 . Where the failure of a Sheriff or deputy to return an. execution within one month of the return day, is caused hv the inter-\", \"word_count\": \"821\", \"char_count\": \"4763\", \"text\": \"Chief Justice Robertson\\ndelivered the Opinion of the Court.\\nIn this case, the Circuit Court overruled a motion against a Sheriff, for the penalty denounced by statute, for failing to return a fieri facias within one month after the return day.\\nOn the hearing of the motion, it appeared that, after the execution had been levied on all the vendible property debtor, the creditor told the deputy sheriff, who made the levy, that it was his object, not to sell the debt- or's property, but to secure it from sale by others, and instructed him therefore, uto hold up said execution, and not to proceed with the same.\\\" It also appeared, that the depuadvertised, that he would sell the property under the execution,on a day which was about four months after the and that, about fifteen days after tbe return day of the. execution, the creditor assigned it to a stranger, who directed the deputy sheriff to proceed in making the money on the execution, and that he did proceed and sell the property according to his previous advertisement.\\nThe sheriff relied on these facts as sufficient to excuse the failure to return the execution within one month after the return day. The Circuit Court deemed the excuse sufficient; \\u2014 and we concur in that opinion.\\nIt is evident that the creditor, by his interference and instructions, dispensed with the ordinary official action on the process, and with the regular return of it. And though his assignee afterwards directed the officer to proceed, that direction was not made until after the return day, and not only did not imply that he desired a prompt return, but clearly evinced a desire only that the officer should, according to his advertisement, proceed to make what he could by a sale of the property upon which the execution had been levied. As the return day had then passed by, there could not be another levy of the same execution, and the instruction was only to \\\"proceed\\\" under that execution. The ease thus stands precisely as it would, had the original creditor himself, without transferring to another the benefit of the execution, told the deputy to \\\"proceed;\\\" whereby he would have revoked or qualified his first instructions in one particular only, and that is, as to selling the property, and not as to the holding up of the execution.\\nWhere an ex'on creditor, not leaving the officer to the directions of the law \\u2014 gives him instructions that essentially affect the performance of his duty, he exonerates the high Sheriff from the penalties to which he might otherwise be liable. And if the creditor suffers by the delinquency of the officer whom he has thus influenced, his only remedy is by a common law action\\nWe are, on this ground, clearly of the opinion, that the sheriff is not liable, on motion, to the penalty denounced by law for a failure to return an execution within one month after the return day.\\nAnd it is also our opinion, that no instruction which could have been given to the officer, after- the return day, and after he had so far complied with thefirst instruction, could have rendered his principal liable to the statutory penalty for not returning within one month. '\\nA creditor, who thus interferes with the process in the hands of a deputy, thereby absolves the principal sheriff, and assumes on himself the responsibility; or m other words, waves his strict legal right to a punctilious observance of official duty by the deputy; and if he be damnified by the negligence of the officer, he must seek reparation for the actual damage, by an ordinary common law remedy. A right to the penalty is stricti juris-, and should not be admitted where the creditor has not left the officer to the instruction of the law, but has (as in this case) by his own instructions, materially relaxed or modified the legal duties, so as essentially to effect the manner and time pf performing them. The officer must have the whole time, and be left with the entire discretion given to him by law, before he should be held liable for the heavy penalty imposed for an abuse or neglect of his legal power, and discretion; or, at least, there should not be such an interference by the creditor, as to prevent a literal compliance with the law, or render it inconvenient, or at all vexatious or embarrassing.\\nJudgment affirmed.\"}"

