diff --git a/ky/10081685.json b/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.\"}"
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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.\"}"
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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.\"}"
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diff --git a/ky/10150759.json b/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.\"}"
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diff --git a/ky/10153436.json b/ky/10153436.json
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index 0000000000000000000000000000000000000000..50ebe135797997205d7dfded57ba620354a3f485
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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.\"}"
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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.\"}"
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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.\"}"
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diff --git a/ky/10166107.json b/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.\"}"
\ No newline at end of file
diff --git a/ky/10170852.json b/ky/10170852.json
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+"{\"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.\"}"
\ No newline at end of file
diff --git a/ky/10173741.json b/ky/10173741.json
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index 0000000000000000000000000000000000000000..e1ce686efa3c14d81a0d9eefdd1ca2c3d88ffee4
--- /dev/null
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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.\"}"
\ No newline at end of file
diff --git a/ky/10175906.json b/ky/10175906.json
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index 0000000000000000000000000000000000000000..f447b962ff47bade3b914afbdbc221f92811e279
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+"{\"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.\"}"
\ No newline at end of file
diff --git a/ky/10177687.json b/ky/10177687.json
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index 0000000000000000000000000000000000000000..30daa218d2f2e566906a0f865eaaa456afc390c0
--- /dev/null
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+"{\"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.\"}"
\ No newline at end of file
diff --git a/ky/10179645.json b/ky/10179645.json
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index 0000000000000000000000000000000000000000..2e6b6ab630591e728d6187692901cd6356b27aa0
--- /dev/null
+++ b/ky/10179645.json
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+"{\"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.\"}"
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diff --git a/ky/10191471.json b/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.\"}"
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diff --git a/ky/10204877.json b/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.\"}"
\ No newline at end of file
diff --git a/ky/10212122.json b/ky/10212122.json
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index 0000000000000000000000000000000000000000..82c9a61f3e670637e7fe7dc75282f7ec5e9d96fa
--- /dev/null
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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.\"}"
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diff --git a/ky/10221584.json b/ky/10221584.json
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index 0000000000000000000000000000000000000000..c60a439a95415941d1b5278d55951d74f7f28a6a
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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.\"}"
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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.\"}"
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diff --git a/ky/12129086.json b/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.\"}"
\ No newline at end of file
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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.\"}"
\ No newline at end of file
diff --git a/ky/12658930.json b/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.\"}"
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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.\"}"
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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.\"}"
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diff --git a/ky/1405764.json b/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.\"}"
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diff --git a/ky/1418077.json b/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.\"}"
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diff --git a/ky/1418113.json b/ky/1418113.json
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index 0000000000000000000000000000000000000000..49b5129b510350b188dc237ffb1d3925f1331ad6
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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.\"}"
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diff --git a/ky/1420423.json b/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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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diff --git a/ky/2703057.json b/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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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+"{\"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.\"}"
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+"{\"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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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+"{\"id\": \"4422102\", \"name\": \"Hoerter v. Garrity, et al.\", \"name_abbreviation\": \"Hoerter v. Garrity\", \"decision_date\": \"1913-10-14\", \"docket_number\": \"\", \"first_page\": \"260\", \"last_page\": \"263\", \"citations\": \"155 Ky. 260\", \"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\": \"Hoerter v. Garrity, et al.\", \"head_matter\": \"Hoerter v. Garrity, et al.\\n(Decided October 14, 1913).\\nAppeal from Jefferson Circuit Court (Common Pleas Branch, Third Division).\\n1. Limitation-^-Section 2514 of the Statute \\u2014 Action on Foreign Judgment. \\u2014 An action on a foreign judgment is barred by Section 2514 of the statute after the expiration of fifteen years from the rendition of the judgment or the date of the last execution issued thereon..\\n2. Limitation \\u2014 Section 2541 of the Statute \\u2014 Action on a Foreign Judgment.^Section 2541 furnishes an exception to the rule of \\u25a0 limitation fixed in section 2514, and under section 2541 if an action upon a judgment or decree could not be maintained in the state in which it was rendered after the expiration of five years from its rendition, neither could an action be maintained upon it in this stale after the expiration of five years.\\n3. - Limitation \\u2014 \\u00a1Section 2542 of the. Statute \\u2014 Construction of. \\u2014 This . section also contains an exception\\u2019 to the rule of limitation fixed in 2514 as to causes of action that arose in another state or country between residents of such state or country. And if a cause of action arising in another state or country between residents ot such state or country is not barred by the laws of the state or country where it accrues, an action may be maintained thereon in this state; although more than fifteen years may have elapsed from the date of the accrual of the cause of action.\\nEDWARDS, OGDEN & PEAK for appellant,.\\nD. MOXLEY,' BECKHAM OVERSTREET for appellees.\", \"word_count\": \"1570\", \"char_count\": \"8865\", \"text\": \"Opinion of the Court by\\nJudge Carroll\\nAffirming.\\nIn August, 1912, tlie appellant brought this suit in the Jefferson Circuit Court- against the appellees on a judgment rendered in Ms favor against them in the State of Indiana in March, 1894. A demurrer to the petition was filed in October, 1912, and sustained. A few days thereafter an amended petition- was filed in which it was set up in substance that on October 12, 1912, the court in Indiana, in which the original judgment was_ rendered, renewed and extended it in a proceeding instituted under and in accordance with the Indiana law, and it was averred that by reason of the rendition of the renewal judgment the life of the original judgment was extencled, and it continued to be and was then in full force and effect.\\nTo this amended petition an answer was filed containing the averment \\\"that the judgment sued on herein was rendered more than fifteen years before the filing of the petition herein, and that the last execution issued thereon was issued and returned more than fifteen years before the filing of the petition herein, and that the said judgment and the action of the plaintiff was and is barred by the statute of limitation in such cases made and provided.\\\" It was further averred that the renewal of the judgment by the proceedings had in the Indiana Court in October, 1912, was made after the statute of limitation in force in this State had barred the judgment and more than fifteen years after the last execution issued on the judgment and so was of no effect in this State.\\nOn the pleadings a judgment was entered dismissing the petition, and the plaintiff appeals.\\n' The petition was dismissed upon -the ground that the action was begun more than fifteen years after the rendition of the original judgment sued on and more than fifteen years after the last execution had issued thereon. It was further ruled by the lower court that the renewal judgment obtained in 1912 under the -provisions of the Indiana Statute did not have the effect of extending the life of the judgment in this -State or of defeating the plea of the fifteen year statute.\\nIt is not shown by the record within what time an Indiana judgment is barred by the Indiana Statute of Limitation, nor does the record set up the Indiana Statute under which the renewal or extended judgment was authorized to be- rendered. We-may, however, assume\\u00bb, as it seems to be admitted in the briefs, that there was a statute in Indiana authorizing this renewal or extended judgment, and that by virtue thereof the life of the judgment was extended, and so far as the Indiana law was concerned it was in full force \\u00e1nd effect when the amended petition setting it np was filed.\\nThere being no issue of fact, the law of the case must be determined by the statutes of limitation in force in this State. Louisville & Nashville R. R. Co. v. Burkhart, 154 Ky., 92.\\nSection 2514 of the Kentucky Statutes provides in part that \\\"An action upon a judgment or decree of any court of this State, or of the United States, or of any State of Territory thereof, the period to be computed from the date of the last execution thereon, shall be commenced within fifteen years after the cause of action first accrued.\\\"\\nIt will be observed that this section applies to all judgments, both domestic and foreign, and an action in this State on a judgment whether it be obtained in this State or in some other State or country is controlled by this section subject to exceptions contained in sections 2541 and 2542, which will be later referred to. Therefore, if the case is to be determined by this section, it is apparent that the action was barred, as it was not commenced until more than fifteen years after the rendition of the judgment and the date of the issual of the last execution thereon. But we are referred by counsel to section 2541, reading as follows:\\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 can not be maintained in this State, except in favor of a resident thereof, who has had the cause of action from the time it accrued.\\\" And to section 2542, reading:\\n\\\"When a cause of action has arisen in another State or country between residents of such State or country or between them and residents of another State or country, and by the laws of the State or country where the cause of the action accrued an action can not be maintained thereon by reason of the lapse of time, no action can be maintained thereon in this State!\\\"\\nSection 2541 furnishes an exception to the rule of limitation fixed in section 2514. For example, if an action upon a judgment or decree could not be maintained in the State in which it ivas rendered after the expiration of five years from its rendition, neither could an action be maintained upon it in this State after the expiration of five years, subject, however, to the exception pointed out in the section in favor of a resident of this State. McArthur v. Goddin, 12 Bush, 274. But section 2541 has no application to this case as the appellees rely on the Kentucky and not the Indiana Statute to defeat a recovery.\\nNor has section 2542 any application, as it only refers to a cause of action that has arisen in another State between residents of such State or country or between them and residents of another State or country. Under this section if an action that arose between residents of another State or country could not be maintained by the laws of the State or country where it accrued, neither could an action be maintained thereon in this State. If, however, a cause of action arising in another State or country between residents of such State or country is not barred by the laws of the State or country where it accrued, an action may be maintained thereon in this State. To illustrate, if a cause of action accrued in another State between non-residents of this State, and it was not barred by the law of the State where it accrued, an action might be brought on it in this State, although more than fifteen years might have elapsed from the date of the accrual of the cause of action or the date of the judgment or the issue of the last execution thereon. It was so held in Shillito v. Richardson, 102 Ky., 51.\\nIn that case Shillito & Co. brought a suit against Bichardson on a debt created in 1878. Both Shillito and Bichardson were non-residents of the State at the time the cause of action accrued. The cause of action accrued in the State of Ohio, and was not barred by the laws of that State, although it was barred by the laws of this State, and the court adjudged that the Kentucky Statute of limitation was not applicable, the case being controlled by section 2542.\\nAs the record in this case does not show that the parties to this action were non-residents of the State when the Indiana judgment was obtained, section 2542 has no application. It appears from the record that when this suit was brought the appellant was a resident of Jefferson County, Kentucky, and the appellees were then residents of the State of Indiana, but this is the only reference in the record to the place where they resided.\\nThe judgment is affirmed.\"}"
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+"{\"id\": \"4423190\", \"name\": \"Small, Etc. v. Reeves, Etc.\", \"name_abbreviation\": \"Small v. Reeves\", \"decision_date\": \"1898-06-23\", \"docket_number\": \"\", \"first_page\": \"289\", \"last_page\": \"298\", \"citations\": \"104 Ky. 289\", \"volume\": \"104\", \"reporter\": \"Kentucky Reports\", \"court\": \"Kentucky Court of Appeals\", \"jurisdiction\": \"Kentucky\", \"last_updated\": \"2021-08-10T22:59:58.079142+00:00\", \"provenance\": \"CAP\", \"judges\": \"Judge Guffy did not sit in this case.\", \"parties\": \"Small, Etc. v. Reeves, Etc.\", \"head_matter\": \"Case 34 \\u2014 ACTION TO VACATE JUDGMENT\\nJune 23.\\nSmall, Etc. v. Reeves, Etc.\\nAPPEAL PROM TODD CIRCUIT COURT.\\n1. Judgment, Grounds pop. Vacating \\u2014 Unsoundness of Mind. \\u2014 Unsoundness of mind is an \\u201cunavoidable casualty or misfortune\\u201d within the meaning of that phrase as used in subsection 7, see. 518, Civil Code. Bean v. Haffendorfer, 84 Ky., 685.\\n2. Special Judge \\u2014 Power to Act After Term. \\u2014 A special judge elected to act on account of the disqualification of the regular judge has no power to act after the expiration of the term at which he was chosen; and no formal motion or affidavit was necessary objecting to his acting. Childers v. Little, 96 Ky., 376.\\n3. Equity \\u2014 Trial of Issue of Unsoundness of Mind in Equity Action. \\u2014 In an action to vacate a judgment in an equity action the case shall be tried as if an equity action; but under sec. 12, Civil Code, an issue of unsoundness of mind in an equity action shall be tried by a jury on the demand of any party wishing it.\\nJUDGE GUPPY not sitting.\\nB. P. PROCTOR for appellants.\\n1. Submission of the case was premature. Moreland\\u2019s Assignee, v. Citizens\\u2019 Bank, 16 Ky. Law Rep., 860; Civil Code, 364.\\n2. Special judge not eligible beyond the term at which elected. Childers v. Little, 16 Ky. Law Rep., 521; 96 Ky., 376.\\n3. The affidavit of T. P. Small disqualified the special judge. Massie v. Com., 93 Ky., 588 (14 Ky. Law Rep., 564); German Insurance Co. v. Landram, 88 Ky., 433 (10 Ky. Law Rep., 1039).\\n4. A change of venue to another county should have been granted. Triplett v. Scott, 5 Bush, 81.\\n5. A transfer to the common law docket for jury trial should have been granted. Baxter v. Knox, 17 Ky. Law- Rep., 486; Savings Bank of Cincinnati v. Benton,. 2 Met., 240; Sale v. Crutchfield, 8 Bush, 636; Carder, &c., v. Weisenburgh, 15 Ky. Law Rep., 497.\\n6. When unsoundness of mind was the issue the court must have a jury to try the issue. Nailor v. Nailor, 4 Dana, 339; Shaw v. Dixon, 6 Bush, 644; Story\\u2019s Equity Jurisprudence, sec. 1365.\\n7. Where the weak deals with the strong, or where a confidential relation or close kinship exists, fraud and undue influence are presumed. Hunter v. Owens, 10 Ky. Law Rep., 651; Musick v. Fisher-, 16 Ky. Law Rep., 277; Smith v. Snowden, 16 Ky. Law Rep., 353; Gay v. Witherspoon, 13 Ky. Law Rep., 20; Bussey\\u2019s Admr. v. Gross, 9 Ky. Law Rep., 843; Boarman\\u2019s Com. v. Gardner, 7 Ky. Law Rep., 521; Lawless v. Sevier, 5 Ky. Law Rep., 239; Clutter v. Clutter, 8 Ky. Law Rep., 956; Kraft\\u2019s Guard, v. Koenig, S Ky. Law Rep., 870; McHarry v. Irvin\\u2019s Exr., 85 Ky., 322 (9 Ky. Law Rep., 245); Sears v. Hicklin, Colo., 21 Pac. R., 1022; Hill v. Miller, 50 Kansas, 659; s. c., 32 P. R., 554; Worthington v. Major, 94 Mich., 325; Story\\u2019s Eq. Jur., secs. 234, 238, 242, 244, 1365, 1362; Newman\\u2019s Pleading and Practice, pp. 64 and 71.\\n8. If attorney represents both sides, although no fraud, judgment is void. Arrington v. Arrington, N. C., 21 S. E. R., 181; Appeal of Bunn, Idem.; Wilson Cotton Mills v. Randleman Cotton Mills, 21 S. E. R., 431.\\n9. Placing parties in statu quo applied to only innocent purchasers. Those who deal with the imbecile are not such, and if a consideration had been received, it will not be ordered to be restored. Elder v. Schumaker (Colo. Sup.), 33 P. R., 175; Worthington v. Campbell, 8 Ky. Law Rep., 416; Musick v. Fisher, 16 Ky. Law Rep., 277.\\n10. The court erred in striking from the record copies of depositions filed as exhibits. Code, sec. 128.\\n11. The court erred in refusing to let the reply, and amended petition, be filed. Code, sec. 134; reply may be a cross-petition, 98.\\nT. H. HINES, W. H. YOST and B. E. PROCTOR in a supplemental brief for appellants.\\n1. Change of venue. Triplett v. Scott, 5 Bush, 82; Newcomb-Buchanan v. Baskett, 14 Bush, 662.\\n2. Special judges. Ky. Stat., sec. 968; Childers v. Little, 16 Ky. Law-Rep., 521; 91 Ky., 376. 3. Trial of issue of fact by jury. Savings Bank of Cincinnati v. Benton, 2 Met., 240; Sale v. Crutchfield, 8 Bush, 636; Code, sec. 552.\\n' 4. Premature submission. 16 Ky. Law Rep., 746; Hendrix v. Nesbitt\\u2019s Admr., '96 Ky., 652; Code, sec. 364, and authorities cited.\\n5. Fraudulent deed of imbecile. Abercrombie on Intellectual Powers; Wilson v. Oldham, 12 B. M., 55; Story\\u2019s Equity Jur., secs. 226, 227, 234, 235, 242, 244, note to 247; Dr. W. G. Hunter's case, 3 Bush, 402; Music v. Fisher, 16 Ky. Law Rep., 277; Smith v. Snow-den, Ibid, 353; Boarman\\u2019s Com. v. Gardner, 7 Ky. Law Rep., 521;' Shaw, &c., v. Dixon, 6 Bush, 644; Nailor v. Nailor, 4 Dana, 339; Civil Code, sec. 518.\\nB. F. PROCTOR for appellants in reply to the supplemental brief fob appellees.\\n1. The. court should have awarded a jury trial to try the issue of mental capacity.\\n2. The court should haye granted a change of venue.\\nCitations: Newman\\u2019s Pleading and Practice, 466; McCormick v. McCormick, 9 Ky. Law Rep., 519; Woolf oik v. Ashby, 2 Met., 289; Musick v. Fisher, 16 Ky. Law1 Rep., 277; Worthington v, Campbell, 8 Ky. Law Rep., 416; Sugden on Vendors, vol. 2., 561 Carter v. West, 93 Ky., 211 (14 Ky. Law Rep., 191); Burrus, &c., v. Roulhac\\u2019s Admr., 2 Bush, 39.\\nSame counsel in petition fob a rehearing.\\nEDWARD W. HINES for appellees.\\n1. Where the election of a special judge takes place on account of the disqualification of the regular judge, the powers of the special judge continue until the case is decided or another judge has been elected. Ky. Stat., sec. 968.\\n2. If the statute requires a re-election of special judge at each term, the Court of Appeals will presume that such an election was held. Salter, &c., v. Salter\\u2019s Creditors, &c., 6 Bush, 624;' Childers v. Little, 96 Ky., 376, distinguished.\\n8.Objection to the special judge came too late after the plaintiffs had made motions before him. German Ins. Co. v. Landram, 88 Ky., 433.\\n4. The affidavit was insufficient.\\n5. The statute did not authorize a change of venue. Ky. Stat., sec. 1094.\\n6. The question of mental capacity was not a legal issue. Harding v. Handy, 11 Wheat., 125; The cases of Shaw, &c. v. Dixon, &c., 6 Bush, 644, and Nailor v. Nailor, 4 Dana, 239, are distinguished in this; in those cases an inquisition was necessary to determine the necessity of action by a committee or next friend.\\n7. The proceedings in an action to vacate a judgment follow the practice obtaining in the action in which the judgment was rendered. Civil Code, secs. 520, 522, 12.\\n8. The submission was not premature. Civil Code, sec. 364.\\n9. Small was not so lacking in mind or ignorant as to render him incompetent to defend the action to enforce the mortgage lien.\\n10. \\u201cEven though the mortgage had been procured by fraud that fact would not be ground for setting aside the judgment enforcing the mortgage lien.\\u201d Ross v. Wood, 70 N. Y., 8; United States v. Throckmorton, 98 U. S., 61.\\n11. The parties can not be put in statu quo. Rusk v. Fenton, 14 Bush, 490.\\n12. The court will not presume fraud from the relation between Reeves and Small. Bibb v. Smith, 1 Dana, 580.\\nFORGY & PETRIE in an additional brief for appellf.es.\\n1. The motion to have the special judge vacate the bench came too late. German Ins. Co. v. Landram, 88 Ky., 433; Kentucky Central R. R. Co. v. Kenney, 82 Ky., 154; and the affidavit was not sufficient in substance.\\n2. The proceedings in an action to vacate a judgment follow the proceedings of the original action. Civil Code, secs. 520, 12, 6, 11; Newman on Pleading and Practice, p. 224; McCall v.\\\" Hitchcock. 7 Bush, 615; Same v. Same, 9 Bush, 66.\\nFORGY & PETRIE and E.-W. HINES in a supplemental brief FOE APPELLEES.\\n1. No application was made to the court below for a continuance. Appellant was not entitled to a continuance of the case, because the failure to complete the issue was his own fault.\\n2. The parties might have agreed to submit the case to the special judge and this was practically the effect of their acts as shown by the record. Revised Statutes, vol. 2, sec. 712; it was not necessary that this agreement should be renewed at each term of the court.\\n3. It is not necessary in a case like this to put the parties in statu quo. Rusk v. Fenton, 14 Bush, 490; Am. & Eng. Enc. of Law, Vol. 11, title \\u201cinsanity,\\u201d p. 150.\\nWM. S. PRYOR FOR APPELLEES, (B. W. HINES OF counsel), in response to a petition fob a rehearing by the appellants.\\nThe fraud which will justify a court in setting aside a judgment must be a fraud in the obtainment of the judgment and not in the transaction out of which the judgment arose. Ross v. Wood, 70 N. Y., 8; Harding v. Handy, 11 Wheat., 125; Howard v. Howard, 87 Ky., 616; Nailor v. Nailor, 4 Dana, 239; Shaw v. Dixon, 6 Bush, 644.\\nW. S. PRYOR IN A supplemental response to a petition for A rehearing. -\\nNo confidential relations existed between Judge Reeves and the appellant, Small.\", \"word_count\": \"3387\", \"char_count\": \"18594\", \"text\": \"JUDGE DuRELLE\\ndelivered the opinion of the court.\\nThe appellant, Small, by Ms next friend, brought tMs action to vacate a default judgment rendered by the Todd \\u2022Circuit Court, in equity, at the November term, 1887, by which certain land belonging to appellant was subjected to pay the amount of certain mortgages signed by him; one of which was in favor of appellee Reeves, and another in favor of B. D. Johnson by whom the suit was originally brought, Beeves being made a party defendant, and coming in by cross petition. It is unnecessary, for the purpose of this opinion, ,to state the facts of this suit further than to say that the relief here sought is claimed upon the ground that William Small, at the time of the execution of the notes and mortgages set up in the former suit, was of unsound mind, incapable in law to make a contract; that he had been in a condition of mental unsoundness from his birth, and at no time possessed sufficient mental capacity to transact business. As held by this court in the case of Bean v. Haffendorfer, 84 Ky. 685 [2 S. W. 556, and 3 S. W. 138], such unsoundness, if it existed, is such a misfortune, within the meaning of subsection 7, sec. 518, Civ. Code,, as will authorize the court to vacate or modify the judgment.\\nThe appellee Reeves, being the regular Judge of the Todd Circuit Court, and therefore disqualified to preside, F. H. Bristow -was elected special judge at the December term, 1893, \\\"to sit in this action,\\\" as recited in the order, in pursuance of section 968 of the Kentucky Statutes. Certain motions were made and acted upon at that term, and the case was continued. No steps appear to have been taken at the March term, but at the July term several motions were made before him; among others, one on behalf of appellant to submit the cause for judgment, which was overruled. But at the December term, 1894, a petition for a change of venue was filed, in- which, among other things,, not necessary here to be considered, it was averred that \\\"F. EL Bristow, who was elected to preside in this case at a former term,\\\" was related to a person who was sought to be made a party defendant, \\\"and that said Bristow can not act by virtue of said election, as he was chosen only for the single term at which he was elected, and that said Bristow can not properly preside,\\\" etc. In the petition for a change of venue and the affidavit various grounds of objection to Bristow acting as special judge in the case are set out, but, in the view we take of the case, are not neces sary to be now considered. A motion was made \\\"to have Special Judge Bristow to vacate the bench.\\\" It is claimed on behalf of appellee that no formal objection was made to Judge Bristow sitting in the case, based specifically upon the ground that his election did not authorize him to sit as such judge at a subsequent term; the objection which was made being contained in the petition for a change of venue, and the motion to vacate being predicated upon the alleged ground of partiality, etc.; but we are clearly of opinion that, if he was not authorized to sit at a subsequent term to that of his election, no formal motion or affidavit was necessary. A mere suggestion upon the record would have been sufficient. Did his election empower him to hold court in the case in which he was elected at a subsequent term to his election? In section 968, Ky. Stat., are consolidated the provisions of the General Statutes and of the act of April 17,1S82. That section reads as follows: \\\"When, from any cause, the judge of the circuit court fails to attend, or being in attendance, can not properly preside in the action pending in said court, or if either party shall file with the clerk of the court his affidavit that the judge will not afford him a fair and impartial trial, or will not impartially decide an application for a change of venue, the parties, by agreement, may select one of the attorneys of the court to.preside on the trial, or hear the application, or hold the court for the occasion; and on their failure to agree upon an attorney, the attorneys of the court who are present and not interested, nor employed in the cause, shall elect an attorney of the court then in attendance, having the qualifications of a circuit judge, to hold the .court for the occasion, who shall preside accordingly; and the judge so elected shall preside in all cases called during the term, in the absence of the regular judge, or in which he can not preside, except in those cases in which the special judge can not properly preside.\\\" By the amendment of April 17,1882, referred to, it was provided that when, under the section of the General Statutes theretofore in force (section 1, art. 7, c. 28), it became necessary to elect a special judge, \\\"the judge so elected shall preside in all cases called during such term in the absence of the regular judge, and in all cases in which the regular judge can not properly preside, except in those.in which it is improper for said special judge to preside,\\\" which provision was not contained in the General Statutes. After full consideration by the entire court, we have reached the conclusion that the case of Childers v. Little, 96 Ky., 376, [29 S. W. 319], is decisive of the question, and that Bristow had no legal authority to act as judge in the case after the expiration of the term at which he was elected. The statutory provision that the judge so selected shall preside in all cases called during the term applies, we think, not only to other cases in which the regular judge can not preside, but to the case in which the special judge was elected, and indicates an intention-to fix a definite term beyond which judicial power can not be-exercised by a special judge. It was deemed necessary in the* case of a special judge appointed by the governor in cases where the parties could not agree, and the bar failed to elect, to give specific statutory authority to such appointee to hold a special term to try any case after such notice or order as required when such special term is held (Ky. Stat. Sec. 971); from which specific grant of authority in the one case it may be inferred that it was not intended to grant that authority to a special judge elected by the bar, \\u2014 an authority which would be implied if he were held to continue as judge after the expiration of the term at which he was elected.\\nOne other question is necessary to be considered by this \\u2022court, as'it is alleged as error, and may arise upon a retrial. The appellant demanded a jury trial of the issues of fact in the cause. Under section 520 of the Civil Code it is provided that on a petition in a proceeding to vacate or modify a judgment like this \\\"the proceedings shall be the same as those in the action in which the judgment was rendered;\\\" and it is contended that, as the original suit wTas properly in equity, being to enforce a mortgage lien, this case must be tried in equity. In this we concur. But by section 12 of the Civil Code it is provided that \\\"in an \\u2022equitable action, properly commenced as such, either party may by motion have the cause transferred to the ordinary docket for the trial of any issue concerning which he is entitled to a jury trial, but either party may require every equitable issue to be disposed of before such transfer.\\\" Under this section it has been held in Hill v. Phillips, 87 Ky., 169, [10 Ky. Law Rep., 31, S. W., 917], that if the legal issue depends upon the decision of the equitable issue, the former should not be transferred until the latter be decided; \\\"but, if the equitable issue depends upon the result of the legal issue, then the latter should be transferred on motion to the ordinary docket to be first tried by a jury.\\\" So, in Meek v. McCall, 80 Ky., 371, it was held that upon a plea of payment that issue should have been transferred to the ordinary docket. Nothing in section 520, which requires, this proceeding to be in equity, at all militates against the right of the appellant to have the legal issue of his sanity tried by a jury. In Howard v. Howard, 87 Ky., 619, [9 S. W. 411], this court said: \\\"This court, in the cases of Nailor v. Nailor, 4 Dana, 339, and Shaw v. Dixon, 6 Bush, 644, decided that a court of equity had no jurisdiction to hear and determine, upon its merits, a case brought by a person to set aside a sale of another person's property upon the ground that such person was of unsoun'd mind,, and incompetent to make the sale. But where the petition set up facts showing that such person was of unsound, mind, and not capable of taking care of his property, the chancellor would not dismiss it, but' would treat it as an \\u2022 information, upon which he would direct an inquisition against such person, to be tried by a jury; and, if he was found to be of unsound mind, then the court would appoint a committee to take charge of his person and estate, and to prosecute in his name the action instituted by such person.\\\" In that case, as well as in those referred to therein, the question was whether relief could be obtained by a committee or next friend on behalf of a person of unsound mind, and the trial of the question of mental unsoundness: was directed to be made by a jury. In those cases the question was as to the existing mental condition of the persons at the time of the suit, but it seems clear to us. upon principle that the issue whether the person whose contract is sought to be avoided was non compos at the date of the particular transaction is a legal issue, and properly triable by a jury. This disposes of the questions essential to be decided at the present time. For the reasons stated, a rehearing is granted, and the cause is reversed, with directions to award appellants a new trial, and for proceedings consistent herewith.\\nJudge Guffy did not sit in this case.\"}"
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+"{\"id\": \"4423358\", \"name\": \"Carroll County Academy v. The Gallatin Academy Co.\", \"name_abbreviation\": \"Carroll County Academy v. Gallatin Academy Co.\", \"decision_date\": \"1898-11-01\", \"docket_number\": \"\", \"first_page\": \"621\", \"last_page\": \"628\", \"citations\": \"104 Ky. 621\", \"volume\": \"104\", \"reporter\": \"Kentucky Reports\", \"court\": \"Kentucky Court of Appeals\", \"jurisdiction\": \"Kentucky\", \"last_updated\": \"2021-08-10T22:59:58.079142+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Carroll County Academy v. The Gallatin Academy Co.\", \"head_matter\": \"Case 82\\u2014EQUITY\\u2014\\nNovember 1.\\nCarroll County Academy v. The Gallatin Academy Co.\\nAPPEAL PROM CARROLI. CIRCUIT COURT.\\nDeed\\u2014Construction op\\u2014Condition Subsequent\\u2014Covenant.\\u2014A deed containing a habendum clause in this language: \\u201cTo have and to hold sanie unto the said parties of the second part, their heirs and assigns forever, on condition and in' trust that they shall erect and put up a suitable building, or buildings, for a school, or seminary of learning, and that same shall always be devoted to school purposes, whether retained by said association or be passed into the hands of others,\\u201d created a covenant and not a condition subsequent the failure to comply with which worked a forfeiture of the estate.\\nWINSLOW & WINSLOW for appejj.ants.\\n1. The Gallatin Academy Company (the plaintiff in the action) is dead. It was abandoned and dissolved over thirty years ago, and has had no existence since that time. This is alleged in the answer and is taken as true from the plaintiff\\u2019s failure to deny it. Civ. Code, sec. 126; Bigelow on Estoppel (3d ed.), 484.\\n2. The appointment of the plaintiff trustees was null and void; consequently they have no standing in court to maintain this action.\\n3. No cause of action is stated in the petition. The clause of the deed upon which plaintiffs must rely to work a forfeiture is not a condition subsequent, but is a mere covenant for a breach, of which damages only, and not a forfeiture, can be had. But, even if it be granted that the clause in question constitutes a condition subsequent, no breach of condition is alleged. 4th Kent. Com. (12th ed.), side page 129, 131, 133, note a; Rawson School District, 7 Allen, 125; 83 Am., Dec., 670; 3 Rapalje\\u2019s Digest, 1095-6; Green v. O\\u2019Connor, (R. I.), 19 L. R. A., 262.\\n4. Plaintiffs have no power or authority or any right to maintain an action for the dissolution of the defendant corporation, or for the annulment or forfeiture of its charter. Such an action must be brought at law and can only be brought by the state or a stockholder of the defendant corporation. Chambers v. Baptist Educational Society, 1 B. M., 215; 4 Am. & Eng. Enc. of Law, 302-3-4-5-6, and note, page 303; Pauline v. Portuguese, 20 L. R. A. (R. ID, 272; Beach on Corporations, secs. 51-2; Parker, &e\\u201e v. Bethel, &c., 31 L. R. A., 706 (Tenn.); Harrison v. Lex- \\u2019 ington & Frankfort R. R. Co., 9 B. M., 470.\\n5. Aside from all these matters, the proof fails to show a breach of condition of the deed, if construed to contain a condition.\\n6. The 'defendant is not the trustee for or of a charity. And plaintiffs are not donors of or to a charity. 3 Am. & Eng. Enc. of Law, 132, 133; 4 Kent Com., s. p. 465-6; Tiedeman on Real Prop-' ei\\u2019ty, sec. 801; Bispham\\u2019s Equity, sec. 128. Even assuming that defehdant is a mere trustee of a charity, and that plaintiffs are donors of a charity and that a breach and purpose of the gift has failed, there is still no law or authority whatever which will authorize plaintiffs to recover the property and not re-imburse tlie defendant to the extent of the present value of the improvements. 2 Perry on Trusts (3d. ed.), sec. 744.\\nJ. J. ORR, J. A. DONALDSON, and R. W. MASTERSON fob appellee.\\nThe conveyance by appellee to appellant was a charity without a consideration paid, and there was an entire failure of the objects and purposes of said conveyance. Consequently, the property reverted to donor. Ky. Stats., sec. 317; Story\\u2019s Eq. Jur., sec. 1192a; Gibson v. Armstrong, 7 B. M., 481; McDaniel v. Watson, 4 Bush, 234; Morrow v. Slaughter, 5 Bush, 330.\\nR. W. MASTERSON fob. appellee in a petition fob beheading. (J. A. DONALDSON and J. J. ORR, op counsel.)\\nCitations: Ky. Stats., sec. 317; Gibson v. Armstrong, 7 B. M., 481; Morrow v. Slaughter, 5 Bush, 330; Kennedy v. MeEI*roy, 92 Ky., 72; Alexander v. de Kermel, 81 Ky., 345.\", \"word_count\": \"2470\", \"char_count\": \"13996\", \"text\": \"JUDGE BURNAM\\ndelivered the opinion oe the coubt.\\nPlaintiffs allege that they are the trustees of the Gallatin Academy, by appointment of the Carroll County Court; that their corporation was the owner of a lot of ground in the town of Carrollton, which was unimproved by suitable buildings, and that in the year 1859 they conveyed this lot to the defendant, for a nominal consideration, upon condition that it should erect thereon suitable buildings for a high school, and that it should always thereafter be deA'oted to school purposes, whether retained by defendant, or be passed into other hands; that the deed was accepted, and suitable buildings erected on the lot for school purposes, by the defendant, and that a school was maintained there for many years; but that the defendant had abandoned the property for school purposes, and had failed for more than two years before the institution of their suit to have a school kept in the building, and it is claimed that they thereby violated the conditions of the trust. And they further allege that the charter of the defendant com pany provides that the corporation may be dissolved with the concurrence of four-fifths of the stockholders, or for the failure for two consecutive years to maintain, a school in connection with the defendant association; and they plead that by reason of such failure defendant has forfeited its right to the property, and they ask for a restitution of the lot to them, and for a dissolution of the defendant corporation. A copy of the deed is filed with the petition, the habendum clause of which is in these words: \\\"To have and to hold same unto said parties of the second part, their heirs and assigns, forever, on condition and in trust that they shall erect and put up a suitable building or buildings for a high school or seminary of learning, and that same shall always be devoted to school purposes, whether retained by said association or be passed into the hands of others.\\\" The defendant demurred generally to the petition, which was overruled, and it then filed its answer, in which it denied that such a corporation as the Gallatin Academy has existed since the time the trustees conveyed the lot to-it, in 1859; denied that the County Court of Oar-roll county had the power to appoint' trustees for such corporation, or that it has done so; and denied that it has abandoned the use of the property for school .purposes, on made any other use thereof. Plaintiffs, in their reply, aver that the defendant accepted the deed to the lot in question from the trustees, who were appointed by the Carroll County Court exactly as they were, and plead that the defendant is estopped to deny the existence of the corporation, or the power of the court to appoint trustees of the Gallatin Academy, after the acceptance of such conveyance. The pleadings being made up, proof taken, and the case submitted for judgment, the chancellor adjudged that the defendant had failed to carry out the purposes and objects of the conveyance and the terms of its charter, and that the conveyance of the lot being without consideration, and for a charitable purpose, the property reverted to the Gallatin Academy; and this appeal is prosecuted to reverse that judgment.\\nBy the acceptance of the deed from the Gallatin Academy, defendant obligated itself to erect on the lot conveyed therein suitable buildings for a seminary of learning, and covenanted with the grantors that the property should always be devoted to school purposes; and the petition alleges that defendant, in conformity with this condition of the deed, did erect the buildings required. And the only question left for the determination of the court, \\u2022under the averments of the petition, is, has the property been abandoned for school purposes, and used by the defendant for other purposes inconsistent with the terms of, the deed? And, if so, are the plaintiffs entitled to have the property restored to them, as the successors of the trustees of the Gallatin Academy, who executed the deed to defendant in 1859?\\nThe clause of the deed upon which appellees must rely to work the forfeiture asked for herein, even it it be conceded that they are entitled to maintain this action, is not a subsequent condition of ownership, but a mere covenant on the part of the defendant that the property should not be diverted from school purposes, and for the breach of which forfeiture does not lie. It is a rule of law that conditions subsequent are not favored, because they tend to destroy estates; and, if it be doubtful whether a clause in a deed be a condition or a covenant courts will incline to the latter construction. See 4 Kent, Comm. (12th Ed.), pp. 129, 130; 3 Rap. Dig., sections 1095, 1096; and Rawson v. School District, 83 Am. Dec., 670. A full and. intelligent discussion of this question is found in the recent case of Greene v. O'Connor (decided by the Supreme Court of Rhode Island) (19 L. R. A., 264) [25 Atl., 692]. The clause of the deed discussed in that case reads as follows: \\\"This conveyance is made upon the condition that the strip of land shall be forever kept open and used as a public highway, and for no other purpose.\\\" And the court held it to be a covenant, and not a condition, saying: \\\"We do not think the clause quoted created a condition subsequent. Conditions subsequent, as is well understood, are not favored in law. A deed will not be construed to create an estate on condition, unless language is used which, according to the rules of law, ex proprio vigore, imports a condition, or the intent of the grantor to make a conditional estate is otherwise clearly and unequivocally indicated. If it be doubtful whether a clause in a deed be a covenant or a condition, courts will always lean against the latter construction. The clause in question is merely a declaration of the purpose for which the land conveyed was to be used and improved, t-o-wit, as a public highway. It contains no language which imports that the grant shall be void in case the purpose for which the land is conveyed is not carried out; nor does it reserve to the grantor and their heirs the right, in that event to re-enter on the land, and resume possession of it as of their former estate. Moreover, the purpose is, in its nature, general and public, and not one inuring specially to the benefit of the grantors. Such a declaration does not create an estate on condition, but merely imposes a confidence or trust on the land, or raises an implied agreement on the part of the grantee to use the land for the purpose specified.\\\"- In the case at bar, as in the case above quoted, the deed contains no- language which' imports that the grant shall be void in case the purpose for which the land was conveyed is not carried out; nor does it reserve to the grantor the right in that event to re-enter on the land, and resume possession of it as of their former estate. In Raley v. Umatilla Co.. 15 Or., 172, [3 Am. St. R., 142; 13 Pac., 890], the Supreme Court of Oregon held that \\\"a conveyance in consideration of $1, to hold for the special use, and none other, of conditional purposes, does not make a condition subsequent.\\\" In Curtis v. Topeka Board of Education, 43 Kan., 138, [23 Pac., 98], the Supreme Court of Kansas held that \\\"a conveyance of land to a school board and their successors forever for the erection of a school house thereon, and no other purpose, makes only, a limitation on the use of the property, and not a condition subsequent.\\\"\\nNor can- the judgment appealed from be upheld upon the theory that the plaintiffs are the legitimate successors of the donors of a charity -which has failed. They do not seek to recover upon such a theory, as they do not allege that they gave the lot as a charity, but, on the contrary, aver that they sold it for a valuable and presumptively commensurable consideration, without any condition as to reversion to them. This is clearly shown by the habendum of the deed, quoted supra. There is no testimony in the record which conduces to show that the defendant has abandoned the property in question for school purposes, or made any use thereof inconsistent with the terms of the deed. The mere facts that the buildings had become somewhat out of repair, and that no' school had been taught therein for a few years, do not amount to an abandonment of the property under the covenant of the deed under which defendant holds. And if, as a matter of fact, the defendant has abused its trust, and appropriated the trust property to its own use, or diverted it from the purposes for which the lot was conveyed and the buildings, erected, the remedy for any person having a right to institute suit is an action to have the trustees removed. Mr. Perry (2 Perry, Trusts [3d Ed.], section 744), says: \\\"If the trustee of a charity abuse the trust, misemploy the fund, or commit a breach of the trust, the property does not revert to the heir or legal representative of the donor, unless there is an express condition of the gift that it shall revert to the donor or his heirs in case the trust is abused; but the redress is by bill or information by the attorney-general, or other person having the right to sue. If a good public charity is created by gifts upon condition or limitations, or by gifts for particular purposes, or to a certain end, the heir can not defeat the charity by reason of a breach of the trust or perversion of the charity; but the courts, upon proper proceeding, will correct all abuses,, and restore the charitable gift to its original purpose. Pleirs and personal representatives of a donor have no\\u00bb beneficial interest, reverting or accruing to themselves,, from the breach or non-execution of a trust for a charitable use.\\\"\\nIn view of the conclusions we have reached on this question, it will be unnecessary for us to express an opinion upon the validity of the appointment by the County Court of Carroll county of plaintiffs as trustees of the Gallatin Academy, or of their prayer for a dissolution of defendant's charter. But for the reasons indicated the judgment is reversed, and the cause remanded, with directions to dismiss the petition.\"}"
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+"{\"id\": \"4424339\", \"name\": \"Rose, Etc. v. Rose, Etc.\", \"name_abbreviation\": \"Rose v. Rose\", \"decision_date\": \"1898-06-03\", \"docket_number\": \"\", \"first_page\": \"48\", \"last_page\": \"77\", \"citations\": \"104 Ky. 48\", \"volume\": \"104\", \"reporter\": \"Kentucky Reports\", \"court\": \"Kentucky Court of Appeals\", \"jurisdiction\": \"Kentucky\", \"last_updated\": \"2021-08-10T22:59:58.079142+00:00\", \"provenance\": \"CAP\", \"judges\": \"Judge Burnam concurs.\", \"parties\": \"Rose, Etc. v. Rose, Etc.\", \"head_matter\": \"Case 7 \\u2014 IN EQUITY\\nJune 3.\\nRose, Etc. v. Rose, Etc.\\nAPPEAL PROM LOGAN CIRCUIT COURT.\\nMarriage \\u2014 Vested Rights \\u2014 Effect of Act of 1894. \\u2014 A marriage entered into before the passage of the married woman\\u2019s act. of March 15, 1894, and the acquisition of real estate by the wife before that act, vested the husband with the statutory right then existing to rent the land and receive the .proceeds, which the Legislature was without power to devest.\\nWILBUR P. BROWDER for appellant.\\nThe act of 1894, March 15, was intended by the Legislature to1 readjust marital rights, as well existing ones as those thereafter to be acquired; and is no violation of the Constitution of the United States. Constitution, see. 10 art. 1; Ky. Stats., sec, 2128; Cabell, et. al. v. Cabell\\u2019s Adrar., 1 Met., 319; Maguire v. Maguire, 7 Dana, 184; Gaines v. Gaines, 9 B. M., 308; Prichard! v. Citizens\\u2019 Bank, 28 Am. Dec., 132; Gen. Stat, chap. 52, sec. 6; Azbill v. Azbill, 92 Ky., 154; Carson v. Carson, 40 Miss., 349; Berthelemy v. Johnson, 3 B. M., ?0; West v. West, 2 Mass., 233; Bigelow v. Bigelow, 108 Mass., 38; Percy v. Cockrill\\u201e 63 Fed. Rep., 872; Bruce v. Bruce, 11 Sou. Rep., 197 (Ala.); Hart v, Leete, 15 S. W. Rep., 976 (Mo.); Irvine v. Puryear, 7 S. W. Rep., 449 (Ark.); Alexander v. Alexander, 7 South Eastern Rep., 335-(Va.); Cooley on Const. Lim., to.p page 346, 5th ed.\\nJAMES H. BOWDEN for appellee.\\n1. The act of March 15, 1894, was not intended to affect the rights of husband and wife as to each other. Matson v. Matson, 4 Met.* 262; Kalfus v. Kalfus, 12 Ky. Law Rep., 893; s. c. 92 Ky., 542.\\n2. The Legislature has no power to devest the husband of the rights vested in him by the marriage. 62 Am. Dec., 160 and notes; 68 Am. Dec., 618; Rose v. Sanderson, 38 111., 250; Clark v. Clark* 20 Ohio St., 128; Irvine v. Puryear, 50 Ark., 356; Burson\\u2019s App.* 22 Penn., 164; Wyatt v. Smith, 25 West Va., 813; 19 L. R. A., 247; Myer on. Vested Rights, pp. 31 to 35; Ky Stats., secs. 2127, 2128; Dixon v. Dixon\\u2019s Exr., 23 Am. Dec., 478.\", \"word_count\": \"9334\", \"char_count\": \"53558\", \"text\": \"JUDGE DAYNTER\\ndelivered the opinion op the court.\\nIt appears from the petition, to which the court sustained a demurrer, that the appellant is the wife of appellee J. A. Rose; that they were married in the year 1890; that a separation has taken place, which is permanent; that they will never live together as husband and wife. It also appears from the petition that' after the marriage took place, and before the passage of the act of 1894 (sections 2127, 2128, Ky. Stat.), defining the rights of married women, the appellant by gift acquired title-to a tract of land containing 308 acres, and by purchase another tract of 120 acres. It is alleged that the husband is in possession of the land, and refuses to surrender it to the appellant. She therefore prays that the possession of it be adjudged to her. The question involved is whether under the act referred to, the rights of the husband \\u2014 as. they existed at the time of its passage \\u2014 to the use of the land have been destroyed; that is to say, did the legislature intend to deprive husbands of their interests in the lands of their wives, or, if it so intended, did it have the power to do so?\\nAt common law the husband became the owner of the personal property of the wife. He likewise became seised of an estate for their joint lives of her freehold lands and chattels real. He could sell the personal property thus acquired, and vest the vendee with a title thereto. He could sell the interest which he acquired in the real estate,. and vest the purchaser with the title to the interest which became vested in him by operation of law. 2 Dembitz,. Land Titles, 788; 2 (Kent, Comm., 130; 2 Bl. Comm., 126.. The court held in McClain v. Gregg, 2 A. K. Marsh. 454, that marriage gives the husband an estate in the lands of his wife, which he could sell, and that his vendee could maintain ejectment. That opinion was before an act of the Legislature reducing the interest of the husband in the wife's land. A divorce restores to the wife the exclusive right to her land. Hays v. Sanderson, 7 Bush, 489. As civilization advanced, and as the .men who made the laws began to recognize that a wife should not be compelled to surrender practically all of her estate to the husband, but should be given a reasonable protection in the enjoyment of her property, the Legislature of Kentucky passed an act which supplanted the common law with reference to the rights of a husband in his wife's real estate. It is section 1, art. 2, c. 52, p. 720, Gen Stat., and reads as.follows: \\\"Marriage shall give to the husband, during the life of the wife, no estate or interest in her real estate, including chattels real, owned at the time, or acquired by her after marriage, except the use thereof, with power to rent the real estate for not more than three years at a time, and receive the rent. If, however, the wife die during the term for which her land is rented, the rent shall go to the husband, if alive, subject to her debts, contracted as stated in the next section. But if during such term the husband die, the rent accruing thereafter shall go to the wife or her representatives, subject to her debts as aforesaid.\\\" This section was in force at the time the parties to this action were married, and at the time the wife acquired the land. It gives the husband the use of the wife's land, with power to rent it for not more than three years at a time, and receive the rent. It does not allow this rent to be subjected to the payment of his debts, because the Legislature thought it wise to place it in the power of the husband to appropriate the rents for the benefit of his: wife and children, if he chose to do so. In obedience to \\u2022 the requirements of the statute, this court has repeatedly held that the rents of the wife's land could not be subjected to the payment of the husband's debts. If the husband cultivates the land himself, then the products of the \\u2022 land have been adjudged to belong to him. The court, in Moreland v. Myall, 14 Bush, 474, held that corn standing-on the wife's land (her general estate) is subject to levy and sale under execution against the husband. While the \\u2022 rent of the Avife's land is not liable for the husband's debts, yet, as between the husband and wife, the rent belongs-to him. Barnes v. Burbridge, 7 Ky. Law Rep. 445. While,., under the act in force when the parties married and when the land was acquired, the husband's interest in the wife's - land was not so great as at common law, still it is a vested right; and the Legislature could not deprive him of the use \\u2022 of his wife's land, and the right to rent it for three years at-a time. The act of 1894 declares that marriage shall giA^eto the husband no interest in the wife's property, and that she shall hold it and own it for her separate and exclusive-use, free from the debts and control of her husband. The act is not retrospective in its operation. It can not take-from a husband the rights which existed under the law \\u2022 in force at the time of its passage.' It is said' by Mr. Cooley, in his work on Constitutional Limitations (5th Ed. p. 442): \\\"At the common law the husband, immediately - on the marriage, succeeded to certain rights in the real and personal estate Avhicli the wife then possessed.. These rights became vested rights at once, and- any subsequent alteration in the law could not take them away.\\\" It is held in Junction Railroad Co. v. Harris, 9:-Ind. 184 [68 Am. Dec., 618], that a- husband's--. estate in tlie wife's land is not impaired by a statute declaring it separate property. Under the law of New York, a husband had a certain interest in his wife's property. Subsequently the Legislature passed an act which, in effect, declared that such property should no longer belong to the husband, but should become the property of the wife, as though she were a single female. The court held that, the husband's rights could not be impaired by the act of the Legislature. Westervelt v. Gregg, 12 N. Y. 202. It was held in Rose v. Sanderson, 38 Ill. 247, that a legislative enactment can not take from the husband a vested life estate in the wife's land, and give it to her. Bishop on the Law of Married Women (volume 2, section 40), after stating what are the rights of the husband at common law in the wife's real estate, says: \\\"This is a vested estate in him; and, within the doctrine discussed under our first subtitle, it is not competent' for legislation, without his consent, to take it from him and give it back to the wife.\\\" The views we have expressed are supported by Jackson v. Jackson, 144 Ill. 274 [33 N. E: 51]; Clark v. Clark, 20 Ohio, 135; Wyatt v. Smith, 25 W. Va. 813. Many authorities could be cited in support of these views. A wife who was married before the act of 1894 took effect is entitled to all the rights in property acquired after the act took effect which it purports to give her. Although the marriage took place before the act took effect, the husband has no right to complain that the Legislature has given his wife the control of such property as she acquired after the act took effect. The act did not impair any vested right of the husband in property so acquired. His right was expectant, not vested. Mr. Cooley in his work on Constitutional Limitations (page 443), in speaking in regard to the husband's expectant interest in the after-acquired property of the wife, said: \\\"It is subject to any changes made in the law before his right becomes vested by the acquisition.\\\" In Allen v. Hanks, 136 U. S. 300 [10 Sup. Ct. 961], it was held competent for a State, in its fundamental law or- by statute, to provide that all property thereafter acquired by or coming to a married woman shall constitute her separate estate, not subject to the control or liable for the debts of the husband. Such requirements do not take away or impair any vested rights of the husband. The same doctrine was announced in Jackson v. Jackson. It is hardly necessary to observe that, if Mrs. Rose should be divorced from her husband, she is entitled to be restored to the possession and use of her land; or should she, in an appropriate proceeding, show herself entitled to alimony or equitable settlement, the products of her land, or the rents thereof, would be subject to the payment of it in the same manner and to the same extent as they would be if the land belonged to the husband. This is upon the idea .that the products of the land, or the r\\u00e9nts of it, belong to him.\\nThe only case to which the court's attention has been called which militates against the conclusion we have reached, as to the incompetency of the Legislature to take from a husband his vested rights, is the case of Rugh v. Ottenlieimer, 6 Or. 231. To sustain its conclusion in that case, the court cited Maguire v. Maguire, 7 Dana, 183. A similar question to the one involved in this case was not before the court in the Maguire case; neither did the court express an opinion on a question like the one involved in this case. The part of the opinion which the Oregon court relied upon to sustain its conclusion was dictum, and that does not even sustain the conclusion of the court. The court in Gaines v. Gaines, 9 B. Mon. 308, did not ad here to tlie doctrine which was declared in Maguire v. Maguire, but said: \\\"And if it were conceded, as intimated in Maguire v. Maguire, supra, that the marriage contract is not, as a contract, wholty removed, like other contracts from the potver of the Legislature to dissolve it in any particular case by special act of dtoorce, and that the dissolution of a marriage, if required by the public good, maj' be a legislative function, still it can not be admitted that a power thus deduced, uncertain, upon principle, as to its existence, and still more uncertain as to the grounds of its legitimate exercise, can override the express and highly conservative prohibitions in the Constitution, intended for the protection of private rights of property. We are of opinion, therefore, that whatever power to be exercised in view of the public good, the Legislature may have to enact divorces in special cases, as it can not, even for the public good, change the right of private property from one to another without compensation, much less can it do so by a special act of divorce, sought by one of the parties against the consent of the other, with the purpose or effect of operating upon the rights of property incident to the marriage relation, as created and sustained by the general laws applicable to that relation.\\\" The act of the Legislature in question does not attempt to dissolve the marriage contract, nor does it give any additional grounds upon which a court might do it. So the dictum in the Maguire case, to-wit, \\\"and therefore marriage, being much more than a contract, and depending essentially on the sovereign will, is not, as we presume, embraced by the constitutional interdiction of legislative acts,\\\" could be regarded as a correct statement of consti-' tutional law, and still would have no application to the question at bar.\\nWe have not felt it necessary to discuss marriage as a social relation, nor the necessity of the regulation and control of it by the sovereign power of the State. Neither have we felt it necessary to discuss the question as to the power of the Legislature to prescribe the causes for which the marriage contract or relation may be'dissolved. Neither would it be profitable to determine the question whether marriage is a contract sui generis, or one publici juris, or both. The marriage relation was assumed by the parties, it still exists, and no effort is made to have the court dissolve it. The questions we have been called upon to determine were: (1.) What rights did the marriage give the husband in the wife's property? (2.) Can the rights thus acquired to be taken from the husband by the Legislature and given to the wife? Our conclusions are supported by the common law, by the consensus of judicial opinion, and by the ablest writers on constitutional law. We have thought it neither wise nor judicial to disregard the rules of law, which are the crystallization of judicial opinion. Neither do we think, because lawmakers may have been slow in giving to wives freedom in the control of their property, that we should give our sanction to a law which, if upheld, will take the property of the husband and give it to the wife. If change and transition are to take place in the domestic relationship, although right and for the public good, still it should not be done at the sacrifice of vested rights. Judgment affirmed.\"}"
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+"{\"id\": \"4426368\", \"name\": \"Love v. McCandless, et al.\", \"name_abbreviation\": \"Love v. McCandless\", \"decision_date\": \"1914-02-10\", \"docket_number\": \"\", \"first_page\": \"352\", \"last_page\": \"357\", \"citations\": \"157 Ky. 352\", \"volume\": \"157\", \"reporter\": \"Kentucky Reports\", \"court\": \"Kentucky Court of Appeals\", \"jurisdiction\": \"Kentucky\", \"last_updated\": \"2021-08-10T22:42:57.610932+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Love v. McCandless, et al.\", \"head_matter\": \"Love v. McCandless, et al.\\n(Decided February 10, 1914.)\\nAppeal from Metcalfe Circuit Court.\\n1. Homestead \\u2014 Right of Widow to \\u2014 Abandonment.\\u2014Under Section 1707 of the Kentucky Sttatutes the widow is only entitled to a -homestead as long as she occupies the same by herself or tenant, and she may forfeit .the homestead right by selling it or by abandonment.\\n2. Homestead \\u2014 Infant Widow.- \\u2014 The mere abandonment by an infant widow of the occupancy of her homestead either by herself' or tenant does not operate to deny her the right, on or before arriving at age, to assert her right to a homestead.\\n3. Homestead \\u2014 Abandonment\\u2014Acts that Evidence. \\u2014 The abandonment by a widow of her homestead may be shown by her acts and conduct independent of any writing. The fact of abandonment may be shown by parol evidence.\\n4. Homestead \\u2014 Infant Widow Removing to Another State \\u2014 Acts of Abandonment. \\u2014 Where an infant widow, who was entitled to a homestead, removed to another Sate and when she became of age by the laws of that State, although under twenty-one, sold her homestead right, this act, in connection with the fact that she had never occupied the premises as a homestead, worked an abandonment of it, and after she became twenty-one she could not assert her right to a homestead.\\nEUGENE HUBBARD for appellant.\\nV. H. BAIRD and BAIRD & RICHARDSON for appellees.\", \"word_count\": \"2069\", \"char_count\": \"11384\", \"text\": \"Opinion op the Court by\\nJudge Carroll\\nAffirming.\\nThis is a homestead ease and involves the question whether or not the appellant, Nora Love, is entitled to a homestead in a house and lot situated in Metcalfe County, Kentucky. To understand the issues it will he necessary to make quite an extended statement of the facts.\\nThe first husband of Nora Love was James A. Mc-Candless, who died intestate in Metcalfe County in August, 1906. At the time of his' death his wife, now Nora Love, was about sixteen years of age. Soon after the death of her husband she moved with her father to the State of Illinois, and in May, 1907, married Junius Love, her present husband. After her marriage to Love, who was a commercial traveler, she traveled and lived in different States, but at no time did she return to Metcalfe County to live or make her home, nor did she at any time after the death of her first husband by herself or a tenant occupy the homestead now in controversy.\\nIt appears that within a few months after the death of Nora Love's first husband a suit was brought in the Metcalfe Circuit Court to settle his estate, and in this suit, to which Nora Love as his widow was made a party, there was a judgment in February, 1907, adjudging that she was entitled \\\"to hold the house and lot mentioned as the property of decedent as a homestead.\\\" An appeal was taken by some of the parties from this judgment, and on this appeal her right to a homestead was confirmed.\\nAfter this, in May, 1907, she married Junius Love, and in October, 1907, being then a resident of Illinois, she and her husband executed, acknowledged and delivered to E. E. McCandless an instrument of writing conveying to him, in consideration of two hundred dollars, all her right, title and interest in the property set apart to her as a homestead. A short time after this W. L. Porter, who had been appointed by the Metcalfe County Court statutory guardian of Nora Love, then McCandless, brought suit in the Metcalfe Circuit Court to settle his accounts as guardian. In this suit to which she was a party he avered that Nora Love, who had prior thereto married Junius Love, was over eighteen years of age, and that both she and her husband were \\u2022residents of the State of Illinois, and that under the laws of that State a female married woman over the age of eighteen was legally capable of receiving any and all de mands due her from any source, and qualified to receipt for the same and act as a single woman and he asked that he be permitted and ordered by the court to pay to her the amount in his hands as guardian, which included the two hundred dollars paid to her for her homestead interest, as well as some other estate that had come into his hands as gaurdian. In this suit a judgment was entered reciting the fact that Nora Love was then a resident of the State of Illinois, over the age of eighteen' years, and capable of contracting and receiving money and executing receipts for the same, and Porter as her guardian was directed to pay to her the funds in his hands, and pursuant to this order Porter, as guardian, did pay to her the amount to which she was entitled.\\nAfter this, and in 1911, W. E. McCandless, a brother of B. E. McCandless, the lessee of Nora Love, bought out the interest of some of the heirs of James McCandless, deceased, in this house and lot, and, proceeding on the theory that Nora Love had forfeited her right to a homestead by her removal to another State as well as by her sale of her right, title and interest in the property asked that he be adjudged the owner of the property.\\nTo this suit, which was filed in 1911, Nora Love, who was made a defendant, filed her answer in 1912, in which she set up that she had only arrived' at the age of twenty-one in 1911, and that she did not know anything about the suit in which a homestead was allotted to her or that she was entitled to a homestead in the property, or about the suit brough by her guardian asking permission to pay to her the money in his hands, or the judgment entered in that suit. She further set up that, although she had lived in Illinois and different States and had never occupied as a home or otherwise the property in question, she claimed it as a homestead and asked that she be adjudged entitled to it as such. She further denied that she intended by the writing executed in October, 1907, to divest herself of her homestead right in the property, and insisted that upon her arrival at twenty-one she had the right' to repudiate this writing, which she did.\\nOn hearing the ease the lower court adjudged that she was not entitled to a homestead in the property, and from that judgment she prosecutes this appeal.\\nIt must be presumed, nothing appearing to the contrary, that she was properly a party to the suit brought to settle the estate of her first husband in January, 1907, and further that she was properly a party to the proceeding instituted by her guardian, W. L. Porter, in which he sought and obtained the judgment of the Metcalfe Circuit Court directing him to pay to her the money in his. hands as guardian.\\nWe have then this condition: Nora Love, in a suit to which she was regularly a party, was adjudged a homestead in the property of her husband, McCandless, in January, 1907, and, after this and while a resident of the State of Illinois, she conveyed to R. E. McCandless, by duly executed deed, all her right, title and interest in the property set apart to her as a homestead. We have the admitted fact that she did not at any time after 1907 reside in Metcalfe County or occupy this property as a homestead either by herself or tenant, and that she had been continuously a non-resident of the State. And the further admitted fact that in a suit to which she was a party, brought in a court of this State, having jurisdiction of the subject matter of the action, it was adjudged that she was a resident of the State of Illinois and under the laws of that State capable of contracting for herself, and by virtue of this judgment she was enabled to and did receive the two hundred for which she sold her right, title and interest in the property.\\nIf Nora Love at the time she sold her right of homestead in this property to R. E. McCandless, and received therefor two hundred dollars, had been twenty-one years of age, there would be no difficulty in determining that by this act, in connection with her removal from the State, she abandoned her homestead right. But as she was not twenty-one when these things occurred the real question in the case is, did her removal to Illinois in 1906 while she was an infant, and her sale of her homestead right while she was under twenty-one, and her receipt under the circumstances stated of the proceeds of this sale, have the effect of depriving her of the right when she became twenty-one to assert a homestead in this property?\\nIn section 1707 of the Kentucky Statutes it is provided that ' ' The homestead shall be for the use of the widow so long as she occupies the same, and the unmarried infant children of the husband shall be entitled to a joint occupancy with her until the youngest unmarried child arrives at full age. But the termination of the widow's occupancy shall not affect the right of the children; but said land may be sold, subject to tbe right of said widow and children, if a sale is necessary to pay the debts of the husband.\\\"\\nUnder this statute the right of the widow to a homestead depends on her occupancy of it either by herself or by her tenant. She has only a right of occupancy, and when she voluntarily surrenders this right of occupancy, by abandonment or by the sale of her right of homestead, this works a forfeiture of her homestead right and terminates it. This was expressly decided in Freeman v. Mills, 101 Ky., 142; Bryant v. Bennett, 22 Ky. L. R., 1866; Jones v. Green, 26 Ky. L. R., 1191; Clay v. Wallace, 116 Ky., 599.\\nIt is, however, insisted by counsel for Nora Love that an infant widow is incapable of abondoning her right of occupancy and, therefore, although the acts and conduct of Nora Love were sufficient to work an abandonment if she had been an adult, they did not have this effect on account of her infancy. There would be much force in this position if Nora Love had continued a resident of this State after the death of her husband, as under the law of this State she would be treated as an infant until she arrived at the age of twenty-one, and we are inclined to the opinion that under a liberal construction of the homestead statute the abandonment by an infant widow of the occupancy of her homestead, either by herself or tenant, would not operate to deny her the right upon her arrival at age to assert her right to a homestead, but this favorable construction of the statute does not operate to save this homestead for Nora Love. After she became a resident of Illinois and by the laws of that State was freed from the disabilities of infancy, she then elected to sell her homestead right of occupancy, and by this act of election abandoned her right to a homestead. Whether or not the acts of a widow will amount to an abandonment of her homestead right are questions of fact, to be determined by the facts of each particular case. Taree v. Spriggs, 149 Ky., 20.\\nNor is it necessary that these acts should be manifested by any instrument of writing on the part of the widow. They may be shown by her acts and conduct independent of any writing. The fact that a widow has abandoned her homestead may be shown by parol evidence, and so it is not necessary to consider the effect of her written sale a,nd conveyance of her homestead right other than as an evidential act declaring her intention to abandon it. This intention she had the right to exercise and give binding effect to under the law of Illinois where she then resided, and we think this sale, in connection with her continued absence from her homestead, clearly worked the abandonment of her homestead right.\\nThe judgment of the lower court is affirmed.\"}"
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+"{\"id\": \"4439856\", \"name\": \"Fidelity & Columbia Trust Company, Trustee, et al. v. Smith, Master Commissioner\", \"name_abbreviation\": \"Fidelity & Columbia Trust Co. v. Smith\", \"decision_date\": \"1915-10-12\", \"docket_number\": \"\", \"first_page\": \"137\", \"last_page\": \"138\", \"citations\": \"166 Ky. 137\", \"volume\": \"166\", \"reporter\": \"Kentucky Reports\", \"court\": \"Kentucky Court of Appeals\", \"jurisdiction\": \"Kentucky\", \"last_updated\": \"2021-08-10T19:03:24.902620+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Fidelity & Columbia Trust Company, Trustee, et al. v. Smith, Master Commissioner.\", \"head_matter\": \"Fidelity & Columbia Trust Company, Trustee, et al. v. Smith, Master Commissioner.\\n(Decided October 12, 1915.)\\nAppeal from Logan Circuit Court.\\nCourt Commissioners \\u2014 Compensation and Fees. \\u2014 An allowance to the master commissioner of $500 for making a sale of property beld unauthorized by Section 1740, Kentucky Statutes.\\nW. F. BROWDER, S. A CREWDSON and W. PRATT DALE for appellants.\\nO. M. SMITH for appellee.\", \"word_count\": \"431\", \"char_count\": \"2555\", \"text\": \"Opinion of the Court by\\nJudge Hannah.\\nReversing.\\nThe Fidelity & Columbia Trust Company, as Trustee, sued the Russellville Home Telephone Company and the Central Home Telephone & Telegraph Company, in the Logan Circuit Court, to enforce a mortgage executed to it as designated trustee under a bond issue. It recovered a default judgment in the sum of $40,000, with interest thereon from January 1, 1908', and the plant and franchise of the defendants were ordered to be sold by the master commissioner of the court in satisfaction thereof, the sale bonds to be made payable to the plaintiff trust company. At a subsequent term an order was entered allowing the master commissioner $500 for making the sale, to which order plaintiff objected and excepted.\\nDefendant, Russellville Home Telephone Company, then appeared and moved the court to set aside the order fixing the allowance to the master commissioner. This motion the court overruled, and defendant telephone company excepted and prayed an appeal, which was granted on June 9, 1914.\\nThereupon, both the plaintiff trust company and defendant, Russellville Home Telephone Company, prosecuted this appeal, the former being granted an appeal by the clerk of this court on July 29, 1914.\\nSection 1740, Kentucky Statutes, fixes the compensation of master commissioners for making sales of land and personal property, and the court has no power to alter its provisions. This order was entered before the sale was made, and there is nothing in the record to show that it has since been made; and until it is made, it will be impossible to determine the fee to which the commissioner will be entitled. It is certain, however, that it cannot amount to $500, as the statute limits the fee to $25 for making a sale of land or personal property unless the officer is required to go out of the county to make the sale or unless more than one tract is sold under the decree. In this case there is no land ordered to be sold, nor does it appear that appellee will have to go out of the county to execute the order of sale.\\nThe judgment of the court allowing appellee a fee of $500 is therefore reversed.\"}"
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+"{\"id\": \"4439932\", \"name\": \"Rodes and sureties vs. Commonwealth\", \"name_abbreviation\": \"Rodes v. Commonwealth\", \"decision_date\": \"1846-04-15\", \"docket_number\": \"\", \"first_page\": \"359\", \"last_page\": \"363\", \"citations\": \"6 B. Mon 359\", \"volume\": \"45\", \"reporter\": \"Kentucky Reports\", \"court\": \"Kentucky Court of Appeals\", \"jurisdiction\": \"Kentucky\", \"last_updated\": \"2021-08-10T19:43:44.913022+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Rodes and sureties vs. Commonwealth.\", \"head_matter\": \"Rodes and sureties vs. Commonwealth.\\nError to the General Court.\\nMotion.\\nCase 73.\\nThe case stated.\\nThe statute giving the remedy by motion against public officers and for failing to pay up the revenue in their hands, is the only notice required of a motion, where it is made at the first term after the revenue is due.\\nMotions. Notice. Clerks. Evidence.\\nApril 15.\", \"word_count\": \"1738\", \"char_count\": \"9753\", \"text\": \"Judge Marshall\\ndelivered the opinion of the Court.\\nThis was a motion in the General Court, against Rodes and his sureties, to recover moneys received by him as Clerk of the Fayette County Court, under the Revenue Laws of this Commonwealth, and not paid into the Treasury. The motion was made under the act of 1831, (1 Stat. Law, 357,) and other subsequent acts, by which it has been slightly modified.\\nThe constitutionality of the proceeding is questioned, 1st. On the ground that the motion is allowed to be made and judgment to be rendered, without notice to the parties concerned. And 2d. On the ground that the judgment is rendered without a jury.\\nAs to the first ground, it might be sufficient to say, that the defendants actually appeared and made their defence. But we remark further, that the statute itself, fixing the time and manner of initiating motions against the Collectors of the Public Revenue in the General Court, operates as notice to all concerned. It gives notice to all Collectors and their sureties, that on the 3d day of the term of the General Court designated by law, (the first term after the money should be paid into the Treasury,) motions may be initiated in all cases of default. The public exigencies require promptness in enforcing the accountability of collecting officers. And the duty of accounting-and paying, and the time for doing each being fixed by law, there is no hardship in requiring that their sureties shall know whether the duty has been performed, and shall take notice of the proceedings against them on the appointed day. The statutes provide that if the motion in any case -should not be made at the first term, ten day's notice shall be given.\\nWhere the' amount to be recovered against a Clerk by the Commonwealth, for failing to pay up the public dues is liquidated, no jury is necessary, unless it be rendered so by the nature of the defence .relied on.\\nEach official bond of a Clerk is binding until a new bond is executed, recorded, and transmitted to the Clerk, of the Court of Appeals. .\\nOn the second point, we refer to the third answer given by this Court' to -an objection founded on the same clause of the constitution, in the case of Harrison vs Chiles, (3 Littell's Rep., 200,) where a judgment for the fines inflicted on the Clerk for charging illegal fees, is shown not to be erroneous for want of a verdict, because .the amount was.liquidated by the fee bill.itself. So in the regular proceeding under this statute, the amount of the demand is liquidated by the report of the Clerk himself, and there is no necessity for a jury, unless it arise from the nature of the defence. In this case there was nothing for a jury to decide. There was no issue of fact made by the defence. Nor was there any demand for a jury. If the evidence relied on for fixing the amount due was admissible, the demand was liquidated, and there being no effort to reduce it by proof of payments or otherwise, there was no necessity fora jury.\\nIt is further contended that Garrett Watts, one of the defendants, against whom the judgment was rendered, was not bound for the particular defalcation for which the motion was made, because before the receipt by the Clerk .of any of the sums alledged not to have been' paid over, and before the commencement of the period which is covered by the motion and claim of the Commonwealth, a new official bond was executed by the Clerk, with other sureties, and received by the Court as a substitute for the previous bond to which Watts was a party, and in satisfaction and discharge of it. But the record of the County Court is itself equivocal, and not entirely consistent upon this subject, and we are not prepared to admit that it can be helped out by the parol facts presented in this record touching the intention and understanding of the parties and of the Justices. This point, however, we do not and need not decide; because even if the record itself had stated -explicitly, that the new bond was executed and received in lieu and satisfaction of the old one, the statute of 1810, (I Stat. Law, 391-2,) expressly declares that each bond executed by a Clerk under its requisition, shall be in force against every misconduct of the Clerk while in office, or until another bond shall be duly executed, recorded, and transmitted to the Clerk of the Court of Appeals or General Court, as the case may be, under its provisions. The old bond to which Watts was a party, appears to have been transmitted to the Clerk of the Court of Appeals, as the copy used upon this motion is certified by that officer; But there is no evidence that the new bond ever was so transmitted. And therefore Watts, as now appears, continued bound for subsequent defalcations or other misconduct, whatever may have been the intended operation of the new bond. Moreover, as the transmission of the bond to the Clerk of the Court of Appeals is the appointed mode of informing the fiscal officer of the government of the execution of such bond, and as without such transmission there is no presumption that the fact is known to him, we are of opinion that even if the motion could have been made jointly against the obligors in both bonds, no advantage can be taken, at any rate in this Court, of irs having been made against the obligors in the first bond alone, nor of the judgment being against them only. Nor because the Auditor was not apprised of the releas\\u00e9 of two of the sureties in the old bond, as provided for by the statute of 1799, (2 Stat. Law, 1439,) can any advantage be taken of the joining of those parties in the motion and the failure to obtain judgment against them, even if this motion be held subject to the technical rules on which this objection is founded? The liability of the obligors in the new bond, either to contribution or to an action on their bond for the samo defalcation, does not now come in question, and we need not decide whether that bond is so expressed as to cover that defalcation.\\nThe report of the Clerk of a Court of the amount of moneys received by him for the Commonwealth, and payable into the Treasury, made within a reasonable time after his removal from office, is prima facie evidence of the amount clue to the .Commonwealth, as well against his sureties as himself, in a motion.\\nThe only remaining question relates to the competency and admissibility of the evidence by which the amount of public dues received by Rodes was ascertained. It is made the duty of the several Clerks to return to the Auditor by a designated day in each year, an account of taxes received by them'for public'purposes. And although the statutes do not, so far as we have discovered, provide specially for the performance of this act in case of the removal or resignation of a Clerk, yet as the return of the person w.ho legally received the taxes, &.C., is the prescribed mode of communicating the amount received to the Auditor of Public Accounts, and as no other person is required or authorized to make that return but the Clerk himself, by whom the moneys were received and the account kept, we are of opinion that if a Clerk who resigns or is removed, has not, before his resignation or removal, made, as he should do if possible, a complete return, embracing the last of his official receipts for the public, it is his duty to make the return afterwards. This duty, though performed after he ceases to be Clerk, grows out of his official relation to the government, and belongs to it. And alfhough the return made after he has ceased to be Clerk, may not, strictly speaking, be deemed an official act, yet it is an act done in discharge of an official duty which he bad neglected while in office, and for which his sureties were bound.\\nUnder these views we are of opinion that his return being an act necessary to the complete fulfilment of bis duty with regard to the public dues officially received by him, should, if made in a reasonable time after he ceases to be Clerk, be regarded as a part of the res gesta, and therefore, as evidence admissible, not only against himself, but also against the sureties in his official bond. It is not, however, conclusive against them. And the effect of our decision of the point in question is, that when one who has been Clerk afterwards makes return of public moneys r.eceived by. him while in office, it is-prima facie evidence agains-t his sureties, who have bound themselves for his fidelity, and throws upon them the onus of proving that it is false ;..and we decide this upon the ground that it is not to be regarded as a mere admission- by tha principal, after he is out of office, but as &-quasi official act, necessary and proper for the complete performance of the duties for which the sureties are bound, and that the return having tbeen first presented and sworn to by the late Clerk in the County Court of which he had been Clerk, by which Court it was ordered to be certified to the Auditor, the sureties had, presumably, an opportunity of contesting its truth, and it-was properly received by \\u2022the Auditor in place of the return which should have been made while Rodes remained in office.\\nCombs fy Shy and Johnson for plaintiffs: Cales, Attorney General, for Commonwealth,\\nNo proof having been ottered in opposition to the verity of this return, it must be deemed sufficient to authorize the judgment, which is therefore affirmed.\"}"