ky/4390579.json

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+"{\"id\": \"4390579\", \"name\": \"Farra v. Adams, &c.\", \"name_abbreviation\": \"Farra v. Adams\", \"decision_date\": \"1877-01-15\", \"docket_number\": \"\", \"first_page\": \"515\", \"last_page\": \"523\", \"citations\": \"12 Bush 515\", \"volume\": \"75\", \"reporter\": \"Kentucky Reports\", \"court\": \"Kentucky Court of Appeals\", \"jurisdiction\": \"Kentucky\", \"last_updated\": \"2021-08-10T19:21:31.955268+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Farra v. Adams, &c.\", \"head_matter\": \"Case 8 \\u2014 PETITION EQUITY\\nJan. 15.\\nFarra v. Adams, &c.\\nAPPEAL KROM GARRARD CIRCUIT COURT.\\n1. Silence did not constitute an estoppel in this case, where all the facts were known or might have been easily ascertained by the party claiming the benefit of the estoppel. See in opinion a statement of the facts showing their insufficiency to constitute an estoppel.\\n2. Charge upon estate devised to one for the payment of a legacy to another.\\nWhen realty is devised to the person who, by the will, is directed to pay a legacy to another, the legacy is an equitable charge on the realty.\\nThis rule is the proper one to apply where the devisees are the two sons and the legatee is the daughter of the testator, and when the will shows that the sons are directed to pay the legacy in order to insure equality.\\n3. The legatees lien upon the realty charged with the payment of the legacy can not be defeated by a sale of the realty.\\nTestator devised to his two sons a tract of land at the price of $20,000, and after making several other devises to his sons and a daughter he says, \\u201cIn this division my daughter lacks $2,800 to make her equal with my sons, which is to be paid her out of the personalty; and if there is not sufficient to pay it, then my sons are to make up said sum in three annual installments.\\u201d Held, that the daughter has a Men on the land devised to the sons which is superior to that of the vendee of the sons or the lien of the holder of notes executed to the sons for the purchase price of the land. But as the testator sold a part of the land devised to the sons, after publishing his will, it may be proper to inquire whether the daughter is entitled to receive the full amount of her legacy, and to this extent this case is left open for the action of the court below.\\nJAS. A. ANDERSON rob. appellant.\\n1. The creditors of the testator had a, prior lien on the land devised to his two sons.\\n2. The pecuniary devise to the daughter required to be paid by the two sons was a charge on the land devised to them. (4 Kent, 540; Phillips\\u2019s ex\\u2019rs v. Stites, 2 Duvall, 313.) This rule applies when the executor is the devisee. (2 Jarman on Wills, 525-6.)\\n3. The decedent\\u2019s debts must be paid out of the whole estate, and the surplus distributed ratably.\\n4. A married woman can not make an executory contract either for the purchase or sale of land unless it be in conjunction with her husband, and in the mode pointed out by law. (Johnston and wife v. Jones, 12 B. Mon. 330.)\\nBRECKINRIDGE & SHELBY on same side.\\n1. The lien created by one of the devisees on the land devised was not paramount to the lien created on the same land by the legacy charged upon it or the debts of the testator.\\nThe debts of the testator are necessarily burdens on his whole estate, and his devisees take mm mere. Having left insufficient personalty for payment of debts, his lands became at once, and as his land, subject to their payment. Into whomsoever\\u2019s hands the land came it bore that burden.\\n2. The devisee can not make any conveyance by which the land is freed from the encumbrance or charge placed on it by the testator, and in this country there can be no innocent purchaser without notice of land so encumbered.\\n3. The legacy to the daughter in this case is a charge first upon the personalty and then upon the real estate devised to the sons. (2 Smith\\u2019s Leading Oases in Eq. 3 American Ed.; Aldrich v. Cooper, 266-7; 1 Ibid, Duke of Lancaster v. Mayer, 641; 2 Jarman on Wills, 510 to 534; Hoes v. Van Hosen, 1 Barbour\\u2019s Oh. 380-400; same case, 1 Oomstock, 120; Kelsey v. Dey, 3 Cowen, 133; Tole v. Hardy, 6 Oowen, 333; 4 Kent, 540; Downenan v. Rust, 6 Randolph, Va., 587.) It is now settled that when the executor is the devisee of the realty a direction to him to pay debts creates a charge upon the estate thus devised. (2 Jarman, s. pp. 525-6; Goodlittle v. Madden, 4 East, 496; Alcock v. Sparhawk, 2 Vern. 228; Howell v. Whitaker, 3 Russell, 343; Dover v. Gregory, 10 Simons, 393; Harris v. Fly, 7 Paige, 421; Berry v. Headington, 3 J. J. Mar. 321.)\\n4. The legatee, the daughter, in whose favor the charge upon the land devised to the sons was created, can lose that lien only by some act of hers, and only by fraud or a conveyance.\\n5. An estoppel must be pleaded. It can never be raised on appeal. It must be distinctly alleged in the pleading. (Whitmore v. Wakerly, 3 Hurl. & Col. 538; Hanson v. Buckner\\u2019s heirs, &c. 4 Dana, 251; Fans v. Dunn, 7 Bush, 287; Gray, &c. v. McDowell, &c. 6 Bush, 475; Civil Code, section 89.)\\nBUBDETT & HOPPER for appellee, T. K. Adams.\\n1. The appellant had no interest in the land because her father devised the whole of it to her two brothers. The title was vested in them by the will without any reservation or restriction.\\nThe appellant must look first to the personalty and then to her brothers for her deficit of $2,800. It was a plain ordinary debt which she could force them to pay by common law proceedings.\\n2. If the appellant had a lien and stood by and saw her brother sell his interest in the land, and transfer the note to an innocent purchaser, and assented to the sale or made no objection, and asserted no right to the land by lien or otherwise, she forfeited her right so far as the innocent purchaser is concerned. (Wright v. Arnold, &c., 14 B. Monroe, 513; 2 Story\\u2019s Equity, see. 385; Davis v. Tingle, 8 B. Monroe, 543.)\", \"word_count\": \"3311\", \"char_count\": \"17830\", \"text\": \"CHIEF JUSTICE LINDSAY\\ndelivered the opinion of the court.\\nFeathergail Adams died in Garrard County in \\u00cd869 seized of two hundred and twenty-seven acres of land. He left three children and heirs-at-law, James W. Adams, John \\\"W. Adams, and Sallie Farra. His personal estate, which amounted to but a few hundred dollars in value, seems to have been appropriated by his two sons. They also took possession of, and for several years, with the apparent consent of their sister, controlled and used the real estate.\\nIn December, 1871, John W. Adams sold one half of this realty to his brother, James. He also sold him one half of a tract of one hundred and seventeen acres of land to which they jointly held title. A note for $5,000 was executed for one half of the price agreed to be paid by James for John's undivided interest in these two pieces of realty.\\nThis note was sold and regularly assigned to the appellee, Thos. K. Adams. In June, 1874, he instituted this action to recover judgment on the note and to enforce the vendor's lien reserved in the deed of conveyance from John \\\"W. to James W. Adams. He made Sallie Farra and her husband, Frank Farra, and one Robinson, a creditor of the estate of Feathergail Adams, deceased, parties defendant to his action.\\nHe also instituted another action against the same parties on a note for $1,205, on which Feathergail Adams, deceased, had been bound either jointly with or as the surety of his two sons.\\nTo defeat the claim of Mrs. Farra to an undivided interest of one third in the tract of two hundred and twenty-seven acres of land, owned by her father at the time of his death, Thos. K. Adams relies \\u2014 first, on the alleged fact that Mrs. Farra was present at the time of the sale by one of her brothers to the other of one half of the land, and, with full knowledge of what was being done, permitted the sale to be consummated, and allowed him to purchase and pay for the note without intimating that she had an interest in the land. He charges further that she so conducted herself as to reasonably impress him with the belief that she claimed no such interest, and he insists that she is now estopped to assert her claim as against him. Second, he says that since all these transactions the last will and testament of Feathergail Adams, deceased, has been produced and regularly probated, and that by the provisions of that will Mrs. Farra is excluded from any interest in the land.\\nThe evidence produced to support the first ground of avoidance is not sufficient to establish the alleged estoppel.\\nThos. K. Adams, who testifies in his own behalf, does not pretend to say that Mrs. Farra was apprised of the negotiations going on between the two brothers, or that-she was present when the note was sold and assigned to him. He does testify to facts tending to show that her husband, Frank Farra, was present, and that he said his wife had no claim to the land. The son of Thos. K. Adams swears that Mrs. Farra also said she had no such claim. In this he is flatly contradicted by Mrs. Farra, and she is supported by the evidence of John W. Adams. The lips of Frank Farra are closed by that provision of the testimony act which prohibits the husband from testifying in behalf of the wife after she has availed herself of that privilege.\\nBut even if the testimony as to the knowledge of the husband be given full weight, no such case is made out as that reported in 8 B. Monroe (p. 539), where both the husband and the wife remained silent as to a latent and doubtful interest of the wife in a slave, and saw him sold for full value to an innocent purchaser, who had not the means of discovering the existence of the wdfe's right.\\nThe appellee was apprised of the heirship of Mrs. Farra. The public records did not show that she had conveyed her interest in the land to any one; and although she was in the house wdth the parties at the time he purchased the note, the appellee does not recollect that he asked her as to whether she had sold to her two brothers, or even advised her that he was about to make the purchase upon the assumption that she had no interest in the land.\\nThe proof does not show that Mrs. Farra had even agreed to sell to her brothers. Negotiations had been going on between them for several years, but they had not at any time agreed as to the price, and neither she or her husband had ever received one cent in payment from either of the brothers, and no written memorial of the negotiations had ever been entered into. It is clear that if Mrs. Farra ever had an interest in the land she still owns it, and is not estopped to assert her claim.\\nBut the will of her father does defeat any claim she might otherwise have asserted as heir-at-law. The following is the substance of that instrument:\\n\\\"I give to my two sons, John and James Adams, the tract of land on which I now reside, at the price of $20,000.\\n\\\"I charge my daughter, Sally Farra, the sum of $3,000 for negroes, cash, and other property given to her at her marriage.\\n\\\" I also will and bequeath said Sally the following slaves, to wit: Carego, Louisa, Lucy Ann, Margaret, Chaney, at the sum of $5,600.\\n\\\" I also give my sons, Jack and James, the following slaves: William, Jane, and Penn, at the price of $2,800.\\n\\\"From this calculation and division my daughter, Sally, lacks $2,800 to make her equal with my sons, which is to be paid her out of the personal property; and if there is not sufficient property to pay said sum, then my sons are to make her up said sum in three equal annual installments.\\n\\\"I further will and bequeath my son James the sum of $600, independent of the rest of my children, for the purpose of educating said James Adams.\\\"\\nThis will was published ten years prior to the death of the testator. For some reason, susceptible possibly of explanation, it was not presented for probate until five years after his death. It seems that Mrs. Farra was apprised of the fact that her father had made a will; but the proof does not show that she knew it to be in existence at the time of his death, and the relative in whose custody it was placed for safe-keeping seems to have forgotten all about it.\\nMrs. Farra claims that she has a lien upon the realty devised to her two brothers to secure the payment of her legacy, and that it is superior to the lien of the appellee.\\nHe insists her legacy is not a charge on the estate devised, and that Mrs. Farra's only remedy is the assertion of her right of action against the brothers upon the personal liability created by their acceptance of the devise; and this seems to have been the opinion of the circuit judge.\\nIn the case of Berry v. Headington (3 J. J. Marshall, 315) the devise was to the wife of the testator, \\\" but . on these conditions,\\\" that she should support and educate the testator's daughter, and pay to his son while a minor a fixed annuity. And this court held the annuity to be \\\" a charge in rem, and not in personam.\\\"\\nJarman, in his work on wills, cites a number of cases showing that such legacies charge the realty devised. (Vol. 2, side-page 525.) Among others, the cases of Aubrey v. Middleton and Alcock v. Sparhawk. In the case first named the testator gave several legacies and annuities to be paid by his executor, and then devised all the rest and residue of his goods and chattels and estate to his nephew (who was his heir-at-law), and appointed him executor of his will.\\nThe will in the latter case was of the same import, and in each case it was held that the real estate was chargeable with the legacies and annuities in aid of the personalty.\\nIn the case of Harris v. Fly (7 Paige Ch'y, 422) the devise of the realty was to the son of the testator, who ivas also made an executor of the will. The testator also \\\" devised \\\" to each of his two daughters $1,000, to be paid to them by his son (the devisee of the real estate) in six equal annual installments, the first payment to be made one year after the death of their mother. The real estate thus devised was afterward seized under execution and sold for the debts of the devisee. Subsequent to the conveyance by the sheriff one of the daughters asserted an equitable lien on this estate to secure the payment of her legacy, and in the contest between her and the execution purchaser it was held by Chancellor Wolworth that although the testator did not in terms create an equitable charge upon the devised premises, for the payment of the legacies to the daughters, it existed by implication.\\nWhilst recognizing the general rule that legacies and debts are primarily to be paid out of the personal estate he de dared that when the realty is devised to the person who by the will is directed to pay the legacy, it is an equitable charge on the realty, although the devisee may also be made the executor and the residuary legatee of the personalty, unless the will shall itself indicate a contrary intention on the part of the testator.\\nThe decisions on this question are not altogether uniform, but in our opinion the conclusion of the chancellor in the case supra, is supported by the decided weight of authority, and the rule he indicates is, without doubt, the proper one to apply in a case like this, where the devisees are the sons of the testator and the legatee is his daughter, and where the will shows that the sons are directed to pay the legacy in order to insure perfect equality among the three persons whom the testator distinctly recognizes as having equal claims to his bounty.\\nAs the appellee must establish through the will the exclusive right of James and John Adams to the land, he must take notice also of the equitable lien of Mrs. Farra, and as that lien is superior to the vendor's lien he is attempting to assert, it was error in the court below to postpone Mrs. Farra for his benefit.\\nThe debts of the testator represented by the $1,205.00 note held by the appellee and the $250 note held by Robinson must be first paid out of the proceeds of 227 acre tract of land. The legacy of Mrs. Farra must then be paid out of said proceeds, and then as to one half of the remainder the claim of the appellee is superior to that of any other creditor.\\nBut as the two sons did not receive as much real estate as was originally intended for them by their father, he having sold a portion of his home farm after the publication of his will, it may be proper to inquire whether Mrs. Farra is entitled to receive the full amount of her legacy, and to this extent the case will be left open for the action of the court below. The slaves devised were all freed by the adoption of the thirteenth article of amendment to the Federal Constitution, and hence their value will not be considered in estimating the value of the devises and the legacy to the sons and daughters.\\nThe sons will be charged with the value of 227 acres of land at the date of the father's death; the daughter with the $3,000 advanced to her at the time of her marriage as of the same date. The legacy to James no doubt exhausted all the personal estate left by the testator, therefore its value need not be taken into consideration.\\nIf the notes held by Robinson and the appellee represent the debts of the testator it may be necessary to require Mrs. Farra to contribute to their payment, but if he was bound only as the surety of the sons she will not be required to abate any thing from her legacy on that account.\\nIf on a statement of the accounts upon this basis it shall turn out that the payment to Mrs. Farra of the full amount of her legacy will more than equalize her with her brothers, the legacy will be abated to the extent necessary to produce equality; otherwise she will be paid in full.\\nIt is evident Mrs. Farra did not intend to charge her brothers rent for her supposed one third interest in the realty, and that she permitted them to use and control it upon that assumption. And we are of opinion that the change in the facts produced by the production and probate of the will ought not to result in the creation in her behalf of a claim against them not theretofore contemplated by the parties. The interest on the legacy should be treated as the parties expected to treat the rent of the lands. Hence Mrs. Farra will not be allowed interest except from the date at which she set up her claim by filing her answer and cross-petition.\\nThe judgment is reversed, and the cause remanded for further proper proceedings, and for a final judgment conforming to this opinion.\"}"