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+"{\"id\": \"4441690\", \"name\": \"Castleman v. Littrell\", \"name_abbreviation\": \"Castleman v. Littrell\", \"decision_date\": \"1916-01-14\", \"docket_number\": \"\", \"first_page\": \"736\", \"last_page\": \"740\", \"citations\": \"167 Ky. 736\", \"volume\": \"167\", \"reporter\": \"Kentucky Reports\", \"court\": \"Kentucky Court of Appeals\", \"jurisdiction\": \"Kentucky\", \"last_updated\": \"2021-08-10T19:39:13.410836+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Castleman v. Littrell.\", \"head_matter\": \"Castleman v. Littrell.\\n(Decided January 14, 1916.)\\nAppeal from Kenton Circuit Court (Common Law and Equity Division).\\n1. New Trial \\u2014 Verdict Contrary to Evidence. \\u2014 A new trial will not be granted upon the ground that the verdict of the jury is not sustained by sufficient evidence, in the absence of error by the trial court, unless the verdict is wholly unsupported by the evidence or is flagrantly against the weight of it, or has been superinduced by passion and prejudice.\\n2. New Trial \\u2014 When Continuance Should be Asked. \\u2014 A-litigant taken by surprise, against which ordinary prudence could not guard, must at once move the court for a postponement or continuance, and not take the chances of a verdict, and if he fails, then move for a new trial.\\nBYRNE & READ for appellant.\\nHORACE W. ROOT and B. P. GRAZIANA for appellee.\", \"word_count\": \"1895\", \"char_count\": \"10637\", \"text\": \"Opinion op the Court by\\nJudge Hurt\\nAffirming.\\nThe appellee, William Littrell, by his petition as amended, sued the appellant, David E. Castleman, in the Kenton circuit court, and sought to recover of him the sum of $700.00, with interest thereon at three per. centum per annum, from November 22nd, 1912, which he .alleged that appellant was indebted to him and refused to pay.\\nThe appellant, for his defense, denied that he owed the appellee the amount sued for, or any more than the sum of $156.75, which he alleged that he had tendered to appellee, who had refused to receive it. He admitted having received into his hands the sum of $1,000.00, which was the money of appellee, but which he claimed had been paid to him, and that he received and held the same as a pledge to secure him, in part, as being the surety of appellee upon a bail bond in the sum of $5,000.00, and to secure, in part, the payment of a promissory note for the sum of $600.00, which appellee owed to him. He also held a mortgage upon real estate owned by appellee to further secure him. as his bondsman, aforesaid, and to secure the payment of the note. The consideration for the $600.00 note was the undertaking of appellant, as an attorney-at-law, to conduct the defense of appellee in the Boone circuit court upon an indictment for mur der, for 'which he was to receive the sum of $500.00, and in the event the case should be appealed to the court of appeals, he was to receive the sum of $600.00, and the note was made to cover the contingency, of the case being appealed. ' A suit was brought in the Campbell circuit court against appellee for damages, and that appellee, on the 4th day of December, 1912, entered into % contract with him to conduct the defense of that suit, and for which appellee agreed to pay to him the sum of $300.00 if no appeal to this court of that case was necessary, and $400.00 if an appeal should be taken. Appellant claimed that on December 4th, 1912, it was agreed between him and appellee, that appellant should apply $600.00 of the money in his hands to the payment of the $600.00 note, which was done, and the note delivered to appellee, and the remaining $400.00 was applied to the payment of the fee for conducting the defense of the suit in the Campbell circuit court, and he executed a receipt to appellee for same. The appellee was acquitted of the charge of murder in the Boone circuit court, and the case there ended, which made appellant due to return $100.00 of the money to appellee. The appellee refused to allow the appellant to conduct the defense of the suit against biro in the Campbell circuit court, though appellant was able, ready and willing to do so. The suit, however, terminated favorably to appellee, and on that account appellant claimed that he was entitled to $300.00 and was due to return to appellee $100.00 of the amount paid him for the defense of that suit. He also made claim to having paid items of expenses for appellee in the defense of the murder ' charge in Boone county, and other items of indebtedness of appellee to him, to the aggregate amount of $43.25, which left him indebted to appellee from the receipt of the $1,000.00, the sum of $156.75, as heretofore stated.\\nThe appellee denied that appellant received or held the $1,000.00 as a pledge or to secure the payment of the $600.00 or to hold appellant harmless as his surety, but claimed that appellant had received the $1,000.00 for him as an accommodation to him, and under a promise to pay it to him on the next day, and then refused to do so. He denied that the consideration of the note of $600.00 was the defense of the murder charge only, but claimed that the undertaking of appellant to defend him from an anticipated charge of carrying concealed deadly weapons, and from a suit for damages in the Boone circuit court also constituted a part of the consideration for the note, and when the anticipated suit for damages was brought in the Campbell circuit court, the appellant sent for him to come to his. house at Erlanger, and there, on the 4th day of December, 1912, he and appellant made a contract, by which they abrogated their previous contracts, and agreed that appellant should receive $300.00 for conducting the defense of the murder charge in Boone county if no appeal was necessary in the case, and $400.00 if an appeal should.be taken in the conduct of the case, .and appellant would give up to. appellee the $600.00 note, which he did, and pay to him. the balance of the $1,000.00 and be released from his contract to defend the damage suit against appellee. Appellee denied that appellant was engag'ed by him to conduct the defense of the suit against him for damages in the Campbell circuit court and .was not entitled to receive anything from him therefor, and did not engage in the defense of the suit.\\nThe trial of the case before the court and a jury resulted in a verdict by the jury in favor of appellee against appellant for the sum of $664.25, with interest thereon from November 22nd, 1912, and his costs. The amount of the $1,000.00 which the jury found that appellant was entitled to retain was the sum of $335.75.\\nThe appellant's motion for a new trial being overruled, he has appealed to this court.\\nNo objection was made to the instructions given by either side, and no complaint is made of the instructions upon this appeal.\\nThe grounds relied upon for a reversal of the judgment are:\\nFirst. That the verdict is flagrantly against the evidence.\\nSecond. Accident and surprise, which ordinary prudence could not have guarded against \\u2014 in the finding of the one thousand dollar written order to J. R. Morris only after the trial.\\nAs to the first ground relied upon, it may be said that the evidence was as conflicting as possibly it could be. The testimony of appellant and appellee was all that was heard as to many things, which one stated occurred and the other positively denied. Each one's contention, as to the truth of the facts upon which his theory of the case depended, was corroborated by circumstances and inferences, which might reasonably be drawn from admitted facts. Each was corroborated in many statements by apparently disinterested witnesses. It was peculiarly the province of the jury to weigh the evidence, to determine the truth of it, and to determine from the evidence what were the actual facts, and when, under proper instructions it has done so, its verdict will not be disturbed, unless it is clearly and palpably against the weight of the evidence. In the absence of error by the trial court, where the evidence is conflicting, the verdict of the jury will not be disturbed, unless it appears that it is wholly unsupported by or is flagrantly against the evidence, or has been superinduced by passion or prejudice on the part of the jury. While this court, from the facts proven, may arrive at conclusions different from the jury, we are not authorized to invade its province, except as stated above. Louisville Water Co. v. Phillips' Admr., 139 Ky., 619; Bell-Coggeshall Co. v. Lewis, 28 R., 149; Tennessee Central Railroad Co. v. Brasher, 97 S. W., 349; I. C. R. R. Co. v. Long, 146 Ky., 170; Thompson v. Thompson, 93 Ky., 435; Bell v. Keach, 80 Ivy., 42; L. & N. R. R. Co. v. Graves, 78 Ky., 74. It cannot be said in the case at bar that the verdict is unsupported by the evidence or is flagrantly against the weight of it or has been superinduced by passon or prejudice. Considering the conflicting character of the evidence, the verdict is not an unreasonable one to be arrived at.\\nThe counsel for appellant insists, in his brief that the appellant was taken by surprise upon the trial by the testimony of the appellee, to the effect that he did not execute a written order to Morris to pay over to appellant the $1,000.00 in controversy. It does not appear how this testimony, however surprising it may have been to appellant, could have in any way prejudiced his cause. There was no issue made as to whether or not appellant received this money from Morris. He stated that he received it; Morris states that he paid it to bim upon the- written order of appellee; and appellee stated that he verbally directed Morris to pay it over to appellant. It was wholly immaterial as to whether appellant received it upon a written order or verbal order. In testifying in chief appellant said that he supposed Morris still retained the order. He had Morris present as a witness and introduced bim. as sucb, and proved by bim tbe fact of tbe money being paid to Mm upon a written order, which be stated that be bad still in bis possession, be thought, but was unable to'find it upon a cursory examination. Appellant with knowledge of where tbe order was, bad exercised no diligence to bave it present. Tbe exercise of ordinary prudence by appellant would bave caused its presence, if it was then still in existence and could bave been found. If, when appell\\u00f3e stated that be did not give any written order, appellant was surprised by tbe statement and regarded it as material to bis cause to produce tbe written order in court, be should then bave moved tbe court for a postponement of the trial, until tbe order could bave been found and brought into court. He could not take tbe chances of a verdict in bis favor without tbe order and failing, to move for a new trial. Shipp v. Suggett, 9 B. M., 5; Kentucky Dis. & Wh. Co. v. Wells, 149 Ky., 275; Ivers v. Avery & Son, 6 R., 220; Monarch v. Cowherd, 114 S. W., 276. Further, tbe record fails to disclose tbe fact that if a new trial was granted, that tbe written order could be produced in court, as there is no affidavit or anything on file to show whether tbe written order is yet in existence or can be found.\\nIt is therefore ordered that tbe judgment appealed from be affirmed.\"}"
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+"{\"id\": \"4443875\", \"name\": \"Denunzio's Receiver v. Scholtz\", \"name_abbreviation\": \"Denunzio's Receiver v. Scholtz\", \"decision_date\": \"1903-12-17\", \"docket_number\": \"\", \"first_page\": \"182\", \"last_page\": \"194\", \"citations\": \"117 Ky. 182\", \"volume\": \"117\", \"reporter\": \"Kentucky Reports\", \"court\": \"Kentucky Court of Appeals\", \"jurisdiction\": \"Kentucky\", \"last_updated\": \"2021-08-10T19:01:45.757596+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Denunzio\\u2019s Receiver v. Scholtz.\", \"head_matter\": \"Case 20 \\u2014 Action by Joseph Denunzio\\u2019s Receiver against Charles Scholtz as in an Action on Lost Notes.\\nDec. 17.\\nDenunzio\\u2019s Receiver v. Scholtz.\\nAPPEAL FROM JEFFERSON CIRCUIT COURT.\\nJudgment for Defendant And Plaintiff Appeals.\\nAffirmed.\\nGifts Inter Vivos \\u2014 Corporate Stock \\u2014 Delivery\\u2014Witnesses\\u2014Competency \\u2014 Communication to Attorney.\\nHeld: 1. The owner of a mercantile business decided to incorporate the same, and on doing ao one-third of the stock was issued to an employe, who had formerly been given one-fourth of the profits of the business in lieu of salary. The owner at the same time took the employe\\u2019s notes for the stock, and retained the stock as security, but thereafter spoke of the employe\\u2019s valuable services, declared his intention to give him the stock, delivered the certificate to him, and tore up the notes. Held, a sufficient delivery of the subject-matter to constitute a gift inter vivos.\\n2. An attorney was employed by the owner of a mercantile business to prepare articles of incorporation for the business, and was at that time' told by the owner that he intended to give an employe a certain amount of stock. Later the attorney was employed to prepare the owner\\u2019s will, and was then told that the stock had been given to the employe. The attorney\\u2019s advice was not asked as to the giving of the stock. Civil Code Prac., section 606, subsec. 5, declares that no attorney shall testify concerning a communication made to him in his professional character by his client without the client\\u2019s consent. Held, that, as the communications to the attorney with reference to the gift of the stock did not concern the matter with reference to which be was employed, the statute did not render him incompetent to testify thereto.\\nSHACKELFORD MILLER and WALLACE & MILLER, for appellant.\\nPOINTS AND AUTHORITIES*\\nMOTION FOR JUDGMENT NON OBSTANTE VERDICTO.\\n1. The failure of defendant to plead in. his answer acceptance and delivery of the alleged gift entitles the plaintiff to judgment on the pleadings notwithstanding the verdict. Civil Code, sec. 386; Scollard\\u2019s Admr. v. Scollard, 22 Ky. Law Rep., 23.\\n2. The stock was not the subject matter .of the gift, since on March 17, 1893, the date of the alleged gift, the stock belonged to Scholtz and not to Denunzio.\\n3. The destruction of the notes without fraud on the part of the plaintiff did mot deprive Denunzio of his ownership of the debt nor dominion over the same. Civil Code, sec. 7.\\n4. The allegation that Denunzio tore up the notes with the intention of making a gift of the debt, does not constitute a delivery of the subject matter of the gift. The gift must be perfected by as complete delivery as the nature of the property will permit. Payne v. Powell, 5 Bush, 250; Hutch v. Atkins, 96 Am. Dec., 465 (56 Ms., 324); Ashbnook v. Ryans, 2 Bush, 228; Butler v. Scofield, 4 J. J. Mar., 139; Knott v. Hogan, 4 Met., 101; Am. & Eng. Ency. of Law, vol. 8, p. 21; Gray v. Barton, 14 Am. Rep., 181, (.55 N. Y., 68); Justice v. Justice, 18 Atl., Rep., 674.\\n5. The cases of Williamson v. Yeager, 91 Ky., 282; Roch v. George, 96 Ky., 339; Sutherland v. Sutherland, do not apply to this case. Here there is no trust involved and the court will not interpose to perfect a defective gift by converting the same into a trust unless it is clear that the donor intended .to create a trust. Young v. Young, 36 Am. Rep., 640 (80 N. Y., 422).\\nIn this case if Denunzio tore up the notes for the purpose of releasing Scholtz it is evident that he diid not intend to retain the title to the debt in him as trustee.\\n6. Tearing up the notes with the intention to make a gift is \\u2022not good as a release, because without a valuable consideration. 20 Am. & Eng. Ency. of Law, 744; Strong v. Bird, 18 L. R. Eq., 315; Manakee v. McClosky, 23 Ky. 'Law Rep., 515; Jones v. Bullitt, 2 Litt., 51; Fenwick v. Phillips, 3 Met., 88; \\u2022String-fellow v. Williams, 6 Dana, 237.\\n7. The authorities in this State are uniform to the effect that if a pleading .is defective in failing to allege an essential fact and no issue is formed to be tried as to the existence of that fact, judgment notwithstanding the verdict goes against him whose pleadings are so defective. The failure of defendant to allege the acceptance and delivery of the gift renders the pleadings fatally defective. Sousely v. Burns, 10 Bush, 87; Bogenschutz v. .Smith, 84 Ky., 337; Fry\\u2019s Exr. v. Lexington & Big Sandy R. R., 2 Met., 324; Fible v. 'Caplinger, 13 B. Mon., p. 456; 'Code of Practice, secs. 146, 147, 148, 149; Hanning v. Bassett, 12 Bush, 361; Callahan v. First Natl. Bank of Louis ville, 78 Ky., 6,04; Tye v. Catching, 78 Ky., 463; Gore v. 111. Central R. R. Co., 17 Ky. Law Rep., p. 799; Phelps v. Elliott, 35 Fed., 461; .Murrell v. McAllister, 79 Ky., 315.\\nMOTION ROB NEW TRIAL.\\n1. The testimony of Mr. Aaron Kohn was improperly admitted, because at the time he received the communication concerning which he testified, he was being consulted by Denunzio as his attorney,- for the purpose of drawing up articles of incor-poration of the Denunzio Fruit Company and drawing his will. The true test of the admissibility of such evidence is whether \\u00abor not the attorney would have received the communication except for his professional employment. 'Civil Code, sec. 606, sub-sec. 4; Carter v. West, 93 Ky., 211; Greenleaf on Evidence, secs. 238, 240, 243, 245; Bank of Utica v. Mersereau, 49 Am. Dec., 220 (3 Burham Chy., 228); Parker v. Carter, 6 Am. Dec., 513 (4 Mansford, 1 vol., 273); Crisler v. Garland, 49 Am. Dec., 50 (11 Sims & Mon., Miss., 136); McLellan v. Longfellow, 54 Am. Dec., ,599; (32 Maine, 494); Loder v. Whelpley, 111 N. Y., 248; Paige v. Lewis, 18 L. R. A., 177 (89 Va., 1); Gurley v. Park, 135 Ind., 440; Bruce v. Osgoiod, 113 Ind., 360; Henderson v. Terry, 62 Texas, 281; Ferguson v. Beam, 91 Cal., 63.\\n2. The cases of Hayden v. Easter, 15 Ky. Law Rep., 597, and Wicks v. Deane, 103 Ky., 69, have no application to the case at bar.\\n3. It being admitted that Mr. Scholtz was Mr. Denunzio\\u2019s confidential adviser and manager, Mr. Denunzio leaned upon him in all matters, and Scholtz should not be permitted to reltain this gift unless he establish by the most ample and convincing proof the entire fairness of the transaction and possession by Denunzio of full information and knowledge concerning the gift, -and circumstances surrounding it, and of intentional action on the part of said Denunzio after competent and independent advice. Pomeroy\\u2019s Eq. Jur., secs. 956, 957; Rhodes v. Bates, 16 R. Ch., 252; Price v. Thompson, 84 Ky., 228; Nichols v. McCarthy, 55 Am. Rep., 108 (53 Com., 299); Haydock v. Haydock, 34 N. J. Eq., 575; Huguenin v. Bosley, 2 L. C. Eq., 1183, notes, 1192-1194; Reed v. Carroll, 82 Mo. App., 102; Am. & Eng. Ency. of Law, 2d ed., vol. 14, p. 1011; Boyd v. De La Montagnee, 29 Am. Rep., 197, (73 N. Y., 498); McGill\\u2019s Admr. v. Richards, 12 Ky. Law Rep., 717; Carter v. West, 93 Ky., 211.\\n4. The above being the law the court erred in instructing the jury that they must find for defendant unless they found that Scholtz exerted an undue influence over Denunzio as a matter of fact, and in defining undue influence in this case to be such an influence exercised over the mind and acts of another as would induce him to do against his will a thing he would not do but for such dominant influence.\\n5. The court erred in instructing the jury that if they believe from the evidence \\u201cthat Joseph Denunzio delivered the certificate of twenty shares of stock to the defendant, Scholtz, and destroyed all of said notes for the purpose of and with the intention to make a gift of the said stock to the defendant, Scholtz,\\u201d they should find for the defendant, for the reason that said stock was not at said time owned by Denunzio, but was owned by 'S'choltz.\\nFor authorities, see point' number four, under motion for judgment non obstante verctioto.\\n6. It being admitted that Scholtz stood in the most confidential relations to Denunzio in life, and after his death was the adviser of the executor, being appointed by Denunzio in his will, it was incumbent ripon him to make a full and fair disclosure of all his acts while occupying such relation, and all testimony which tended to show a design on his part to get possession \\u25a0of the stock of the Denunzio Fruit Company, whether before or after the death of Denunzio, is competent as showing a breach of the trust relation and the invalidity of the- gift. See authorities above cited.\\n7. Evidence which but slightly tends to prove an issue is competent. Bland v. Gaither, 10 Ky. Law Rep., 1033; James v. Hayden, .10 Ky. Law Rep., 535; Mason v. Bruner, 10 Ky. Law Rep., 155; Jones v. Letcher, 13 B. Mon., 372; Lexington & Carter Mining Co. v. McNeal, 11 Ky. Law Rep., 135; Butler v. Scofield, 4 J. J. Mar., 139.\\n8. A party\\u2019s conduct in so far as it indicates his own belief in the weakness of his ease may be used against him as an admission. Greenleaf on Evidence, sec. 195.\\nKOHN, BAIRD & SPINDLE, foe appellee.\\nPOINTS AND AUTHORITIES.\\n1. Judgment non obstante, and gift of debts. Watson v. Cushman\\u2019s Admr., 11 R., 181; Brown v. Brown, 11 \\u00b1i., 579; Brown v. Brown, 7 R., 376; Green v. Dudley, 6 R., 221; Lentz v. Park\\u2019s Admr., 1 R., 317; Collins v. Blackburn, 14 B. Mon., 251; Beggs v. Maltby, 2 Met., 88; Dodd v. King, 1 Met, 430; Huffaker v. Bank, 12 -Bush, 287; Crosthwait v. Misener, 13 Bush, 543; Callahan v. Bank, 78 Ky., 604; Fink v. Procter, 22 R., 1728; 14 A. & E. Ency. of Law (2d ed.), 1008, 1015, 1027, 1028, 1039, 1040; Bunnell v. Bunnell, 23 R\\u201e 800 (64 S. W., 420); Hacker v. Hoover, 23 R., 1849; Pennington v. Lawson, 65 S. W., 120.\\n2. A destruction of a note with an intention to give the debt to the debtor, constitutes a valid gift. Scollard\\u2019s Admr. v. Scollard, 23 R., 23; Darland v. Taylor, 52 Iowa, 503 (35 Am. Rep., 285); Gardner v. Gardner, 22 Wend., 522-525; Grampan v. Hardin, 10 Johnson, 292; McKenzie v. Harrison, 120 N. Y., 260 (17 Am. St. Rep., 638); Gray v. Barton, 55 N. Y., 68; Albert v. Albert, 74 Md., 526; Carpenter v.' Soule\\u2019s Exr., 88 N. Y., 251; (42 Am. Rep., 248); Ferry v. Stephens, 66 N. Y., 321; Nelson v. 'Cartmell\\u2019s Admr., 6 Dana, 8; Williamson v. Yager, 91 Ky., 282; Bispham\\u2019s Principles of Equity, 101; Roche v. George, 93 Ky., 609; Merriwether v. Morrison, 78 Ky., 572; Watson v. Carm\\u00edn, 1 R., 268; Turpin v. Thompson, 2 Met., 420; Ashbroiok v. Ryan, 2 Bush, 228; Sutherland v. Sutherland, 5 Bush, 591; Jones v. Moore, 44 S'. W., 126 (Ky); Rabb v. Rabb, 64 S. W., 624 (Ky.); Sibley v. Summers, 50 Atl., 320; Payne v. Powell, 5 Bush, 248.\\n3. Aider by verdict. Worthey v. Hammond, 13 Bush, 512; Railroad v. Theeman, 96 Ky., 507; Ins. 'Co. v. Reichart, 99 Ky., 302; Keener v. Baker, 93 Fed., 377; Davis v. Goodman, 62 Ark., 262 (35 S. W., 231); Mast v. Lehman, 100 Ky., 464; Hill v. Ragland, 24 R., 1053; Turner v. Prosper, 69 S. W., 1089 (Ky.).\\n4. Competency of an attorney as a witness.\\nMr. Aaron Kohn was introduced as a witness by the appellee in his behalf, to prove statements made to him by Denunzio concerning the gift to appellee, to which appellant objects, on the ground that his testimony was the revelation of a confidential communication prohibited by statute.\\nWe contend his testimony was competent:\\n(1) Because the communications were not made under the relation of attorney and client or in reference bo anything pertaining to the attorn\\u00e9y\\u2019s retainer.\\n(2) Because, at the time the communication was made in the preparation, of the articles of incorporation, the relation of attorney and client between Denunzio and Mr. Kohn did not exist. Mr. Kohn, in that matter, was the attorney of the corporation, and the communication did not pertain to any of the corporate affairs.\\n(3) Because, if the relation of attorney and client did exist between Denunzio and Mr. Kohn at that time, that that re lation also existed at the same time between Mr. Kohn and the appellee, Scholtz, because both Denunziio were incorporators equally interested in the subject matter of the preparation of the articles, and therefore the communication could not be privileged as between them.\\n('4) Because the communication concerning the will was made in the presence of a third person and was therefore not in fact confidential.\\n(5) Because all of the communications concerning the gift, were, by necessary implication, if not expressly understood by the client, not as confidential or to be kept secret, but on the contrary, to be divulged for the purpose of carrying out the client\\u2019s desire and intentions.\\n(6) Because the litigation here is not adverse to the client, but is between parties claiming under him by titles friendly to him, bath being of the same kind \\u2014 one a donation by will, the other a donation by gift inter vivos. Russell v. Jackson, 8 Engish -Law & Equity, 89, 15 Jure 1117, 9 Hare, 387; Greenough v. Gaskell, 8 English Law & Equity, 93, 94, 98; Blackburn v. Crawford\\u2019s Lessee, 70 U. S., 175; Glover v. Patten, 165, U. S., 401; Appeal of Turner, 44 Atl., .314, 72 Conn., 305; Smith v. Caldwell 56 Pac., 590; Doheny v. Lacy, 61 N. E., 255, (166 N. Y., 213); Summer v. Oppenheimer, 44 N. Y., 401; Hibbard v. Haughton, 70 N. Y., 54; Covenny v. Tannehill, 1 Hill, 33; Aultman v. Daggs, 50 Mo, App., 298; Nelson Case, 64 Pac., 294 (132 Cal., 182); Curran v. 'Curran, 55 N. E., 1004 (154 Ind., 29); Sharon v. Sharon, 22 Pae., 26 (79 Cal., 633); Stallings v. Hullum, 15 S. W., 677; O\\u2019Brien v. iSpaulding, 31 S. E., 100 (102 Ga., 490); Doherty v. Callaghan, 157 Mass.,- 90 (31 N. E., 726); Layman\\u2019s Will, 42 N. W., 286 (40 Minn., 371); Coates v. 'Semper, 85 N. W., 217; Flood v. Pragoff, 79 Ky., 607; Henderson v. Ferry, 62 Tex., 281; Ferguson v. McBean, 91 Cal., 63; .'State v. McWhorter, 46 Iowa, 88; Greenleaf on Evidence, sec.. 239, 3 Jones on Evidence, 769; Hoar v. Tilden, 59 N. E., 641; Rossean v. Blean, 131 N. Y., 177; Hall v. Renfro, 3 Met., 52; Rice v. Rice, 14 B. Mon., 417; Carter v. West, 93 Ky., 211; Greenleaf on Ev. (16 ed.), vol. 1, sec. 244; Tayler v. Roulstone, 22 R., 1516 (Ky.); Haydon v. Easter, 15 R., 297; Wicks v. Dean, 103 Ky., 69; Smick\\u2019s Admr. v. Beswick, 24 R., 276.\\n4. No presumption of undue influence or unfairness arises against a donee who occupies toward the donor the relation of friend and faithful servant. Morris v. Morton, 14 R., 360; Berry y. Branham, 3 R., 756; Tabler v. Jones, 12 R., 189; Brown v. Brown, 14 R., 893; Ragsdale v. Ezell, 15 R., 495; Ins. Co v. Kaiser, 13 R., 206; Ky. Tob. Assn. v. Ashley, 5 R., 184; Flood V. Pragoff, 79 Ky., 607; Com. v. Hourigan, 89 Ky., 305; Pomeroy\\u2019s Eq. Jur., secs. 956 to 963, 907, 951; Bispham on Prin. of Eq., p. 290; A. & E. Ency. of Law (2d ed.), 1012; Greenfield\\u2019s Estate, 24 Pa., 236; Jenkins v. Pye, 21 Peters, 241; Taylor v. Taylor, 8 How., 183; Jackson v. Ashton, 11 Peters, 229; Ccwee v. Cornwall, 75 N. Y., 91; Price v. Thompson, 84 Ky., 219; McGill v. Richards, 12 R., 717.\", \"word_count\": \"4836\", \"char_count\": \"27078\", \"text\": \"Opinion of the court by\\nJUDGE PAYNTER\\nAffirming.\\nJoseph Denunzio, died in September, 1894, possessed of a very large estate. In June, 1878, the appellee, Charles Scholtz, who was then quite young, was employed by Denunzio, and continued in his service until his death. So faithfully did he serve his employer that he was advanced from time to time, until he was practically in charge of the business. In September, 1893, Denunzio was in bad health, and contemplated- a trip to Hot Springs, Ark. Before going he conceived the idea of separating his large fruit business, managed by Scholtz, from his other business. So he concluded to organize a corporation, and its capital stock was fixed at $30,000. The stock was paid for by the assets of the fruit business. Previous to that time Scholtz in lieu of a salary was given one-fourth of the profits of the business. There was issued to Scholtz, $10,000 of the stock of the corporation. At the same time Denunzio took from Scholtz five notes, of $2,000 each, without interest, and retained the stock which had been issued in Scholtz's name as collateral security. The notes which Scholtz gave were not found among the assets of the estate, neither was the certificate of stock. This action was brought by the receiver, as in an action on lost notes. The defense to it is that the notes and certificate of stock were given by Denunzio to Scholtz inter vivos.\\nThe principal question involved is, did Scholtz show that the gift had been consummated? The testimony discloses the general facts as stated, and in addition thereto that in March, 1894, Denunzio, in his place of business, spoke of Scholtz's long and valuable services, and declared his intention to give him the $10,000 stock in the corporation, and then delivered the certificate therefor to him, and tore up the notes taken from him for the $10,000.\\nIt is insisted on behalf of the appellant that these facts did not constitute a delivery of the subject-matter of the gift, and therefore the effort to make the gift was ineffectual; that it could only have been done by an assignment or delivery of the notes. Several cases are cited by counsel for appellant, showing that there must be a delivery of the subject-matter of the gift and an acceptance of it. This is the general rule. The mere unexecuted intention to give of itself does not discharge an obligation. While the notes in this case were not hamded to Scholtz, they were destroyedj and the certificate of stock actually delivered to him, with the intention that he should have it free from liability for the indebtedness in its purchase. In Roche v. Georges' Ex'r., 93 Ky., 609, 14 R., 584, 20 S. W., 1039, the court upheld a gift where the donor told his physician to tell his son Joseph that he wanted a certain note collected and the proceeds given to his sister. In Meriwether v. Morrison, 78 Ky., 572, the gift was upheld where the donor went to his desk, took out the notes, and handed them to a party, telling him to return them to the desk, and at his death deliver them to the party designated as the donee. In Stephenson's Adm'r v. King, 81 Ky., 425, 5 R., 374, 50 Am. Rep., 173, it was held that a delivery of an inventory to certain property in the possession of an agent was a gift of the property. In Sutherland v. Sutherland's Adm'r, 5 Bush, 591, it was held that the gift of a note was effectual by a declaration of the gift, the note then being in the hands of the trustee. In some of these cases the court held that the act and declaration of the donor created a trust, and the gifts were effectual. In Darland v. Taylor, 52 Iowa, 503, 3 N. W., 510, 35 Am. Rep., 2S5, it was held that the destruction of the notes, together with the declarations of the donor that he did not intend for the defendant to pay the debt, constituted a delivery. In Gardner v. Gardner, 22 Wend., 526, 34 Am. Dec., 340, it .was held that the destruction of a bond given as an evidence of the debt and a declaration that the money was his wife's, was held to be a gift. In this case the donor did not only declare his intention to make the gift, but actually delivered the thing of value, to-wit, the certificate of stock, which he intended Scholtz to have, and to make that effectual he destroyed the evidence of the debt which incumbered the thing given. We think that the gift was effected by the acts proven in the case. The appellee is not only entitled to the presumption that he did accept the gift, because it was beneficial to him to do so, but the evidence shows that he actually accepted it.\\nOn the trial of the case Aaron Kohn was introduced as a witness for the appellee to prove statements made to him by Denunzio, concerning the gift to appellee. It is urged that his testimony was not competent, because it was the revelation of a confidential communication from a client to his attorney, prohibited by subsection 5, section 606, Civil Code Prac., which reads as follows: \\\"No attorney shall testify concerning a communication made to him in his pro fessiona! character by his client or his advice thereon, without \\\"the client's consent.\\\" It is insisted for the appellee that Mr. Kohn was a competent witness (1) because the subject-matter of his testimony did not pertain to any communication made to him in his professional character; (2) because if the communication was made to him in his professional character, it was not confidential or meant to be kept secret, but, on the contrary, was to be divulged for the purpose of effecting the intention and desire of the client. Kohn was employed to prepare the articles of incorporation of the fruit company. At that time Denunzio told him that he intended to give Scholtz $10,000 worth of the stock. Kohn prepared Denunzio's will at a subsequent date, at which time he told him that he had given the stock to Scholtz, and torn up,the notes and given him the debt. Kohn testified that the information as to the giving of the stock and the destruction of the notes was not a matter upon which Denunzio asked his advice and had nothing to do with their confidential relations. The conversation detailed by Kohn as to the delivery of the certificates of stock and tearing up the notes was in the presence of J. G-. Fisher, now deceased, a friend of Denunzio. It was not the subject-matter about which the client was consulting the attorney. \\u2022 The first statement was made when the consultation took place in regard to the articles of incorporation. The employment was to prepare the articles of incorporation, and not to advise with reference to giving away the certificates of stock therein.' The second conversation took place in a consult\\u00e1tion during an employment to prepare the will of the client. He did not consult the attorney about property which he had previously given away. The client's purpose was to dispose of the property that he owned, not of that with which he had previously parted. The will did not mention the Scholtz notes. The Code provision referred to is simply a declaration of the common law as to privileged communications of clients. Taylor v. Roulstone, 22 R., 1515, 60 S. W., 867, 61 S. W., 354. The policy of the rule makes communications of clients to attorneys with reference to the subject-matter of consultations privileged, so as to encourage full confidence upon the part of the client in order to aid in the administration of the laws by the courts. This is upon the theory that the client will disclose everything within his knowledge in regard to the subject-matter of the employment. This being true, a communication made by a client to an attorney during the course of the employment, but not in regard to the subject matter of the employment, is not privileged. Instead of the client intending that his statements should be privileged, it would seem that he intended that they should be made public, if necessary, because they were made in the presence of an attorney and another person. It would seem that he wanted his lawyer and his friend to know that he had given the stock to Scholtz, and destroyed the notes. To give this information w*ould seem to be carrying out the desire of Denunzio. In Blackburn v. Crawford, 3 Wall., 175, 18 L. Ed., 186, the court held an attorney competent to testify to statements made by a deceased client in an action between the heirs and lessee. After recognizing the policy of the rule to be as we have stated, it was said: \\\"But there is\\nanother ground upon which we prefer to place our decision. The client may, waive the protection of the rule. The waiver may be expressed or implied. We think it is effectual here by implication as the most explicit language could have made it. It could have been mo clearer if the client had expi'essly enjoined it upon the attorney to give this testimony whenever the truth of his testamentary declaration should be challenged by any of those to whom it related. A different result would involve a perversion of the rule, inconsistent with its object, and in direct conflict with the reasons upon which it is founded.\\\" In Doheny v. Lacy, 168 N. Y., 223, 224, 61 N. E., 258, it is said: \\\"The veil of strict secrecy is thrown over communications between attorney and client when they are presumably of a confidential character, but, if the evidence discloses that the circumstances surrounding the transactions were such as not to warrant the presumption that the communications were in confidence, the Code provision is inapplicable.\\n. . . The reason of the rule is in the necessity of secrecy, in order that persons needing professional advice shall be encouraged to disclose freely and without fear the facts upon which that advice shall be given.\\\" In Hall v. Renfro, 3 Mete., 52, the court said: \\\"We are aware of no statute or rule of practice which excludes or renders incompetent as a witness an attorney in behalf of his client. Civil Code, section 670, defines with great exactness amd precision the classes of persons who shall be incompetent to testify, and attorneys are not embraced in either of the classes enumerated, except the fifth, which excludes an attorney concerning any communication made to him by his client, in that relation, or his advice thereon, without the client's consent. In all other cases an attorney is a competent witness for or against his client. Whether he should or should not testify while the relation subsists is a question of professional propriety, which he alone is to de termine for himself, and with which the court has no concern.\\\"\\nThe answer does not in express terms say that Scholtz accepted the gift, but in a general way states the gift was made. Besides, it is averred that the notes were destroyed and the stock was delivered to the defendant. The question'was tried as to whether the gift was effectual under the facts we have detailed, and the jury returned a verdict, under proper instructions, for appellee. Without entering into a discussion as to whether the answer was defective, it is sufficient to say the verdict cured it, if the defect existed. In Association v. Richart, 99 Ky., 802, 18 R., 95, 35 S. W., 541, the court held that when a defective pleading states facts sufficiently general to comprehend a fair and reasonable intendment, and there is enough in it to show that the plaintiff had a cause of action, the defect in the pleading will be cured by a verdict.\\nWe are unable to find an error in the admission of testimony for the defendant, or any error in rejecting testimony offered by the plaintiff, which was prejudicial to the rights of the appellant.\\nDenunzio was the master and Scholtz the servant. Denunzio evidently was a man of strong mind, and managed and controlled his business, and there is not the slightest evidence that Scholtz exercised-any control of him whatever. The evidence simply shows that he was a faithful servant, and had the esteem and confidence of his employer. He was not acting as trustee for Denunzio, nor did he even have possession of the property when it was given tes iiim. The facts do not create a presumption that undue or improper influence was used to obtain the gift.\\nThe judgment is affirmed.\"}"
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+"{\"id\": \"4445632\", \"name\": \"Rankin vs Darnell\", \"name_abbreviation\": \"Rankin v. Darnell\", \"decision_date\": \"1850-12-09\", \"docket_number\": \"\", \"first_page\": \"30\", \"last_page\": \"32\", \"citations\": \"11 B. Mon 30\", \"volume\": \"50\", \"reporter\": \"Kentucky Reports\", \"court\": \"Kentucky Court of Appeals\", \"jurisdiction\": \"Kentucky\", \"last_updated\": \"2021-08-10T22:51:31.507563+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Rankin vs Darnell.\", \"head_matter\": \"Rankin vs Darnell.\\nDecember 9.\\nError to tiie Woodford Circuit.\\nAssumpsit.\\nCase 7.\\nCase stated, and decision ot the Circuit Court.\\nActions. Contracts.\", \"word_count\": \"658\", \"char_count\": \"3858\", \"text\": \"Judge Simpson\\ndelivered the opinion of the Court.\\nThe parties entered into a written contract., which they both executed, for the performance b.y the plaintiff, of certain specified work for the defendant, in the manner therein described; for which the latter bound himself to pay to the former the sum of two hundred and forty dollars, one year and six months after the completion of the work, and to board him and his wife, and the hands in his employ, during the time he was performing the contract.\\nThe plaintiff sued the defendant in an action of assumpsit, for work and labor done, and it was proved upon the trial, that the work was performed under the written agreement between the parties and according to its terms, so far as it had progressed, and that the plaintiff was proceeding to perform it agreeably to the stipulations of the written contract, when he was prevented by the defendant, who refused to permit him to complete it, he having at that time finished all .the work, except a small part of it, not exceeding in value a sum from twenty to forty dollars. Thereupon he immediately commenced this action.\\nUpon that testimony the Court below instructed the jury to find for the defendant, and a verdict and judg ment having been rendered accordingly, the plaintiff has brought the case to this Court for revision.\\nWhere complete performance of a contract is prevented by one party, the other party is excused and may maintain his action: (Jewell vs Bland ford, 7 Dana, 473.)\\nIf one party to a written contract to perform work ' perform'din part and its performance preven, ted by the other, the remedy is still upon the written contract#\\nWhen a written, contract has been performed in part, and its full performance has been prevented by the defendant, the plaintiff may maintain an action of covenant upon the written agreement, a complete performance on his part being excused by the act of the other party: (Jewell vs. Blandford, 7 Dana, 473.)\\nIt is argued however, that notwithstanding the action of covenant may be maintained, the action of assumpsit will also lie, the plaintiff having either remedy, at his election. The argument is based upon the assumption that the act of the defendant in preventing the plaintiff from performing the contract, is such a violation and abandonment of it by the former, that he cannot rely upon it for any purpose, and gives to the latter the right at his option, to regard it as still obligatory, or to treat it as rescinded, and bring an action of assumpsit for the value of the services rendered under it.\\nWe do not deem it necessary to decide definitely at this time, whether the acts of a party to a written contract like the one under consideration, would in any state of case, authorize the otherparty to regardthecontract as rescinded. But in a case like the present, where there has been a partial performance by both parties, and the contract has not been repudiated by the defendant, although he may have disregarded it, in preventing the plaintiff from finishing the work according to its terms and stipulations, and where the plaintiff's remedy is complete upon the written contract, the mere act of the defendant in preventing full performance by the plaintiff, does not amount to or authorize the plaintiff to regard it as a recision of the contract.\\nThe remedy by action of assumpsit upon the implied contract, is according to well settled principles, merged in the remedy allowed upon the covenant, and as the written agreement was still obligatory upon the parties, the plaintiff's only remedy was an action of covenant upon the writing.\\nPorter fy Smith for plaintiff; U. Turner for defendant.\\nWherefore the judgment is affirmed.\"}"
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+"{\"id\": \"4458045\", \"name\": \"Hughes v. Commonwealth\", \"name_abbreviation\": \"Hughes v. Commonwealth\", \"decision_date\": \"1918-01-22\", \"docket_number\": \"\", \"first_page\": \"770\", \"last_page\": \"772\", \"citations\": \"178 Ky. 770\", \"volume\": \"178\", \"reporter\": \"Kentucky Reports\", \"court\": \"Kentucky Court of Appeals\", \"jurisdiction\": \"Kentucky\", \"last_updated\": \"2021-08-10T17:05:11.857269+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Hughes v. Commonwealth.\", \"head_matter\": \"Hughes v. Commonwealth.\\n(Decided January 22, 1918).\\nAppeal from Oldham Circuit Court.\\n1. Homicide \\u2014 Trial\\u2014Verdict\\u2014Evidence.\\u2014Where accused was found guilty of murder, evidence that he, having had a quarrel with a teamster over a trivial matter, left him and in about three-quar- ; ters of an hour returned with a shot gun and shot and killed the teamster without further or any provocation, shows malice and supports the verdict of guilt.\\n2.. Homicide \\u2014 Evidence\\u2014Malice.\\u2014The fact that, at the time of the killing, the accused was slightly intoxicated, or that\\u2019 previous thereto he and his victim were friends, cannot be held as a matter of law to refute an inference of malice.\\nS. E. DE HAVEN for appellant.\\nCHARLES H. MORRIS, Attorney General, and OVERTON S. HOGAN, Assistant Attorney General, for appellee.\", \"word_count\": \"1026\", \"char_count\": \"6032\", \"text\": \"Opinion op the Court by\\nJudge Clarke\\nAffirming.\\nThis is an appeal from a judgment of the Oldham circuit court rendered upon a verdict convicting the appellant of the crime of murder and fixing his punishment at death. Only one reason is suggested for a reversal, -and that is, neither malice nor any fact authorizing an inference of malice was conclusively proved, that the verdict is,-therefore, against the evidence, which authorized a Verdict of guilt only under the manslaughter instruction.\\nOn December 20, 1916, about nine o'clock in the evening, the defendant shot and killed Henry Ritter near Goshen in' Oldham county, as they were returning from Louisville. Defendant was driving a wagon and was followed by two other wagons, the one immediately behind bim being driven by the decedent, Henry Ritter, while .the Dear wagon was being driven by Curtis Bryant. Julius Lang was riding in the front wagon with the defendant. Near the bottom of a hill, about a half mile-out-of Goshen, all the wagons were stopped and a difficulty arose--between the defendant and Curtis Bryant over a trivial mat- \\u2022 ter, in which the decedent, Henry Ritter, became involved With the defendant by attempting to make him stop curs-ing Bryant. Defendant then started cursing Ritter, when: the latter, with a chain in his hand, threatened to strike, the defendant, if he did not quit cursing him.' The' 'de fendant, who, at the time, was standing in his wagon, started up his team and drove off at a trot, leaving behind the other two wagons which proceeded in the same direction but more slowly. When reaching the top of the hill, the defendant procured a shot gun from the home of a Mr. Washburn, winch he acknowledged he procured for the purpose of settling the difficulty with Eitter. Without disclosing his purpose to Julius Lang, whom he directed to drive the team on into Goshen and to wait there for him while he went back to see what was delaying the other wagons, the defendant returned back down the road until he met the wagon Eitter was driving,- when, according to his testimony, he asked Eitter, \\\"Is everything all right?\\\" to which Eitter replied, \\\"No, by God, I am going to get you, it is not all right, ' ' and about that time he shot him. Curtis Bryant states that when the defendant reached the. side of the wagon Eitter was driving, he' said to him, \\\"Henry, is everything all right?\\\" and that Eitter replied, \\\"Yes, Joe, everything is all right\\\"; that the defendant asked Eitter the same thing three times and each time received the same answer, when the defendant said ' ' Shut up, ' ' and fired the shot that killed Eitter; that, at the time, Eitter was standing up in the wagon driving his team, with his head only turned partially toward the defendant and making no demonstration whatever toward him. About three-quarters of an hour intervened between the- killing and the angry discussion, which occurred at the bottom of the hill.\\nIf these facts do not conclusively prove malice, and exclude an inference of any other motive for the killing it would be hard to imagine how, in any case, it could be proved. The only excuse for the killing suggested by counsel for the defendant is heat and passion engendered by the fuss that occurred over a very trivial matter more than- three-quarters of an hour before the killing, during which time the defendant had ample opportunity to free himself from any sudden heat and passion that might have possessed him at the time of the first difficulty. That he left the decedent and procured a shot gun with the avowed purpose of settling the difficulty and then returned and, without more ado, slew his victim, can be explained upon no other inference but that the defendant was. actuated by such malice as is seldom exhibited. Nor can.the fact that the defendant was,'at the time, slightly -intoxicated, or that, previous to the difficulty, he and his victim had been friends, be held as a matter of law to refute such an inference.\\nTo hold, under such circumstances, that there was an absence of proof of malice, it would be necessary without any sufficient reason suggested or imaginable therefor to overrule innumerable decisions of this court and to rewrite the whole law upon the subject, with the result that it would be practically impossible ever to secure a conviction of murder. Counsel for defendant does not cite any decision of any court in support of his contention, as, of course, he could not, and his position is so manifestly unsound as to obviate the necessity for further discussion, or citation of authority.\\n\\u2022As stated, this is the only reason for a reversal urged upon us by counsel in brief; but, since the death penalty is inflicted, we have carefully examined the whole record to be sure that there was no prejudicial error in the trial of the defendant, and none was discovered. The court gave to the jury instructions, which were free of error, upon murder, manslaughter, self-defense, and reasonable doubt, which are certainly the whole law and all, if not mor\\u00e9, to which the defendant was entitled. Defendant's crime was totally unprovoked and without a semblance of justification.\\nWherefore, the whole court sitting*, the judgment is .affirmed.\"}"
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diff --git a/ky/4801868.json b/ky/4801868.json