ky/4392684.json

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+"{\"id\": \"4392684\", \"name\": \"Phoenix Jellico Coal Co. v. Grant\", \"name_abbreviation\": \"Phoenix Jellico Coal Co. v. Grant\", \"decision_date\": \"1910-02-15\", \"docket_number\": \"\", \"first_page\": \"751\", \"last_page\": \"755\", \"citations\": \"136 Ky. 751\", \"volume\": \"136\", \"reporter\": \"Kentucky Reports\", \"court\": \"Kentucky Court of Appeals\", \"jurisdiction\": \"Kentucky\", \"last_updated\": \"2021-08-10T17:37:20.265247+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Phoenix Jellico Coal Co. v. Grant\", \"head_matter\": \"CASE 91. \\u2014 SUIT BY W. R.. GRANT AGAINST THE PHOENIX JELLICO COAL COMPANY. \\u2014\\nFebruary 15, 1910.\\nPhoenix Jellico Coal Co. v. Grant\\nAppeal from Laurel Circuit Court.\\nWilliam Lewis, Circuit Judge.\\nFrom a decree for plaintiff, both, parties appeal.\\u2014\\nAffirmed.\\n1. Equity \\u2014 Maxims\\u2014Clean Hands. \\u2014 Plaintiff, operaring mines under a lease from defendant, became indebted to defendant for a considerable sum in excess of what the mines yielded, whereupon the parties made a new contract in writing providing that plaintiff pay defendant $100 per month until the indebtedness was paid, and that if he defaulted in any payment he would turn over his lease and his property to defendant in payment. Plaintiff made default, and defendant took possession of the property and refused to allow plaintiff to operate the mine. The evidence showed that t'ffe second agreement was prepared by defendant\\u2019s president, and plaintiff was uneducated and unable to understand the contract and that the president told him at the time that it must be executed to show a settlement of the amount due; that defendant had a lien on plaintiff\\u2019s property to secure its payment, and that it in no way affected the former contract. The president, after obtaining the contract, showed it to prospective buyers and disposed of his stock to them. Held, that plaintiff was not a party to the fraud by which the second contract was obtained, and he was entitled to the possession of his property and a reformation of the contract so as to show that defendant had only a lien on it for the amount due, enforceable only after the expiration of the lease.\\n2, Mines and Minerals \\u2014 Mining Lease \\u2014 Disturbance of Possession of Lessee \\u2014 Damages.\\u2014Where plaintiff as lessee of mines was fraudulently prevented from operating them by defendant, and it appeared that up to the time he ceased operating he had done so at a loss, and the weight of the evidence showed that they had failed to he a paying proposition since that time, plaintiff was entitled to only nominal damages.\\nSAM C. HARDIN for appellant.\\nH. C. CLAY for appellee.\", \"word_count\": \"1500\", \"char_count\": \"8768\", \"text\": \"Opinion of the Court by\\nVm. Rogers Clay, Commissioner\\n\\u2014 Affirming.\\nOn August 1, 1905, the appellant, Phoenix Jellico Coal Company, leased to appellee, W. R. Grant, a certain coal field lying in Laurel county, Ky., and adjoining other coal property then being worked by appellant. The lease was to run for four years and nine months. By the terms thereof appellee was to build a tip house and make such other imjorovements as were necessary to operate the coal mine. He further agreed to work said mine in the usual or practical way of mining. He was to pay appellant a royalty of 10 cents per ton on all coal mined. Appellant agreed to sell appellee and his employes all goods and supplies at the same price charged its. own miners. It further agreed to furnish appellee a sufficient number of cars to handle the output of the mines. The lease contains other provisions which it will be unnecessary to notice. After the execution of the lease, appellee proceeded to carry out his part of the contract. By the first day of June 1906, appellee had become indebted to appellant in the sum of $2,-239.22 in excess of what the mine had yielded. Upon that date appellant and appellee entered into a new contract. This contract recited that appellee had become indebted to appellant in the sum of $2,239.22, and that he was unable to pay the same. The contract then provided that appellee was to pay appellant out of the sale of the coal from the mine $100 per month until all the indebtedness above referred to had been paid in full. It was further stipulated that if anyone of said payments became due and unpaid, appellee would turn over and transfer his lease, mules, harness, and other property to appellant, unless such default was occasioned by a strike. The contract also provided that in the event of his failure to make payments, he thereby sold, granted, bargained, and conveyed all of his property to appellant for the sum of $2,239.22. In the latter event the lease of August 1, 1905, was to be null and void. A short time after the execution of this new contract, default was made in the payment of the $100 per month above referred to, and appellant then took possession of the mine and appellee's property, and refused to permit appellee to enter the mine for the purpose of operating the same.\\nCharging that the contract of June 1, 1906 was obtained by fraud, appellee instituted this action against appellant for a cancellation or reformation cf the contract and for $12,500 damages for depriving him of the possession of the mine. After denying certain allegations of the petition, appellant pleaded that the contract of June 1, 1906, was obtained by fraud and that appellee himself was a party thereto, and therefore not in position to demand equitable relief at the hands of appellant. Evidence was heard and the case submitted to the chancellor, who held that the contract of June 1, 1906, was obtained from appellee by fraud, and it should be reformed so as to express the true agreement between the parties. The court then adjudged that appellee recover of appellant possession of all the property described in the lease and such other property as was taken from him by appellant. It was further adjudged that the contract of June 1, 1906, be reformed so as to state that appellant had only a lien on the property therein described to secure the payment of whatever amount appellee owed appellant on June 1, 1906;. said liep, however not to be enforced until after the expiration of said lease. The judgment also gave appellee nominal damages only. Prom this judgment the Phoenix Jellico Coal Company appeals, and appellee also prosecutes a cross-appeal.\\nAccording to the testimony for appellee, the contract of June 1, 1906, was prepared by appellant's former president. Appellee is uneducated and was unable to understand the contract. When the contract was signed by him, the president stated that the writing was to be executed for the sole purpose of showing a settlement of the amount that appellee then owed appellant, and that appellant held a lien cn the property of appellee to secure the payment of said amount; that the contract thus obtained was in no way to affect the former contract between appellant and appellee. The former president was then attempting to dispose of his stock in the mine. Aftfer obtaining the contract in question, the president went to Cincinnati, showed it to the prospective buyers, and disposed of his stock to them.\\n\\u2022 While the evidence took a wide range, and many matters were referred to. which it will be necessary to discuss, it is manifest that the only defense relied upon by appellant is that appellee was himself a party .to the fraud by which the new stockholders were induced to purchase, and that the court should require him to remain where he has placed himself by his own fraudulent act. We are unable, however, to agree with this contention of appellant. Appellee had no stock for sale; nor was he trying to induce others to buy. He had no motive nor purpose in executing the contract in question, except to protect his own interest. He claims that he himself was deceived by appellant, and was induced to sign the contract by reason of the fraudulent representations made to him. His testimony upon this point is not controverted in any manner. Appellant's former president was put on the stand for the purpose of testifying, hut did not testify to anything tending to disprove appellee's statements. If it had been shown that appellee was not deceived, hut that he voluntarily entered into the contract in question for the purpose of assisting appellant's president in the perpetration of a fraud, another question would be presented. Being deceived himself by appellant's president, he should not be deprived of his remedy because appellant's president also deceived others. A careful reading of the record convinces us that appellee was not a party to the fraud alleged to have been perpetrated by appellant's president in the sale of his stock. Wfi therefore conclude that the judgment of the chancellor, reforming the contract of June 1, 1906, is proper.\\nAppellee, on cross-appeal, insists that- he is entitled to a large sum by way of damages. The evidence shows that up to the time he ceased operating the mines, the mines were operated at a loss'. Since that time the weight of the evidence is to the effect that the mines have not been a paying proposition, although there is some evidence to the contrary. Being unable to say that the evidence-upon this-point does not support the finding- of the chancellor, his finding will not be disturbed.\\nJudgment affirmed, both on the original and cross-appeal.\"}"