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+"{\"id\": \"4801868\", \"name\": \"Hall-Watson Furniture Company v. Cumberland Telephone & Telegraph Company\", \"name_abbreviation\": \"Hall-Watson Furniture Co. v. Cumberland Telephone & Telegraph Co.\", \"decision_date\": \"1924-05-09\", \"docket_number\": \"\", \"first_page\": \"90\", \"last_page\": \"93\", \"citations\": \"203 Ky. 90\", \"volume\": \"203\", \"reporter\": \"Kentucky Reports\", \"court\": \"Kentucky Court of Appeals\", \"jurisdiction\": \"Kentucky\", \"last_updated\": \"2021-08-10T17:17:02.456584+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Hall-Watson Furniture Company v. Cumberland Telephone & Telegraph Company.\", \"head_matter\": \"Hall-Watson Furniture Company v. Cumberland Telephone & Telegraph Company.\\n(Decided May 9, 1924.)\\nAppeal from Whitley Circuit Court.\\n1. Corporations \\u2014 Corporation May be Bound by Manner in which, it Permits Officers to Conduct Affairs Without Formal Grant of Power. \\u2014 A corporation within its power may be bound by manner in which it permits officers to conduct its affairs, even though there is no formal delegated authority, and even where officer acts in violation of directions if the board subsequently ratifies or acquiesces.\\n2. Banks and Banking \\u2014 Bank and Vendee Estopped to Deny Validity of Leases, Though Cashier and Vice President Not Authorized to Execute. \\u2014 Where one as cashier and vice president, with knowledge and acquiescence of directors of bank, attended to renting of rooms, bank and its vendee were estopped from denying validity of particular leases for want of authority.\\n3. Landlord and Tenant \\u2014 Purchaser of Building Bound by Recorded Lease of Rooms. \\u2014 Purchaser of building cannot deny knowledge of terms of recorded lease of rooms therein.\\n4. Landlord and Tenant \\u2014 Purchaser of Building Bound by Unrecorded Lease.- \\u2014 -Purchaser of building was bound by unrecorded lease of rooms, including renewal clause, where it knew that there was a lease, but exercised no diligence to ascertain its terms.\\nSTEPHENS & STEELY for appellant.\\nTYE & SILER and TRABUE, DOOLAN, HELM & HELM for appellee.\", \"word_count\": \"1387\", \"char_count\": \"8033\", \"text\": \"Opinion of the Court by\\nJudge Clarke\\nAffirming.\\nIn August, 1915, the- First National Bank of Corbin, Kentucky, leased two rooms on the second floor of its banking bouse to appellee for a term expiring November 1, 1923. This lease was duly executed, acknowledged,, and recorded. Later, the bank leased two adjoining rooms to appellee for a period of two and five-sixtb years, which also expired on November 1,1923.' This lease was not recorded. Both leases contained this identical clause:\\n\\\"Lessee shall have the privilege of renewing this lease at the expiration of the term herein created, upon the same terms and conditions, for a further period of five (5) years, upon giving written notice of its desire to so renew, not less than sixty (60) days before the expiration of said present term.\\\"\\nOn February 23, 1922, the bank sold and conveyed the entire building to appellant furniture company. Appellee was then in possession of the four rooms on the second flooi; of the building, and regularly thereafter paid to appellant each month the rental provided for in said leases for the four rooms occupied by it. In October and December, 1922, appellee gave appellant written notice that it exercised its option to renew the leases, and demanded of the furniture company that it execute and deliver to it a renewal lease in accordance with its contracts for a period of five years beginning November 1, 1923.\\nOn September 4, 1923, appellee presented to appellant a lease in duplicate, providing for a renewal of the two leases in accordance with the terms thereof, and demanded that appellant execute same, which it refused to do, and demanded that appellee vacate the premises on November 1, 1923.\\nAppellee then instituted this action for the declaration and enforcement of its contract right to a renewal of the leases, and the judgment appealed from grants it the relief sought.\\nThe first contention for appellant is, that both leases are void because D. B. Calvert, who executed one as cashier and the other as vice president of the bank, had not been authorized so to do by the board of directors at any official meeting of the board. It is admitted in both the pleadings and the evidence that there is no record of any such action by the board of directors, and it is insisted by appellant that it is the settled principle of law in this state that a corporation can act only through its directors at an official meeting, regularly held. In support of this contention, we are referred to Bastin v. Given's Admr., 170 Ky. 201, 185 S. W. 835, where it is so stated.\\nWhile this statement of the law is possibly correct in theory, it is nevertheless true that in practice, a corporation may, and often does, bind, itself by the actions of its executive officers and agents without formal grant of power so to do, and this court uniformly has recognized this generally accepted principle of law. Bell & Coggeshall Co. v. Ky. Glass Works Co., 106 Ky. 7, 50 S. W. 2; Star Mills Co. v. Bell, 140 Ky. 197; Nelson-Bethel Co. v. Pitts, 141 Ky. 242, 132 S. W. 430; Elk Valley Coal Co. v. Thompson, 106 Ky. 614, 150 S. W. 817; Caddy Oil Co. v. Sommer, 186 Ky. 843, 218 S. W. 288; Commonwealth v. Mehler, 183 Ky. 11, 208 S. W. 13.\\nIn the last named case we said:\\n\\\"Authorities are abundant that a corporation within its power may be bound by the manner in which it permits its officers in the regular course of business to conduct its affairs, even though there is no formal delegated authority for such officer to so act, and this, too, even though the act of an officer was in violation of express and formal direction, if by subsequent action the board had ratified such action or had merely acquiesced therein.\\\"\\nIn so far therefore a-s the statement in' Bastin v. Given's Admr., supra, upon which appellant relies, is susceptible of a construction in conflict with the above statement of the law, it is out of line and must be overruled.\\nAs it is admitted that Mr. Calvert, both as cashier and vice president, with the knowledge and acquiescence of the directors of the bank, attended to the renting, not only of the rooms leased to appellee but all of the extra rooms of its banking house, the bank would have been estopped from denying the validity of these leases; and assuming, but not deciding, that appellant, as assignee of the bank, could plead the acts of its officer were ultra vires, it is clear that in doing so it could not occupy a better position than the bank itself would have occupied.\\nWe therefore conclude that there is no merit in the contention that the leases are void.\\nAs the first lease was a recordable instrument and of record when appellant purchased the property, it can not deny knowledge of its terms, and as it accepted from appellee rent, paid monthly in accordance therewith from the time it became the owner of the property until the expiration of the lease, it is too clear for argument that appellant is bound thereby, and counsel for appellant do not seriously argue otherwise.\\nThey do not contend, however, that appellant was not bound by the terms of the second lease, because of the fact that it was never recorded.\\nThis argument of course is based upon the theory that with reference to this lease, appellant was an innocent purchaser without notice. The eyidence however does not sustain this contention. Appellant not only knew that appellee was occupying the rooms covered by this lease, and was thereby put upon notice to ascertain by what right it did so, but it undertook to find out for itself the terms of its lease, and was informed by both Mr. Calvert, for the bank, and Mr. Tallent, appellee's local manager, that the former had a copy of the lease, which it failed to have him exhibit, although he promised to do so when he could find time to locate it.\\n\\u2022Having notice of the existence of this lease, and failing to exercise, diligence to ascertain its terms, it is quite clear appellant is chargeable with knowledge of same.\\nIt is finally argued that appellee is estopped to rely upon the renewal clause of its unrecorded lease because Mr. Tallent, its local manager, failed to inform it that appellee had or claimed a right of renewal, when, before its purchase of the property, it asked, him when the lease terminated and he said he did not know.\\nOne of several troubles with this statement in another way of the contention just disposed of is, that it leaves out of consideration the fact that, at the time, Mr. Tallent told appellant that Mr. Calvert had a copy of the lease which contained the renewal clause, but which it neglected to examine.\\nJudgment affirmed.\"}"
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diff --git a/ky/4889015.json b/ky/4889015.json
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+"{\"id\": \"4889015\", \"name\": \"Mucci, By, etc. v. Hazard Blue Grass Coal Corporation, et al.\", \"name_abbreviation\": \"Mucci v. Hazard Blue Grass Coal Corp.\", \"decision_date\": \"1925-12-18\", \"docket_number\": \"\", \"first_page\": \"268\", \"last_page\": \"273\", \"citations\": \"212 Ky. 268\", \"volume\": \"212\", \"reporter\": \"Kentucky Reports\", \"court\": \"Kentucky Court of Appeals\", \"jurisdiction\": \"Kentucky\", \"last_updated\": \"2021-08-10T17:02:43.687602+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Mucci, By, etc. v. Hazard Blue Grass Coal Corporation, et al.\", \"head_matter\": \"Mucci, By, etc. v. Hazard Blue Grass Coal Corporation, et al.\\n(Decided December 18, 1925.)\\nAppeal from Perry Circuit Court.\\n1. Railroads \\u2014 Operation of Coal Train Held Not Negligent as to In fant Trespasser. \\u2014 In action by infant for injuries sustained by being thrown from defendant\\u2019s coal train, where evidence showed, that infant was warned to keep away from place of accident, that, parents knew of danger, that defendant did not and could not reasonably have been expected to see infant on train, and that defendant had no previous notice or experience putting them on notice of infant\\u2019s acts, defendant owed no duty to infant trespasser at time and place of accident, and hence is not guilty of negligence.\\n2. Railroads \\u2014 Trespassers on Coal Cars Not Entitled to Care Except After Knowledge' of Danger. \\u2014 A coal company, operating a short line and carrying no passengers or freights. except for own purposes, owes no duty to trespassers on tracks \\u00f3r cars, except humane duty to exercise ordinary care not to injure any such trespasser after having knowledge of his danger.\\n3. Railroads \\u2014 Warning to Parent of Danger to Child Held Unnecessary. \\u2014 -Where infant\\u2019s parents knew of child\\u2019s hahit .of playing about place of accident, and ha'd many times taken child from there, warning to parents to keep infant off defendant\\u2019s premises was not essential to relieve defendant from liability for injury to infant by fall from coal car.\\nWOOTTON, SMITH & WOOTON and NAPIER & HEDM for appellant.\\nFALUKNER, STANFILL & FAULKNER for appellees. -\", \"word_count\": \"2093\", \"char_count\": \"11793\", \"text\": \"Opinion of the Court by\\nTurner, Commissioner\\nAffirming.\\nAppellant, an infant suing by Ms next friend, was on tie 4th. day of June, 1918, injured by falling off of one of appellant's coal -ears, and being run -over by some of the cars in a coal train operated between appellant's mine and its coal tipple within the city of Hazard. The infant was at the time forty months of age.\\nThe miniature coal train was run from the mouth of the mine down a -small stream only two or three hundred yards to the coal tipple, and was operated over either a narrow gauge railroad track or a tramway. On either side o-f the short distance where this track ran were miners' houses, and a short distance from the mouth of the mine where the railroad crossed the small stream from one side to the other there was an improvised footbridge used considerably as a sort of passageway between points within the mining village, and in going to and from the major part of the city. One end of this bridge was within two or three feet of the railroad track, and it was likewise situated at or near a comparatively level place. At the time of the injury William Gil-ford was the servant of the coal company in operation of its motor train, and was joined as defendant with the corporation.\\nThe petition as amended alleges that defendants negligently and carelessly ran the motor and motor cars and mine cars over the plaintiff, 'and that the accident occurred witMn the -city limits of Hazard, and at a point on the company's track used as a crossing by the general public in going to and from the courthouse and other pub- lie places in the city; that a great number of people were constantly passing over the crossing and along the track at the point of the accident, and that those in charge of the operation of the motor cars saw the infant plaintiff-before the accident, or could have seen him with the exercise of ordinary diligence and prevented the accident by such exercise. Then.in a separate paragraph the amendment alleges that at the point of the accident children were in the habit of passing and congregating, and that the motor and mine cars passing there were of easy access to the children, and inviting to them as well as attractive and alluring, and were calculated to induce them and did induce the plaintiff to examine, look at and crawl upon the wheels and cars, which facts defendant knew at the time of the accident, or could have known by the exercise of reasonable care.\\nAll of these allegations were put in issue by the defendant, and in addition contributory negligence was asserted, and on a trial, at the conclusion of the plaintiff's evidence, the court directed a verdict for the defendants, and the 'Correctness of that ruling is the only question involved. The evidence for plaintiff tended to show that there were three or four small boys in the little mining town that were in the habit of playing about the immediate locality where the accident occurred, and that appellant was one of them; but it failed to show that upon any previous occasion either appellant or any of the other boys had been seen to climb upon the cars of the coal trains. Upon the occasion in question, however, the coal train'had stopped at the point indicated when appellant and his older brother, about six years old, reached the place. The evidence likewise shows that while these boys were in the habit of playing about that place and near the railroad or tramway, it shows they never had been seen playing upon the trade. A few minutes before the accident appellant alone had been about this point playing, and his mother, whose home was a short distance away, came there and took him away, and from this it is apparent that she knew he was in the habit of playing there and appreciated the danger of it; then a few minutes later when the train was standing there appellant and his older brother again came to the place and the older brother climbed upon one of the standing cars, and thereafter appellant also did, and about the time he climbed upon the car the train started and he fell off. There is no evidence either that the motorman or any other of the train operatives, or any agent or employe of the coal company, saw either of these boys at or about the time-of the injury, or had seen them immediately or any short time theretofore. The evidence also shows that upon the occasion in question, in addition to the motorman, there was a flagman on the train, but that they both operated from the small engine. Appellant climbed upon the sixth or seventh coal car from the engine, and one witness states that there was no obstruction between the engine and that coal car to prevent the motorman or flagman from observing the fact that appellant was on the train, but upon cross-examination the witness admits that the duties of both the motorman and the flagman while situated in the engine required them to be in such position that their backs would have been to the part of the train upon which appellant had climbed, and in addition he says there was a decided curve between where the engine was located and the car upon which appellant climbed.\\nSo that we have an infant trespasser climbing upon a standing coal car, and unobserved either by any employe operating.the train or other employe of the company; and we have in addition two train operatives in the observance of their duties in such position that they could not have been reasonably expected to see him.\\nThere is also evidence that these boys, and appellant in particular, had been warned many times by the train operatives and others to remain away from this place; and while there is no evidence that this boy's parents or either of them had been notified of.their frequent presence at that place, and warned of the danger, it is made apparent from the evidence that the plaintiff's mother knew of his custom to play about that place, and had frequently gone there and taken him home. She must therefore have either been warned, or, she must have had knowledge of the situation without warning.\\nThe coal company operated this short line from the mouth of its mine to its tipple over its own property, and it was operated solely for the purpose of carrying coal from the mine to the tipple. It carried no passengers and no freight, except the coal, and carried that only over its own road operated over its own land. Obviously under these conditions it owed no duty to trespassers upon its tracks and cars, except the humane duty to exercise ordinary care not to injure any such trespasser after having knowledge of his danger. No lookout duty was required, and although its operatives may be presumed to have known that at the point indicated a few hoys were accustomed to play, yet there is a total lack of evidence that either of them, or any other person, had ever upon any previous occasion at that place boarded or attempted to board any of its .cars. We are impelled, therefore, to hold that in the absence of previous notice or previous experience that would have put them upon notice, the train operatives owed no duty to this infant at the time and place of the accident; they neither saw him nor were they in position to have seen him, and as no other boy had ever undertaken to board their cars, although they played about this place, they owed no duty to investigate before starting the train.\\nThe facts are essentially different from those in the Tupman case, 200 Ky. 88; there the driver of the truck knew just before he backed the truck over the infant that the infant had been on the sidewalk right at the end of the truck, and he knew that the infant had just a short time before had his little wagon attached to the truck with the purpose of talcing a ride when it should drive away, and so knowing, without further investigation backed his truck over him. Here there is no evidence that the train operatives or any other employe of the company either knew that appellant had climbed upon its cars, or that he was in that locality.\\nNor are the facts in any -wise similar to those in L. & N. R. R. Co. v. Steele, 179 Ky. 605. In that case the infant was injured while attempting to jump on a moving train at a point Where children had the habit of jumping upon that particular train while moving, which habit was known to those in charge of the train and had actually been encouraged by them, and in the light of this habit and encouragement by the train officials, the duty was imposed upon the company to anticipate their presence about the train, and to exercise ordinary care to discover such presence and prevent injury to them.\\nIn the ease of Lyttle v. Harlan Town Coal Co., 167 Ky. 345, an infant nine years of age while playing with other children at the base of a steep hill was killed by a large rock that was rolled down the side of the hill by one of defendant's employes, 'and it was held that while an infant under ordinary conditions occupies the same attitude as trespassing adults, that when one knows of the habit of children playing on its premises, and being warned that they are liable to be hurt by his method of doing business, it is incumbent upon him to warn the parent of the chil dren to keep them off its premises, or in the absence of such warning to exercise ordinary care not to harm them, although they were not there by his express invitation or consent; and it was likewise held that where one maintains on his premises at an exposed place appliances attractive to and at the same time dangerous for use by children, and he permits them without, objection or warning to congregate there, he must keep it in reasonably safe condition for the use to which children put it. In this case the warning to the infants themselves, including ap^pellant, is distinctly shown, and while it is not shown that any warning was given to the children's parents, it is shown, without contradiction, that one of the parents knew of appellant's habit to play about this place, and had many times gone and taken him from there. Having such knowledge the warning was not essential.\\nIt is apparent that under the facts disclosed the company owed no duty to the trespassing infant, and owing no duty, it could have been guilty of no negligence.\\nJudgment affirmed.\"}"
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+"{\"id\": \"4966876\", \"name\": \"Commonwealth v. Flatt\", \"name_abbreviation\": \"Commonwealth v. Flatt\", \"decision_date\": \"1927-03-25\", \"docket_number\": \"\", \"first_page\": \"185\", \"last_page\": \"194\", \"citations\": \"219 Ky. 185\", \"volume\": \"219\", \"reporter\": \"Kentucky Reports\", \"court\": \"Kentucky Court of Appeals\", \"jurisdiction\": \"Kentucky\", \"last_updated\": \"2021-08-10T23:17:13.548305+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Commonwealth v. Flatt.\", \"head_matter\": \"Commonwealth v. Flatt.\\n(Decided March 25, 1927.)\\nPRANK E. DAUGHERTY, Attorney General, and P. B. MARTIN for appellant.\\nJ. E. ROBBINS, J. E. WARREN, JOE W. BENNETT, JOHN R. EVANS, J. N. BRUMMELL and M. C. ANDERSON for appellee.\", \"word_count\": \"3696\", \"char_count\": \"20171\", \"text\": \"Opinion op the Court by\\nCommissioner Hobson\\u2014\\nAffirming'.\\nMrs. B. B. Fl'att was duly elected county court clerk of Hickman county at the November election 1921. She duly qualified and held the office for that term. She was a candidate for re-election in 1925, and was elected by a majority of over 1,000. She received- her certificate- of election. On the first Monday in January she and the county judge each took the oath of office. Her' bond for the preceding term was given on January 7th, 1922. The agent of the surety company .suggested to her that her bond need not be renewed until four years thereafter which was January 7th, 1926. When she took the oath of office she told the county judge what the agent had said about the bond; the county judge said to her that it would be all right, to have the bond prepared and to enter the order approving it on January 7th. She had the bond prepared and entered the order on the order book approving the bond, but on January 7, the county judge refused to sign the order approving her bond and took the minute book out of the clerk's office to his office. He there entered an order on the minute book removing Mrs. Elatt as county court clerk and appointed James A. Porter to the office. Porter thereupon executed bond, which was approved by the county judge by an entry on the minute book in his office. Mrs. Platt refused to enter these orders on the order book. Thus things stood until September 22, 1926, when the commonwealth attorney .brought this suit in the name of the commonwealth, praying the judg ment of the court that Mrs. Flatt be required to vacate the office of county court clerk and to deliver all records in the office to James A. Porter. The defendant filed answer, stating the facts above set out. The plaintiff demurred to the answer. The demurrer was overruled. The plaintiff stood upon the demurrer. The court dismissed the action. The plaintiff appeals.\\nIt appears from the answer that both the county court and the fiscal court were in session on January 4 and 5; the clerk was very bulsy in writing the minutes of the two court's and in drawing the orders, which she wrote up as -soon >as possible. Among- them she wrote up the order showing her qualification and the execution of her bond and had the same ready for the county judge to accept the bond and sign the order book on the forenoon of January 7, and although on January 4 he had told her to have the bond executed and he would accept it on January 7, he arbitrarily refused to accept her bond on January 7, or to sign the order which he had himself directed to be entered on the order book.\\nSection 3755, Kentucky Statutes, is as follows:\\n\\\"If the official bond is not given, and the oath of office taken on or before the day on which the term of office to which a,person has been elected begins,, or in cases of persons appointed to office within thirty days after such person has received notice of his appointment, the office shall be -considered vacant, and he -shall not be re-elegible thereto for two years. (Term of office begins first Monday in January after election. Con., see. 99.) \\\"\\nIn Barnett v. Hart, 112 Ky. 728, it was held that where a justice of the peace failed to qualify and give bond on the first Monday in January, the office was vacant, concluding its opinion the court said:\\n\\\"We have nothing to do with the harshness of the law, if, indeed it was harsh, which can not be fairly said, as we think, for the appellant had from the time he received his commission until and during the first Monday in January to comply with the statute, and there being no provision authorizing the county judge to take the bond at a later date, it seems to us that the judge could not lawfully or properly accept or approve the bond after the first Monday in January.\\\"\\nIn the subsequent case of Dorian v. Paducah, 136 Ky. 373, where the officer tendered his bond and it was arbitrarily refused, the court said:\\n\\\"It is manifest that the, general council, in refusing to approve the 'bond, did SO' for the purpose of recognizing Dorian as the city treasurer, and not because there was any valid objection to the bond. Its action, then, was arbitrary and without legal excuse. As Walters was eligible to the office and was\\u00a1 duly elected, and as he took the oath of office and tendered a good and sufficient bond, and thereafter attempted to perform the duties of the office, and did in fact perform certain duties, we conclude that he did all that the law required him to do in order to entitle him to the office; and, having done all that he was required to do in the premises, he can not be deprived of his compensation by the arbitrary action of the general council in refusing to approve a bond which, by its subsequent approval thereof, it admits to be in all respect legal and sufficient.\\\"\\nThis case falls within the principle thus announced. When appellee told the judge that her old bond was regarded by the bonding company as good until January 7, and would be renewed on that day, and he told her to get up the bond and make the order on that day and he would sign it, the clerk had the right to go by his direction. The clerk of a court must work under the direction of the judge of the court. The orders must be entered as he directs and when he directs. It would be idle for the clerk to write orders which the judge had directed not to be entered. If the judge had told her she must give her bond on January 4, she would have done so-. It was all the same to her whether it was given then or on January 7. The arrangement with the bonding company had been made and all that had to be done was to draw and sign the bond. This was not done at the direction of the judge, the fiscal court being in session and the presence of the judge and clerk being required in that court. The county court in taking a bond has the same power as in other cases to postpone a hearing of the matter. ' If an order had been entered on January 4, giving until January 7, for the execution of the bond, this controversy would, perhaps, never have arisen. The failure to enter such an order was a mere irregularity. The clerk is not chargeable with this; she could not enter such an order unless directed by the judge, and he, in substance, told her what to- enter and she did as he directed. For him on the 7th to refuse to sign the order he had directed to be entered was to mislead her, and if so intended on the 4th was a fraud on her. However, we may assume that both of them acted innocently on the 4th, and that the conduct of the judge on the 7th'was due to a changed conception of the law, made in the meantime, to the effect that he had lost jurisdiction over the giving of the bond. We do not so construe the \\u00a1statute. This is not a case where the county judge, or officer authorized to take the bond, did nothing to mislead the officer offering to qualify, or one where the latter's predicament was- the sole result of his own neglect. We construe the facts disclosed by the record to be tantamount to an offer on the part of Mrs. Flatt to execute her bond on the day she qualified if the county judge so required. Certainly, if she had actually tendered to 'him a properly executed bond at that time and he had declined to approve or accept it and 'thereby permitted the time to pass without such acceptance or approval, \\u00a1she would not be deprived of her office solely upon the ground that her 'bond had not been accepted or approved at the proper time. The facts are analogous to the principles relating to the doctrine of \\\"tender\\\" in the law, and when the presence of the thing tendered is waived by the one to whom the tender is made, it will be given the same legal effect. Here, the county judge waived the tender of appellee's bond on January 4, and continued her offer to do so until the 7th. After the county judge said what he did it would have been idle for appellee to tender her bond to him and for her to do' this might well have been regarded by him as a disrespect. The clerk did all she could reasonably do, and it would be to extend the statute beyond its fair meaning to apply it in such a case.\\nIt is earnestly insisted that the commonwealth is not affected by -the laches of its officers. But while this is true the commonwealth does not impute laches to its officers and is not interested in converting innocent acts done by them into frauds op equally innocent third parties. The commonwealth is but the personification of all the people of the state, and certainly these people are interested in honest and fair dealing. The county judge is in charge of the county court, and an intention to mislead another to his prejudice will no more be imputed here than in other cases. In all other cases no one loses a right in obeying the direction of the court or is in a worse position than he was before.\\n\\\"An act of the court shall prejudice no man.\\\"\\n\\\"The above maxim 'is founded upon justice and good sense, and affords a safe and certain guide for the administration of the law.' \\\" Broom's Legal Maxims, 121.\\nThis is peculiarly applicable to the clerk of the court who, from the very nature of his position, takes hiis orders from the court. The county judge should sign the order on the order book. No other question is considered.\\nJudgment affirmed. Whole court sitting. Chief Justice Clay and Judges Dietzman and MeCandless dissenting.\"}"
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+"{\"id\": \"4992213\", \"name\": \"King v. City of Pineville, et al.\", \"name_abbreviation\": \"King v. City of Pineville\", \"decision_date\": \"1927-12-07\", \"docket_number\": \"\", \"first_page\": \"73\", \"last_page\": \"78\", \"citations\": \"222 Ky. 73\", \"volume\": \"222\", \"reporter\": \"Kentucky Reports\", \"court\": \"Kentucky Court of Appeals\", \"jurisdiction\": \"Kentucky\", \"last_updated\": \"2021-08-10T21:11:37.273931+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"King v. City of Pineville, et al.\", \"head_matter\": \"King v. City of Pineville, et al.\\n(Decided December 7, 1927.)\\nJAMES S. GOLDEN for plaintiff.\\nE. B. WILSON for defendants.\", \"word_count\": \"1876\", \"char_count\": \"10748\", \"text\": \"Opinion op the Court by\\nJudge Dietzman\\nOverruling motion to dissolve injunction.\\nThis case is before me on a motion to dissolve a temporary-injunction granted by the judge of the Bell circuit court enjoining the execution of a judgment of the police court of Pineville against the present plaintiff.\\nThe plaintiff in this action was tried in the police court of Pineville for the first offense of carrying a concealed and deadly weapon. He' was found guilty and fined the sum of $50, and sentenced to confinement in the Bell county jail for a period of 10 days. He was also adjudged to be disfranchised and excluded from the right of suffrage for the period of 2 years from the date of the judgment. Contending that the police court of Pine-ville was without jurisdiction to try him for the named offense, the plaintiff herein brought this action to enjoin the execution.of the judgment referred to with the result as above set out. The chancellor rested his decision on the case of Smiddy v. Commonwealth, 211 Ky. 100, 282 S. W. 774, wherein we held without discussion that a police court has no jurisdiction to try one for the offense of carrying concealed and deadly weapons. The defendants in this action insist that the-decision of. this court in Smiddy v. -Commonwealth is erroneous. -\\nThe argument of the defendants runs thus: Section 143 of the Kentucky Constitution provides that police courts may have such criminal jurisdiction within the corporate limits of the city or town in which they are established as justices of the peace have. The statutes governing cities of the fourth class, of which Pineville is one, vest in the police courts of such cities \\\"original concurrent jurisdiction\\\" within the limits of such cities of all offenses within the jurisdiction of justices of the peace. See Kentucky Statutes, section 3513. Section 1093 of the Kentucky Statutes, as amended by chapter 43 of the Acts of 1924, specifically vests in the courts of justices of the peace jurisdiction of the offenses of petit larceny, vagrancy, and first offense of carrying concealed and deadly weapons. In Stone v. City of Paducah, 120 Ky. 322, 86 S. W. 531, 27 Ky. Law Rep. 717, this court said that section 143 of the Constitution does not place any limitation upon the jurisdiction which may be granted to justices of the peace by the G-eneral Assembly, but leaves the matter within its discretion, but does limit the jurisdiction to try common-law or statutory offenses that may be given to police and city courts to whatever the justices have. Hence the Legislature had the right to vest the trial of the first offense of carrying concealed and deadly weapons in the courts of justices of the peace, as was done by the 1924 amendment to section 1093 of the Statutes, and as the Constitution authorized, and the charters of the cities of the fourth class vested, the same jurisdiction in police courts of that class of cities as justices of the peace have, therefore the police court of Pineville did have jurisdiction to try the case against the plaintiff it did. Of course, the fundamental premise on which the conclusion of the defendants rests is that the Legislature had the right to vest in courts of justices of the peace jurisdiction to try the first offense of carrying concealed and deadly weapons. By section 1309 of the Kentucky Statutes the first offense of carrying a concealed and deadly weapon is declared a high misdemeanor and, in addition to the fine and imprisonment therein provided as a penalty, the statute requires that one convicted for the first offense of carrying a concealed and deadly weapon shall be excluded from the right of suffrage for the period of 2 years from the date of the judgment.\\nAs stated in the case of Lakes v. Groodloe, 195 Ky. 240, 242 S. W. 632, courts of justices of the peace being without the machinery necessary to canse indictments to be returned, if an offense, jurisdiction to try which is vested in the courts of justices of the peace, is an indictable offense, within the meaning of section 12 of the Constitution, which provides that no person for an indictable offense shall be proceeded against criminally by information except in certain cases not here material, any attempt to prosecute such an offense by warrant or information would be unauthorized, and hence the attempt to vest jurisdiction to try such an offense in the courts of justices of the peace which have no machinery for a grand jury would be unconstitutional. Is the offense denounced by section 1309 of the Statutes one which must be proceeded against by an indictment as provided by section 12 of the Constitution? In the Lakes case, supra, we said:\\n\\\"It has, however, been consistently held that the term 'indictable offense,' as used in this section (12) of the Constitution, has reference to common-law offenses, or to statutory offenses, the punishments for which are 'infamous.' \\\"\\nWhat, then, is an infamous offense which requires an indictment? As said in 16 C. J. 60, the old test to determine whether a crime was infamous or not rested on the character of the crime rather than the nature of the punishment inflicted, but the modern view is that it is determined by the nature of the punishment. It is true in the Lakes case, supra, we said that \\\"infamous punishment, ' ' as held in this jurisdiction, is death or imprisonment in the penitentiary of the state following a conviction for a felony. This definition, however, was not meant to be exclusive as the Lakes case presented only the question whether or not mere confinement in a county jail for a misdemeanor, although attended with hard labor, was an infamous punishment, it being held not so. Does the fact that in addition to a fine and imprisonment a person is deprived of his right of suffrage for a period of 2 years render the punishment infamous and thus the crime such? In the case of Cheek v. Commonwealth, 87 Ky. 42, 7 S. W. 403, 9 Ky. Law Rep. 880, the facts were that the appellant was convicted of the offense of receiving a bribe to vote for certain candidates in an election. Section 11 of Article 12 of chapter 33 of the General Statutes then in force provided as a punishment for the receiving of such a bribe a fine' of from $50 to $500, together with the exclusion from office and suffrage. In speaking to the last part of the penalty this court said:\\n\\\"And while the pecuniary fine of $50 only was imposed upon the appellant, yet judgment was also rendered against him depriving him of his right to vote and to hold office. This is a penalty attached to all infamous crimes or offenses, which is not only a badge of disgrace and infamy, but deprives the party of a most sacred right.\\\"\\nEarlier in the opinion the court said that the statute in that case made the offense of bribery or being bribed to vote at an election infamous. As a matter of fact, the statute did not so provide in express terms,, and the court made the statement it did because of the fact that the penalty 'of deprivation of suffrage, being attached to the other penalties provided, made the offense an infamous one. In the case of Johnson v. Commonwealth, 90 Ky. 53, 13 S. W. 520, 12 Ky. Law Rep. 20, the Cheek case was referred to with approval. Therein we said that the infliction of a punishment of deprivation of suffrage degrades the offender. The Cheek case has also been referred to in many other opinions of this court, the latest of which that we have been able to find being Bailey v. Commonwealth, 198 Ky. 629, 249 S. W. 779.\\nIt follows from the foregoing that by attaching to the penalties of fine and imprisonment that of deprivation of suffrage as set out in Kentucky Statutes, section 1309, the Legislature has made the offense of carrying a concealed and deadly weapon an infamous one which, being true, it is such an offense that can be proceeded against only by an indictment. It necessarily follows that the Legislature could not constitutionally vest in courts of justices of the peace, which have no machinery for a grand jury, jurisdiction to try such an offense, and that so much of section 1093 of the Statutes as amended in 1924 as purports to vest in courts of justices of the peace which have no machinery for a grand jury jurisdiction to try the first offense of carrying concealed and deadly weapons is unconstitutional. The major premise of defendants' argument thus being unsound, it follows that the rest of their argument must fall, and that the Smiddy case is correct and is not subject to the criticism made by them. We have not overlooked section 307 of the Criminal Code which provides:\\n\\\"If the police or city court have jurisdiction of offenses which can only be prosecuted by indictment, the court may order the peace officer, whose duty it is to attend the court, to summon a competent number of grand jurors, the qualifications of whom shall be as prescribed in the G-eneral Statutes (now Kentucky Statutes), and who shall be sworn, and have the powers and duties prescribed in chapter I of title VI.\\\"\\nWithout entering into a discussion of the scope of that section or whether it is under the present Constitution and Statutes, valid or not, we are of opinion that it cannot save the defendants' position. As stated in the Stone case, supra, while police courts may have the same jurisdiction to try common-law or statutory offenses as have courts of justices of the peace, they cannot be vested with jurisdiction 'to try such offenses unless the courts of justices of the peace have like jurisdiction. Even so, if we concede that police courts under the section of the Criminal Code we have quoted, may summon and impanel a grand jury, a question we expressly do not herein decide, yet as justices of the peace do not have the machinery for a grand jury, it follows that police courts cannot be vested with jurisdiction to try offenses which may be prosecuted only by an indictment so long as courts of justices of the peace are not vested with like jurisdiction. We are, therefore, of the opinion that the police court of Pineville was without jurisdiction to try the plaintiff as it herein attempted to do, and that the lower court correctly enjoined the enforcement of the judgment.\\nThe whole court, except Judge Sampson, who was absent, sat with me in the consideration of this case and concurs in these views and in this opinion. Due to the importance of the question presented, it is ordered by the court that this opinion be published in the official reports for the guidance of the inferior courts of the state.\\nThe motion to dissolve the temporary injunction herein granted is overruled.\"}"
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+"{\"id\": \"5050888\", \"name\": \"Mullins v. Patrick\", \"name_abbreviation\": \"Mullins v. Patrick\", \"decision_date\": \"1929-04-30\", \"docket_number\": \"\", \"first_page\": \"195\", \"last_page\": \"197\", \"citations\": \"229 Ky. 195\", \"volume\": \"229\", \"reporter\": \"Kentucky Reports\", \"court\": \"Kentucky Court of Appeals\", \"jurisdiction\": \"Kentucky\", \"last_updated\": \"2021-08-10T20:55:56.225860+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Mullins v. Patrick.\", \"head_matter\": \"Mullins v. Patrick.\\n(Decided April 30, 1929.)\\nW. A. STANFILL for appellant.\\nMOORE & SMITH for appellee.\", \"word_count\": \"731\", \"char_count\": \"4176\", \"text\": \"Opinion op the Court by\\nJudge Logan\\nAffirming.\\n'This appeal presents a question of fact on the merits, and the further question of the correctness of the action of the lower court in overruling exceptions to the depositions of appellee. The appellant, claiming that he had sold a bill of lumber to the appellee, filed a materialman's lien against a garage which had been erected out of the lumber. The appellee defended on the ground that he did not buy the lumber from appellant. Appellant testified that appellee came to his sawmill and there purchased from him the bill of lumber which was afterwards delivered. He was supported by witnesses introduced in his behalf. Appellee testified that he purchased the lumber from one Stacey, who-was an employee of the appellant, and that he paid Stacey for the lumber. He was supported by a number of witnesses introduced by him. Stacey testified that he sold the lumber to the appellee with the consent of appellant, and that he was paid for it. Stacey had been working for appellant, and he claimed that appellant was owing him a large sum of money which he could not pay, and that he agreed that Stacey might sell the lumber and collect the proceeds which should be applied to the payment of his debt. Stacey was largely indebted to the appellee. The preponderance of the evidence shows that appellee purchased lumber from Stacey, and that Stacey had the authority given to him by appellant to sell and collect for the lumber. He had sold and collected for other small bills in' the same way. Appellant testified that he gave no such authority to Stacey, and that he was not indebted to Stacey.\\nIt is contended by counsel for appellant that appellee and his witnesses entered into a conspirary to cheat and defraud appellant out of the proceeds of this lumber. It requires evidence to establish such a conspiracy, and we cannot hold that there is any evidence establishing such, a conspiracy. The judgment of the chancellor is entitled to some weight, and on the merits of the case we are not at liberty, under the facts disclosed, to disturb Ms judgment.\\nThe appellee took all of his depositions before he filed his answer, and this was the ground of exceptions to the depositions. S\\u00e9ction 557, Civil Code, allows the plaintiff in an action to' commence taMng depositions immediately after the service of the summons, and the defendant immediately after filing his answer. In the case of Weisiger v. Mills, 91 S. W. 689, 28 Ky. Law Rep. 1208, it was held that the purpose of the section of the Code mentioned was-to require the plaintiff to be apprised of the defense and thereby enable the defendant to intelligently conduct the cross-examination of witnesses. The answer of appellee was a denial that he was indebted to appellant in any sum, or that the lumber was furnished to him by contract with the appellant, or that appellant had a lien on the property described in the petition to secure the payment of the amount claimed. He interposed no affirmative defense. The petition was filed on February 7, 1927. On the 18th day of February following, the deposition of appellant was taken. The deposition of the appellee was taken on cross-examination on the same day, but he was not asked about his defense by counsel for appellant. But, on the same day (that is, on the 18th of February, 1927), the deposition of Robert Patrick was taken by agreement of parties to be read as evidence in his behalf on the trial of this case. In this deposition, he went fully into his defense, and the appellant was apprised of its nature even more fully than he was by the answer which was filed later. It is admitted that the deposition was taken by agreement, but it is urged that the agreement meant no more than a waiver of notice. But we cannot so construe it. It was agreed that the deposition should be taken at that time and place. It would be highly technical to hold that the court erred in overruling the exceptions to the depositions. Appellant was not prejudiced in any way by the ruling of the court.\\nJudgment affirmed.\"}"