ky/4395549.json

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+"{\"id\": \"4395549\", \"name\": \"The Auditor v. Major\", \"name_abbreviation\": \"Auditor v. Major\", \"decision_date\": \"1881-09-20\", \"docket_number\": \"\", \"first_page\": \"457\", \"last_page\": \"461\", \"citations\": \"79 Ky. 457\", \"volume\": \"79\", \"reporter\": \"Kentucky Reports\", \"court\": \"Kentucky Court of Appeals\", \"jurisdiction\": \"Kentucky\", \"last_updated\": \"2021-08-10T22:26:22.330717+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"The Auditor v. Major.\", \"head_matter\": \"Case 93 \\u2014 ORDINARY\\nSeptember 20, 1881.\\nThe Auditor v. Major.\\nappeal prom franklin, circuit court.\\n1. The resolution of the general assembly, adopted in 1840, does not authorize the Public Printer to publish any report, unless he be specially directed to do so bythe legislature.\\n2. The act of March 10, 1870, and the resolution of March 12, 1878, expressly provide that the printing for the Insurance Bureau shall be paid for out of the fees and allowances received by the Commissioner under the law creating the Bureau.\\n'3. The object of the act establishing the Insurance Bureau is that it should be self-sustaining.\\nP. W. HARDIN, Attorney General, for appellant.\\n'The meaning of the resolution of 1840 is, that the Public Printer should furnish, in a separate volume, such reports made to both houses of the general assembly as he had originally published. It is not true that the Public Printer printed one thousand copies of the report authorized by the act of March 10, 1870, to establish an Insurance Bureau. It is intended that the Bureau shall sustain itself. (Act March 12, 1878.)\\nA. DUVALL por appellee.\\nThe Insurance Commissioner is a subordinate of the Auditor, and reports to him. The Auditor reports to the general assembly. The result is that the Public Printer was bound by the statute to print and publish the report. (Sec. 14 of the act to establish an Insurance Bureau, Sess. Acts, 1869-70, page 80; Sess. Acts, 1839-40, page-278.)\", \"word_count\": \"1187\", \"char_count\": \"7100\", \"text\": \"JUDGE HARGIS\\ndelivered the opinion op ti-ie court.\\nThe appellee, Major, brought this action for a mandamus-to compel the Auditor of Public Accounts to issue his warrant upon the State Treasurer for the sum of $1,527.14, in payment of a demand against the state for^public printing.\\nThe facts alleged in the petition are, in substance, that the legislature, by a resolution passed in February, 1840, provided that the Public Printer shall publish all reports made to both houses of the same matter in a separate volume; that \\\"An act to establish an Insurance Bureau,\\\" approved March 10, 1870, makes it the duty of the Insurance Commissioner to make annually a report to the Auditor of the condition of the insurance companies doing business in this state, with suggestions, &c., and that one thousand copies of such reports shall be published by the state, subject' to the order of the Auditor, and at the expense of the Insurance Bureau, and the Auditor shall place the same before-the legislature, with an account of the receipts and expenditures of the Insurance Bureau; that the Insurance Commissioner made his report to the Auditor as provided in the act of March 10th, 1870, and the Auditor placed the same before the legislature; that it became the duty of the Public; Printer to publish said report so placed before the legislature,, and he did publish 624 copies thereof, for which the comr monwealth of Kentucky is indebted to him in the sum of $1,527.14, and that he had demanded of the Auditor a warrant therefor, but he refused to issue it.\\nIt was agreed that 1,000 copies of the report of the Commissioner to the Auditor had been published by the state,, subject to the order of the Auditor, and at the expense of the Insurance Bureau.\\nThe Auditor demurred to the petition; it was overruled,, to which he excepted, and failing to plead further, a judgment was rendered awarding the mandamus.\\nThe vital question on this appeal is, was it the duty of the: Public Printer, without the order of the Auditor, to re-publish the report of the Commissioner to the latter, who placed', the same before the legislature, after having 1,000 copies of it published.\\nThe resolution of 1840 provided, that the \\\" Public Printer shall thereafter, in executing the public printing, publish all. reports made to both houses of the same matter in a separate volume, and dispense with the appendix to each of the-volumes of Journals as now published, and that one copy be-sent to each individual entitled to copies of the Journals.\\\"\\nThe proper construction of this resolution does not authorize the inference that the Public Printer shall publish all. reports of the same matter made to both houses.\\nIt simply meant that in executing the public printing-which .he might be ordered to do, he should publish all reports in a separate volume, and that one copy should be-sent to each individual entitled to copies of the Journals,, whose appendixes were thereafter to be dispensed with,. \\u2022provided such reports were of the same matter and made to both houses\\nIt had reference alone to the form in which that class of reports should be published, and required that they should \\u2022be published in separate volumes.\\nThe proceedings of nearly every session of the legislature \\u2022since 1840 contain resolutions or acts regulating the number \\u00a1and character of reports and public documents published, which shows that the legislature has not and does not construe the resolution of 1840 as providing for the publication \\u2022of all reports to both or either house.\\nAppellee's construction of that resolution would require the publication of 640 copies of each report made to both houses, without making any distinction between important and unimportant reports.\\nWe do not think this unreasonable result should follow the construction of the resolution of 1840, and we are of \\u2022the opinion that it does not authorize the Public Printer to \\u2022publish any report, unless he be specially directed to do so by the legislature.\\nAnd as to the printing for the Insurance Bureau, the act \\u2022of March 10th, T870, and'the resolution of March 12th, 1878, expressly provide that it shall be paid for out of the fees and allowances received by the Commissioner under the law creating the Bureau.\\nThe purpose of the legislature seems to have been to .make the Bureau self-sustaining, and either a legally authorized order of the Auditor, or the act creating it, or some amendment thereto, or law passed since its creation, must be shown authorizing the Public Printer to make publications relative thereto, before he can lawfully assert a claim \\\"therefor against the state.\\nThe act of March 20th, 1876, re-enacted the law requiring-the election of a Public Printer, and so much of chapter 90 of the General Statutes as was deemed applicable to his. office and duties.\\nBy section 13, which was restored, it is provided that\\u2014\\n' ' If any report, bill, or document is ordered to be printed, and no number of copies is designated, there shall be but: two hundred printed at public expense.\\\"\\nThis section reserved to the legislature the power of ordering what reports should be published, and provided also, if by oversight or otherwise, it should fail to fix the number,, that only two hundred should be printed.\\nAnd it repeals, by necessary implication, the resolution) of February, 1840, whatever may be its correct construction.'\\nTaken in connection with the aforementioned acts of the-legislature, we do not doubt this is the legal effect of said section.\\nWherefore, the judgment is reversed, and cause remanded, with directions to sustain the demurrer, and for further-proper proceedings.\"}"

ky/4405214.json

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+"{\"id\": \"4405214\", \"name\": \"Wilson, &c., v. Aultman & Taylor Co.\", \"name_abbreviation\": \"Wilson v. Aultman & Taylor Co.\", \"decision_date\": \"1891-03-05\", \"docket_number\": \"\", \"first_page\": \"299\", \"last_page\": \"302\", \"citations\": \"91 Ky. 299\", \"volume\": \"91\", \"reporter\": \"Kentucky Reports\", \"court\": \"Kentucky Court of Appeals\", \"jurisdiction\": \"Kentucky\", \"last_updated\": \"2021-08-10T20:20:04.406481+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Wilson, &c., v. Aultman & Taylor Co.\", \"head_matter\": \"Case 56 \\u2014 PETITION EQUITY \\u2014\\nMarch 5.\\nWilson, &c., v. Aultman & Taylor Co.\\nAPPEAL PROM MONTGOMERY COURT OP COMMON PLEAS.\\n1. Mortgages \\u2014 Appointment op Ueceiver. \\u2014 In a suit to enforce a mortgage lien the court has no power to order a sale of the mortgaged property in advance of a decision upon the merits. Section 29ft of the Civil Code authorizes the appointment of a receiver only for the purpose of preserving- the property for tlie benefit of both parties, and not for the purpose of selling it.\\n2. A PROVISION IN A MORTGAGE AUTHORIZING THE MORTGAGEE TO SELL the property in the event of the mortgagor\\u2019s default is void, and confers no authority either upon the mortgagee or upon the court.\\nV. B. YOUNG, CORNELIS\\u00d3N & McKEE nor appellants.\\n1. An order appointing a receiver may bo superseded when coupled with an order directing a sale of the property to he taken possession of by him. Section 298 of the Givil Gode does not authorize a sale of. the property.\\n2. Section 299 of the Civil Gode does not authorize the appointment of a-receiver by the judge in vacation. Any action under this section must he taken by the court in session at a regular term.\\nTYLER & APPERSON nor appellees.\\nSection 299 of the Civil Code authorizes the judgment rendered in this action.\", \"word_count\": \"983\", \"char_count\": \"5564\", \"text\": \"JUDGE BENNETT\\ndelivered the opinion on the court.\\nThe appellee instituted its action iu the Montgomery Circuit Court against, the appellants to foreclose a mortgage, executed by the appellants to the appellee on a grain thresher, &c., and to obtain personal judgment on the notes executed for said thresher.\\nThe appellee also asked the judge of the court, in vacation, in Richmond, Ky., for an immediate sale of the property, and the appointment of a receiver to execute the same, upon the grounds that the conditions of the mortgage bad not been performed; that the property was insufficient to pay the mortgage debt; that there wa.s danger of , the property being materially injured, and becoming depreciated in value. The appellees resisted said motion because of the want of power in the judge to order a sale before foreclosure, and the fact that the appellee was in debted to the appellants in a large sum as damages for a breach of warranty, which the appellants proposed, at the proper time, to rely on as a counterclaim. The judge refused to hear any evidence as to said damages, and ordered the sale of the property. The appellants have appealed from said order.\\nSection 299 of the Civil Code provides: \\\"That in an action for the sale of mortgaged property, a receiver may be appointed if it appear that the property is in danger of being lost, removed, or materially injured ; or that the condition of the mortgage has not been performed, and that the property is probably insufficient to discharge the mortgage debt.\\\"\\nIt appears that if the property is in danger of being lost, removed, or materially injured, a receiver may be appointed to take charge of it, although it is at present more than sufficient to pay the debt if it appear its sufficiency might be impaired by the happenings of either one of three conditions named; also the fact that the condition of the mortgage has not been performed, and the mortgaged property is probably insufficient to pay the debt, is sufficient to authorize the appointment of a receiver.\\nIt seems, according to the foregoing section, that the judge in vacation has \\u2022 no power to appoint a receiver, except to take and keep the possession of the mortgaged property, to receive rents, collect debts, bring and defend suits, &c., and that the power of the judge does not extend to ordering a sale of the mortgaged property. It is true that the judge in vacation, in case perishable property is attached, &c., has the power to order its sale. The Code expressly gives him this power, but the power is not given him in case of a suit for the sale of mortgaged property.\\nIn the former case the attachment bond protects the person whose property is attached in case his property is wrongfully sold, &c., but in the latter case there is no such protection by bond. Hence the judge is not allowed to order a sale of the property in advance of the regular foreclosure sale, because such action would deprive the mortgagor of the title to his property in advance of the appointed time for a decision upon the merits, involving the right o\\u00a3 a foreclosure sale of it, and which advanced sale would deprive the owner of his property, although he might successfully resist the foreclosure sale. Hence, upon the grounds mentioned in' the Code, a receiver can only be appointed to take charge of the property in order to preserve it, &c., for the benefit of- both parties. But it may be said that inasmuch as the appellee, by the terms of the mortgage, was given the power to sell the property, in case of the appellant's default of payment, at private sale, it gave the judge the power to order said sale; but it seems to us, as the appellee could not sell the property under said power (see Kentucky Trust Company of Louisville v. Lewis, 82 Ky., 579, overruling Hahn v. Pindell, 3 Bush, 189, in that regard), the judge can derive no authority from that power. It does not have the effect of giving the appellant's consent to said sale. So far as the authority to the appellee to sell is concerned, it is void, and the power can not be vitalized so as to give the judge the authority; and as the judge had no other authority to order the sale, his order in that particular was void.\\nThe judgment ordering the sale is reversed, and the cause is remanded, &c.\"}"

ky/4407245.json

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+"{\"id\": \"4407245\", \"name\": \"Lloyd, Trustee, v. Matthews\", \"name_abbreviation\": \"Lloyd v. Matthews\", \"decision_date\": \"1891-11-28\", \"docket_number\": \"\", \"first_page\": \"300\", \"last_page\": \"303\", \"citations\": \"92 Ky. 300\", \"volume\": \"92\", \"reporter\": \"Kentucky Reports\", \"court\": \"Kentucky Court of Appeals\", \"jurisdiction\": \"Kentucky\", \"last_updated\": \"2021-08-10T20:15:25.416072+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Lloyd, Trustee, v. Matthews.\", \"head_matter\": \"Case 57 \\u2014 PETITION EQUITY\\nNovember 28.\\nLloyd, Trustee, v. Matthews.\\nAPPEAL FROM CAMPBELL CHANCERY COURT.\\nNotice of Piling of Mandate in Lower Court. \\u2014 Where a judgment is reversed and the cause remanded for a trial or other proceedings the case does not stand for trial or for such other proceedings at the next succeeding term of the lower court, unless the mandate of the Court of Appeals is filed in the clerk\\u2019s office of the lower court, and notice thereof given to the adverse party, ten days before the commencement of such term. And this requirement applies as well where the mandate directs the particular judgment to be entered as where the case is remanded for a trial or for further preparation.\\nC. L. EAISON, Jr., H.'P. LLOYD for appellant.\\nWhei-e a case is reversed in the Court of Appeals and sent back for a new trial or other proceedings, no new trial can be had nor judgment entered to conform to the mandate of the Court of Appeals, unless the mandate is filed in the lower court and notice given thereof ten days before the beginning of the term. (Civil Code, sec. 761, sub-sec. 2.}\\nJOHN S. DUCKEK for appellee.\\nBrief not in record.\", \"word_count\": \"1219\", \"char_count\": \"6854\", \"text\": \"CHIEP JUSTICE HOLT\\ndelivered the opinion of the court.\\nThis is a contest between the appellant and the appellee as to the ownership of some stock in a loan association. The lower court gave it to the appellant.\\nThis court on February 27, 1890, reversed the judgment, and by its mandate, issued April 27,1890, directed a judgment to be rendered below in conformity to its opinion, which declared that the appellee was entitled to the stock. (Matthews, &c., v. Lloyd, Trustee, &c., 89 Ky., 625.)\\nThe mandate and opinion were filed in the lower court at its May term (May 7), 1890, and on the same day the appellee moved to submit for judgment in conformity thereto, to which the appellant objected. The motion was renewed two days thereafter, and again objected to; but the objection was overruled and the cause submitted and the appellant excepted. May 12, 1890, a personal judgment was rendered against the appellant for the value of the stock, instead of the stock and the evidences thereof.\\nThe title of section 761 of the Civil Code is: \\\" Proceedings in inferior court if case affirmed, dismissed or reversed.\\\" Sub-section 1 provides, that upon the affirmance or the dismissal of an appeal from a judgment for money or personal property, the appellee may file in the clerk's office below a copy of the mandate of affirmance or order of dismissal, and thereupon sue out writ of execution, as if the mandate or order had been entered in court; and sub-section 2 says: \\\"If a judgment be re-\\nversed and the case remanded for a trial or other proceedings, it shall stand for trial, or for such other proceedings in the court whence the appeal was taken at the next succeeding term thereof: Provided, That the mandate of the Court of Appeals be filed in the clerk's office of' the lower court, and notice thereof given to the adverse party, if he be in the county; or if he be absent from the county, to his attorney, ten days before the commencement of such term. Such case shall have the same position on the docket of such court, as if no appeal had been taken; and at any time after the mandate is filed and notice thereof given, as aforesaid, either party may take depositions, as in other cases.\\\"\\nThe sweeping language of this provision does not admit of its being confined in its application, merely to cases of reversal for another trial, involving further prep aration perhaps, as the filing of additional pleadings or the taking of depositions. It applies to every cause where the judgment is reversed and the case remanded for a trial, or other proceedings ; \\\" and unless the mandate be filed in the clerk's office of the lower court, and notice thereof given the adverse party ten days before the commencement of the term of court next succeeding the reversal, the action does not stand for another trial'or \\\" other proceedings \\\" at that term. It is true the mandate of this court is imperative upon the lower court. It has not' the option to obey or disobey it, but must carry it out according to its real meaning. Even a petition in the nature of a bill of review should not properly be filed until the mandate of this court has been carried into effect. It may, therefore, be plausibly urged, that where this court reverses a judgment and directs one of a particular character to be entered by the lower court, the reason fails for requiring the filing of the mandate in the clerk's office and notice thereof ten days before the commencement of the next succeeding term in order that it may be done at that term; and that therefore the law fails, or does not apply to such- a case. In other words, as this court has directed a certain judgment to be entered, the party must submit; and the filing of the mandate-with notice thereof ten days prior to the beginning of the term next succeeding the reversal, can not aid him. It is perhaps sufficient to say that the law says it shall be done, to entitle the successful party to enforce the mandate at the next term.\\nIf the provision cited above does not apply to a case where there is a reversal with directions to the lower court to render a particular judgment, then there is no provision relative to such a case. The entering of a new judgment, however, is certainly embraced by the expression, \\\" other proceedings.\\\" It may have been the lawmaking powei thought it advisable if the successful party desired the judgment ordered by this court entered at the next succeeding term of the lower court, that the unsuccessful party should know it ten days before the beginning of the term in- order that he may prepare to meet its requirements. It is true if a judgment for the payment of money or for personal property be affirmed, or the appeal dismissed, the appellee may, upon filing the proper evidence of it in the clerk's office of the inferior court, at once sue out execution or the proper writ; but in such a case no new judgment is rendered, and the one being enforced may have been long in existence. It is unnecessary, however, to inquire the reason for the enactment of the law. Such inquiry would be useful were it doubtful if it embraced such a case as this one. In Baker v. Baker, &c., 87 Ky., 461, this question did not arise. There no' judgment was sought at the term of the inferior court next succeeding the reversal. It appears from the opinion that the mandate was filed in open court at the second term after the reversal, the cause not submitted until the next term, and no judgment rendered until the following term. \\\"What the court said upon this question was obiter. Notice will of course be unnecessary upon the return of the cause.\\nEor the reason indicated, the judgment is reversed for further proper proceedings.\"}"