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+"{\"id\": \"5175331\", \"name\": \"Elkins v. Commonwealth\", \"name_abbreviation\": \"Elkins v. Commonwealth\", \"decision_date\": \"1932-06-21\", \"docket_number\": \"\", \"first_page\": \"583\", \"last_page\": \"587\", \"citations\": \"244 Ky. 583\", \"volume\": \"244\", \"reporter\": \"Kentucky Reports\", \"court\": \"Kentucky Court of Appeals\", \"jurisdiction\": \"Kentucky\", \"last_updated\": \"2021-08-10T23:17:50.096819+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Elkins v. Commonwealth.\", \"head_matter\": \"Elkins v. Commonwealth.\\n(Decided June 21, 1932.)\\nG. A. NOBLE for appellant.\\nBAILEY P. WOOTTON, Attorney General, and H. HAMILTON BICE, Assistant Attorney General, for appellee.\", \"word_count\": \"1415\", \"char_count\": \"7958\", \"text\": \"Opinion op the Court by\\nChief Justice Dietzman\\u2014\\nReversing.\\nAppellant was convicted of the offense of voluntary manslaughter arising out of an automobile accident and sentenced to serve five years in the penitentiary. This appeal results.\\n\\u2022The accident, which is the cause of the present prosecution, occurred on August 1, 1931. Late in the afternoon of that day, appellant, who then lived in Jeff, Perry county, Ky., went, in company with Kelly Shackelford, to Jackson for the purpose of getting his Buick roadster which he had left there for repairs. He secured his automobile about 7 o'clock, rode around the town for a while, and then started home to Jeff. About 2 miles out of Jackson, he had a collision on a sharp curve in the road with a Marquette sedan owned by Estill Combs of Hazard and which was being driven by the latter's nephew, Dave Combs, and in which Mrs. Estill Combs was riding. Mrs. Combs received fatal injuries in the collision, and died about three hours later in the Bach Hospital in Jackson. The commonwealth claims that prior to and at the time of the collision appellant was driving on the wrong side of the road at a rate of from 50 to 60 miles an hour, and that the collision was due to his gross and reckless carelessness in operating his machine. On the other hand, appellant claims that he was driving on his right side of the road at a rate not exceeding 20 or 25 miles an hour, and that the Combs machine approached him on its wrong side of the road at a very rapid rate of speed. He admits that as the Combs machine drew nearer he did not undertake to stop or slow up, but he says the reason for this was that he thought the Combs machine would surely cross over to its. right side of the road before it reached him. However, when he realized that the Combs machine was not going to cross the road, it was then too late to stop his car, and that, in the effort to avoid the inevitable collision, he veered over to the other side of the road in the effort to pass the Combs machine on its right side; that, just as he did this, the Combs machine also veered over, as a result of which the two machines collided on what was the appellant's wrong side of the road, the damage to both machines occurring principally on their respective right-hand sides. Both parties produced witnesses as to the location of the respective machines after the accident, their testimony tending to corroborate the contention of the party for whom they were testifying.\\nAs grounds for reversal, appellant insists, first, that his demurrer to the indictment should have been sustained. So far as pertinent to this contention, the indictment reads:\\n\\\"The grand jury of Breathitt County in the name and by the authority of the Commonwealth of Kentucky accuse Arnold Elkins and Kelly Shackelford of the crime of voluntary manslaughter committed in manner and form as follows, to wit: The said defendants-in the County of Breathitt,\\\" etc.\\nIt is insisted that, inasmuch as the defendants were named only in the accusatory part of the indictment, it is fatally defective. However, the descriptive part of the indictment reads, \\\"the said defendants,\\\" which plainly refers to the defendants thereinbefore named in the accusatory part. The appellant could not have been misled by the failure to rename him in the descriptive part, and this indictment, coupled with whatever judgment which may be entered upon it, sufficiently identifies the accused so as to make available to him a plea of former conviction or acquittal should he hereafter have occasion to make use of it. There is no merit in this first contention of the appellant nor in his argument that the descriptive part of the indictment insufficiently describes the offense of voluntary manslaughter based, as here, on an automobile accident.\\nHe next contends that the court erred in admitting incompetent evidence against him. This consists of four items: First, the evidence of the witness, Beech Davis, who testified that, while confined in the jail with the appellant, the latter admitted to him that at the time of the accident he had been drinking, was driving between 50 and 55 miles an hour, and was hugging the curve. This evidence was admissible as an admission on the part of the accused. The second item complained of is the testimony of the witness, Rice, who went to the scene of the accident just after it happened, and viewed the location of the machines as he then found them. He testified as to this and also as to the width of the road. To illustrate and make clear his evidence, he made use of a sketch of a map which he did not contend was a map drawn to scale. The use of the map was only for purposes of illustration and not to establish mathematical del ails, and although objected to by appellant, was competent for the purpose for which it was used. The third item complained of is the testimony of Dr. Bach, to the effect that a short while after the accident, and in the hospital whither Mrs. Combs had been carried, he smelled liquor on the breath of the appellant. This was admissible. Appellant steadily denied that prior to or after the accident he had taken any drink. Whether he had or not, and, if he had, what effect it had upon his inhibitions as a reckless driver, were questions for the jury. The testimony of Dr. Bach as to the condition of appellant was sufficiently near in time to the accident to be relevant as to the condition of appellant at the time of the accident, especially in view of the fact that there was no contention that this condition had been changed any since the accident. As to the fourth item, however, we are convinced that appellant is correct in his contention. This item consists of the evidence of Mr. E. C. Hyden, who testified that appellant while in Jackson about an hour before the accident was driving about the city in a reckless fashion. He would not say that he thought appellant was then drunk, but he did say that appellant was either drunk or in a highly reckless mood. The manner in which appellant was driving in Jackson an hour or more before the accident had no relevancy to the question of the speed at which he was driving at the time of the accident or on which side of the road he was then driving. Stevens v. Potter, 209 Ky. 705, 273 S. W. 470. Nor did it establish that appellant was then drunk, for even Mr. Hyden would not say that from what he saw and observed on that occasion that appellant was then drunk. The evidence of Mr. Hyden was under the circumstances of this case, and in view of the closeness of the question of reckless negligence vel non on the part of the appellant at the time of the accident, prejudicial as it tended to induce the jury to believe that reckless driving in Jackson was but a forerunner of what happened out on the road some two hours later.\\nIt is next contended that the instructions were erroneous. In so far as instruction No. 4 referred to instruction No. 2 instead of instruction No. 3 for the extent of the punishment to be inflicted in the event the jury was in doubt as to whether the appellant was guilty of voluntary or involuntary manslaughter, it was erroneous, and on the next trial the court will correct such instruction to refer to the proper instruction. Otherwise, however, these instructions substantially conform to those directed to be given in the case of Jones v. Commonwealth, 213 Ky. 356, 281 S. W. 164, and we find no merit in the criticism of them advanced in brief.\\nLastly, it is urged that the verdict is flagrantly against the evidence, but in this, too, we find no merit, for, if the commonwealth's proof is to be believed, appellant was plainly guilty of the offense for which he was convicted.\\nJudgment reversed for a new trial consistent with this opinion.\"}"
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+"{\"id\": \"5239588\", \"name\": \"Mollette v. Board of Education of Van Lear Graded District et al.\", \"name_abbreviation\": \"Mollette v. Board of Education\", \"decision_date\": \"1935-10-18\", \"docket_number\": \"\", \"first_page\": \"737\", \"last_page\": \"748\", \"citations\": \"260 Ky. 737\", \"volume\": \"260\", \"reporter\": \"Kentucky Reports\", \"court\": \"Kentucky Court of Appeals\", \"jurisdiction\": \"Kentucky\", \"last_updated\": \"2021-08-10T17:45:44.941517+00:00\", \"provenance\": \"CAP\", \"judges\": \"Whole court sitting.\", \"parties\": \"Mollette v. Board of Education of Van Lear Graded District et al.\", \"head_matter\": \"Mollette v. Board of Education of Van Lear Graded District et al.\\n(Decided Oct. 18, 1935.)\\nVAUGHAN & KIRK for appellant.\\nC. F. PACE for appellees.\", \"word_count\": \"3657\", \"char_count\": \"20603\", \"text\": \"Opinion op the Court by\\nDrury, Commissioner\\u2014\\nAffirming.\\nThis is an appeal from a judgment upholding a bond issue of the Van Lear graded common school district.\\nWe shall take up and consider the steps taken, and, as we do so, shall dispose of the questions involved, it being admitted at bar that the appellees are the duly elected and acting trustees and members of the board of education of this district, and that Yan Lear is a city of the sixth class.\\nThe Resolution.\\nOn April 18, 1935, the said board of education, acting under section 4399-47 Ky. Stats., section 42, c. 65,\\np. 269, Acts of 1934, passed this resolution:\\n\\\"Whereas, we deem the housing facilities and equipment for the grades 7-12 inclusive, inadequate for proper and best instructional efforts and whereas, too great a rental is now being paid for this building and appurtenances: [$2,183.00 per year]. Be it resolved by the Yan Lear School Board of Education; that a bond issue for the purpose of providing adequate and suitable housing facilities and necessary equipment of said building or buildings be voted upon by the legal voters of Yan Lear School District in accordance with the constitutional provisions of the State of Kentucky. Be it further resolved by the Yan Lear Board of Education; that the bond issue be the maximum amount as allowed under the legal provisions of the State of Kentucky. Be it further resolved; that due written notice be given the voters of Yan Lear concerning the bond election and posted in accordance with the legal provisions of the State of Kentucky.\\\"\\nIf the Johnson fiscal court had refused to act upon this resolution, this board of education could not have forced it to do so, for this resolution is defective in this, that it does not show that the annual funds raised from other sources are not sufficient to accomplish said purposes, and does not show the board had made a careful estimate of the amount of money required, but, since it does show the board of education did ask that a vote be taken upon a bond issue of the maximum amount allowed by the law, and the J ohnson fiscal court did act favorably upon the resolution, it will be presumed that said court satisfied itself on these scores by matters and means not contained in the resolution, and that defect becomes immaterial, for the order entered by the fiscal court (see it below) shows this information, was furnished the court.\\nA copy of this resolution was promptly certified to-the Johnson county fiscal court, which is the proper tax levying authority, and that body on April 24, 1935, took this action thereon:\\nAction of the Fiscal Court.\\n\\\"Whereas, it appears from a resolution and certificate this day filed by the Board of Education of Yan Lear, Kentucky, School District, that it is. necessary for the proper accommodation of the-schools of its district to acquire or enlarge sites for .school buildings and grounds; to purchase new sites; to improve, remodel or restore school buildings; or to erect new school buildings or to equip same; and it further appearing that the annual funds from taxes and all other sources received by said district are not sufficient to accomplish said purposes, and it further appearing that the sum of $12,181.00 is needed for the accomplishment of the said purposes, which sum is within the limit provided by the constitution for which bonds may be voted and issued by said School District, and. said- amount cannot be raised by said district except by the issuance of bonds of said district.\\n\\\"Now, therefore be it resolved, that an election be held in said Yan Lear School District on the 11th day of May 1935 between the hours of 8 a. m. and 6 p. m. at the regular voting places in s.aid district, after giving the notices required by law, submitting to the voters of said district the question whether or not the Board of Education of said district shall issue School Improvement bonds of Van Lear School District to the amount of $12,181.00, for the purposes mentioned above, said bonds not to bear interest in excess of 6% per annum, and are' not to run for a longer period than 15 years, the denomination of. the\\\" said bonds and the date of maturity of e\\u00e1ch are to be controlled by an ordinance or resolution of the Board of Education of said Yan Leaf School District to be adopted if said bond issue carries. The 'County Judge of Johnson County is' ordered to call said election and advertise same as required by law and the County Clerk of Johnson County is directed to have ballots prepared for said election, placing thereon the following question: 'Are you in favor of issuing $12,181.00 Van Lear School District bonds?' Beneath which question he will have the word 'for' opposite which he will have a square for the purpose of voting and underneath the word 'for' he shall have the word 'against' with a square opposite said word.\\\"\\nIt was the duty of the fiscal court under the statute aforesaid to adopt an ordinance or resolution submitting the question to the qualified voters of the district, in other words, to call an election, and it did so.\\nWhile the language the fiscal court used is not entirely apt (see resolution above), still the effect of it is to call an election and to authorize the presiding officer of the fiscal court (section 1836, Ky. Stats.), the county judge, and its clerk (section 1835, Ky. Stats.); the county clerk, to see that the order was carried out. In effect, the fiscal court called this election.\\nThe Notice of the Election.\\n\\\"Notice is hereby given that an election will be held in the territory embraced within the Van Lear, Kentucky, School District, on the 11th day of May, 1935, on the question of whether the said school district shall issue bonds in the amount of $12,181.00 for the purpose of providing suitable grounds, school buildings, furniture and apparatus for Van Lear School District. The said election shall be held at the regular voting places in said district between the hours of 8 a. m. and 5 p. m. The ballots for the election will be so worded that those approving the issuance of said bonds shall make an X in the square opposite the word 'For' and those opposing shall make an X opposite the word 'Against.' The wording of said question shall be as follows: 'Are you in favor of issuing $12,181.00 Van Lear School District Bonds?' \\\"\\nThis notice was signed by the county judge of Johnson county and by all five of the members of the board of education of this Van Lear graded school district, and a copy of it was published in the May 10th issue of the Paintsville NeAvs, a newspaper of general circulation in this school district, there being no news paper published in the district, and six copies thereof 32x12 inches in size were posted by the chairman of the board, one upon the bulletin board of the school and the others at five public and conspicuous places within the school district 15 days next before this election.\\nThe statute under which this election was' had provides :\\n\\\"The bond election, provided for in this act, shall be conducted and carried out in the school district in all respects as required by law for elections in this Commonwealth, and notices thereof shall be given and the election held by the same officers and in all other respects as required by the general election laws of the Commonwealth.\\\" Ky. Stats. Supp. 1934, sec. 4399-47.\\nThe general election laws of this commonwealth do not provide for any notice of elections, as they are held at stated times fixed by statutes of which every one must take notice. In the giving of notice of this election it is evident that these parties proceeded under section 4477, Ky. Stats., which is a part of chapter 8, p. 47, Acts of 1922, .and may be found on page 47 of Acts of that year, but, by the caption of chapter 65 of the Acts of 1934, it is stated that this section is to be repealed, and in the body of chapter 65 it is repealed.\\nThus we have an election called and held upon and pursuant to the notice set out above, but for which there is no statutory provision whatever regarding notice. We could not uphold an election held without notice of any kind, for some sort of reasonable notice must be given, but we now hold that the notice given in this case was reasonable and is sufficient. See Gollar v. City of Louisville, 187 Ky. 448, 219 S. W. 421; 44 C. J. p. 1203 et seq., sec. 4178.\\nIn Wilkerson v. City of Lexington, 188 Ky. 381, 222 S. W. 74, the sheriff had given no notice of the election, and the statute did not require him to do so, and bond issues aggregating $1,200,000 were upheld; the only advertisement being the publication of the ordinances in 18 issues of the Lexington Leader next before the election.\\nTime of Holding 'This Election.\\nSection 148, Ky. Const., forbids the holding of more than one election per year, but section 148 does not ap ply to school elections. See Clark v. Board of Trustees of Dawson Springs Graded School Dist., 164 Ky. 210, 175 S. W. 359.\\nBy section 1469, Ky. Stats., and section 1482, Ky. Stats. Supp. 1933, the hours for holding this election, are fixed at from 6 a. m. to 4 p. m., and we must presume the election officers followed the law and so held it, despite the fixing of different hours in the call and the notice. But, if it w;ere shown this election was not held at the time fixed by law, the result would not be disturbed, in the absence of evidence that the result was affected thereby. Cochran et al. v. Hays et al., 8 Ky. Op. 503; Anderson v. Likens, 104 Ky. 699, 47 S. W. 867, 20 Ky. Law Rep. 1001; Clark v. Leathers, 5 S. W. 576, 9 Ky. Law Rep. 558; Graham v. Graham, 68 S. W. 1093, 24 Ky. Law Rep. 548; Hogg v. Caudill, 254 Ky. 409, 71 S. W. (2d) 1020; 44 C. J. p. 1207, sec. 4180.\\nThe Election.\\nThe appellant attacked the manner in which the election was held and the question was submitted, but there is no proof on this score. If appellant wished to sustain this objection, he should have had here a copy of the ballot, which would have been the best evidence of how the question was submitted. It is admitted an election was held on May 11, 1935, and, in the absence of some evidence of irregularities, it will be presumed, it was regularly held by the proper officers at the-proper time and that the question was properly submitted. 44 C. J. p. 1206, sec. 4180.\\nThe Result.\\nThe election commissioners certified they had canvassed the votes cast and with the following result:\\nFor Against-\\nHpper Van Lear Precinct 66 None\\nMiddle Van Lear Precinct 120 4\\nLower Van Lear Precinct 115 7\\nState of Kentucky County of Johnson, set.\\nElection held on the 11th day of May, 1935 in Van. Lear Graded School District.\\nTotal Number of ballots counted as valid......'.. 312'-\\nNumber of ballots marked 'Spoiled' . 3-\\nWhole number of ballots cast . 315-\\nThis board of education met upon July 11, 1935, and at thakmeeting adopted the following resolution:\\nThe Resolution.\\n\\\"Whereas: by a resolution duly introduced, read, adopted by it and entered of record in its minutes at a meeting' duly called and held on the 18th day of April, 1935, it was deemed and found necessary by it for the accommodation in a proper manner of the schools of said city that funds be procured for the payment of the cost of enlarging and acquiring sites for school buildings and the erecting, improving, remodeling and rebuilding building's for school purposes, and that the annual funds to be raised from other sources than the issuance of bonds were not sufficient to accommodate said purposes, and that it was found necessary that the Van Lear School District incur an indebtedness and issue bonds for the purpose of securing the necessary funds for said purpose and that in said resolution it was requested that the amount of the bond issue be the maximum amount allowed under the constitutional debt limitations of the State of Kentucky. This amount is the sum of Twelve Thousand One Hundred Eighty-One Dollars [$12,-181.00].\\n\\\"Pursuant to the above resolution, the Johnson County Fiscal 'Court by proper orders, approved of said bond issue on the 24th day of April, 1935, ordered that a bond election be held in the Yan Lear School District on the 11th day of May, 1935. There was submitted to the qualified voters of the Yan Lear Graded Common School District, the proposition and question, 'Are you in favor of issuing $12,181.00 in Yan Lear Graded Common School District Bonds?'\\n\\\"At said election, 312 voters of said school district cast their ballots. Three hundred and one voters of said district voted in favor of incurring said indebtedness and issuing said bonds.- Eleven voters voted against incurring said indebtedness and against issuing said bonds. Result of said election having been duly canvassed as required by law, its result and the votes cast thereat on said proposition were duly certified by the proper officers in the manner required by law.\\n\\\"Be it further resolved; that said bonds be issued in the amount of Twelve thousand one hun dred and eighty one dollars [$12,181.00] and that they bear interest at the rate of 6% [six per cent] per annum, interest payable semi-annually on the first day of August in the year 1936 and on the-same dates of each year thereafter until the bonds are liquidated.\\n\\\"In addition to the regular assessment of $1.25-per hundred -dollars for general school purposes, we hereby levy a tax of $0.30 per hundred dollars of assessed valuation of property within the said school district for the purpose of retiring the above mentioned bonds and the payment of interest on the same. This maximum assessment of $0.30 per $100.00 of assessed valuation shall apply on the assessment for the year 1935.\\n\\\"Be it further resolved: that said bonds mature serially in the following manner: $1,200.00 to become due August 1, 1936; $1,200.00 to become due August 1, 1937; $1,200.00 to become due August 1, 1938; $1,200.00 to become due August 1, 1939; $1,-200.00 to become due August 1, 1940; $1,200.00 to become due August 1, 1941; $1,200.00 to become due August 1, 1942; $1,200.00 to become due August 1, 1943; $1,200.00 to become due August 1, 1944; and $1,381.00 to become due August 1, 1945.'\\n\\\"Said bonds are to be designated as 'School Improvement Bonds' and may be sold at either private or public sale to the purchaser paying the highest amount of money, but are not to be sold for less than par and accrued interest.\\\"\\nThis resolution is not entirely in accord with the statute, for in it the board of education attempts to levy a tax for the payment of the bonds. This it had no power to do. That must be done by the fiscal court, and that was later done, as we shall show below. We shall treat this action of the board of education as a request by it of the fiscal court that the latter body levy such a tax. That is the way the fiscal court treated it, for here is what it did on July 20, 1935:\\n\\\"It appearing to the satisfaction of the court, from the budget presented by the Board of Education of' Van Lear Graded Common School District, that it-is necessary .for the purpose of carrying on the schools of said- district and to retire the bonds in the sum of $12,181.00 of said district that the\\\" fol lowing tax levy be made for said district: 30 cents on each $100.00 assessed value of taxable property in said district for the purpose of providing a sinking fund to retire and pay interest on the said bonded indebtedness, and for no other purpose. And said above mentioned levy is hereby made for said district.\\\"\\nIt will be observed this resolution did not comply with the statute in this further particular, that it merely \\u2022stated the sum to become due each year and did not .give the number of the bonds, did not state the date, the denomination, whether registered or coupon bonds, or name the place for payment of either the interest or principal.\\nThe Amendment.\\nThe board's attention being called to this, it - on July 16, 1935, adopted this amendment:\\n\\\"Be it resolved: that the resolution passed on by the Van Lear Graded Common School District Board of Education on the 11th day of July, 1935 be amended insofar as the denomination of the bonds mentioned therein are concerned.\\n\\\"Said bonds shall be issued in the amount of $12,181.00 and shall be retired in the following order:\\n\\\"Two $500.00 bonds and two $100.00 bonds due August 1, 1936; two $500.00 bonds and two $100.00 bonds due August 1, 1937; two $500.00 bonds and two $100.00 bonds due August 1, 1938; two $500.00 bonds and two $100.00 bonds due August 1, 1939; two $500.00 bonds and two $100.00 bonds due August 1, 1940; two $500.00 bonds and two $100.00 bonds due August 1, 1941; two $500.00 bonds and two $100.00 bonds due August 1, 1942; two $500.00 bonds and two $100.00 bonds due August 1, 1943; two $500.00 bonds and two $100.00 bonds due August 1, 1944; two $500.00 bonds and three $100.00 bonds and one $81.00 bond to become due August 1, 1945.\\n\\\".Said bonds shall bear interest at the rate of 6% per annum, interest payable semi-annually on February 1 and August 1 of each year of the above mentioned years at the places specified on the face of the bonds.\\\"\\nThis amendment cured some of the defects cited, but still fails to comply with the statute in some particulars. The date of these bonds has never been definitely given, but from the well-fixed dates of the maturities of the payments of principal and interest it can be inferred the date of these bonds is fixed at August 1, 1935. Neither this resolution or amendment attempts to say whether these are to be registered or coupon bonds which the statute says shall be done, nor does either this resolution or the amendment fix the place where payment of either principal or interest shall be made.\\nWe notice, however, that the statute provides these matters may be embodied in either the bonds or in the ordinance providing for their issue. Because we do not find it in this ordinance or resolution of the board does not mean these things do not appear in the bonds. If the appellant wants to successfully resist the issue of these bonds, he should bring forward evidence of their illegality. He does not show enough when he shows these things are not in the ordinance or resolution of the board; he should show also such things are not in the bonds, for the statute provides they may be in either place, and, in the absence of a copy of one of these bonds, we will presume these things are in the bond, else our contestant would have brought a copy here.\\nThe statute makes it the duty of the fiscal court to have these bonds prepared and executed, and we must presume that court will do its duty and have them properly prepared.\\nThe Amount of this Issue.\\nThe appellant has attacked this bond issue because it is, as he says, in excess of the constitutional limit of the indebtedness this district may incur. The proof shows this district owes no other money, and this issue of $12,181 is within the constitutional limit, for, by section 158 of Ky. Const., the indebtedness that may be incurred by this district is limited to 2 per cent, of the value of the taxable property therein, to be estimated by the assessment next before the last assessment previous to the incurring of the indebtedness. That means the assessment of this district for the year 1934 and the proof shows that to be:\\nTotal assessed value of property subject to local tax for 1934 .$411,769.00\\nTotal assessed value of property subject to franchise tax for 1934 . 207,250.00\\nTotal assessed value of all property subject to Yan Lear Graded School tax for 1934 $619,019.00\\nSince the district was permitted to become indebted in a sum that did not exceed 2 per cent, of this, which would be $12,380, it follows that the $12,181 provided for was not excessive, for it is within the limit.\\nSuggestion.\\n\\\"When a man is undertaking to arrange for a bond issue of this kind, he should seek out the statute under which he must proceed, read it carefully, and pursue closely the path there outlined.\\nThe one who proposes to contest such a bond issue should then start in where his adversary did and trail him step by step, and, whenever he finds his adversary has left the path, he should note such misstep and get evidence thereof and of the effect thereof before the court. It would be time well spent for both of them to read 19 R. C. L. p. 997 et seq. and 44 C. J. p. 1194 et seq.\\nJudgment affirmed.\\nWhole court sitting.\"}"
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+"{\"id\": \"5242695\", \"name\": \"Fordson Coal Co. v. Napier et al.\", \"name_abbreviation\": \"Fordson Coal Co. v. Napier\", \"decision_date\": \"1935-12-20\", \"docket_number\": \"\", \"first_page\": \"776\", \"last_page\": \"782\", \"citations\": \"261 Ky. 776\", \"volume\": \"261\", \"reporter\": \"Kentucky Reports\", \"court\": \"Kentucky Court of Appeals\", \"jurisdiction\": \"Kentucky\", \"last_updated\": \"2021-08-11T00:47:56.990712+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Fordson Coal Co. v. Napier et al.\", \"head_matter\": \"Fordson Coal Co. v. Napier et al.\\n(Decided Dec. 20, 1935.)\\nOLEON K. CALVERT and M. C. BEGLEY for appellant.\\nCRAFT & STANFILL for appellees.\", \"word_count\": \"2168\", \"char_count\": \"12066\", \"text\": \"Opinion of the Court by\\nJudge Rees\\nAffirming..\\nThis suit involves the title to a small tract of land in. Leslie county, which the Fordson Coal Company claims, is included in the Sizemore and Gibson 200-acre patent owned by it. The appellant filed an equity action in the Leslie circuit court against the appellees, and in its-petition averred that they were trespassing upon a portion of its land by wrongfully cutting timber therefrom, and it sought to enjoin them from continuing to do so- and to recover damages for the trespasses they had already committed. It also asked that it be adjudged to be the owner of the land. The appellees in their answer asserted title in themselves to the land upon which the alleged trespasses were committed, and denied appellees' alleged title thereto. Upon submission of the case, the court dismissed appellant's petition, thereby determining that it was not the owner of the land in controversy.\\n\\\"When the patent was granted, the land was located in Clay county, and the survey was made by Alex \\\"W. Chastain, the county surveyor. The surveyor's certificate was filed August 29, 1870, and the patent, known as patent No. 44844, was issued February 16, 1871. The land was thus described in the surveyor's certificate:\\n\\\"Beginning* on four beeches and an elm 60 poles below the mouth of Little Laurel fork the beginning corner to a 100 acre survey made for Joseph S. Gilbert and Moses S. Gilbert thence with a line of said 100 acres N. 55 E. 40 poles to a stake a corner to said 140 acres thence with said line S. 35 E. 60 poles to a stake in said line thence N. 55 E. 160-poles to a stake on the divide between Short Creek and the waters of the Little Laurel fork thence with said divide S. 35 E. 260 poles to a stake on said divide thence S. 55 W. 400 poles passing at-Ed. Sizemore's Rockhouse to a stake on the divide between Little -Stinnett fork, Little Laurel fork and the Trace branch of Lambs Tongue Hollow of Main. Laurel fork thence with said divide N. 35 W. 250 poles to a stake a corner to a 100 acre survey made for said Sizemore and Gibson thence with a line of said 100 acres N. 35 W. 200 poles to a stake a corner to said 100 acres thence with another line of the aforesaid 100 acres N. 55 E. 160 poles to the beginning.\\\"\\nAccompanying the certificate was a plat made by the surveyor. The description of the land in the patent is the same as the description in the surveyor's certificate, except that the fifth call reads:\\n\\\"Thence S. 55 W. 400' poles passing Ed. Size-more's Rockhouse to a stake on the divide between Little Stinnett fork, Little Laurel fork and the Trace branch of Lambs Tongue Hollow of Main Laurel fork.\\\"\\nIt will be noted that the word \\\"at,\\\" which appears in the surveyor's certificate, was omitted from the description of the land in the patent.\\nThree surveyors, who had surveyed and platted the Sizemore and Gibson patent, No. 44844, testified at the trial of the case; one as a witness for appellant, and two as witnesses for the appellees. Each filed a map as .an exhibit with his deposition, and these maps were referred to frequently in the evidence and have been referred to in briefs of counsel. It appears that all of the original maps were lost. What purport to be copies of two of the maps have been filed, but it is apparent that the colors and numbers on the substituted maps differ from those used at the trial, which makes it difficult to grasp the significance of some of the evidence and many of the statements in the briefs. Most of the uncertainty, however, is as to the \\u2022 proper location of lines of the original survey which have no bearing on this controversy. The correct determination of the issue presented by this appeal depends solely upon the location of the fifth line of the patent. All parties agree on the location of the beginning point, and they agree as to the location of the first and second lines of the patent. From that point they are unable to run out the survey and make it close without changing materially the bearings or distances, or both, and they are unable to agree , as to where and how these changes shall be made. All parties agree that the original surveyor actually sur veyed only the first, and second lines, and from that-point located the survey by protraction. In running the third call which reads, \\\"N. 55 E. 160 poles to a stake on the .divide between Short Creek and the waters of the Little Laurel fork,\\\" C. H. Queen, who surveyed, the land for appellant, altered the bearing and distance-to S. 87 E. 183 poles in order to reach the divide between Short creek and the waters of the Little Laurel fork. J. M. Culton, who surveyed the land for appellees, shortened the distance to 75 poles, and reached a point on the ridge between Potato Knob branch and Laurel fork. The fourth call of the patent reads: \\\"Thence with said divide S. 35 E. 260 poles to a stake on said divide.\\\" In order to reach the fifth corner called for by the patent, the appellant's surveyor ran from the fourth corner fixed by him in a southwesterly direction, not in a straight line, but following the ridge, a distance of 265 poles. Culton ran a straight line from the fourth corner fixed by him, but changed the-bearing 10 degrees and extended the distance to 283. poles. He reached the same point as Queen, however, for the fifth corner. W. H. Mattingly, who also surveyed the land for appellees, but whose map is not in the record, fixed the fifth corner at the same location. His third and fourth lines coincided approximately with the lines as surveyed by Queen. The fifth line is the only one which affects the land in dispute. No two of the surveyors agree upon the location of the sixth corner. The fifth line of the survey reads thus in the original certificate upon which the patent was issued: \\\"Thence S. 55 W. 400 poles passing at. Ed. Sizemore's Roekhouse to a stake on the divide between Little Stinnett fork, Little Laurel fork and the Trace branch of' Lambs Tongue Hollow of Main Laurel fork.\\\" It is appellant's contention that the last part of this call mentions a monument which controls the line, and it therefore disregards the reference to Ed Sizemore's rock-house and alters the bearing and distance of the line and runs straight from the fifth corner to the top of the divide between the three water courses referred to in the call. Queen's fifth line, instead of running S. 55 W. 400 poles, runs S. 20 W. 224 poles, and passes Ed Sizemore's rockhouse at a distance of more than one-fourth of a mile. Culton followed the bearing called for in the original certificate of survey, but he shortened the distance to 215 poles and fixed the sixth corner at a point on the divide between Big and Little Laurel forks. . Tbe line as run by Culton excludes tbe land in controversy from tbe Sizemore and Gibson patent, No. \\u202244844.\\nIn 1890, J. L. Lewis, a surveyor, was employed by one of appellant's predecessors in title to locate this patent. He located tbe fifth corner at the same point fixed by Culton, Mattingly, and Queen. He ran the fifth line to Ed Sizemore's rockhouse following the bearing called for in the original certificate of survey, and made that the sixth corner to the survey. He then interpolated a new line running from this location to the top of the divide between Little Stinnett, Little Laurel, and Lambs Tongue branch, but, in order to do this, it was necessary to alter the bearing almost 90 degrees. He then closed the survey in the same manner as the appellant's surveyor. The patent as located by Lewis would include the land in controversy\\nAppellant insists that it was the manifest intention \\u2022of the original surveyor to reach the monuments mentioned in his certificate of survey, and that both courses and distances must yield, where necessary, in order to reach these monuments designated as corners. It is a well-recognized rule that where natural objects are called for in a survey and they cannot be reached when the lines are run according1 to the courses and distances called for, the latter must give way to the natural objects. Fore v. Gilliam, 256 Ky. 591, 76 S. W. (2d) 893; Asher v. Fordson Coal Co., 249 Ky. 496, 61 S. W. (2d) 20; Fordson Coal Co. v. Osborn, 245 Ky. 539, 53 S. W. (2d) 937; Scott v. Thacker Coal Mining Co., 191 Ky. 782, 231 S. W. 498; Williams v. Brush Creek Coal Co., 149 Ky. 188, 148 S. W. 372.\\nIt is a rule equally well established that mistakes in the calls of a patent may be corrected by referring to the original plat, and, in extending boundaries, attention should be given to. the figure of the survey in the absence of any other controlling* -influence. Combs v. Jones, 244 Ky. 512, 51 S. W. (2d) 672. And, where it appears, as in the present case, that the surveyor did not actually run the survey out on the ground, but located the lines by protraction, the plat made by the surveyor will afford strong evidence of the shape and size of the survey. Swift Coal & Timber Co. v. Sturgill, 188 Ky. 694, 223 S. W. 1090; Bryant v. Strunk, 151 Ky. 97, 151 S. W. 381, 383; Strunk v. Geary, 217 Ky. 113, 288 S. W. 1053. In Bryant v. Strunk it was said: \\u2022\\n\\\"It is true the rule is that the calls of a patent for' course and distance must give way to known or established objects found on the ground. But, after all, the rules that have been laid down on this, subject are for the purpose of establishing the actual location of the lines and corners of the original survey, and they have little application where the' lines were not run out in the original survey, but were simply laid down by the surveyor by protraction as was evidently the case in the patent before' us. When the lines were not in fact run, we have' little to guide us except the calls of the patent and the plot of the land accompanying the original survey. The' plot accompanying the original survey is potent evidence in the determination of the general shape of the tract of land intended to be patented. To follow the lines of the other surveys in the case before us on the east to John Murphy's survey on. the west to King's survey, and then on around with still other surveys would be to make this tract include five times as much land as the grantee paid, for and give the tract an entirely different shape from that which was evidently contemplated in the-grant. ' '\\nIn the instant case, the map of the Sizemore and Gibson patent made by appellant's surveyor is wholly dissimilar in shape and size to the plat made by the original surveyor, and the survey made by him contains approximately three times as much land as the patent calls for. Furthermore, Ed Sizemore's rockhouse referred to in the patent is a monument, as is the divide between the three streams mentioned in the same call,, and it is wholly ignored in appellant's survey. The survey under which appellant claims is admittedly uncertain, and it has been held that in case of doubt in. establishing disputed lines, that construction which is most against the party claiming under an uncertain survey should be adopted. Staley v. Richmond, 236 Ky. 11, 32 S. W. (2d) 546; Bryant v. Terry, 189 Ky. 489, 225 S. W. 242.\\nThe lower court fixed the fifth line of the Sizemore and Gibson patent by following the bearing called for in the certificate of survey and passing Ed Sizemore's rockhouse. The line fixed by the court coincided approximately with the line claimed by the appellees to be the correct one, and excluded the land in controversy from the' Sizemore and Gibson patent. It is unnecessary to determine the correctness of the.court's finding relative to the other lines of the survey, since the establishment of the fifth line disposes of the controversy.\\nIn addition to the testimony of the surveyors, there is in the record the testimony of a number of neighbors, who claim to be familiar with the disputed line, which tends to support the chancellor's finding.\\nThe judgment is affirmed. \\u2022\"}"