ky/4418507.json

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+"{\"id\": \"4418507\", \"name\": \"Board of Councilmen of City of Frankfort et al v. Brawner et al.\", \"name_abbreviation\": \"Board of Councilmen v. Brawner\", \"decision_date\": \"1896-11-21\", \"docket_number\": \"\", \"first_page\": \"166\", \"last_page\": \"173\", \"citations\": \"100 Ky. 166\", \"volume\": \"100\", \"reporter\": \"Kentucky Reports\", \"court\": \"Kentucky Court of Appeals\", \"jurisdiction\": \"Kentucky\", \"last_updated\": \"2021-08-10T18:27:53.958500+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Board of Councilmen of City of Frankfort et al v. Brawner et al.\", \"head_matter\": \"Case 30 \\u2014 AGREED CASE\\nNovember 21.\\nBoard of Councilmen of City of Frankfort et al v. Brawner et al.\\nAPPEAL PROM PBANKLIN CIRCUIT COURT.\\n1. Statutory Construction \\u2014 Power op City Council to Abolish Dittoes. \\u2014 It is a well settled rule of construction, that an office inot fixed by the Constitution, but established by statute, may be abolished by statute, unless a contract right has been secured by the incumbent; and the board of council of a city, in the exercise of a discretion given it by statute, may at will abolish a city office which it has established. In this case the city charter provided that the council might, by ordinance, establish a Board of Public Works, hut when such hoard had been established the duties thereof were to be performed by the council and such employes or agents as it might designate, thereby manifestly intending to give the council the power to abolish those offices in, its discretion, and it is held that such offices after having been established by the council may be abolished by it at its pleasure, notwithstanding a further charter provision that the members of such hoard shall hold their offices for four years, and until their successors are appointed and qualified.\\n2. Employer and Employe \\u2014 Contract.\\u2014A contract between the Board of Public Works and its employe for the performance of certain work is not binding and enforceable upon either any longer than the relation of employer and employe exists, and this relation may he terminated by either at any time.\\n3. Compensation Pending Appeal. \\u2014 The members of the Board of Public Works and their employes having in good faith performed \\u25a0the duties of their respective offices since the judgment of the circuit court in' their favor, and that judgment not having been superseded, they should receive their compensation up to the tima the mandate of this court is entered.\\nW. H. HOLT EOB APPELLANTS.\\n1. The power given by statute to the board of council to create the Board of Public Works carried with it the implied power to abolish that board at will, there being nothing in the statutes showing a legislative inteht to withhold the power to abolish. (29 N. J. Eq., 478; Dillon on Mun. Cor., secs. 231-2, note 1.)\\n2. The fact that it is provided in the charter that the members of the Board of Public Works shall hold their offices for four years does not take from the council the authority to abolish the board during that time. (Halsey v. Gaines, 2 Lea, 816.)\\n3. There is no property or vested right in an office, and it can not be the subject of contract. The right to compensation grows out of the rendition of the services, and not out of contract. (Throop on Public Officers, secs. 18-19; Conner v. The Mayor, 5 N. Y., 296; 2 Duvall, 443; 12 Bush, 438.)\\nW. H. SNEED on same side.\\n1. The authority given by statute to create the Board of Public Works goes hand in hand with the power and privilege to destroy or abolish that board at any time. (Throop on Public Officers, secs. 17-19 and notes; People v. Murray, 6 Hunn. (N. Y.); Dononin v. Will Co., 100 111.; Williams v. City of Newport, 12 Bush, 438; Staniford v. Wingate, 2 Duvall, 442; Amer. & Eng. \\u00aenc. of Law, vol.~15, p. 1046.)\\n2. The contract between, the Board of Public Works and its employes, by which the latter were to serve the city four years, is invalid; and each of said employes could have been dismissed lat any time by the board, notwithstanding the contracts. Such an employment may be terminated at any time by either party.\\nT. L. EDELEN eob appellees.\\n1. While under the provisions of the charter the Board of Public \\u25a0Works was authorized to remove its employes at pleasure the employes who had entered into the contracts to perform these 'services for a specified time, and given bond to do so, had no right to quit the work at any time, and an action might have \\u25a0been maintained against them if they had. (Hall v. Wisconsin, 103 U. S., 5.)\\n2: The city council had no power to abolish the Board of Public Works before the termination of the period which the charter \\u25a0prescribed as the terms of office of its members; that period \\u25a0being manifestly intended by the Legislature as the life time of the board, l(Stadler v. Detroit, 13 Mich., 346; Yason v. Augusta, 38 Ga., 542; Dillon on Mun. Cor., secs. 89 and 207; 1 S. C., 463; Carr v. St. Louis, 9 Mo.; Chase v. Lowell, 7 Gray, 35.)\\nR. B. FRANKLIN of counsel on same side.\", \"word_count\": \"2080\", \"char_count\": \"11965\", \"text\": \"JUDGE LEWIS\\nDELIVERED THE OPINION OF THE COURT.\\n, Section 3426 Kentucky Statutes is as follows: \\\"The common council of the cities of the third class may, by ordinance, establish a board of public works to consist of three freehold electors of said city and who have been bona fide residents of the city so establishing said board of public works for two years next before their appointment. Said ordinance shall require the mayor of said city to appoint said board of public works in one month from the passage of the ordinance creating said board, and no two of said members of the board of public works shall be selected from the same ward. Where no board of public works has been established the duties herein imposed shall be performed by the common council and such other employes and agents as said common council may elect or designate.\\nSection 3427 provides: \\\"The members of said board shall enter upon the discharge of the duties of their office as soon as appointed, and shall hold office four years and until their successors are appointed and qualified.\\\"\\n- February 1,1896, there was submitted to the Franklin Circuit Court a controversy between Robert B. Franklin, D. C. Crutcher and John W. Pruitt, claiming to be the board of public works of Frankfort, a city of the third class, and Geo. A. Brawner, claiming to be pipeman of the fire department of said city, as plaintiffs,, against the common council of the city of Frankfort, and Jas. F. Smith, claiming to be pipeman of the fire department, defendants. It was agreed that October 22, 1895, an ordinance was passed by the then acting and qualified members of the Board of Councilmen, \\\"establishing a board of public works and defining the duties of the same.\\\" That November 2, 1895, the plaintiffs were duly appointed members of said board of public works, and they were in due time qualified and entered upon the discharge of their duties. That November 26, 1895, various municipal officers were by said board of public works duly appointed, including George-A. Brawner, appointed pipeman of the fire department,, and who took the required oath and entered into a written contract binding himself to perform duties of that, office for the stipulated salary.\\nIt is further agreed that January 10, 1896, the council of said city, composed of members thereof elected at the preceding November election as successors of' those composing the board of council October 22, 1895, passed an ordinance repealing the one \\\"establishing a board of public works and defining the duties of same.\\\"\\nIt also appears that January 21, 1896, Jas. P. Smith was by the then existing board of councilmen elected pipeman for the fire department, and thereafter, having taken the oath of office and executed the bond required, notified captain of the fire department and said Brawner he was ready to discharge duties of that office, but was refused.\\nUpon that agreed statement of facts the lower court rendered judgment, now appealed from, that Franklin, Crutcher and Pruitt, notwithstanding the repealing ordinance mentioned, were still legal members of the board of public works, empowered to exercise all functions and receive emoluments thereof. It was further adjudged that Brawner was entitled to discharge duties and receive compensation as pipeman of the fire department. While powers and duties of the board of public works of a city of the third class are fully prescribed by statute, and can not, while it exists, be restricted or interfered with by ordinance, whether such board shall be established at all in a particular city of that class is by plain language of section 3426 made discretionary with the common council thereof. It is a well-settled rule of construction, always recognized by this court, that an office, not fixed by the Constitution, but established by statute may be abolished by statute, unless a contract right has been secured by the incumbent (Standiford v. Wingate, 2 Duval, 442.) And we know no reason why a municipal legislature that has, in exercise of discretion given by the General Assem bly, established a city office may not, at will and at its pleasure, abolish it. That the statute was intended to give such discretion to the common council of a city of the third class, is made manifest, not only by the language of section 3426, but by section 3125, which, while giving the same discretion to the general council of a \\u2022city of the second class to establish a board of public works expressly provides such board, if established, shall not be abolished within six years.\\nIn our opinion the ordinance of January 10,1896, was valid and effectual to abolish the board of public works, and thereafter the duties imposed upon it by statute were to be performed by the common council and such other employes and agents as said common council might elect or designate.\\nWe further think the contract between the board of public works and Brawner was not binding and enforcible upon either him or the city of Frankfort any longer than the relation of employer and. employe existed, which either might terminate at will. But inasmuch as the members of the board of public works and those employed .by them appear to have in good faith performed the duties of their respective offices, and judgment in their favor was not superseded, it seems to us they should receive compensation up to time the mandate of this court is entered,\\nJudgment of lower court is reversed and case remanded for further proceedings consistent with this opinion.\\nThe following response to a petition for a rehearing was delivered\\nPer Curiam.\\nThe petition for re-hearing in this case is based upon the theory that there is something analogous to contract right in the tenure by which the members of the board of public works of Frankfort hold their offices.. -There is no such analogy. They hold, as do> persons: holding offices created by the Legislature, subject to the power of the body which created the office to abolish it. In each case the power is a delegated power. The municipal legislature derives its power from the Legislature of the State, and the General Assembly derives its power from the Constitution. In each case the power to create implies and carries with it the power to abolish. The General Assembly is empowered by section 107 of the Constitution to create county and district offices for a term not exceeding four years. But it will hardly be contended that, having created an office with a term of four years, the General Assembly may not abolish it in too.\\nNor is there any analogy between the case at bar and the illustration of counsel of an agency to make a lease for a specified term. The principal, through his agent, binds himself by a contract. There is no contract right to a statutory office.\\nWe can not agree to the contention of counsel that we can. consider the alleged fact that the charters of cities of the various classes were drawn and adopted without any reference to each other. On the contrary, by a cardinal rule of construction, we are required to presume that when adopted by the General Assembly tbey were intended to be parts of a harmonious body of law; and therefore the difference in the language used in the charters of the cities of the second and third classes must be given proper significance.\\nThe case of Todd v. Dunlap, 99 Ky., 449, has no application to this case. In that case the sole question was the power of the mayor to remove from office officers who had been appointed for a statutory term.\\nPetition for re-hearing overruled.\"}"