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+"{\"id\": \"5247975\", \"name\": \"Stidham et ux. v. O'Neal's Adm'r\", \"name_abbreviation\": \"Stidham v. O'Neal's Adm'r\", \"decision_date\": \"1936-02-21\", \"docket_number\": \"\", \"first_page\": \"757\", \"last_page\": \"762\", \"citations\": \"262 Ky. 757\", \"volume\": \"262\", \"reporter\": \"Kentucky Reports\", \"court\": \"Kentucky Court of Appeals\", \"jurisdiction\": \"Kentucky\", \"last_updated\": \"2021-08-11T00:33:59.415716+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Stidham et ux. v. O\\u2019Neal\\u2019s Adm\\u2019r.\", \"head_matter\": \"Stidham et ux. v. O\\u2019Neal\\u2019s Adm\\u2019r.\\n(Decided Feb. 21, 1936.)\\nTHOMAS T. COPE and J. L. STIDHAM for appellants.\\nWILLIAMS & ALLEN for appellee.\", \"word_count\": \"1609\", \"char_count\": \"9113\", \"text\": \"Opinion op the 'Court by\\nJudge Thomas\\nAffirming.\\nThis is the second appeal of this ease to this court. Our first opinion was rendered in one of the same style reported in 245 Ky. 667, 54 S. W. (2d) 54. It states the facts constituting the foundation for the litigation and which need not be repeated here. It is disclosed therein that the litigation was instituted by appellant J. C. Stidham and his wife against the administrator of James K. O'Neal to recover $1,300 alleged balance due them for board, lodging, etc., rendered to O'Neal during his lifetime for a period of eight years prior to his death, and which services were rendered at his request and for which he agreed and promised to pay plaintiffs. At the first trial of the action there was a verdict in favor of the defendant, followed by a judgment dismissing the petition; but it was reversed in the referred to opinion for errors therein set out. After the filing of the mandate in the trial court, a second trial was had therein at a special term of the Breathitt circuit court, which convened on the 20th day of May, 1935. Prior thereto, and following the filing of the mandate, some amended pleadings were filed conforming to our first opinion. The trial of the case, which began on the first day of that' special term, again resulted in a verdict for defendant, and plaintiffs' motion for a new trial having been overruled,' they prosecute this appeal re lying fo\\u00edr a reversal on a number of alleged errors, but we are precluded from considering any of them that are founded and based upon the evidence offered, . heard, or rejected, for reasons hereinafter stated. All other errors, not emanating from such source are clearly without merit and are not seriously pressed on this appeal.\\n'After perfecting this appeal in this court, appellee's counsel entered motion to strike the bill of evidence and the bill of exceptions from the record because not filed in time. That motion was passed to a hearing upon the merits, and it presents the first question for our determination. If it should be sustained (and we have concluded that it should be), then there is nothing left for our consideration except the question of whether the pleadings in the cause support the judgment, and which practice has so universally been followed and has become so thoroughly established as not to require a citation of our cases so holding, but the cases hereinafter referred to constitute part of them.\\nOn the fourth day of the special term, and after the verdict had been returned and judgment rendered dismissing the petition, plaintiffs filed their motion for a new trial which was overruled twenty days thereafter, or on the twenty-fifth day of that term, and in the same order plaintiffs were given \\\"until 8th day of (regular) July Term in which to prepare and file his (their) Bill of Exceptions.\\\" That (July) term of the court began on the second Monday of that month and continued twenty-four judicial days. On its eighth day an order was made (but upon whose motion^ if any one, does not appear) extending the time within which the bills might be filed until the 12th day of August, which was the twentieth day of that term. Four days thereafter and on the twelfth day of the regular July term (and on the twentieth day of that month) that purported extending order was set aside and held for naught upon the stated grounds that it was entered by mistake or oversight and without directions of the court to do so. No lobjections' or exceptions were taken to that order setting aside the previous one, and no effort thereafter was made to nullify or in any manner dispense with it. Giving to it its proper verity, and in the' abseiice of any attempted manifestation of error on the part of the court in entering it (the one setting aside the extending one and holding it for naught), we are compelled to determine the question as though no second extending order had ever been entered.\\nIn an effort to sustain the motion to strike, appellee's counsel argue (a) that the word \\\"until\\\" as contained in the phrase of the first extending order /until 8th day of July term\\\" for filing bills of exceptions and evidence, excluded the eighth day of that term and had the effect to terminate the extended period at midnight of the seventh day of the term, and (b) that if mistaken in argument (a), then under the facts of the record as above recited the tendering and filing of the exceptions on other days following the annulling order referred to was too late and that their motion to strike should prevail.\\nThat the argued effect of the word \\\"until/' as measuring time within which the performance of an act shall be made, is the correct one in some instances is clearly shown to be true by an extended annotation to the case of Henderson v. Edwards, an Iowa opinion reported in 191 Iowa, 871, 183 N. W. 583, 16 A. L. R. 1090, the annotation beginning on page 1094. In subsection II of the annotation the effect of the word as measuring the \\\"time for performance of acts connected with conduct of suit,\\\" is elaborately discussed, and it is shown that an overwhelming number of courts _ construe it as including the day to which the extension is made and that \\\"the numerical weight of authority holds that the word is inclusive when used under such circumstances. This ruling seems to be in accord with the popular understanding, for if one is given until a certain day to file a pleading, the average man would assume that filing it on that day would suffice.\\\" Among the states whose courts adopt and apply that rule, in the construction of court orders such as the one now under consideration, are Georgia, Kentucky, Maryland, Missouri, Montana, New York, Texas, Washington, Wyoming, and also the English courts; although five states\\u2014Alabama, Illinois, Indiana, Iowa, and Kansas\\u2014approve a different rule whereby the day to which the word \\\"until\\\" applies is excluded from the calculation.\\nAmong the Kentucky cases cited in the annotation as supporting the rule of including the day referred to are: Meadows v. Campbell, 1 Bush, 104; Louisville & N. R. Co. v. Turner, 81 Ky. 489; Nance's Adm'r v. N. N. & M. V. R. Co., 17 S. W. 570, 13 Ky. Law Rep. 554, 555; N. N. & M. V. R. Co. v. Thomas, 96 Ky. 613, 29 S. W. 437, 16 Ky. Law Rep. 706. Later iones in which the same interpretation was made are: Nave v. Riley, 146 Ky. 276, 142 S. W. 388, and Bullitt County v. Galion Iron Works & Manufacturing Co., 192 Ky. 803, 234 S. W. 609. Such extending orders usually state that the extension is made \\\"until and including\\\" the named day, and when so phrased, there can be no question as to its meaning. However, the majority rule gives the extending order the same effect whether it contains the words \\\"and including\\\" or mot, and which is done because it is \\\"in accord with the popular understanding, for if one is given until a certain day to file a pleading, the average man would assume that filing it on that day would suffice.\\\" We, therefore, conclude that argument (a) is without merit.\\nHowever, argument (b) appears to be sound and its upholding inescapable. Our opinions, without a single dissent, have construed the practice as outlined in the Code provisions, prescribing therefor, to be mandatory in the absence of some valid reason or excuse for a failure to follow them.* There is none attempted to be shown here. If the (order of the \\\"trial court in this case setting aside and nullifying the second extending order four days after it was made had been objected to and any reason shown why it should not be entered, or pointing out any error of the court in making it, so as to authorize us to review its action in that regard, we would then be in position to correct his action if found to be erroneous. But, as we have seen, no objection or exception was made to that nullifying order of the second extending \\u2022one, and since it is recited therein that the latter, was entered through mistake and oversight and without the directions of the court to make it, we are compelled to accept such recitations as true. When done, it clearly appears that the second extending order was never in fact directed by the court to be entered, either on its own motion or that of appellants. If no such motion or order was ever made, then the time under the prevailing rule, supra, in this jurisdiction expired at midnight on the 8th day of the regular July term, 1935, of the Breathitt circuit court within which plaintiffs might file their bills of evidence and exception, but which was not done until long after such expiration. The motion to strike them from the record is therefore sustained, and which, as we have herein-before stated, leaves only the sufficiency of the pleadings to sustain the judgment. Their sufficiency for that purpose is not questioned, nor does counsel for appellants make any response in this court to the motion which we have sustained.\\nWherefore, for the reasons stated, the judgment is affirmed.\"}"
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+"{\"id\": \"5311328\", \"name\": \"Berryman et al. v. Sidwell et al.\", \"name_abbreviation\": \"Berryman v. Sidwell\", \"decision_date\": \"1939-03-24\", \"docket_number\": \"\", \"first_page\": \"713\", \"last_page\": \"731\", \"citations\": \"278 Ky. 713\", \"volume\": \"278\", \"reporter\": \"Kentucky Reports\", \"court\": \"Kentucky Court of Appeals\", \"jurisdiction\": \"Kentucky\", \"last_updated\": \"2021-08-11T00:51:26.705021+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Berryman et al. v. Sidwell et al.\", \"head_matter\": \"Berryman et al. v. Sidwell et al.\\nMarch 24, 1939.\\nBenton & Davis, T. Stanley Clay and John H. Gardner for appellants.\\nD. L. Pendleton, Rodney Haggard and Harvey T. Lisle for appellee.\", \"word_count\": \"7226\", \"char_count\": \"40369\", \"text\": \"Opinion op the Court by\\nMorris, Commissioner\\nAffirming.\\nThis appeal' involves the question as to whether or not documents probated on July 11,1936, constituted the last will and testament of J. N. Bush, a bachelor, who died July 7, 1936, at seventy-seven years of age. His nearest relatives were a sister, the named appellee, and her son. Mrs. Sidwell's age is not given, but she was older than testator.\\nMr. Bush was a successful farmer, spending all his life upon a farm in Clark County. He and his sister had inherited some land from their father. Mr. Bush was a careful, prudent man, leading a very simple life, and by industry and thrift had gradually increased his real estate holdings, until the time of his first will they totaled 367 acres of more than average quality. He had accumulated personal holdings evidenced by Government Bonds, to the amount of $26,000.\\nMrs. Sidwel\\u00ed also lived in Clark County,- part of the time with her brother, and later some distance from his home. She was not as thrifty .as testator, since in some\\u00a1 way she let the real estate left her, pass from her hands, Her husband died some time in 1930. The testimony shows that she and her brother had not kept in close touch with each other since her marriage, which was more than forty years prior to the time of the trial.\\nThe proof does not show that any ill-feeling existed on the part of either toward the other. They just did not visit each other frequently, though in 1929 or 1930 the sister manifested an interest in her brother, and during his short stay in the hospital in 1930, where he had gone, as was said at her suggestion, she visited him as often as her health, means and opportunity permitted.\\nOut of the great mass of testimony there appears only one hint of any contrary feeling on the part of the testator toward his sister, and that came from Rev. Downey, who said that Mr. Bush spoke kindly of sister on all occasions, \\\"except one time he said: 'I hope when I am gone my sister will not interfere with my affairs. ' This is the only time he mentioned her in that way.\\\" There is no showing in the proof that the sister ever interfered in testator's affairs in any way, though she at one time made reference to certain provisions of the will as related to her.\\nIn July 1930, testator then suffering with asthma and anemia, was taken to the hospital, remaining about two weeks, receiving tonic treatment which improved him somewhat.\\nThe original will was executed on August 4, 1930. After providing for payment of debts and funeral expenses, testator bequeathed to his sister, $200; to her son, $2,000; to the son's two children, $100 each. lie bequeathed $100 to a cousin, and to William McGlothen, Ollie Miller and Jessie Clem, $100 each. To the last three, testator explained, \\\"because they have worked for me, and I make these bequests as a recognition of their faithfulness and kindness to me.\\\"\\nFollowing the bequests mentioned, testator devised and bequeathed the remainder of his estate in trust to the Citizens National Bank, to be used in establishing a Baptist Home for orphans on his farm. This trust was to continue until two county Baptist Associations might perfect plans for the organization and maintenance of the Home, whereupon the property was to be transferred to such organization. The testator expressed his desire that the Home be conducted in such manner as would permit the children to receive instructions in gardening, farming and domestic work, so they might become useful and self-supporting citizens. It was further provided that in case there resulted a failure to establish the home within two years, the estate should, be turned over to Clark County for the purpose of maintaining a Home for orphan children. It was also provided that a contract between testator and his tenant, Charles W. Berryman, expiring March 1, 1932, should not be disturbed. The trustee bank was nominated executor.\\nIn October 1934 testator, apparently using the greater portion of the proceeds from a sale of Grovernment Bonds, purchased the Curry farm, adjacent to his home, at approximately $83 per acre. Later, and prior to the execution of a codicil, the trustee bank ceased to function.\\nThe codicil, executed on November 24, 1934, recited that since the execution of the original paper, testator had paid to the sister $200, the \\\"legacy to her in said will is hereby revoked.\\\" Also that he had paid to his nephew the $2,000 provided in the original will, but same was not in satisfaction of the bequest, and he desired the sum to be paid him. He had paid to his cousin Annie Lawrence, and to Jessie Clem, $100 each; the original bequests were revoked. Testator expressed the \\\"expectation\\\" of paying before his death the other cash bequests, and if this happened any sum so paid should be credited to the extent of payment or gift.\\nTestator recited the interim purchase of the Curry farm, which together with his home place constituted \\\"the principal part\\\" of his estate; that the bank, named as executor and trustee, had passed out of existence, and in \\\"lieu of said bank,\\\" he named Andrew Dykes, Jilson Whitsitt, Gr. L. Wainscott, Charles W. Berryman, and W. F. Jones, all of Clark County, as trustees \\\"to take my residuary estate\\\" and to have the same powers and duties as had been theretofore granted to the bank.\\nHe reiterated that his estate was to be used for the purpose of maintaining on his land the Home for orphans, declaring that if for any reason the property should cease to be so used \\\"within the spirit of the. will,\\\" or upon failure of the Associations to perfect a workable organization, then Clark County should take over the estate and operate the -home, and it failing so to do, the property should revert and become a part of his estate.\\nHe again referred to a contract with Mr. Berry-man, saying that he had leased the farm to him until March 1, 1937, and desired the contract carried out, adding:\\n\\\"I have arranged with said Berryman that his lease shall not interfere with the construction of any buildings for or in connection with said Orphans' Home, if it is desired to erect same before the end of his term as tenant.\\\"\\nMr. Berryman was nominated executor without bond.\\nIt appears in the evidence that testator had, prior to the making of the 1931 will, prepared one for himself, though neither it nor its provisions are shown in the record. The will and codicil were prepared by different attorneys.\\nThe controversy between the parties arose upon the filing by Mrs. Sidwell, in the circuit court, a statement of appeal from the order probating the documents as the will of testator. She asked the court to annul the documents, on the ground developed later, that at the time of execution, testator was mentally incapacitated, and was unduly influenced.\\nAfter hearing proof (covering more than 800 pages) nine of the jury, under formally correct instructions^ signed a verdict declaring that \\\"the papers read in evidence are not the last will and testament of J. N. Bush, deceased,\\\" and judgment was entered accordingly, directing the county court to set aside the probating order. This was done and Mrs. Sidwell was appointed administratrix with the will annexed.\\nThe question for our determination is whether or not there was sufficient evidence of mental incapacity or undue influence to uphold the verdict of the jury, which if determined in the affirmative will answer the contention of appellants that the court erred in not sustaining motions made at the close of appellee's testimony, and after all testimony, to direct the jury to find for appellants. \\\"We shall refer to appellees here (appellants below) as contestants, and appellants here (appellees below) as eontestees.\\nCounsel for contestants argue that the only question presented is whether there was a scintilla of evidence of the lack of mentality, or of undue influence, in support of the jury's verdict for contestant. Counsel for eontestees argue that there was insufficient proof and suggest that, \\\"even if any question should have been submitted to the jury, the court had nothing on which to base this instruction as to undue influence.\\\" It is also argued that contestants were erroneously allowed to introduce incompetent evidence.\\nWe approach a brief discussion of the facts with, two self-evident propositions facing us. The questions; at issue were presented to the jury in well-worded instructions, and that jury which saw and heard the witnesses testify, by solemn verdict ' concluded that the papers presented did not constitute the will of testator. Whether they so found from a consideration of the evidence as to mental incapacity, or undue influence, or both, we have no means of knowing; however, we can only reverse if we find that the verdict is clearly and palpably against the weight of the evidence.\\nThe will and codicil were in evidence, and read to-the jury. We have held that if the will itself be \\\"reasonable, just and natural, it tends to establish capacity in the testator and to prove that it was freely and voluntarily made. If unnatural, inconsistent, or unjust in the disposition of the estate among the natural objects of testator's bounty, it tends to prove the contrary.\\\" Moran's Executor v. Moran, 248 Ky. 554, 59 S. W. (2d) 7; Walls v. Walls, 99 S. W. 969, 30 Ky. Law Rep. 948.\\nWe have written that if any of its provisions appear unnatural, the burden rests upon the propounders to give some reasonable explanation of its unnatural character. In Woodruff's Ex'r v. Woodruff, 233 Ky. 744, 26 S. W. (2d) 751, we quoted with approval from the Walls case, supra. In Guffy v. Gilliam, 213 Ky. 805, 281 S. W. 1024, 1025, and McGee v. Brame, 176 Ky. 302, 195 S. W. 473, we cited and quoted from the Walls' case, supra, as follows:\\n\\\"Incapacity opens the door to undue influence, and when opportunities for such influence are shown, and the favored devisees are the beneficiaries of a will unnatural in its provisions, to the exclusion of others having equal claims at least upon his bounty, very slight circumstances are sufficient to make the question of undue influence one for the jury.\\\"\\nWe also said in the Walls' case, supra:\\n\\\"Direct proof of undue influence can seldom be had. Like fraud, it must be proved ordinarily by circumstances, and, though each circumstance standing alone might be quite inconclusive, yet the effect of all the circumstances when taken together may be more convincing.\\\"\\nAside from the fact that the sister of testator was practically overlooked in disposing of his property by testator (which fact is not alone sufficient to invalidate the will), Jackson's Ex'r v. Semones, 266 Ky. 352, 98 S. W. (2d) 505, there are other features to be considered in surveying the documents, one that testator's plan to take care of orphan children under his trust seems to have been neither practical nor feasible.\\nIt is fairly well established by witnesses, some indirectly interested, and a few without show of interest, that Mr. Bush for many years had expressed a purpose to do something for orphan children; to do something for an orphans ' home; to see that orphan children were provided for. To one he said he hoped to help the Louisville Orphans' Home. In later years he indicated that he wanted to turn his home farm and other property over to some organization for the purpose of conducting an Orphans' Home. When he executed the original will he had in giltedge securities about $26,000, which, had he carried out his original idea, would have assisted materially in fulfilling his plans.\\nAfter it became known that testator had expressed the commendable intention to aid orphan children, there began more or less activity on the part of interested persons (perhaps indirectly) to aid him in carrying out some plan. In 1924 or 1925, testator's pastor called on him for a contribution to an intensive campaign then being conducted in behalf of the Church. Bather casually, as is claimed, the pastor asked Mr. Bush what he intended to do with his property if he \\\"were taken away.\\\" Testator replied that he had often thought of leaving it to the Orphans' Home. Later, the superintendent of the Louisville Home, and its enlistment man, had testator sign an agreement to the effect that he would give his farm to the Louisville Home for the care of orphans, \\\"preferably from the territory\\\" of the Associations named above. If it were not practical to build on the farm, then it was to be run as a dairy farm to go toward the support of the Louisville Home. There was a further consideration that the Home was to pay to Mr. Bush an annuity of $800 each year during his life; this writing took care of the Berryman lease.\\nThis proposal did not meet with the full approval of the officers of the Louisville Home; later they accepted it, but incorporated in the proposal a provision that the Home, in its discretion, might take charge of the fa cm, rent it for five years after the death of testator, for money consideration, and. then if the plan was not workable, the officers of the Home might sell and create an endowment fund for the Home. This plan fell through, because, as witnesses opined, \\\"the sale clause knocked it out.\\\"\\nPrior to the making of these proposals, at the instance and request of the officers, Mr. Bush visited the Louisville Home, the purpose being to have him see the working of the institution. While there, or soon thereafter, he said to the superintendent: \\\"I see why my plan won't work.\\\"\\nNevertheless, when he came to write the codicil to his will, after he had invested practically all his cash in the Curry farm, he so framed it that the Home would have no working capital. Witnesses, who were qualified on the subject, gave testimony as to the impracticability of operating an orphans ' home without funds behind the project. It was pointed out that the intention of the testator was to make the project a self-sustaining one. The impracticability of this was evident. It was equally as obvious that the two Associations, members of which were trustees, could not maintain the Home if any appreciable number of children were to be sustained.\\nThe evidence on this point is that complained of as being erroneously admitted over the objections of contestees. We think that it was competent, as tending to show that in the later years of his life, and at the time of making the will, and particularly the codicil, testator did not have the business acumen and ability to manage his affairs, attributed to him by numerous witnesses.\\nTestator, after bequeathing to his sister the sum of $200, gave to McGflothen, Clem and Jessie Miller, $100 each, explaining that the bequests were in recognition of faithfulness and kindness. It is shown in the proof that the parents of Ollie Miller had only lived on testator's farm a little more than one year (1907-08), at which time Ollie was only sixteen or seventeen years of age, though she did occasionally visit Mr. Bush during later years. Clem had worked for testator in the past. He did not' testify. McGrlothen's father was a tenant on testator's farm from 1913 to 1916, and again in 1920. The boy was under ten years of age when his parents left the place, and his father said that Mr. Bush had not seen much of him since 1917. The boy had not visited testa* tor often.\\nIt appears from the record that within four months after writing the codicil, March 25, 1935, Mr. Bush executed a deed conveying all his lands to the same persons who had been named trustees in the codicil, providing for the maintenance of the Home, reserving to grantor a life estate, but vesting the trustees with power to construct the Home and make improvements on the land during his life. If within a period of three years construction be not begun, or if at any time there was failure to use the property for maintaining an Orphans' Home, the estate was to revert to grantor and his heirs. No part of the cost of construction or maintenance of the Home was to be a charge on the land, and the trustees were prohibited from selling or encumbering the land. There was no conditional grant to Clark County, but it was provided that in certain contingencies, some other charitable organization might conduct the Home.\\nThe Berryman lease was taken care of in this deed. Following its execution the trustees began plans for building, perhaps getting as far along with the work as laying a foundation. Mr. Bush, though quite ill, was taken to the site to observe the corner stone laying services.\\nWhen we read the testimony relating to the mental quality of testator, there is, as is usual in such cases, a sharp conflict. It is impractical to go over the testimony in detail. Propounders of the will agree that at least after 1930, Mr. Bush was physically weak. He was taken to the hospital in July 1930. Dr. Young had been testator's regular physician, but on this occasion he was attended by Dr. Henry for two weeks, when, without being discharged, Mr. Berryman took testator home, as he says, because he could not sit up with him at night, but could help him if at home.\\nDr. Henry said that Mr. Bush was in a grave condition when he came to the hospital. He was very weak because of anemia, and a condition of senility; a weakening of both the body and the mind. \\\"He was in no condition to attend to any business when I saw him.\\\" Knowing his condition prior to 1928, that he was able to ride around, and look after his affairs, the doctor said the symptoms observed would account for his decline. He was not normal while at the hospital. He was very weak, apparently disorientated, unconscious of his surroundings; out of his bed a great deal, particularly at night. Asked an hypothetical question, based on circumstances then in proof, some of which will he referred to later, the physician testified that at the time he was at the hospital Mr. Bush was not mentally capable of making his will, or attending' to any business. The physician did not see Mr. Bush after he left the hospital, but he said unequivocally, that unless there was a radical change for the better, Mr. Bush was not qualified to transact any business in 1931 or in 1931. The proof clearly shows a change for the worse rather than for the better. Most all the witnesses so agree when speaking of testator's physical condition.\\nDr. Young said that Mr. Bush had suffered a broken leg fourteen years ago. The physician had waited on him then, and intermittently, though not frequently, up to and through his last illness. Mr. Bush asked the physician about going to the hospital, and he told him it would be all right. He went more into detail in regard to Mr. Bush's physical condition than had Dr. Henry, and said: \\\"In addition to anemia Mr. Bush suffered greatly from asthma; he had arthritis and a gouty condition. \\\" It was also shown that he had Bright's disease, which was \\\"highly progressive. The mind of a person suffering from this disease for ten or twelve years becomes affected.\\\" Dr. Young in answer to the pivotal question as to his ability in 1931 and 193d to know his property, relatives, duties, etc., said:\\n\\\"I would judge that he was. Of course, he never told me any of his business, but from a professional standpoint I never could see any difference in him and anybody else. I judge it that way; that his mind was sufficient to do business as he wanted to.\\\"\\nOther physicians testified for propounders, but as we read this evidence it does not appear to be of probative value from a professional standpoint. Dr. Clarke visited Mr. Bush once in 1933; called when testator thought he had suffered a fractured rib, though it developed to be nothing more than a bruise from a fall. He was there only a short while. Mr. Bush talked intelligently in describing how he had fallen. Asked the question, basing it on what occurred on the visit, and his \\\"acquaintance with and knowledge of him,\\\" he answered that he thought he had mental capacity, saying, however, that it had been \\\"probably some years\\\" prior to 1933, when he had seen Mr. Bush. _ He never discussed his business, property or relatives with him; only asked him some questions on the visit to ascertain the manner and extent of his injury.\\nAs to the lay witnesses, it appears from the record that those who testified as to Mr. Bush's good mental qualities, outnumber those who testified otherwise. These were friends, neighbors and relatives, and some of those were of the churches, or associations, interested to some extent in the plans of Mr. Bush. The attorneys who wrote the will and codicil also gave favorable evidence as to Mr. Bush's mental capacity.\\nIt is true, as said by counsel for propounders, that there is little showing by oral testimony of any irrational thing said or done by Mr. Bush, but it is apparent that after Mr. Bush returned home, after his stay at the hospital, his association with others was limited. A few of his old friends, some of his former tenants, and a few relatives visited him.\\nIt is not subject to dispute that after 1930 Mr. Bush grew gradually worse, physically, and demanded much attention, not of professional nature, particularly at night. Many who observed him after his return from the hospital, say he seemed not to pay any attention to anything. One witness said that he \\\"seemed to be like a man doped; took no interest in anything unless his attention was called specifically to some particular thing. ' ' Another said that when asked how his farm was getting along, \\\"he would say he didn't know anything about it.\\\" Up to the time testator began to gradually fail in health he_ had taken a great interest in his farm. One witness said that when Mr. Bush was asked questions he would \\\"just say 'yes' or mumble something.\\\"\\nIn 1935 it appears that there was a gathering of some sort on Mr. Bush's farm, perhaps a church picnic. Mr. Bush was taken out to the picnic in his night clothing. There was to be an announcement made relative to the Orphans' Home plan. One of the trustees, or a pastor, had the people assembled to go speak to Mr. Bush, but not to \\\"raise any conversation.\\\" One witness said he did not show any interest in what was going on; that he \\\"looked like a wild man.\\\"\\nThe foregoing is a trend of the lay testimony, and while it may be admitted that the'circumstances related, standing alone, would not clearly indicate lack of capacity, they are to be considered along with other proof, acts and circumstances. Such as it was, we are of the opinion that when so considered and with Dr. Henry's positive testimony, it was sufficient to take the ease to the jury on this subject.\\nMr. Berryman, mentioned in Mr. Bush's original will as his tenant, was named one of the Home trustees in the codicil, and also executor without bond. Mr. Berryman had been a tenant on the original farm in 1925 and 1926. Under his contract he tended crops on the shares, and shared the mansion house. Mr. Bush occupied a part of the house and paid Mr._ Berryman $4 per week board. He became a tenant again in 1928, and remained such until Mr. Bush died.\\nFrom 1928, up to the first of the year in which Mr. Bush went to the hospital, Mr. Berryman paid $1,000 per year rent, and Mr. Bush continued to board with him at $4 per week. For 1930 the board continued as before, but the rental was reduced to $850 per year. For 1931, and up to 1934, the rental was fixed at $800 per year \\u2014 Berryman to cut weeds and do the fencing, and Mr. Bush to pay $800 per year for his board and attention. For 1934 the same contract existed, and Mr. Bush was to pay Mrs. Berryman $10 per week additional for caring for him.\\nIn the fall of 1934 the Curry farm was bought by Mr. Bush, and a written contract was then made, by which Mr. Berryman was to have the use of more than 600 acres for the care of Mr. Bush and the payment of $300, or more, taxes on the farm. It was provided that if Mr. Bush died during the lease period, Mr. Berryman was to pay for the balance of the period at $1,200 per year. It is pointed out that at the time of the contract for 1935, which was for two years, Berryman was paying $1,400 per year for the Curry farm.\\nIt is shown that prior to Mr. Bush's trip to the hospital he had fairly-well managed his business; paying his bills, trading and signing his own checks. After he went to the hospital, and after his return home, he signed very few checks, and attended to little business. Mr. Berryman sold some bonds for Mr. Bush to pay off the bequest to his nephew, and also to pay for the Curry farm; Berryman signing all cheeks drawn against Mr. Bush's account, with the exception of a few which were signed by Mr. Bush for some especial reason, advanced by others than Mr. Bush.\\nIt is clear from the proof that Mr. Berryman fared well under Ms contracts with Mr. Bush. The record before us shows that in 1928 Mr. Berryman listed property to the extent of $654; in 1936 he listed more than $22,000 in property, but owed some on a tract of land, which reduced his worth to a little over $14,000. It is not insisted by counsel, nor do we find anything in the record to show any untoward or dishonest act on the part of Berryman. It may be that he was thrifty and saving, though it is made to appear that during his rental of the Bush farm there were several lean years. It is pointed out by counsel for contestants, that these facts, together with others, and with circumstances, show a \\\"revolutionary\\\" change in the affairs of Mr. Bush in later years, particularly after his return from the hospital.\\n_ The transactions, or some of them, have a tendency to indicate that Mr. Bush was not the careful prudent business man that he was in earlier years.\\nIt is admitted that there was no ill-feeling between Mr. Bush and his sister. Many witnesses say they never heard him mention her name, but say \\\"he did not make much fuss over anybody.\\\" Others say he was on friendly terms with her; seemed to be fond of her. It is clear that Mr. Bush was cognizant of his sister's poor financial condition.\\nIt will be recalled that just before the codicil was written Mr. Bush had purchased the Curry farm, thus reducing his personal holdings by the amount paid for it. Mr. Bush did not, under the terms of his rental contract, have an opportunity to accumulate much after 1930. The purchase of the farm and the failure of the bank would, of course, offer a reason for the codicil. Perhaps the payment of several of the bequests would be so. However, it is pointed out that in the codicil Mr. Bush names as trustees five persons, to some of whom he later had an introduction, and none of the five, save Mr. Berryman, were his friends or well-known to him.\\nWhen the time came to \\\"write the codicil, written by attorneys who had not written the original will, Mr. Bush made some suggestions, but a slip of paper containing the names of the trustees was handed to the attorneys. It does not appear that Mr. Bush selected them, or had a great deal to do \\\"with their selection.\\nMr. Bush had written a will prior to going to the hospital. He talked to Mr. Berryman about it; he told bim where it was, and later Mr. Berryman found it, but it was never produced, nor was any mention made of it, except Mr. Berryman said that Mr. Bush told him: \\\"I haven't got anything in it for you and your wife; I feel like I am paying you all as I go along, and feel like my property would do more good going to the_ orphan children.\\\" It is pointed out that at the time this statement was said to have been made, Mr. Bush was only paying $4 a week board, and Mr. Berryman was paying $800 or more rent.\\nIt is shown by Mrs. Berryman that after the visit to the Louisville Orphans' Home, Mr. Bush discussed the subject of disposition of his property with her and Mr. Berryman. She says he discussed it quite often, \\\"mostly around the fire with Charlie. He wanted it fixed so it would be there; he wanted it fixed so there would be no law suit; he wanted to get it fixed right.\\\"\\nMrs. Sidwell said her brother told her once, perhaps in 1933, that he had made a will. At this or another time, she said:\\n\\\"When he spoke to me he said he had a will and did I think anyone ought to have the right to do what they pleased with their property, and I told him 'yes, I suppose they did.' He asked me if I would break his will, and I told him 'no, I wouldn't,' and then says: 'Will $4,000 do you?' I said 'Yes,' and I think that about ended the conversation.\\\"\\nMrs. Sidwell says Mr. Berryman heard this conversation. It later becomes significant.\\nMrs. Sidwell said that later she met Mr. Berryman in town.\\n\\\"I asked him about my brother, about his health, and the conversation came about in some way, I don't know just how, but Mr. Berryman anyhow told me that my son would get $2,000, and I would get $200.00.' I said 'Well, that will help out,' but don't you remember my brother said, would $4,000 do me, and I said 'yes' and Mr. Berryman said he didn't remember it that way.\\\"\\nMr. Berryman testifying on this point says that he heard the conversation between Mrs. Sidwell and Mr. Bush, but he says \\\"and Mr. Bush says 'would $4,000 suit you all?' and Mrs. Sidwell answered, 'yes, whatever you do will suit us. ' \\\" As to the later conversation between Mrs. Sidwell and Mr. Berryman he says that he met her on the street, and the conversation was about as she detailed it, except as to the use of the words \\\"you\\\" and \\\"you all.\\\" He says further that at a later time when Mrs. Sidwell was at the brother's home he went into the room where Mr. Bush was, and he said:\\n\\\"She didn't understand this giving $4,000 thing', and said: 'How do you remember my saying it?' I said, 'I remember you saying, \\\"would $4,000 suit you all?\\\" ' He said, 'that's what I thought I said, would $4,000 suit you all?' \\\"\\nIn the original will Mrs. Sidwell's son had been given $2,000 and Mrs. Sidwell $200; the codicil recited payment to her and revoked the bequest. It also recited payment of $2,000 to the son, but he was to get $2,000 more under the terms of the will and codicil.\\nMr. Berryman was asked by counsel if at any time since he had known Mr. Bush he had \\\"ever in any way tried to influence him in the making of his will or any codicil to it?\\\" He replied:\\n\\\"Not in the will, I made some suggestions in the codicil. He discussed with me about Mrs. Sidwell, and I told him that I thought Mrs. Sidwell was the one should get his property, as she would take care of it and anyway Asa would get it after she was through with it.\\\"\\nThen followed this testimony:\\n\\\"Q. What property are you referring to? A. Some money he was going to give Asa.\\n\\\"Q. How much did he say he was going to give Asa? A. $2,000.\\n\\\"Q. Now is that the only suggestion that you made to him about the codicil or will? A. Yes, sir, that is the only one I can recall right now.\\\"\\nMr. Berryman also says that \\\"along toward the last years of his lifetime Mr. Bush told me he thought I knew more about his will than anybody else, and what he wanted to do, and he wanted me to do what I could to see that it was carried out.\\\"\\nCounsel who wrote the original will said that Mr. Berryman came to him to go to the residence and write the will. He also said \\\"another man\\\" had spoken to him about the making of the will, but he was sure this person was not representing Mr. Bush.\\nIt was said that the will was written out in the yard at the suggestion of Mr. Bush, because \\\"the house might have ears,\\\" yet we find that it was at times discussed, and later, after the codicil, announced publicly insofar as it dealt with the Home. It is shown that Mr. Berry-man was very active in seeing that the codicil was prepared. He went several times to the attorney who had prepared the will. On account of pressing business and other matters, the attorney advised Mr. Berryman to get other attorneys.\\nIn speaking of the codicil Mr. Berryman said that Mr. Bush had suggested seeing the attorney who had written the will, directly after the bank which was nominated executor had closed. The attorney advised Mr. Berryman, as he says, that \\\"it wouldn't make much difference about the bank closing.\\\" After the purchase of the Curry farm he went to the attorney again, who suggested that he see another attorney, a very satisfactory reason.for the suggestion being given by the first attorney. The attorneys preparing the codicil took notes at the bedside of Mr. Bush, and it was prepared in the office. Mr. Berryman was present in the law office, discussing it with counsel before it was completed.\\nOn cross-examination Mr. Berryman said that Mr. Bush was not wanting a codicil on account of the purchase of the Curry land, but because he wanted to change executors. He knew of no other change in his will that Mr. Bush wanted made. Counsel who wrote the first will said that Mr. Berryman said Mr. Bush wanted him named as executor, \\\"I don't know whether he said trustee then or not.\\\" This attorney also said that he went out without appointment at one time, shortly before the codicil was written, to discuss his will, but did not do so, since Mr. Bush was \\\"apparently suffering, in pain, because his breathing was quite disturbed; quite a rattle in his throat.\\\"\\nWhen testator executed the codicil it was witnessed Tby Mr. Berryman, Mr. Downey and Mr. Heflin, and the latter suggested that Mr. Downey \\\"read it so we will all know what it contains,\\\" and he \\\"read it out loud.\\\" It does not appear that Mr. Bush made any suggestions as to it .being read \\\"out loud\\\" or at all.\\nIt is noted that one of the five named trustees did not testify. Mr. Dykes and Mr. Whittsitt were called, but were not asked as to Mr. Bush's mental capacity. Mr. Jones testified from a psychological standpoint, and concluded that Mr. Bush was mentally sound, though he had only seen him once, and then for a brief time. This may not be significant, except to indicate that perhaps those named to carry out the trust (excepting Mr. Berry-man) had a slight acquaintance with Mr. Bush. One witness testified that Mr. Bush got him to bid on the Curry farm, which he bid in for him; that afterwards they brought him some papers to sign and he was able to sign them without help.\\nWe think we have given enough of the testimony to indicate that there was sufficient proof to carry the case to the jury on both questions. We are also of the opinion that the testimony was such as to justify the verdict rendered, or stated otherwise, that the verdict was not palpably against the evidence. In the case of Fry v. Jones, 95 Ky. 148, 24 S. W. 5, 6, 15 Ky. Law Bep. 500, 44 Am. St. Bep. 206, in speaking of the exercise of undue influence, we said:\\n. \\\"The question is how shall we detect its presence? Manifestly, this may best be done by that tribunal to which is afforded the opportunity of meeting the witnesses face-to face, and hearing them testify in any given case. Before such, the general bearing and conduct of all the witnesses, and especially the mental characteristics of those who are charged with having controlled another, become matters of personal observation and oversight. To a' jury of the vicinage, therefore, must be left in a large meas-sure the detection of this refined and subtle, though reprehensible, power. They may not determine its presence without evidence of it, but we may well hesitate to determine the absence of such evidence when in their wisdom it is found to be present.\\\"\\nHere the contest was not based on undue influence alone, but as well on the lack of mental capacity. A reading of opinions of this court demonstrates that if the claim be lack of testamentary capacity alone, the evidence should be more convincing than is required when the two grounds are coupled. Here we have evidence of Mr. Bush's gradually failing health after 1930., due to his affliction with several diseases, any one of which would weaken him, and one in particular, which, if its course runs for any length of time, has a great tendency to weaken the mental faculties.\\nIt is strenuously argued that since Mr. Berryman was not to directly benefit by the will or codicil, he could have no possible motive in exerting influence. We are not called upon to search for motives. As we read the record there is some evidence of a subtle influence on the part of those interested in seeing the farm turned over for an Orphans' Home. Some of the persons interested did not know Mr. Bush had a sister, or if so, that she-was practically penniless. In Stege v. Stege's Trustee, 237 Ky. 197, 35 S. W. (2d) 324, 330, we wrote:\\n\\\"The exercise of effort which produces the will or deed need not be by the beneficiary directly, but may be through agency (Stewart v. Douglas [235 Ky. 121, 29 S. W. (2d) 637], supra), or by a third person (Pinson v. Stratton, 220 Ky. 557, 295 S. W. 859), or by one to keep another from inheriting (Wall v. Dimmitt, 114 Ky. 923, 72 S. W. 300, 24 Ky. Law Rep. 1749, and subsequent appeals).\\\"\\nIn Stewart v. Douglas, 235 Ky. 121, 29 S. W. (2d) 637, after pointing out that a showing of opportunity to influence was not sufficient to set aside a will, we said:\\n\\\"While the above rule is well settled, it must not be overlooked that undue influence can rarely be shown by direct proof, but is a matter to be deduced from the facts and circumstances leading up and attendant on, the execution of the will. Among the circumstances that may be considered are mental incapacity, confidential relations between the testator and beneficiary or his representative, active participation by the beneficiary or his agent in the preparation of the will, the exclusion of near relatives, and the result accomplished. Bradford v. Kinney, 216 Ky. 348, 287 S. W. 921; Pry v. Jones, 95 Ky. 148, 24 S. W. 5, 15 Ky. Law Rep. 500, 44 Am. St. Rep. 206; Lisle v. Couchman, 146 Ky. 345, 142 S. W. 1023; Yess v. Yess, 255 Ill. 414, 99 N. E. 687; Chappell v. Trent, 90 Va. 849, 19 S. E. 314; 28 R. C. L. 146.\\n\\\"When we consider the result, and Mr. Stewart's active and persistent efforts in its accomplishment, in the light of all the attendant circumstances, we are constrained to the view that the evidence of undue influence was sufficient to authorize the submission of that question to the jury, and to sustain the verdict.\\\"\\nWe have examined the authorities cited by counsel for contestees as upholding their contention. That examination discloses that such may be easily distinguished on facts from the case at bar. Some deal with the question of lack of capacity; some with the matter of exercise of undue influence, and others with both. They are not controlling. In cases dealing with the questions before us, experience has shown that no two can be said to be alike. We must take the facts as they appear in the case under consideration, and apply the settled rules of law as we find them. We have held that in determining the issue of undue influence a jury might take into consideration the age of testator, evidence of his physical condition as to enfeeblement, likely to impair the mental faculties. Duval v. Duval, 249 Ky. 186, 60 S. W. (2d) 351.\\nUnder our law the verdict of a jury in a will case is controlled by the same rules as apply to a jury's verdict in any civil case. We are therefore to determine by these standards whether in the case before us the evidence presented was sufficient'to take the case to the jury, and to furnish substantial support for the jury's conclusion; as measured by these rules, laid down in numberless cases, it is our opinion that the evidence on both questions presented in issue, was of sufficient and substantial nature to sustain the attack made upon Mr. Bush's will. While juries should not be permitted to set aside a will upon mere remote or speculative evidence, because the terms may not be in accord with their ideas of propriety, and equality, it is equally as true that this court is not authorized to substitute its judgment for that of the jury, where there is evidence of a substantial and probative nature to support the verdict. Langford's Ex'r v. Miles, et al., 189 Ky. 515, 225 S. W. 246.\\nThe conclusions we have reached obviate the necessity of passing on the motion to strike from the files an answer filed in this court on behalf of Mrs. Sidwell.\\nJudgment affirmed.\"}"