ky/4420153.json

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+"{\"id\": \"4420153\", \"name\": \"Louisville & Nashville Railroad Co. v. Burkhart\", \"name_abbreviation\": \"Louisville & Nashville Railroad v. Burkhart\", \"decision_date\": \"1913-05-28\", \"docket_number\": \"\", \"first_page\": \"92\", \"last_page\": \"98\", \"citations\": \"154 Ky. 92\", \"volume\": \"154\", \"reporter\": \"Kentucky Reports\", \"court\": \"Kentucky Court of Appeals\", \"jurisdiction\": \"Kentucky\", \"last_updated\": \"2021-08-11T00:21:16.954162+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Louisville & Nashville Railroad Co. v. Burkhart.\", \"head_matter\": \"Louisville & Nashville Railroad Co. v. Burkhart.\\n(Decided May 28, 1913.)\\nAppeal from Henderson Circuit Court.\\n1. Damages \\u2014 Action for Personal Injuries \\u2014 Negligence\\u2014Pleading\\u2014 Limitation. \\u2014 In an action brought by a resident of this State against another resident thereof to recover damages for a personal injury sustained in another State through the negligence of the defendant, the plaintiff may rest the action upon a statute of such other State authorizing a recovery for such injury, by properly pleading same, but the action must be instituted within the time required by the Statute of Limitations of this State.\\n2. Limitation \\u2014 Statutes of Have No Extra-territorial Force. \\u2014 Statutes of Limitation are of State regulation and are founded on State policy. Such statutes have no ex-territorial force or operation for which reason foreign jurisdictions are not hound by them; hence the doctrine in respect to the limitation of actions is that the law of the forum governs; and this is true whether the action is ex contractu or ex delicto.\\n3. Action \\u2014 When Law of Place Governs as to Right of \\u2014 Statute of State Without Ex-territorial Force. \\u2014 While the statute of another State, is without extra-territorial force, a right acquired under it will always, in comity, be enforced, if not against the public policy of the State where the action is brought. In such cases the law of the place where the right was acquired or the liability was incurred, will govern as to the right of action, while all that pertains merely to the remedy will be controlled by the law of the State where the action is brought; that is the lex fori, and not the lex loci, will prevail with respect to the time when the action should be commenced.\\n4. Limitation \\u2014 Period of in Kentucky and Indiana \\u2014 Action for Personal Injuries. \\u2014 Although a general law of the State of Indiana fixes two years as the period of limitation for the bringing of an action to recover damages for a personal injury sustained in that State, as in Kentucky the period of limitation as to such an action is one year, in order to enable the plaintiff to recover in the latter State for a personal injury sustained in Indiana, he must bring the action within the year next after the injury was received.\\nTEAMAN & YEAMAN, C. H. MOORMAN and BENJAMIN D. WARFIELD for appellant.\\nF. J. PENTECOST and J. W. JOHNSON for appellee.\", \"word_count\": \"2607\", \"char_count\": \"14935\", \"text\": \"Opinion of the Court by\\nJudge Settle\\nEeyersing.\\nThe appellee, Fred A. Burkhart, a bridge carpenter, while in the employ o.f the appellant, Louisville & Nash-vile Eailroad Company,, and at work upon one of its railroad bridges in Vanderburgh County, Indiana, fell therefrom a distance of fourteen feet to the ground below, whereby his collar bone was broken and back sprained, resulting in serious and permanent injury to his person.\\nThe accident occurred September 1, 1910, and on August 23, 1912, this action to recover damages therefor was brought by him against appellant in the Henderson Circuit Court; it being alleged in .the petition that both appellant and appellee are residents of Kentucky; appellee being a citizen of the city of Henderson and appellant having been incorporated under the laws of Kentucky, having its chief office in the city of Louisville and owning a railroad running from the city of Louisville through the county and city of Henderson to Evansville, Indiana. It is alleged in the petition that appellee's injuries were caused by the negligence of appellant and its bridge foreman in furnishing him a defective jack screw not reasonably safe for use, the rod of which slipped from its place while he was using it to raise a bridge timber, causing him to lose his equilibrium and fall to the ground.\\nThe action was based upon a statute of Indiana which makes the employer liable in damages to the employe for an injury sustained by the latter by reason of the employer's negligence in furnishing him a defective tool or machinery for use in work required of him. Yet another statute of that State, also pleaded by appellee, provides that an action to recover damages for personal injuries may be brought at any time within two years next after the cause of action accrues.\\nThe answer traversed the affirmative matter of the petition, except its averments as to appellant and appellee 'being residents of Kentucky, alleged contributory negligence on the part of appellee and pleaded the statute of limitations-of Kentucky which \\\"bars an action for the recovery of damages for a personal injury unless brought within a year after the injury is received. The issues were completed by the filing of a reply which controverted the pleas of contributory negligence and limitation. The trial resulted in a verdict awarding appellee $200 damages, and from the judgment entered thereon this appeal is prosecuted.\\nThe record does not contain the evidence nor instructions and the single question presented for decision by the appeal is, dcs the pleadings support the judgment? In other words, does the limitation of two years prescribed by the statute of Indiana, or that of one year prescribed by the statute of Kentucky apply? If the latter statute should control, it is manifest that the trial court erred in refusing the peremptory instruction directing a verdict for appellant, which was asked by its counsel at the conclusion of appellee's evidence and again after all the evidence was introduced.\\nIt appears from the petition that the action was instituted only seventeen days short of two years after appellee's injuries were received, and it is therein alleged that \\\"the law of the State of Indiana also provides that a suit for damages resulting from said injury may be instituted at any time within two years from the date of said injury.\\\"\\nThe answer of appellant denies the applicability of the Indiana Statute of two years, and, in the third para-' graph, pleads the Kentucky Statute of one year, therefore, the question of limitation was one upon which the evidence threw no light, but a question of law to be determined from the admitted facts presented by the pleadings.\\nWaiving the question whether the Indiana Statute of Limitations was sufficiently pleaded by appellee, it can have no' effect in this state. It is a well recognized rule that statutes of limitation are of state regulation and founded on state policy. Such statutes, therefore, have no ex-territorial force or operation, for which reason foreign jurisdictions are not bound by them; hence the doctrine in respect to limitations of actions is, that the law of the forum governs; and this is true whether the action is ex contractu or ex delicto. Minor's Conflict of Laws, section 210; 25 Cyc., 1018.\\nThe doctrine is thus stated in Lewis' Sutherland's Statutory Construction, section 668:\\n\\\"And ordinarily courts disregard the limitation fixed in the contract or tort and enforce only the lex fori.\\\"\\nNecessarily statutes of limitation affect the remedy and not the right; and, as argued by counsel for appellant, they are as much a part of the remedy as are our forms of pleading, our rules of evidence and our manner of conducting trials, hence the Indiana Statute of Limitations can have no more operation in this state upon the one than upon the other.\\nThe rule to; which we refer has always been the law in Kentucky and, among the earlier cases approving it, is that of Graves v. Graves, 2 Bibb., 209, in the opinion of which it is said:\\n\\\"The statute of limitations does not affect the validity of the contract, but the time of enforcing it; or, in other words, it does not destroy the right but withholds the remedy. It would seem to follow, therefore, that the lex fori, and not the lex loci was to prevail with respect to the time when the action should be commenced.\\\"\\nThe later eases show no departure from this rule, among these are the following: Bennett v. Delaim, 17 B. Mon., 358; Farmers, &c., Bank v. Lovel, 8 R., 261; Templeton v. Sharp, 10 R., 499; Shilleto v. Richardson, 102 Ky., 52; Lobatt v. Smith & Whitney, 82 Ky., 599; in each of which it was held that the statutory bar of'the state where the remedy is sought to be enfqrced by action, and not that of the state where the contract was made, governs. In a more recent case, L. & N. R. R. Co. v. Whitlow's Admr., 114 Ky., 470, quoting with approval from Herrick v. Railway, 31 Minn., 16, we said:\\n\\\"The statute of another state has, of course, no extraterritorial force, hut a right acquired under it will always, in comity, be enforced, if not against the public policy of the laws of the former. In such cases the law of the place where the right was acquired or the liability was incurred will govern as to the right of action, while all that pertains merely to the remedy'mil be controlled by the law of the state where the action is brought; and we think the principle is the same whether the right of action be ex contractu or ex delicto,\\\"\\nIn the still more recent case of Adams Express Co. v. Walker, 119 Ky., 126, we find this expression of the same conclusion:\\n\\\"It is insisted for appellant that the contract here having been made in Wooster, Ohio, it must be governed by the laws of Ohio, and that by the laws of Ohio such a limitation is valid. Limitation is governed by the law of the forum in which the suit is brought, and tire courts of this state will not as a matter of comity, enforce a contract made in Ohio as to the time when the suit shall be brought, for this matter is regulated by our statutes.\\nSection 2516, Kentucky Statutes, fixes the limitation in such a case as the one at bar and is quite emphatic in its declaration that:\\n\\\"An action for an injury to the person of the plaintiff shall be commenced within one year next after the cause of action accrued, and not thereafter\\nIt is true as argued by appellee's counsel, there are some exceptions to the limitation it declares, but they have no application to this case, the exceptions are found, however, in section 2541 (misnumbered 2451) and' section 2542.\\nSection 2541 provides:\\n[ \\\"When, by the laws of any other state or country, an action upon a judgment or decree rendered in such state or country cannot be maintained there by reason of the lapse of time, and such judgment or decree is incapable ' of being otherwise enforced there, an action upon the .' same cannot be maintained in this state, except in favor of a resident thereof, who has had the cause of action ' from the time it accrued.\\\"\\nObviously, this section has no application to the case in hand, for it is not an action upon a judgment or decree. Section 2542 provides:\\n\\\"When a cause of action has arisen in another state or country between the residents of such state or country or between them and a resident of another state or country, and by the laws of the state or country where the cause of action accrued, an action cannot be maintained thereon by reason of the lapse of time, no action can be maintained thereon in this state.\\\"\\nIt is equally obvious that this section can afford appellee no relief for it only applies to a case where the action is barred by the law of the state where it arose; as held in Lobatt v. Smith & Whitney, 83 Ky., 599, it has no reference to residents of this state but to those who are non-residents of the state and come into it in order to enforce their rights; the object of the statute being to prevent one of them from having an advantage over the other.\\nNor do we think the case of Shillito v. Richardson, 102 Ky., 51, relied on by appellee, has any application. The parties were both non-residents of Kentucky, the plaintiff residing in Ohio and the defendant in New York, to which state he had removed from Ohio. The action was brought in Kentucky, but the cause of action arose in Ohio. The defendant answered pleading the statute of limitations of Kentucky, but by reply the plaintiff pleaded the Ohio Statute of Limitations which had not barred the cause of action when the defendant removed from Ohio to New York, and, under the laws of Ohio, did not run while he remained in New York. So, as the case was one between citizens of other states, upon a cause of action which arose in Ohio and had not been barred by the statute of limitations of that state, and the statute would have interposed no bar if the action had been brought in Ohio, it was properly held that the action could be maintained in Kentucky. In other words, the case was one to which section 2542, Kentucky Statutes, was clearly applicable.\\nThe case at bar, however, is wholly different, for both appellant and appellee were, when the cause of action arose and have since remained, residents of this state, hence, although the cause of action arose in Indiana, section 2542, does not apply, but the ease must be controlled by section 2516, Kentucky Statutes, which requires such an action to be brought within a year next after the cause of action arose. ,\\nIf the statute of Indiana, which gives the right of action attempted to be asserted by appellee, had prescribed, the time within which the action to enforce the right must be brought, quite a different question from the one we have would have been presented, for, in that case, the limitation as to time would have to be treated as a part of the right and be governed by the same law that creates the right.\\nBut the Indiana Statute in question does not prescribe the period of limitation, it is instead found in another and general statute of that state, therefore, it has no force outside of that state, and such limitation cannot be applied in Kentucky.\\nAs said by Mr. Minor in his Conflict of Laws, section 10:\\n\\\"But if the period of limitation is not prescribed by the same statute which confers the right, but is found in a general statute, the general principle applies, and it becomes a law relating to the remedy, which will have no ex-territorial force. In such case the law of the situs of the remedy (lex fori) again becomes the proper law.\\\" Cooley Con. Lira., 3 Ed., 361; \\\"The Harrisburg,\\\" 119 U. S., 126; McArthur v. Goddin, 12 Bush, 274.\\nThis question was considered and elaborately discussed in O'Shields v. Georgia Pac. R. Co., 6 L. R. A. (Old Ed.), 152, 85 Ga., 621, and by the Georgia Supreme Court held, that where a.right of action is given by a statute of another state and no period of limitation is prescribed otherwise than by the general law of limitation prevailing in that state, the lex fori not the lex loci applies on the subject of limitation.\\nHere the appellee's petition shows a common law right of recovery; the fact that he needlessly set forth a statute of Indiana, which does not prescribe the period of limitation, will not enable him to evade the Kentucky law as to the limitation, which necessarily controls; therefore, the peremptory instruction asked by the appellant should have been given.\\nFor the reasons indicated the judgment is reversed and cause remanded for a new trial consistent with the opinion.\"}"

ky/4421309.json

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+"{\"id\": \"4421309\", \"name\": \"Auxier v. Auxier\", \"name_abbreviation\": \"Auxier v. Auxier\", \"decision_date\": \"1913-10-08\", \"docket_number\": \"\", \"first_page\": \"174\", \"last_page\": \"175\", \"citations\": \"155 Ky. 174\", \"volume\": \"155\", \"reporter\": \"Kentucky Reports\", \"court\": \"Kentucky Court of Appeals\", \"jurisdiction\": \"Kentucky\", \"last_updated\": \"2021-08-10T20:03:21.152593+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Auxier v. Auxier.\", \"head_matter\": \"Auxier v. Auxier.\\n(Decided October 8, 1913).\\nAppeal from Johnson Circuit Court.\\nDivorce \\u2014 Alimony\\u2014Appeal /by Wife From so Much of Judgment as Affects Residence. \\u2014 Although a judgment of divorce may not be reversed on appeal, the wife, on appeal from such a judgment, may reverse so much of the judgment as determines that she did \\u2022 not reside in another county, in order that she may try out on the merits her action theretofore brought in that county for alimony. (For original opinion see 151 Ky., 504.) .\\nMAY & MAY, HARKINS & HARKINS and HOPKINS & HOPKINS for appellant.\\nWILL H. LAYNE; C. B. WHEELER for appellee.\", \"word_count\": \"601\", \"char_count\": \"3427\", \"text\": \"Extended Opinion by\\nChief Justice Hobson\\nReversing.\\nA- E. Auxier brought this suit against his wife, Mary Louise Auxier for divorce in the Johnson Circuit Court. She then brought a suit against him in the Floyd Circuit Court for divorce and alimony, alleging that she resided in Floyd County. She' pleaded the pendency of that action in bar of the action brought by him, alleging that her residence was in Floyd County. Upon the hearing of the case, the Johnson Circuit Court adjudged that she was- an actual resident of Johnson County, adjudging that her claim of residence in Floyd County was fraudulent, and also adjudging a divorce to the husband. The wife appealed from that judgment, and on the original hearing the appeal was dismissed, as no appeal lies from a judgment granting a divorce. (Auxier v. Auxier, 151 Ky., 504.) But upon a reconsideration of the case on the petition for rehearing, we conclude that the judgment of the Johnson Circuit Court determining that the residence of the wife is in Johnson County, and that her claim to a residence in _ Floyd County is fraudulent, is a conclusive adjudication between her and her husband of this fact, concluding her from maintaining her action for alimony in the Floyd Circuit Court. If she was a resident of Floyd County, she had a right to bring her action there for divorce and alimony, and although a divorce has been granted in the Johnson Circuit Court to her husband, she may still maintain her action in the Floyd Circuit Court to obtain alimony, if she is entitled to it, and her action was rightfully brought there. Upon an examination of the record, we have reached the conclusion, that the wife was a resident of Floyd County and that her claim of residence - there was not fraudulent. This being true, she has a right to maintain her action in the Floyd Circuit Court for alimony; and this she cannot do so long as the judgment of the Johnson Circuit Court remains in force, adjudging that she does not reside in Floyd County, and that her claim of a residence there is fraudulent.\\nIn so far as the judgment of the Johnson Circuit Court determines that her residence was not in Floyd County, and that her claim of residence there was fraudulent, that judgment is reversed. The judgment of divorce remains in force and is not affected by the reversal of the judgment in so far as it determines the domicile of the wife. She did not set up her claim for alimony in the Johnson Circuit Court, and may yet try out this matter in the Floyd Circuit Court. We intimate no opinion on the merits of the case and only make this extension of the opinion that it may be tried on the merits in the court properly having jurisdiction of the matter.\\nThe opinion is extended, and the judgment appealed from is reversed to the extent indicated.\"}"