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+"{\"id\": \"5314318\", \"name\": \"Walker, Sheriff, v. Commonwealth et al.\", \"name_abbreviation\": \"Walker v. Commonwealth\", \"decision_date\": \"1939-06-16\", \"docket_number\": \"\", \"first_page\": \"198\", \"last_page\": \"206\", \"citations\": \"279 Ky. 198\", \"volume\": \"279\", \"reporter\": \"Kentucky Reports\", \"court\": \"Kentucky Court of Appeals\", \"jurisdiction\": \"Kentucky\", \"last_updated\": \"2021-08-10T20:53:49.700678+00:00\", \"provenance\": \"CAP\", \"judges\": \"J. J. Tye, Judge.\", \"parties\": \"Walker, Sheriff, v. Commonwealth et al.\", \"head_matter\": \"Walker, Sheriff, v. Commonwealth et al.\\nJune 16, 1939.\\nJ. J. Tye, Judge.\\nG. W. Hatfield for appellant.\\nStephens & Steeley for appellees.\", \"word_count\": \"2853\", \"char_count\": \"16741\", \"text\": \"Opinion op the Court by\\nJudge Thomas\\nAffirming.\\nAt the regular 1937 election the appellant and one of the defendants below, Gr. C. Walker, was elected sheriff of McCreary county, qualifying and taking the office on the first Monday in January, 1938. One of the ap pellees and sole plaintiff below, T. P. Roundtree, was tbe regular elected sheriff of the county for the preceding term, which expired on the same day that Walker qualified. Upon retiring from office he executed the necessary bonds required by law to qualify him as tax collector of uncollected taxes for the last year of his term, which was 1937. One of the defendants and also an appellee, \\\"Cincinnati, New Orleans and Texas Pacific Railway Company,\\\" during and prior to 1937 owned and operated a railroad traversing McCreary county, Kentucky, and also some of its subordinate governmental divisions or agencies supported by taxation. The state revenue department during and prior to that year was the assessing agency of its property and especially its franchise for the purpose of taxation. The company had made, during the year 1937, the required reports to that department whereby it might calculate and certify to the correct assessment for that year. But for some cause, not disclosed by the record, it did not furnish or complete its assessment before the first Monday in January, 1938, when the personnel of the office of sheriff of the county was changed as indicated. That duty on its part was not done until a later date, the record not disclosing when.\\nUpon the filing of the assessment so made by the Revenue Department with the State Auditor the latter certified the amount apportioned to McCreary county and its various governmental subdivisions to the county court clerk of the county, as required by law, and whose duty it was to certify the various amounts, so furnished to him by the auditor, to the proper officer for collection. In the meantime a controversy arose between the outgoing and the incoming sheriff as to who had the right to collect the taxes due from the Railway Company as per the belated assessment .supra, amounting to $28,-875.13. About that time the same question arose in Muhlenberg County, Kentucky, and it was submitted to the Attorney General of the Commonwealth who gave an opinion that the language of Section 4135 of the 1936 Revision of Carroll's Kentucky Statutes \\u2014 after the amendment made by chapter 129, page 438 of the 1928 Acts \\u2014 was somewhat ambiguous and more or less doubtful as to whether that amendment, giving the outgoing sheriff the right to collect uncollected taxes for the last year of his term following its expiration, embraced uncollected taxes, the bills or certificates of which had not been delivered to him before the expiration of,his term.\\nUpon the delivery of that opinion the legislature was holding its first 1938 special session, and in order to make Section 4135 clear and explicit on the point indicated, and to remove the doubt that the attorney general had expressed, it enacted chapter 36 of the acts of that session, which is on page 1117 of the published acts of the regular, the first and the second special sessions of that year. That amendatory act incorporated in the original Section 4135 which it amended, following these words in the original section: \\\"shall keep in his possession all unpaid tax bills and shall collect and account for same as provided by law,\\\" these additional words: \\\"together with any and all other taxes due upon the levy for the preceding year, whether certified prior or subsequent to his qualification as such collector. ' ' It furthermore made the amendatory act retrospective and declared an emergency for its immediate taking effect, because of the apparent hiatus in the office of the collector of that class of taxes on account of the attorney general's opinion. With the situation thus confused both the outgoing and incoming sheriff of McCreary county claimed the right to collect the tax from the Railway Company, and each demanded payment thereof to him. It declined to pay either until the question could be judicially determined \\u00a1.whereupon the plaintiff and appellee \\u2014 who was the outgoing sheriff \\u2014 filed this declaratory .judgment action against his successor and the tax payer, seeking a determination of the question as to who had the right to collect the tax.\\nPlaintiff contended in his petition that he had the right to do so and to receive the commissions therefor, and he furthermore sought to recover from the tax payer (Railway Company) the penalties and increased interest prescribed for by Section 4091 against a delinquent tax payer. Walker answered denying the right of plaintiff to collect the tax or his right to any of the commissions therefor, and himself claimed the right, under \\u00abthe 1928 act, to collect the tax and receive the commission therefor. He also made his pleading a cross petition against the Railway Company seeking the recovery of the penalty and interest the same as was done by plaintiff in his petition. All affirmative allegations in Walker's answer and cross petition were by agreement controverted of record, and the cause was submitted to the court, which rendered judgment sustaining the right of the outgoing sheriff (Roundtree) to collect the tax and to receive the commission therefor, and dismissed Walker's cross petition. The judgment also relieved the defendant Railway Company from paying the statutory penalty and extra interest because of the conditions hereinbefore outlined.\\nFollowing that opinion the Railway Company paid its taxes as adjudged. Walker prosecuted this appeal therefrom without superseding the judgment and he made Roundtree, the outgoing sheriff, and the Railway Company appellees. The former (Roundtree) sought in this court a cross appeal against his co-appellee, Railway Company, seeking thereby to obtain a review and reversal of the judgment insofar as it relieved the Railway Company of the payment of penalties, etc.; but that motion was overruled upon the ground that a cross appeal does not lie in favor of an appellee against a coappellee. See State Bank of Stearns v. Stephens, 265 Ky. 615, on page 628, 97 S. W. (2d) 553, and City of Henderson v. Redman, 185 Ky. 146, 214 S. W. 809, 7 A. L. R. 346.\\nThe questions for determination are those presented by plaintiff in his petition and by appellant in his answer and cross petition filed in the trial court. They are: (1) Whether or not Section 4135, as first amended by the 1928 act, embraced, as uncollected taxes which the outgoing sheriff might collect by qualifying himself for the purpose, assessments that had not been certified to the outgoing sheriff and was not in his possession at the time his term of office expired, but which nevertheless was a tax due to be collected for the taxing year (1937) which was the last year of Roundtree's term; if question (1) should be answered in the negative, then (2) whether or not it was competent for the Legislature to retrospectively provide by the 1938 amendment for the collection of the tax due upon such unreported assessment, by the outgoing sheriff, notwithstanding the original section before the amendment failed to do so; and (3), if question (2) should be answered in the affirm ative, did the retrospective amendment violate the provisions of Section 161 of our Constitution by reducing the compensation of appellant \\u2014 as the incoming sheriff \\u2014after his election and after his installation in office? We will determine those questions in the order named.\\n1. The original section (4135) as first enacted in, 1928 prescribed that an outgoing sheriff \\\"shall keep in his possession all unpaid tax bills and shall collect and account for same as provided by law,\\\" and giving hipa until the first day of June following his retirement in which to make such collections. It is argued by counsel for Walker that the quoted language from the section before its amendment limited the right of collection of the outgoing sheriff to only tax bills and certificates which were \\\"in his possession\\\" when his successor qualified, and that the quotation from the original section before the 1938 amendment did not confer the right on the retiring sheriff to collect any taxes, the bills or certificates of which he did not have in his possession when he retired; but that the incoming sheriff had the right to make the collection and to receive the commission for taxes so conditioned, although when collected they became a part of the annual revenues for the preceding and last year of the outgoing sheriff. The attorney general seems to have at least been doubtful, but leaning toward the same interpretation, and because of which the 1938 amendment was enacted.\\nIt is our conclusion that the statute before such amendment embraced taxes conditioned as that involved here. It must be admitted, however, that the language of the section before the amendment is somewhat clouded, but it should not be forgotten that the purpose of the legislature in enacting the original section in 1928 was to take care of lost commissions of the outgoing sheriff as collector of taxes due to the fact that the date of delinquency in the payment of taxes had been deferred by various legislation to a later date and beyond his term and to compensate for such losses of commission the statute conferred the superior right on them to collect all outstanding and uncollected taxes for the last year of their term.\\nIn view of that purpose it is difficult to conclude that the legislature intended to exclude from the provisions of the 1928 act any uncollected tax, due upon assessments for the year immediately preceding the commencement of a new term, solely because the assessment and fixation of the amount of tax had been delayed and the certificates and tax bills therefor had not been put .in possession of the retiring sheriff on the date of the expiration of his term. Neither do we conclude that the language of the section before the 1928 amendment necessarily supports that interpretation. \\\"Shall keep in Ms possession all unpaid tax bills ' ' does not necessarily mean that the tax bills referred to must have been in tbe possession of the retiring sheriff at the time Ms term of office expired. It is equally susceptible to the interpretation that when the tax bills were made out for the unpaid taxes, whensoever done, the one who should take, keep and collect them would be the retiring sheriff and not the incoming one.\\nThe language itself does not exclude the latter interpretation, and which is in recognition of the clear purpose of the legislature in enacting the statute. It evidently had in mind the maxim that \\\"the law regards that as done which ought to have been done.\\\" It regarded, no doubt, that any particular assessment, because of unforeseen delay, would constructively be in the possession of the proper collector of the tax in whose possession it should have been delivered beforehand, and that the delayed delivery of assessments should not be given the effect to exclude the right of collection from the outgoing sheriff, by creating a distinct class of taxes for collection without providing a collector therefor. No such intended omissions are to be indulged in the construction of statutes as long as there is any other possible avoiding interpretation. Our conclusion on this question could be rendered more convincing if the disposition of the case absolutely required it; but, for reasons hereinafter stated, it is unnecessary that it should be done, and because of which we will pass to a consideration of question (2).\\n2. The 1938 amendment was and is remedial. It is not forbidden as ex post facto legislation, since it does not make acts and conducts committed before its passage criminal. It purported to be and is purely of retrospective operation which it is competent for the legislature to enact in all cases wherein vested rights are not affected. As we shall later see, no unalterable vested right of the incoming sheriff to collect the involved tax and to receive the commission therefor existed at the time of his installation in office or at any time subsequent thereto. That such legislation may be enacted is upheld by a number of domestic cases cited in Key Number System 263 under the title of Statutes in Volume 17 of West's Kentucky Digest \\u2014 the Key Number appearing on page 426 of that volume. See also Durrett v. Davidson, Sheriff, 122 Ky. 851, 93 S. W. 25, 29 Ky. Law Rep. 401, 8 L. R. A., N. S., 546, and also Kentucky Union Company v. Kentucky, 219 U. S. 140, 31 S. Ct. 171, 55 L. Ed. 137, as especially applicable to remedial legislation. The case of Heath v. Hazelip, 159 Ky. 555, 167 S. W. 905, is also in point as well as the cases of Henderson & Nashville Railroad Company v. Dickerson, 17 B. Mon. 173, 66 Am. Dec. 148, and Maverick Oil & Gas Company v. Howell, 193 Ky. 433, 237 S. W. 40. We, therefore, conclude that the retrospective provisions contained in the 1938 amendment to Section 4135 in no wise conflicts with any provisions of our constitution, provided it does not impair vested rights, which we are convinced it does not do, as will appear in our later discussion and determination of question (3), to which we will now direct our attention.\\n3. It is claimed by appellant and so argued by his counsel that he had the right under the statute before the 1938 amendment to collect the involved taxes at the time _ of his induction in office, and that he could not be deprived of that right by subsequent legislation, since the effect of the deprivation would reduce his compensation by the amount of the commission that he would earn in doing so. But the trouble with that contention is, that in construing Section 161 of the Constitution we have held, in numerous cases, that the section did not forbid the taking away from an officer duties that were imposed upon him at the time of his assuming office, and for the performance of which he received special fees or compensation, upon the ground that the statute deprived him of the special compensation, resulting from relieving him from the performance of duties. Some of such cases are Purnell v. Mann, 105 Ky. 87, 48 S. W. 407, 49 S. W. 346, 50 S. W. 264, 20 Ky. Law Rep. 1146, 1396, 21 Ky. Law Rep. 1129; James v. Duffy, 140 Ky. 604, 131 S. W. 489, 140 Am. St. Rep. 404; Carl v. Thiel, 211 Ky. 328, 277 S. W. 485; Webster County v. Overby, 240 Ky. 461, 42 S. W. (2d) 707, 709, and others referred to in \\\"those opinions.\\nIn the last cited case in passing upon the question we said: '1 The General Assembly by enactment may relieve an officer in office of a statutory duty or duties, and his compensation or fees therefor will cease without at all involving a change of compensation within the meaning of Section 161 [of our Constitution], supra.\\\" The opinion, in support of that statement, cites the other cases we have inserted, and also that of Coleman v. Hurst, 226 Ky. 501, 11 S. W. (2d) 133. Therefore, no vested right of plaintiff was interfered with by the 1938 retrospective amendment, and its provisions placed the right of collecting the involved tax in the hands of the retiring sheriff, Roundtree.\\nAnother question argued in brief, is whether or not the court erred in relieving the Railway Company of the payment of penalties and extra interest? It is quite probable that in the circumstances the court was justified in arriving at that conclusion; but, whether so or not, the question is not presented on this appeal for our determination. The court, as we have held, properly adjudged that Walker, who is the sole appellant here, possessed no rights that he was entitled to assert in this action and properly dismissed his cross petition. He, though possessing no right, is the only one attempting to raise the issue as to the propriety of the court's judgment in so relieving the Railway Company. Round-tree, the successful litigant below, could have raised the question had he prosecuted an appeal from the judgment, but he failed to do so. His effort to place himself in an attitude to insist upon a reversal of that portion of the judgment \\u2014 -by endeavoring to prosecute a cross appeal \\u2014 was and is without effect, since, as we have seen, his attempted cross appeal is not maintainable against his co-appellee. Therefore, we repeat that the question is not here for our determination and, of course, it will not be undertaken.\\nHaving concluded that the judgment was proper on all of the questions presented by the appeal, it follows that it should be and it is affirmed.\\nThe Whole Court sitting.\"}"
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+"{\"id\": \"5780547\", \"name\": \"Claunch v. Commonwealth\", \"name_abbreviation\": \"Claunch v. Commonwealth\", \"decision_date\": \"1926-09-28\", \"docket_number\": \"\", \"first_page\": \"700\", \"last_page\": \"703\", \"citations\": \"215 Ky. 700\", \"volume\": \"215\", \"reporter\": \"Kentucky Reports\", \"court\": \"Kentucky Court of Appeals\", \"jurisdiction\": \"Kentucky\", \"last_updated\": \"2021-08-10T19:34:53.018340+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Claunch v. Commonwealth.\", \"head_matter\": \"Claunch v. Commonwealth.\\n(Decided September 28, 1926.)\\nERROL DRAFFEN for' appellant.-\\nFRANK E. DAUGHERTY, Attorney General, and GARDNER K. DYERS, Assistant Attorney General, for appellee.\", \"word_count\": \"943\", \"char_count\": \"5485\", \"text\": \"Opinion of the Court by\\nJudge Sampson\\nAffirming.\\nAppellant, Claunch, insists that the judgment in this -ease should he reversed for the following reasons: (a) Insufficiency of the affidavit upon which the search warrant was issued and the evidence obtained; and (b) there was not sufficient identification of the property found under the search warrant with that stolen from Mercer county of which theft apppellant was charged, to sustain the indictment. He was convicted of petit larceny and his punishment fixed at eight months in the county jail. Briefly, the facts are these: Mercer county maintained a construction crew for highway work and had a camp on a certain county road. At that camp it had, among other things, machinery, tools, gasoline and oil. On Friday evening, the 3rd of July, the work was adjourned over until the following Monday. While the men were absent a large quantity of gasoline .was taken from the tank at the road camp and a smaller quantity of engine oil was carried way. A container and some wrenches were also missing. The loss was not discovered until Monday and there was no evidence that showed just when the theft was committed. On Monday an affidavit was filed with the county judge for a search warrant to search the premises of appellant, Claunch. A search was made and much of the property, at least property of like description, was found in or near his bam hidden under hay. The affidavit is assailed as insufficient to support the search warrant, and if' that be true then practically all the evidence for the Commonwealth heard at the trial would be incompetent. The affidavit states that \\\"Affiant believes and had reasonable grounds to believe\\\" that the stolen property of the county was, on the premises of appellant, giving the nature and value of the stuff. The affidavit then proceeds: \\\"The grounds and foundation and belief of affiant are that said goods were taken from the camp of said road crew last Friday night and that Friday evening; a few hours before said goods were taken. John Claunch. Orville Devine and Oscar Bailey were at said camp and were seen to examine said barrels out of which said gasoline and oil were taken by turning the faucets of said barrels: these fellows were all in the same car that evening and the same car that they were in was seen near the camp from which the oil was taken in the night Friday night and the skeeter car was seen near the place where the oil was taken. ' '\\nThe location of the Claunch premises is also set forth in the affidavit. Appellant insists that the affidavit only presents the \\\"belief\\\" of the affiant but does not state facts sufficient to constitute probable cause for the issual of a search warrant.\\nThe fact of tbe theft is stated in the affidavit and the nature and quantity of the goods were also set forth with particularity. We have held that an affidavit, in order to be sufficient to support a search warrant, must state facts and not beliefs or conclusions. The facts stated must be sufficient to produce in the mind of a reasonable person the belief that the accused has in his possession the thing sought to be found by the search. The statement that the witness swearing to the affidavit believes or has reasonable grounds to believe that he has in his possession the thing sought to be found by the search warrant, is not alone sufficient to justify the issual of a search warrant. Taylor v. Commonwealth, 198 Ky. 728. In the instant case the affidavit contains the statement that the property of the couuty had been stolen from the road canup. on a certain night and that'appellant and two other persons were at the camp a short time before the theft, examining the gasoline and oil barrels and turning the faucets; that these same persons were seen in a car together at or near the place where the goods were stolen about the time the theft was committed. These facts, it seems to the court, were sufficient to induce the belief in the mind of a reasonable person that appellant, Clanneh, had taken -the- goods sought to be found and to justify the issual of the search warrant. In other words, the facts- presented constitute probable cause for the issual of the search warrant. ' That being true, the warrant was properly issued and the evidence obtained under it was competent at the trial. This ground of complaint was not, therefore, well taken. ' .\\nAppellant's contention that the property found oh his premises was not sufficiently identified with that .stolen from the county is equally without merit, for the witnesses for the Commonwealth testified that one of the containers of oil or gasoline found on the premises of appellant with gasolin\\u00e9 or oil in it was that stolen from the county, and that certain tools found hidden upon appellant's premises - were those stolen from the county. Of course, the witness could not identify the gasoline or oil. The evidence heard was sufficient, it would seem, to identify the container in which the oil or gasoline was found as that belonging to the county. Certainly there was enough evidence to warrant the submission of the case to the jury and a return of the verdict upon which the judgment complained of is based. We perceive no sound reason for disturbing the judgment, and it is affirmed.\\nJudgment affirmed.\"}"
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+"{\"id\": \"6392217\", \"name\": \"Payne vs. Conner and Adams\", \"name_abbreviation\": \"Payne v. Conner\", \"decision_date\": \"1813-10-11\", \"docket_number\": \"\", \"first_page\": \"180\", \"last_page\": \"183\", \"citations\": \"3 Bibb 180\", \"volume\": \"6\", \"reporter\": \"Kentucky Reports\", \"court\": \"Kentucky Court of Appeals\", \"jurisdiction\": \"Kentucky\", \"last_updated\": \"2021-08-10T20:52:47.879755+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Payne vs. Conner and Adams.\", \"head_matter\": \"Payne vs. Conner and Adams.\\nOctober 11.\\nA ftatute repealing all for-' pier acts w\\u00bbehin its purview,' does not repeal the provifions of former laws si to cafes not provided for b jr the repealing ftatute.\\nThe act of xSlz concerning occupants, does not repeal the operation of the act pf 1797, upon cafes of judgment or de* crees rendered befare the paf* fage of ihe act of 1812 5 that; act applies only to evictions af- ' ter its paflage.\", \"word_count\": \"1278\", \"char_count\": \"7209\", \"text\": \"OPINION of the Court, by\\nJudge Owsley.\\nAdam*, having title to a tract of 1000 acres of land, sold to Conner 200 acres, part thereof, and gave his obligation for a-title thereto. Conner settled upon the land purchased from Adams, and made valuable improvements thereon. Payne, claiming the land under an adverse superior title, commenced an ejectment to recover the same. The declaratibn in ejectment having been served on Conner, both him and Adams appeared in court, and on their motion obtained au order tobe jnade admitting diem defendants to defend for Conner, the tenant in possession, and pleaded not guilty.\\nOn the trial at the September term 1811, a verdict was found for Payne, and judgment awarded him for his term to come in the land in the declaration described, &c. At the same term, on the motion of Conner and Adams, commissioners were appointed to ascertain the rents and profits, &c. The commissioners ac-cordiegly met on the land, ascertained the improvements, rents, &c. and made report to thelFebruarv term 1812. A motion was then made by Payne to quash the report, which was overruled, and judgment awarded Conner for the balance reported by the commissioners in his favor. From this judgment Payne has prosecuted this appeal. ,\\nJf the occu. pant claims the benefit of the act holding part of a furvey, the commilfioners \\u00edhould _ report the value of the land held by h\\\\nu\\nAn occupant holding by bond for a convey.* anee from the patentee's with in the provifions of the ftatute-\\nIf two occu, pants join in dej fence of the e+ jectment, yet the report of the commillu oners ihouH \\u00cdUte the fepa-; rate value of the . rejpectwa parcels held by each.\\nWhether the court below erred in awarding judgment in favor of Conner for the amount of his improvements as reported by the commissioners, is the main question for determination in this cause.\\nThe remedy pursued by Conner in this case, and the power exercised by the court in awarding judgment in his favor, was given by the act of February session of 1797. It is, however, contended ou the part of Payne, that those provisions of the act of 1797 under which the proceedings in this cause ware had, are repealed by the act of 1812 ; and hence it is inferred the court was not authorised by law to award judgment. Were the act of 1797 altogether repealed by the act of 1812, the conclusion would be admitted that the court erred in giving judgment: for it is clear that where a statute giving a remedy unknown to the common law is rep\\u00e9al-ed, the power of courts to give relief under the statute necessarily ceases. Whether, therefore, the provisions of the act of 1797, in relation to the present cause, are repealed by the act of 1812, forms a necessary inquiry. By the last section of the latter of those acts, it is provided that \\\"all acts or parts of acts coming within the purview thereof shall be and the same are thereby rer pealed.\\\" Whether this section repeals the act of 1797 depends upon the construction to be given the term purview. The meaning usually attached to this term by writers on law, seems to be the enacting part of a statute, in contradistinction to the preamble j and we think the provision of the act repealing all acts or p\\u00e1rts of acts coming within its purview, should be understood as repealing all acts in relation to all cases which are provided for by the repealing act; and that the provisions of jio act are thereby repealed in relation to cases not pro vided for by it. That the present cape is not provided ^or uy l*le act 1^12, we think evident. Payne had proved his the superior claim and obtained judgment of . eviction before the passage of the act of 1812; and from an inspection of the first section of that act it is clear it embrac^ those cases only where lands had been seated and improved, or might thereafter be seated and improved by persons supposing them their own, but which should thereafter prove to belong , to another. The right of the parties in the present contest must, therefore, be determined by the act pf 1797.\\nWhether the report of the commissioners is correct, according to that act, remains for consideration. The aggregate value of the land claimed both by Conner and Adams, without regard to the specific value of the claim of each, was made and reported by the commissioners. To this report it is objected the value of Conner's claim should have been separately taken, and report thereof made to the court. Whether this objection is sustainable, depends upon Conner's right, under the act of 1797, to obtain pav for his improvements : for if his claim, as derived frorp Adams, gave him a right to recover pay under the act, surely its value should have been Separately estimated, that Payne might avail himself of the provisions of the act in his favor, as well as to be made liable to those against him. The value of Conner's land, if separately taken, probably would not exceed that of his improvements. If, therefore, he has a right under she act to obtain pay for his improvements, an estimate of the value of his land in dispute should have been made, that Payne, in the event of that value not exceeding the improvements, might exercise the Tight o\\u00ed election given him under the act, to pay for the improvements or obtain pay for his land.\\nThat Conner has brought his case within the provisions of the act of 1797, we think evident. He has shewn a purchase from Adams, who held the legal title to the land, evidenced by an obligation for a title ; and although his equity is not evidenced by matter of record, he has shewn a title in equity deduced from re ; cord.\\nIf, then, Conner has brought his case within the act of 1797, it is clear had he made a separate.defence, and not jointly with Adams,,the value of the l$nd claimed' .by him and in dispute with Payne, should have been alone taken. Adams having joined in the defence, it is believed cannot change the rights of either Conner or Payne.. By the order admitting Conner and Adorns defendants, they seem to have been admitted to defend for Conner ; but if their defence were coextensive with both their interests in the land, and tire judgment of Payne should be considered to extinguish the right of both to the land, still it is conceived the report of the commissioners should have been made as though separate suits had been prosecuted against them ; and consequently the value of the land claimed by each should have been taken. The commissioners not having pursued this mode of valuing the land, their report is erroneous and should have been quashed. The judgment bf the court below on the report of the commissioners is therefore erroneous, and must be reversed ; the cause .remanded to that court for further proceedings tb be had consistent with this opinion.\"}"
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+"{\"id\": \"6400803\", \"name\": \"Repperdon vs. Davis\", \"name_abbreviation\": \"Repperdon v. Davis\", \"decision_date\": \"1815-11-04\", \"docket_number\": \"\", \"first_page\": \"230\", \"last_page\": \"230\", \"citations\": \"4 Bibb 230\", \"volume\": \"7\", \"reporter\": \"Kentucky Reports\", \"court\": \"Kentucky Court of Appeals\", \"jurisdiction\": \"Kentucky\", \"last_updated\": \"2021-08-10T22:04:03.683404+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Repperdon vs. Davis.\", \"head_matter\": \"Repperdon vs. Davis.\\nNovember 4.\\nWant of con. tmuance cured after verdi\\u00edt.\", \"word_count\": \"143\", \"char_count\": \"843\", \"text\": \"OPINION of the Court, by\\nJudge Owsley.\\nThe original writ in this case was made returnable to, and executed before the September term otthe Mercer circuit court in the year 1813, and without any order continuing the cause at that term, the court at a subsequent term, after a verdict having been found for the plaintiff there, gave judgment; and the assignment of errors questions the propriety of proceeding in that court after the failure to enter a continuance of the cause at the September term. .\\nWithout inquiring what effect that failure might have produced had exceptions been taken to it before a trial in the court hclow, we have no doubt but under our statute of jeofails the objection comes too late after verdict.\\nJudgment affirmed with costs and damages.\"}"
\ No newline at end of file
diff --git a/ky/6402936.json b/ky/6402936.json
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index 0000000000000000000000000000000000000000..9e040ad5b0c0b19db3ddc46a2e0c95122bbc4253
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+"{\"id\": \"6402936\", \"name\": \"Breckenridge's administrators vs. Lee's executors\", \"name_abbreviation\": \"Breckenridge's administrators v. Lee's executors\", \"decision_date\": \"1814\", \"docket_number\": \"\", \"first_page\": \"329\", \"last_page\": \"334\", \"citations\": \"3 Bibb 329\", \"volume\": \"6\", \"reporter\": \"Kentucky Reports\", \"court\": \"Kentucky Court of Appeals\", \"jurisdiction\": \"Kentucky\", \"last_updated\": \"2021-08-10T20:52:47.879755+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Breckenridge\\u2019s administrators vs. Lee\\u2019s executors.\", \"head_matter\": \"Breckenridge\\u2019s administrators vs. Lee\\u2019s executors.\\nB covenantt to pay L at the \\u00abteio/penoo *\\u00bfurTj\\u00a1[\\u00e1ch thereofaslhoul-i thereafter be \\u00a1ndifputable* t\\u00b0i-tie ; the price not.to b\\u00ab Paii JJ,ould bee,eg\\u2018al_ ly and indifpu-tabh af\\u201cgalj\\\"\\\" to take upon him. the tr\\u00b0ui>1\\u00ae jnveft\\u00a1gkt\\u00a1ng is fettling the ti.\\ndllty of the ob, ligir immedi. \\u00aetely \\u201cfixation 'of the title.\", \"word_count\": \"2196\", \"char_count\": \"12484\", \"text\": \"OPINION of the Court, by\\nCh. J. Boyle\\n-This was an action of covenant, brought by the appellees, as executors of John Lee, against the appellants, as administrators of John Breckenridge. The original writ Was sued out the 3d of April 1809. The declaration alleges in. substance that George Nicholas and John Breckenridge, on the 6th day of August 1795, by their deed entered into an agreement with John Lee, whereby they covenanted as follows : That the said Lee had sold that day to Nicholas and Breckenridge one moiety of a claim of 19062 1-2 acres of land, by entry made the 30th of July 1784, in the name of Joseph Blackwell, adjoining Walker Daniel's entry of 2500 acres, at mouth of Slate creek ; for which the said Nicholas and Breckenridge covenanted to pay the said Lee at the rate of ten pounds per hundred acres for the same, or so much thereof as should thereafter be found to be of krdisputable title ; the price thereof not to be paid until the title should be legally and indisputably ascertained : and the said Nicholas and Breckenridge farther cove- wanted \\u215b take upon themselves the trouble and expens\\u00e9 of settling and investigating the title. The declaration then avers that the said Nicholas and Breckenridge might long since, to wit, before the 15th day of May in the year 1809, have settled and investigated the title to-the said moiety of 1S062 1-2 acres of land ; and alleges that their covenant they have not kept and performed, but have broken in this, that they did not, nor did the defendants before the said 15th day of May in the year 1809, settle and investigate the title to the said moiety \\u00a3 1Q062 1-2 acres ; and further, that the said Nicholas and Breckenridge, nor the defendants, nor either of them, have not paid to the said Lee in his lifetime, nor tG> plaintiffs since his death, at the rate of ten pounds per hundred acres for the moiety of the said 19062 1-2 acres, or for any part.\\n' ^hne'fT cifled,'\\u00abd the covenant is traniitory or lo-the concurrence of the obligee, formed without his concurrence, the rule to performance,\\nThat R had the'title*'prior\\nto May 1809, (a day poftenor t\\u00edon'ofthewric) U furplufage & harmlefs.\\nIf he had edmmenced the Snveftigation in due time, and titoe iufficient to complete it had notelapfed, it was incum-ftew it by plea.\\nThe breach affigned that B had not invefti. gated the title, is iufficient.\\nWhen an af-lignment of breach in the words of the ficlent \\u2014 *wheif nos\\nAn averment ed^to ^invefti\\\" gate the title, gives the obli\\u00bf gee the fame right to recover the price to the extent, as if B had performed his covenant to inveftigate the title.\\nThe defendants pleaded several pleas \\u2014 1st, That the said Nicholas and Breckenridge could not have settled and investigated the title to said moiety of 19062 1-2 acres before the said 15th day of May 1809. 2d, That no part of the title of said moiety has been legally and indisputably ascertained. 3d, That the said Joseph Blackwell hath not a free and indisputable title to the said 19062 1-2 acres, nor to any part thereof. 4th, That the said Nicholas and Breckenridge had kept and' r , , , \\u2022 0 1 performed their said covenants.\\nTo the second and third pleas the plaintiffs demurred, anq COurt below sustained the demurrer. To the ,. \\u215b , , , . , hrst and fourth they replied, and issues were thereon joined to the country. During the progress of the trial instructions of the court to the jury were moved for on the part of the defendants, upon various points, which being refused by the court, exceptions were ta-j-en them, and a verdict and judgment having been J, 1 - 0 had against them they have appealed to this court,\\nMany objections are taken by the assignment of errors 0f which such as are dee med material will be con- . , ' , . . . . , sidered in the order in which they occur in the record.\\nThe first we shall notice, questions the sufficiency of averment in the declaration that Nicholas and Br\\u00e9e-kenridge might, before the 15th of May 1809, have settled and investigated the title to the moiety of the sa^ 19062 1-2 acres. That being a time subsequent to the commencement of the suit, it is urged that the averment does not shew a right of action to have aCcru-\\u00abd at the emanation of the original writ. If this averment be a material one, the objection is certainly fatal; but on the contrary, if it be immaterial, and might have been stricken out as surplusage, it cannot affect the sufficiency of the declaration, according to the maxim Utile per inutile non vitiatur. We are inclined to think the averment is of the latter description. As no time was stipulated in which the covenant to investigate-and settle the title was to be performed, it was the duty of the covenantors immediately to commence its performance. \\u2022 This was equally their duty, whether the investigation and settlement of the title be considered transitory or local. In all covenants where that which is stipulated to be done is transitory in its nature and no time is specified for the performance, the covenantor is bound, without being hastened by request, to an immediate performance. Where the thing covenanted to be done is local, the general rule is different; but even in such cases, where the concurrence of the covenantee is not necessary, the general rule does not prevail, and the covenantor is bound to enter upon the performance of the covenant immediately. The concurrence of Lee was clearly not necessary in this case to enable Nicholas and Breckedridge to perform their covenant to settle and investigate the title ; and therefore, although it might be deemed local, still it was their duty to commence its performance without delay, and a failure to do so was a breach of their covenant. It necessarily results that to shew a breach on their part, the averment that they might have performed their covenant before the 15th of May 1809, was not necessary or material. It is true that from the nature of their covenant a considerable time must be consumed in its performance j but more or less time is required for the performance of any act which may be the subject of a contract. In this respect there is in principle no difference between this case and other cases where there is no time specified for the performance, of that which is covenanted to be done ; and as inordinary cases of this kind it is not usual to aver that the thing might be done by a given time, we infer that such an averment is unnecessary. If the necessary time for the completion of the thing has pot elapsed, it may furnish a legal excuse for the non performance, and the party, may avail himself of it by way of defence. But in such a case it would be requisite to shew that he had commenced the performance in due time. The objection', therefore, to the declaration on account of the insufficiency of this averment, cannot be sustained.\\nBreach that B had not paid at the rate of io/. per ioo a\\u00ab eres, is infuffi, cient, without *n averment that I/s title to the land, or fome part there\\u00bb of, would have been found in\\u00ab difputable, if B had performed his covenant to inveftigate it*\\nIf z breaches are afiigned and the defendant pleads to the *whole action, \\u215d plea which is good as to the one breach, but not as to the other, the pl'ff may demur.\\nThe next objection we shall consider is, that the breaches of the covenant are not sufficiently alleged.\\nThe covenant to investigate and settle the title, and the covenant to pay, &c. are several and distinct covenants ; and there is no doubt that a breach in each of them is intended to be alleged. As to the former, there can.be no question but that the breach is well assigned. It is assigned substantially in the words of the covenant, and it is a general rule that such an assignment is good. There are some exceptions to this rule ; but it is only in those cases where an assignment of a breach in the words of the covenant does not necessarily imply that the covenant has been broken, that the exception would apply, as in the case of a covenant of warranty or for quiet enjoyment. In these cases, and some others of a like nature, a breach in the words of the covenant might be true, and yet the covenant not have been broken; but in this case the assignment of the breach cannot be true, unless the covenant had been broken.\\nWith respect to the sufficiency of the breach assigned in the covenant to pay, there is more room for doubt. We are however inclined to think it is not well assigned, it being alleged neither in the words of the covenant, nor, as we apprehend, according to its legal effect. We do not consider this breach insufficient, because it does not aver that the title had been indisputably ascertained. The ascertainment of the title was indeed a precedent condition or event, upon which the payment, agreeably to the words of the covenant, was to be made ; but as this precedent condition was to be performed by the covenantors, an averment that they have failed to perform it. is in iaw equivalent to an averment of periorm-anee, and gives to the plaintiffs a right to recover to same extent that they would have been entitled to if tne condition had been periomed.\\nBut it is obvious that a failure of the covenantors to have performed their undertaking'to'-settle and invest\\u00ed-' gate the title, could not give to the plaintiffs a right to recover for a breach of the covenant to pay the price agreed on, to a greater extent than they would have had if that undertaking had been performed. A contrary position would involve the absurdity of giving to the plaintiffs a right to demand more than by the covenant had been stipulated to be received on their part, or to be paid on the part of the defendants : a position which is evidently inadmissible.\\nIt is clear if the covenantors had investigated the title, they would have been liable for the stipulated price' of only so much of the tract as should have been found to be of indisputable title ; and if none had been found to be of that character, that they would not have been liable for the payment of any part. The breach of the covenant to pay, therefore, to be good, should have alleged that the title to the whole, or some part of the tract, would, if the covenantors had performed their covenant to investigate, &c. have been found to be valid. But it contains no such averment: on the contrary, it presupposes a right to recover, whether the title would on investigation have proved valid or not. The breach is therefore insufficiently assigned, and as the verdict is for damages generally, without shewing for what breach, it is erroneous, and for this cause the judgment must be reversed.\\nThe court below, we think, correctly sustained the demurrer to the second and third pleas. They are pleaded as answers to the whole declaration, but are clearly no sufficient answers to the first breach of the covenant assigned- They are defective also in other respects, but as the plaintiffs will have leave to amend t-heiy declaration, and will probably do so, the defendants will have aright to replead, and may so change the aspect of their pleadings as to render unnecessary any farther remark upon these pleas.\\nThe points to which exceptions were taken to the opinions of the court below in the progress of the trial, have been in effect, so far as they are deemed material, decided in the investigation of the pleadings, and need not be particularly noticed again.\\nThe judgment must be reversed with costs, and the cause remanded that the verdict may be set aside and new proceedings had not inconsistent with the foregoing opinion.\\nVide Marshall vs. Craig, vol. 1, 379 to 396 \\u2014vol. 2, Majors vs Hickman, 219-Carrell vs. Collins, 431\\u2014Kenndy vs. Kennedy, 464.\\nTamen quaere de \\u00bfwc. \\u2014 If this 'was an eflential. and neceflary averment (and not difpenfed with by the failure of B. to investigate and fettle the tide) then this averment would have been traverfable $ and if traverfed, the trouble and expenfe of inveftigating the title would have been incurred by L. the affir-mant, agaifift B.the traverf&r, which was the predicament which the covenant was calculated and Intended to avoid.\"}"
\ No newline at end of file
diff --git a/ky/6426457.json b/ky/6426457.json
new file mode 100644
index 0000000000000000000000000000000000000000..ca724ed52e05aa3f106c130df7b32767511e85ff
--- /dev/null
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@@ -0,0 +1 @@
+"{\"id\": \"6426457\", \"name\": \"The Commonwealth, at the instance of Johnson, vs. Jones\", \"name_abbreviation\": \"Commonwealth v. Jones\", \"decision_date\": \"1817-05-28\", \"docket_number\": \"\", \"first_page\": \"534\", \"last_page\": \"535\", \"citations\": \"4 Bibb 534\", \"volume\": \"7\", \"reporter\": \"Kentucky Reports\", \"court\": \"Kentucky Court of Appeals\", \"jurisdiction\": \"Kentucky\", \"last_updated\": \"2021-08-10T22:04:03.683404+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"The Commonwealth, at the instance of Johnson, vs. Jones.\", \"head_matter\": \"The Commonwealth, at the instance of Johnson, vs. Jones.\\nMay 28.\\nA writ of er. ror cannot be im'ntalned in the name o\\u00ed the commonweal' h at the ir.ftance of an individual to reverfe an or. der of a county Court eftablifh-ing an inflection* ,\", \"word_count\": \"513\", \"char_count\": \"2822\", \"text\": \"OPINION of the Court, by\\nCh. J. Boyle.\\nThis is a writ of error to reverse an order of the Gallatin county court establishing an inspection on the land of the defendant in error.\\nThe first inquiry presented in the case is, whether the writ of error is maintainable in the name of the commonwealth or not'?\\nWe have no hesitation in deciding that it is not. It is not pretended that there is any precedent or adjudication in analogous cases which can justify this mode of bringing the writ of error; and the novelty of the proceeding, though perhaps not a conclusive, is certainly a' very strong argument against its propriety. But it may be affirmed with confidence, we apprehend, that the proceeding is wholly indefensible on principle. The commonwealth is no party to the record, nor has she any right or property in that which is the subject of controversy. She lias lost nothing, therefore, by the order establishing the inspection, nor would she gain anything by its reversal : and it is a general rule, that no one who is not prejudiced by the judgment, and would not he entitled to the thing were it reversed, can bring a writ of error.\\nIt is true, the common wealth may he said to be interested in the due observance of the laws in relation to the establishment of inspections* as she may no doubt in the same sense be said to be interested in the correct administration of the laws o\\u00ed' the go\\\\ eminent in general j but as this is an interest too remote and indirect to justify her bringing a writ of error in other cases for the reversal of an erroneous judgment to which she is not a party, it must be equally so in a case like the present. Besides, the commonwealth must have at least as great an interest in affirming an order establishing an inspection, where it was permitted by law and required by the public convenience, as she can have in reversing an order establishing an inspection where it was forbidden by law and not demanded by public convenience : and if she might bring a writ of error in the latter case, it would be equally proper that she should be a defendant in the former. But she certainly cannot be both plaintiff and defendant: and it would be preposterous in the extremo, first to determine that the order ought to be reversed or affirmed, and then to decide, as the case might he, that she should be either plaintiff or defendant.\\nWe infer, therefore, that she has not such an interest as to entitle her to be either plaintiff or defendant; and consequently the writ of error is in this case improperly brought in her name, and must be quashed.\"}"
\ No newline at end of file
diff --git a/ky/6689706.json b/ky/6689706.json
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index 0000000000000000000000000000000000000000..85ca45b5b68a2274cfee7019b37a6dbf50df302a
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+"{\"id\": \"6689706\", \"name\": \"Snelling vs. Utterback, &c.\", \"name_abbreviation\": \"Snelling v. Utterback\", \"decision_date\": \"1809-12-12\", \"docket_number\": \"\", \"first_page\": \"609\", \"last_page\": \"611\", \"citations\": \"1 Bibb 609\", \"volume\": \"4\", \"reporter\": \"Kentucky Reports\", \"court\": \"Kentucky Court of Appeals\", \"jurisdiction\": \"Kentucky\", \"last_updated\": \"2021-08-10T22:19:59.098435+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Snelling vs. Utterback, &c.\", \"head_matter\": \"Snelling vs. Utterback, &c.\\nDecember 12th.\\nParol evidence a ,rsJ* n?uft an\\u00bf faceto-ry, otherwife ^ dce\\u00b0\\u201c^ .Wl11 *ot ecreeit\\u2019\", \"word_count\": \"824\", \"char_count\": \"4753\", \"text\": \"OPINION of the Court, by\\nJudge Boyle.\\n-The appellees, who were complainants in the court below, claim, as coheirs with the appellant to their mother, Elizabeth Snelling, deceased, six sevenths of fifty .acres ef land, which they allege was purchased by tile appel lant, with fh& money of their ancestor, and in trust Fot\\\" her ; but that instead of taking the conveyance to her, he fraudulently took it to himself.\\nThe appellant, in his answer, denies that the purchase was made for his mother, or that the money which was paid therefor belonged to her.\\nThe court below decreed that the appellant should convey the land, and pay for the rent thereof 198 dollars ; from which decree he has taken this appeal.\\nWe deem it unnecessary to decide the question made In the argument by the appellant's counsel, whether, as there was no declaration in writing that the purchases was in trust for the mother, or that the money was advanced by her, the case is within the statute of frauds and perjuries ; because the evidence, when tested by the well settled rules of equity, independent of the requisitions of that statute, is found inconclusive, and insufficient to establish the facts from which, by the implication of law, a trust would result to the mother.\\nTrusts raised by implication of law were expressly excepted from the operation of the statute of frauds and, perjuries in England.\\nWith respect to resulting trusts of this kind, the adjudications of the English courts may therefore be taken as evidence of the law upon this subject anterior to, and independent of the provisions of that statute.\\nWhere the conveyance is taken to one, and no declaration in writing that the purchase was made in trust for another, and the trust is denied by the answer of him who is charged as trustee, it was formerly holden that no evidence aliunde was admissible to shew that the purchase was made with trust money, whereby to raise a trust in favor of the cestuique trust\\u2014Kirby vs. Webb, Prec. Ch. 84\\u2014Newton vs. Preston, Prec. Ch. 103\\u2014Kendar vs. Milward, 2 Ver. 440. And though modem decisions have in some measure mitigated the rigor of this rule, and permitted parol evidence to establish the trust, yet such evidence must be very clear and satisfactory, or it will be held insufficient \\u2014 See Ambler's Rep. 409, and Sugden's Law of Vendors, 415 to 419 inclusive.\\nIn the present case, the evidence produced on the part of the appellees to prove that the purchase was made in trust for their mother, or that the money ad- vanccd belonged to her, consists of the naked declarations of the appellant; and these declarations are proven by witnesses whose credit is in some measure weakened, either by their relation to the appellees, or other circumstances derogating from their character for veracity.\\nThis species of evidence is in itself the weakest and most unsatisfactory of all testimony, on account of the facility with which it may be fabricated, and the utter impracticability of disproving it by direct negative proof, But if the evidence on the part of the appellees were in itself sufficient to raise an equitable presumption that the purchase was made in trust for their mother, that presumption is completely repelled by the proof adduced on the part of the appellant. It appears in evidence that the appellant had sold a tract of land in Virginia, in which his mother had a life estate, the remainder whereof belonged to him, and that there was an understanding between them that she was to have a like interest in a tract of land to be purchased in this country 5 that after her removal to this country, and the appellant had purchased the land in controversy, she became dissatisfied ; and wishing to return to Virginia, agreed that she would give up her interest in the land here, if he would procure a rescisi\\u00f3n of the contract for the sale of the land in Virginia ; that he did get the sale rescinded ; that she received the rent accruing therefrom af-terwards, directed the vendor of the land here to make the title to the appellant, acknowledged the land to be his, agreed to pay rent therefor, and never after the re-scisi\\u00f3n of the contract for the sale of the land in Virginia, does it appear that she set up any claim to the land in dispute.\\nThese circumstances appear to the court more than sufficient to rebut the presumption, arising from the testimony on the part of the appellees, that the appellant holds the land as a trustee for them.\\nThe decree of the court below being erroneous upon its merits, it is unnecessajy for the court to examine the minor points made by the assignment of errors.\\nDecree reversed,.\"}"
\ No newline at end of file
diff --git a/ky/6787346.json b/ky/6787346.json
new file mode 100644
index 0000000000000000000000000000000000000000..f2fd67ab7d9d5560b6aab373cd51ed990807822a
--- /dev/null
+++ b/ky/6787346.json
@@ -0,0 +1 @@
+"{\"id\": \"6787346\", \"name\": \"HARRISON SILVERGROVE PROPERTY, LLC, a/k/a Harrison Silvergrove, LLC; and Carlisle & Bray Enterprises, LLC, a/k/a Carlisle & Bray Enterprises, Appellants v. CAMPBELL COUNTY AND MUNICIPAL BOARD OF ADJUSTMENT, Appellee\", \"name_abbreviation\": \"Harrison Silvergrove Property, LLC v. Campbell County & Municipal Board of Adjustment\", \"decision_date\": \"2016-07-08\", \"docket_number\": \"NO. 2014-CA-000619-MR\", \"first_page\": \"908\", \"last_page\": \"917\", \"citations\": \"492 S.W.3d 908\", \"volume\": \"492\", \"reporter\": \"South Western Reporter Third Series\", \"court\": \"Kentucky Court of Appeals\", \"jurisdiction\": \"Kentucky\", \"last_updated\": \"2021-08-11T02:09:43.030300+00:00\", \"provenance\": \"CAP\", \"judges\": \"BEFORE: ACREE, D. LAMBERT, AND MAZE, JUDGES.\", \"parties\": \"HARRISON SILVERGROVE PROPERTY, LLC, a/k/a Harrison Silvergrove, LLC; and Carlisle & Bray Enterprises, LLC, a/k/a Carlisle & Bray Enterprises, Appellants v. CAMPBELL COUNTY AND MUNICIPAL BOARD OF ADJUSTMENT, Appellee\", \"head_matter\": \"HARRISON SILVERGROVE PROPERTY, LLC, a/k/a Harrison Silvergrove, LLC; and Carlisle & Bray Enterprises, LLC, a/k/a Carlisle & Bray Enterprises, Appellants v. CAMPBELL COUNTY AND MUNICIPAL BOARD OF ADJUSTMENT, Appellee\\nNO. 2014-CA-000619-MR\\nCourt of Appeals of Kentucky.\\nRENDERED: JULY 8, 2016; 10:00 A.M.\\nBriefs for Appellants: Thomas W. Breid-enstein, Covington, Kentucky\\nBrief for Appellee: Thomas R. Nienaber, Dale T. Wilson, Florence, Kentucky\\nBEFORE: ACREE, D. LAMBERT, AND MAZE, JUDGES.\", \"word_count\": \"3975\", \"char_count\": \"24621\", \"text\": \". OPINION\\nACREE, JUDGE:\\nAppellants Harrison Silvergrove Property, LLC a/k/a Harrison Silvergrove, LLC and Carlisle & Bray Enterprises, LLC a/k/a Carlisle & Bray Enterprises (collectively, C&B ) appeal from a Campbell Circuit Court order affirming the Appellee Campbell County and Municipal Board of Adjustment's (Board) denial of C&B's application for a conditional-use permit. We affirm.\\nI. Facts and Procedure\\nHarrison Silvergrove owns real property situated in Campbell County, Kentucky. The property benefits from substantial waterfront and is zoned River- Recreation/Conservation (R/CO) under Article X, Section 10.0 of the Zoning Ordinance of the City of Melbourne. C&B is a full-service marine company engaged in the transport by river barge and boat of goods for businesses in the Midwest.\\nOn November 20, 2012, C&B filed an application with the Board seeking a conditional use permit to allow a \\\"dockage facility\\\" on the property. The application described the uses on the property to be \\\"a boat dockage and transfer of goods facility\\\" which \\\"would include fueling, service and repair, sale of boat supplies and grocery supplies.\\\" The Board's professional planning staff recommended approval of the application subject to certain conditions.\\nThe Board conducted a lengthy eviden-tiary hearing, C&B testified through its representative, Bob Weis. Weis stated the purpose of the application was to bring the zoning of the property in line with its use over the past 20 years. He testified the dockage facility would primarily be used as a transfer point for employees: the employees would board a small boat there, which would transport them ,to C&B's main fleet down the river.\\nIn addition to C&B, nine of its neighbors testified and urged the Board to deny C&B's application. They described \\\"heavy industrial\\\" activity occurring on the site, starkly dissimilar to that proposed by C&B.' Robert Bathalter, attorney on behalf of some of the neighbors, submitted a memorandum succinctly describing the. offensive activity:\\n1. Parking barges at the marina and in front of the property of other -residents.\\n2. Cleaning the barges which, among other things, includes using compressed air to blow out coal dust from the barges.\\n3. Transporting the barges too close to the shore in violation of various regulations which causes erosion of the banks.\\n4. Moving in heavy equipment to separate oil and water.\\n5. Working all night with very bright lights and loud noise which disturbs the neighbors.\\n6. Bringing in tractor trailers which cannot navigate the streets and which are loaded with heavy equipment.\\n7. Bringing in employe\\u00e9s who speed on the residential streets.\\nThe neighbors claimed to be subjected to bright lights, strident noise, and vibrations at all hours which disturbs their peace and wakes them at night. They have also observed coal dust sprayed into the air during barge cleaning; barges docked in front of their homes, blocking their views of the river; welding on barges; odors and fumes emanating from the barges; semi-trucks struggling to negotiate the narrow roads and tearing up yards; and an increase in traffic and speeding drivers, compromising the safety of the other travelers on the adjoining roads. The neighbors submitted photographic evidence substantiating many of their allegations.\\nAs to the accuracy of the property's historical use, the neighbors submitted that the land had not been used for the past twenty years-in the manner currently claimed by C&B. The testimony was that, throughout the 1990s, George Harrison operated a marina, which consisted of a boat harbor, loading ramp, and restaurant, pursuant to a duly-issued permit. The marina closed shortly after George's death and, for a period thereafter, George's son docked a tow boat at the site. It was not until very recently that C&B began heavy-industrial operations at the marina, altering its entire character.\\nTwo neighbors testified that they twice complained to the Army Corps of Engineers about C&B activities, first in August 2012 and again in February 2013. The Corps \\\"shut down\\\" C&B and ordered it to remove its heavy equipment and other items located at the site, except for the dilapidated tug boat mentioned earlier in this opinion. C&B initially complied, but when the need arose would bring back the equipment. Neighbor Howard Baber questioned whether \\\"dockage facilities\\\" as used in the Section 10.0 of the zoning ordinance encompassed private commercial operations. He thought dockage facilities contextually meant for the people using the'harbor, not for a commercial purpose.\\nC&B was given an opportunity to respond to the neighbors' comments. The Board then asked if any party had any other remarks to make. Hearing none, the Board closed the public-comment portion of the meeting, and openly debated C&B's application in fui! public view. The Board questioned whether the activity occurring on the site \\u2014 docking and cleaning barges, welding, and barge maintenance and repairs \\u2014 is the type of \\\"dockage facility\\\" envisioned in an R/CO zone. While \\\"dockage facility\\\" is a recognized conditional use, the ordinance does not define that term.\\nIn a letter dated March 20, 2013, the Board denied C&B's application. That letter explained:\\nThe activity occurring on the site and requested for approval as a conditional use is not a \\\"dockage facility\\\" per the City of Melbourne Zoning Ordinance River Recreation/Conservation (R/CO) Zone. It is our interpretation that the dockage facility listed in the R/CO Zone is one for recreational use, not heavy industrial use. The applicant's [proposed] use is a heavy industrial type of dockage facility which is not consistent with the intent of this R/CO Zone. Further, the activity does not meet any of the activities listed as permitted, accessory or conditional uses with the R/CO Zone.\\nC&B appealed the denial to the circuit court, which concluded the Board's decision was not arbitrary because the Board did not exceed its statutory authority or violate C&B procedural due process rights, and its decision was supported by the evidence. C&B then appealed to this Court\\nII. Analysis\\nJudicial review of a zoning decision is focused exclusively on whether the agency's decision was arbitrary. Hilltop Basic Res., Inc. v. County of Boone, 180 S.W.3d 464, 467 (Ky.2005). Arbitrariness review is limited to three considerations: \\\"(1) whether the agency exceeded its statutory authority; (2) whether the parties were afforded procedural due process; and (3) whether the agency decision was supported by substantial evidence.\\\" Keogh v. Woodford County Bd. of Adjustments, 243 S.W.3d 369, 372 (Ky.App.2007); Hilltop Basic Res., 180 S.W.3d at 467. C&B attacks the circuit court's order and, in turn, the Board's decision on all three fronts.\\nA. The Board did not exceed its statutory authority\\nC&B argues that the Board exceeded its statutory authority by interpreting Article X, Section 10.0 of the Melbourne Zoning Ordinance to limit \\\"dockage facility\\\" in the R/CO zone to \\\"recreational\\\" dockage facilities, and the circuit court erred in affirming the Board's decision.\\nWhether a public agency exceeded its statutory authority is a question of law subject to de novo review. Keogh, 243 S.W.3d at 372; Cincinnati Bell Tel. Co. v. Kentucky Pub. Serv. Comm'n, 223 S.W.3d 829, 836 (Ky.App.2007).\\nA board of adjustment is an official body designated to hear and decide applications for variances from the terms of a zoning ordinance. See KRS 100.237. It is vested with \\\"the power to hear and decide applications for conditional use permits to allow the proper integration into the community of uses which are specifically named in the zoning regulations which may be suitable only in specific locations in the zone only if certain conditions are met.\\\" Id. \\\"The board may approve, modify, or deny any application for a conditional use permit.\\\" KRS 100.237(1).\\nArticle X of the Melbourne Zoning Ordinance states, in pertinent part:\\nSection 10.0 River Recreation/Conservation (R/CO Zone):\\nA. USES PERMITTED:\\n1. Agricultural uses;\\n2. Publicly owned and/or operated parks and/or recreation areas;\\n3. Private recreational uses other than those publicly owned and/or operated such as golf courses, country clubs, and camping areas;\\nC. CONDITIONAL USES\\n1. Riding academies and stables;\\n2. The following uses are permitted in connection with streams, rivers, lakes, or other bodies of water .\\na. Boat harbors and marines; The following uses shall be permitted as accessory uses in connection with any boat harbor or marina and primarily intended to serve only persons using the boat harbor or marina:\\n(1) Boat fueling, service, and repairs;\\n(2) Sale of boat supplies;\\n(3) Grocery store;\\n(4) Restaurant;\\n(5) Club house and lockers, if afloat;\\n(6) Single-family dwelling units including cabins.\\nb. Public boat landing and launching facilities;\\nc. Dockage facilities;\\nd. Off-street parking facilities and temporary parking of boat trailers including spaces large enough to accommodate automobiles pulling boats.\\nC&B argues that it submitted an application for a dockage facility, just as expressly and specifically permitted by Section 10.0 as a conditional use in an R/CO zone. And the language of that article does not differentiate between \\\"recreational\\\" dockage facilities and \\\"industrial\\\" dock-age facilities. However, so goes the argument, the Board's ad hoc revision limits the conditional use to a \\\"recreational\\\" dockage facility only. Such grafting onto the ordinance, argues C&B, is arbitrary and capricious.\\nWe think it entirely within the statutory authority of a board of adjustment to interpret and define conditional uses and terms contained within a zoning ordinance that lack a delineated definition as part and parcel of its decision whether to grant a conditional use in a particular zone. Bluntly stated, a board of adjustments is vested with limited interpretive authority. See Keogh, 243 S.W.3d at 372 (the board of adjustments did not exceed its authority when it accepted the planning director's definition of a tourist home where the zoning ordinance provided no definition). It must do so, however, within the framework of the ordinance. Id. (the planning director had the authority, to interpret the zoning ordinance within the framework of the ordinance).\\nIn interpreting a particular ordinance, a board of adjustment must not view sections of it in a vacuum, but instead consider the ordinance as a whole. Id. at 373 (\\\"Various sections of a[n] . ordinance are not to be considered as isolated fragments of the law, but part of the whole unless a different purpose is clearly shown.\\\" (citation omitted)). That is what the Board did in this case. Within the framework of the Article X, the Board concluded that \\\"dockage facilities\\\" as a conditional use in Section 10.0 did not include heavy-industrial activities. The Board began by examining all of Section 10.0. It found persuasive the fact that all the authorized conditional uses in Section 10.0 refer solely to recreational activities, thus keeping with the intent of the zone to limit activities to recreation and conservation. The Board derived this intent from the title of the zone and the specific uses permitted. We agree with C&B that section headings or titles are not meant to displace the .text of an ordinance. The words of the section speak for themselves. And while the section's title heading is not binding, it can hardly be said to carry no persuasive weight.\\nExpanding its view, the Board also considered the zoning ordinance as a whole. Equally persuasive is that the ordinance specifically authorizes \\\"barge, shipping, and docking facilities\\\" in industrial river zones 1-4 (Section 10.26) and 1-5 (Section 10.27), but only \\\"dockage facilities\\\" in R/CO zones. \\\"A conditional use is one that is suitable to a zoning district, but not necessarily to every location within that district.\\\" Black's Law Dictionary (10th ed. 2014); KRS 100.111(6) (defining \\\"conditional use\\\"). The Board thought it contrary to the ordinance to permit heavy- industrial docking facilities in a zone that, by its own terms, limits itself in every respect to recreation and conservation activity. The docking facility C&B argues is permissible would be more appropriate in an industrial river zone. Furthermore, while R/CO zone authorizes dockage facilities as a conditional use, it does not permit shipping and barges.\\nC&B points out that Sections 10.0 and 10.26 use nearly identical terms\\u2014 \\\"dockage facilities\\\" in the R/CO zone and \\\"docking facilities\\\" in the 1-4 industrial river zone. C&B argues that under normal rules of statutory construction the same words used in different parts of the same piece of legislation are intended to have the same meaning. \\\"Although we generally presume that identical words used in different parts of the same act are intended to h'ave the same meaning, the presumption is not rigid, and the meaning [of the same words] well may vary to meet \\u2022 the purposes of the law.\\\" Woods v. Commonwealth, 142 S.W.3d 24, 41 (Ky.2004) (quoting United States v. Cleveland Indians Baseball Co., 532 U.S. 200, 213, 121 S.Ct. 1433, 1441, 149 L.Ed.2d 401 (2001)). In any event, Section 10.0 uses the term \\\"dockage facilities\\\" while Section 10.26 references \\\"docking facilities\\\" in conjunction with the terms \\\"barge\\\" and \\\"shipping.\\\" This distinction is meaningful.\\n. C&B asserts the Board's decision offends Kentucky's long-standing rule that \\\"[z]oning resolutions are in derogation of the common-law and deprive a property owner of,certain uses of his land, and as such, must be strictly construed.\\\" Hamner v. Best, 656 S.W.2d 253, 255 (Ky.App. 1983), By cobbling the word \\\"recreational\\\" onto \\\"dockage facilities,\\\" so the argument goes, the Board failed to strictly construe the conditional use in favor of the free use of the property.\\nWe agree . generally with C&B that zoning ordinances must be strictly construed. See id. But that tenet must function in harmony with the stated purpose of the Board \\u2014 to provide an element of flexibility in zoning administration to ensure substantial justice is done. \\\"At a minimum, a zoning ordinance must contain a plan for orderly growth, 'and property owners must be able to rely on it when making investments in real estate and for the protection of land values.'\\\" Keogh, 243 S.W.3d at 372 (citation omitted). C&B's property is not the only land at issue here. The Board must also be mindful of how C&B's proposed plan affects its neighbors. Surrounding property owners rely on the predictability of zoning ordinances as much as the applicant seeking a conditional use.\\nFinally, C&B complains that the Board abandoned the very process contemplated in KRS 100.237 to ameliorate any impairment to the integrity or character of the zone by allowing the proposal, but placing conditions on the use. The Board was certainly mindful that it could grant C&B's application with restrictions. It discussed that option during its meeting. We reject C&B's argument that the circuit court and Board distorted the authorized conditional-use and the directive for ameliorating the use in the zone. The Board was under no compulsion to allow the conditional use subject to restrictions. KRS 100.237(1) (\\\"board may approve, modify, or deny any application for a conditional use permit\\\" (emphasis added)).\\nIn sum, we do not believe the board of adjustments abused its authority by its interpretation of the undefined text of the particular section and the ordinance as a whole. We are not persuaded by C&B's argument on this ground.\\nB. C&B was afforded all procedural process due\\nC&B next argues .that the Board denied it procedural due process by: (a) conducting a zoning appeal instead of a conditional use, application hearing which had been requested and advertised; and (b) failing to re-open the public comment section of the hearing. C&B failed to convince the circuit court that it was deprived of due process. We agree with the circuit court.\\nC&B contends the Board, in its deliberations and decision, effectively converted this hearing from one for a conditional use permit into a statutory administrative appeal under KRS 100.257. That statute reads:\\nThe board of adjustment shall have the power to hear and decide cases where it is alleged by an applicant that there is error in any order, requirement, decision, grant, or refusal made by an administrative official in the enforcement of the zoning regulation. Such appeal shall be taken within thirty (30) days.\\nC&B claims the Board was consumed with discussion over the issue of interpretation, which converted the nature of the entire proceeding. It also asserts the Board sua sponte decided to overturn the staffs recommendation \\u2014 without a formal request and without giving C&B an opportunity to respond. C&B's argument lacks merit and is inadequately rooted in law or fact.\\nTh\\u00e9 Board's discussion of the need to interpret Article X of the zoning ordinance did not convert the hearing in the manner claimed by C&B. That discussion was attendant to, and a necessary component of, the decision to grant or deny C&B's conditional use permit application. We agree entirely with the circuit court that discussions such as this are inherent in the Board's decision-making process. From a more- fundamental standpoint, no staff \\\"order, requirement, decision, grant, or refusal\\\" was being appealed to the Board. We are at a loss to understand C&B's claim that this hearing was .in fact one under KRS 100.257.\\nC&B frequently criticizes the.Board's decision not to follow the recommendations of its professional planning staff. .But-the staffs recommendations are just that: recommendations. See generally KRS 100.223 (\\\"Any board of adjustments may employ or contract with planners or other persons as it deems necessary to accomplish its assigned duties under this chapter.\\\" (emphasis added)). C&B cites to no authority that would compel the Board to follow the suggestions of its staff. A rule to the contrary would strip the Board of its powers and purpose, making it a mere rubber stamp for the planners. That is not the purpose of a board of adjustment.\\nThis brings us to C&B's second due-process claim. It asserts the Board failed to afford it sufficient opportunity to weigh in when \\\"the Board suddenly and without notice redefined the conditional use\\\" during its'deliberations. C&B argues that if it had had advance notice or been given notice at the conclusion of the public-comment portion of the hearing, it could have contested the legal analysis or otherwise addressed the Board's conclusion..\\nThe hallmark of procedural due process is \\\"the opportunity to be heard at a meaningful time and in a meaningful manner.\\\" Hilltop Basic Res., 180 S.W.3d at 468 (citing Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976)). That is, notice and an opportunity to be heard. Dep't of Revenue, Fin. & Admin. Cabinet v. Wade, 379 S.W.3d 134,138 (Ky.2012) (these \\u00e1re the \\\"essential requirements\\\" of due process).' C&B, through its representative, meaningfully participated in the three-hour h\\u00e9aring before the Board. It commented on its application, offered a historical accounting of the site, depicted its vision of the dockage facility, and responded to questions. C&B does not deny being afforded this opportunity nor does it deny taking advantage of it. Instead, it stands on a claimed entitlement to address the Board's'thought process that formed and revealed itself during the deliberation phase. However, C&B never asked for that opportunity. At no point did it ask to re-open the hearing or to add additional commentary when the Board \\u2014 to use C&B's words \\u2014 \\\"suddenly\\\" shifted the issue by \\\"grafting\\\" recreational onto \\\"dockage facility\\\" under Article X of the local zoning ordinance. Nothing prevented it from seeking that additional input, although nothing guaranteed the right to present it.\\nTo the extent C&B requests advance notice of all opposition to its. application prior to the hearing, it puts the proverbial horse before the cart. We think it inconceivable to require the Board to advise an applicant of -its possible outcome and thought-process prior to the public hearing. Until hearing all the evidence, the Board should have been unaware which way it intended to rule. That is, the hearing shaped the Board's deliberations. It is true that in other contexts, such as in a criminal proceeding, a party would be entitled to prior notice of certain kinds of evidence. See, e.g., Kentucky Rules of Evidence (KRE) 404(c). However, there is no such requirement in administrative hearings of this kind.\\nFurthermore, the issue of whether the intended use was a \\\"dockage facility as that term is used in the R/CO zone was first introduced by neighbor Howard Ba-ber during the public-comment portion of the hearing. C&B could have offered its interpretation as part of its response. It chose not to.\\nWe are convinced C&B received at least the process to which it was due and entitled. Again, we are not persuaded by this argument.\\nC. The Record Does Not Compel a Result Contrary to that Found by the Board\\nFinally, C&B argues the circuit court erred in concluding that substantial evidence in the record supported the denial of the requested conditional-use permit when there was no evidence or testimony in the record upon which the Board could have reached its decision. In other words, the Board's decision was arbitrary because it lacked supporting evidence. While framed as a \\\"substantial evidence\\\" argument, we view it from a slightly different perspective. C&B, the party saddled with the burden of proof, was denied the relief it sought at the administrative level. In such a case, \\\"the failure to grant administrative relief to one carrying the burden is arbitrary [only] if the record compels a contrary decision in light of substantial evidence therein.\\\" Bourbon County Bd. of Adjustment v. Currans, 873 S.W.2d 836, 838 (Ky.App.1994).\\nNot infrequently, contestants appear at the judicial level arguing that the administrative decision is not supported by substantial evidence when the board has offered no relief in the first instance. In other words, the board has ruled that the one having the .burden of proof\\u2014 usually the applicant \\u2014 has failed. In such cases, attention should be directed to the administrative record in searph of compelling evidence demonstrating that the denial of the relief sought was arbitrary. The argument should be that the record compels relief. The argument that there-is no substantial evidence to support nonrelief is an anomaly.\\nId. Evidence is compelling if it is so overwhelming that no reasonable person could fail to reach the same conclusion. Greene v. Paschall Truck Lines, 239 S.W.3d 94, 108 (Ky.App.2007) (citation omitted).\\nC&B argues the Board distorted the record to \\\"redefine\\\" the conditional use permitted in the R/CO zone and there is no evidence or testimony in the record about the revised and reconstituted conditional use. It appears C&B is rebranding its prior arguments under the substantial-evidence heading. We have already found the Board's interpretation of \\\"dockage facility,\\\" as that term is used in Section 10.0, to be legally sound. We need not re-visit that issue. In light of that definition and under the evidence as a whole, we are not convinced the record compels a different result. The great weight of the evidence was that C&B was conducting heavy-industrial activities that have no place in a recreation and conservation zone and that were to the substantial detriment of C&B's neighbors. C&B has identified no compelling evidence demonstrating that the denial of its conditional use permit was arbitrary.\\nIII. Conclusion\\nWe agree with the Campbell Circuit Court's March 20, 2014 order affirming the Campbell County and Municipal Board of Adjustment's decision to deny C&B's request for a conditional-use permit. In all respects, we affirm.\\nALL CONCUR.\\n. For convenience, we refer to these parties jointly as \\\"C&B\\\". Where the context requires, we will differentiate between the two.\"}"
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+"{\"id\": \"6876309\", \"name\": \"KENTUCKY EMPLOYERS' MUTUAL INSURANCE, Appellant v. Randy ELLINGTON; R & J Cabinets; Hon. Jonathan Weatherby, Administrative Law Judge; and Workers' Compensation Board, Appellees\", \"name_abbreviation\": \"Kentucky Employers' Mutual Insurance v. Ellington\", \"decision_date\": \"2015-05-14\", \"docket_number\": \"2013-SC-000802-WC\", \"first_page\": \"876\", \"last_page\": \"885\", \"citations\": \"459 S.W.3d 876\", \"volume\": \"459\", \"reporter\": \"South Western Reporter Third Series\", \"court\": \"Supreme Court of Kentucky\", \"jurisdiction\": \"Kentucky\", \"last_updated\": \"2021-08-11T01:39:00.004747+00:00\", \"provenance\": \"CAP\", \"judges\": \"All sitting. All concur.\", \"parties\": \"KENTUCKY EMPLOYERS\\u2019 MUTUAL INSURANCE, Appellant v. Randy ELLINGTON; R & J Cabinets; Hon. Jonathan Weatherby, Administrative Law Judge; and Workers\\u2019 Compensation Board, Appellees\", \"head_matter\": \"KENTUCKY EMPLOYERS\\u2019 MUTUAL INSURANCE, Appellant v. Randy ELLINGTON; R & J Cabinets; Hon. Jonathan Weatherby, Administrative Law Judge; and Workers\\u2019 Compensation Board, Appellees\\n2013-SC-000802-WC\\nSupreme Court of Kentucky.\\nRENDERED: MAY 14, 2015\\nCounsel for Appellant: Barry Lewis, Lewis and Lewis Law Offices, 151 East Main Street, Suite 100, PO Box 800, Hazard, Kentucky 41702-0800\\nCounsel for Appelle.e, Randy Ellington: Timothy Jay Wilson, Wilson & McQueen, 309 North Broadway, Lexington, Kentucky 40508\\nCounsel for Appellee, R & J Cabinets: Scott Mitchell Burns Brown, Ferreri & Fogle, PLLC, 300 East Main Street, Suite 400, Lexington, Kentucky 40507\", \"word_count\": \"4862\", \"char_count\": \"30440\", \"text\": \"OPINION OF THE COURT BY\\nJUSTICE NOBLE\\nThe Appellant, Kentucky Employers' Mutual Insurance (KEMI), appeals from a decision of the Court of Appeals holding that the Appellee, Randy Ellington, was covered by a workers' compensation policy it issued. The policy named Ellington and his business, a sole proprietorship with the assumed name of R & J Cabinets, as \\\"insureds.\\\" At the same time, the policy included a specific exclusion from coverage of Ellington as the sole proprietor. The Court of Appeals found the policy to be ambiguous because of these competing terms and construed it in Ellington's favor to provide coverage for his injuries. This Court concludes that the policy as issued, on its face, is clearly not a personal policy, but is rather a business policy purchased by a sole proprietor, and no ambiguity requires a different conclusion. Ellington, as the sole proprietor, was not entitled to benefits under the policy. For that reason, the Court of Appeals is reversed.\\nI. Background\\nIn December 2010, Ellington slipped on a patch of ice at a job site and broke his femur. Some time later, he filed for workers' compensation benefits under a workers' compensation insurance policy issued to him by KEMI.\\nEllington owned and operated R & J Cabinets as a sole proprietorship. At times, R & J Cabinets employed part-time workers, usually one at a time, but at the time of Ellington's work-related injury, only Ellington remained with the business. He does not appear to have had any employees for at least a year leading up to his injury.\\nThe KEMI policy was originally purchased in 2006. At that time, Ellington had at least one employee, which he reported to KEMI. The original application for the policy stated'that Ellington was a \\\"sole proprietor\\\" and that he was not covered by the policy.\\nThe policy itself was issued to \\\"Randy Ellington DBA R & J Cabinets,\\\" and was reissued annually. A section of the policy titled \\\"Classifications\\\" laid out how the premium was calculated in part. It included a table showing how the \\\"manual premium\\\" was set. This table included a column titled \\\"CLASS RATING AND MANUAL PREMIUM DETAIL,\\\" under which Ellington's name was listed with a code showing the type of work done by the business. Below this was another table showing how the final premium was calculated (i.e., by adding an \\\"expense constant\\\" and a special fund assessment to the manual premium).\\nAt the time of the accident, the policy also included a number of attached endorsements. Most of these endorsements have no bearing on this case, as they lay out things like how tax is assessed on the policy. But two of the endorsements are relevant.\\nOne of these was headed \\\"SOLE PROPRIETORS, PARTNERS, OFFICERS AND OTHERS EXCLUSION ENDORSEMENT\\\" (hereinafter \\\"exclusion endorsement\\\"). It specifically stated that there was no bodily injury coverage to any person in the attendant schedule. The endorsement further stated that \\\"remuneration\\\" (i.e., salary or other earnings) of any person listed in the schedule was not used to set the policy premium, and that if KEMI was ever required to make any payment for bodily injury to a listed person, then that person agreed to reimburse the company. The only person listed on the attendant schedule was Ellington, whose name was included in a column headed \\\"Excluded Individual Name.\\\" The next column of that schedule is headed \\\"Excluded Individual Position,\\\" under which is written \\\"Sole Proprietor.\\\"\\nA second endorsement was entitled \\\"SCHEDULE OF NAMED INSUREDS AND WORK PLACES\\\" (hereinafter \\\"named-insured endorsement\\\"). Under that title, this endorsement listed Randy Ellington and R & J Cabinets separately. The address for both Ellington and R & J Cabinets were the same.\\nThe first policy expired on its anniversary in 2007, but it was renewed annually thereafter. In 2007 and 2008, Ellington completed a \\\"Policyholder's Mail Audit,\\\" which is sent out by the insurer at the end of each of the first few policy years to gather additional information upon which the premium was to be calculated. Those audit forms stated that Ellington was not covered. These forms, according to the ALJ's findings, require the business owner to list the number of employees he had during the policy year and the amount of payroll for the employees. This information is then used, in an after-the-fact manner, to calculate the final amount of pre mium the business owner owes for the coverage extended to these employees over the past year. Ellington listed employees and payroll on those forms.\\nIt was this policy under which Ellington made his claim for benefits. KEMI denied his claim, arguing that it was not covered because of the sole-proprietor exclusion endorsement and other extrinsic evidence.\\nAfter discovery, the Administrative Law Judge (\\\"ALJ\\\") conducted a formal hearing. The evidence at the hearing established that Ellington's premium changed when he no longer had employees but that he still had a premium. Ellington claimed that that was part of why he believed he was covered by the policy.\\nOther testimony, however, established that business owners such as Ellington often maintained coverage even when business was slow, and presumably the number of employees down (even to zero), so that extra labor could be added to compete for a particular job. The testimony also established that some jobs require a contractor to have workers' compensation insurance before a bid could be submitted. In fact, the record shows that Ellington actually requested a certificate of insurance in 2010 so that he could be considered for a job with a roofing company. Given the possibility of up-the-ladder liability, such coverage is often required by larger companies that hire smaller companies for particular work.\\nOther testimony established that if Ellington had been included under the policy, his annual premium would have increased more than sixfold, from approximately $1144 to $7200.\\nAfter the hearing, the ALJ issued findings of fact and conclusions of law. He addressed only the question whether Ellington was covered by the policy, concluding that Ellington was not covered.\\nThe ALJ began by noting that under KRS 342.012, a sole proprietor like Ellington must specifically elect to be covered by a workers' compensation coverage and that to do so, he -must obtain a specific endorsement .on his insurance policy and pay a significant additional premium. No such endorsement had been sought or issued.\\nThe ALJ also noted Ellington's arguments that his listing by name as a named insured separate from R & J Cabinets on the named-insured endorsement suggested he had personal coverage; that this at least created an ambiguity that should be resolved in his favor under Kentucky Employers' Mutual Insurance v. Decker, 2010-SC-000459-WC, 2011 WL 1642183 (Ky. April 21, 2011), an unpublished decision; and that it would be unreasonable for him to pay a premium if he had no employees if he was not personally covered.\\nThe ALJ distinguished Decker, noting that the sole proprietor in that case had never had employees and was less sophisticated than Ellington, and that he had never signed audit forms specifically indicating a lack of coverage. The ALJ went on to conclude \\\"that while there may have been some ambiguity due to listing of [Ellington] as a named insured, that ambiguity should have been clarified . by the specific language of the policy which clearly states-that he is not covered and by the individual audit forms that he specifically and individually signed which also clearly indicate that he personally was not covered.\\\" The ALJ again noted that the audit forms required Ellington to fill in the amount of his employee payroll and number of employees for a given year and \\\"include[d] clear and unambiguous language indicating that Mr. Ellington was excluded from coverage.\\\" The ALJ also cited Ellington's education (high school and some vocational school as a marine mechanic) and \\\"presentation\\\" at the hearing as showing sufficient sophistication to allow him to understand policy documents. He also noted that Ellington understood that his premiums were based on the amount of payroll he reported, and that he called KEMI multiple times to report a reduction in payroll in an effort to reduce his premiums. The ALJ also concluded that it was \\\"reasonable for [Ellington] to want to maintain coverage even when the business was slow in case he needed to add extra labor to complete or apply for a particular job,\\\" and cited the fact that Ellington sought a certif\\u00edcate of insurance in 2010 to be considered for a contracting job. The ALJ also noted that after his fall, Ellington did not tell the hospital he had workers' compensation insurance and instead referred payment inquiries to his lawyer, whom he contacted while still in the hospital.\\nBased on these findings, the ALJ concluded that \\\"it is not credible that [Ellington] believed he had workers' compensation coverage at the time of his injury in light of the weight of the evidence to the contrary.\\\" Because there was no coverage, the ALJ dismissed the claim.\\nThe Workers' Compensation Board affirmed, concluding that the evidence did not compel a different result than that reached by the ALJ. In reaching this conclusion, the board reviewed and recited much of the same evidence relied on by the ALJ and agreed that any ambiguity that might have appeared in the policy's naming of Ellington as an \\\"insured\\\" was \\\"remedied by the audit forms and the wording in the contract itself indicating Ellington, individually, was excluded from coverage and his salary was not included in calculating the premium due each year.\\\"\\nThe Court of Appeals, however, reversed. The court noted, incorrectly, that the ALJ had found an ambiguity in the insurance policy and concluded that the ALJ erroneously construed the ambiguity against Ellington. Instead, the court reasoned, the ambiguity should be construed strictly against the drafter, KEMI. Reviewing the policy de novo, the court contrasted the exclusion endorsement with the named-insured endorsement to conclude that \\\"the policy could reasonably be interpreted to exclude Ellington in his capacity as-the business owner while including him under its coverage as its sole employee.\\\" The court also concluded that the ALJ's interpretation of the policy language was undermined by the reasonable-expectations doctrine under which insurance-policy ambiguities are resolved in favor of the insured's reasonable expectations.\\nThe case comes to this Court as a matter of right appeal.\\nII. Analysis\\nThis case presents one overarching question: Was Randy Ellington entitled to benefits for his injury under the workers' compensation insurance policy issued to him by KEMI? To answer that question, we would ordinarily undertake a two-step analysis. First, we determine what the policy says and whether it includes any ambiguity. Second, if there is any ambiguity, we must resort to the standard tools of interpretation to determine what coverage the policy provides. In this case, the policy, by its clear language, excludes Ellington- from coverage and contains no ambiguity. Thus, we resolve this case in the first step of the analysis. Nevertheless, to the extent there may be some remnant of ambiguity, we apply the traditional tools of contract interpretation and still conclude that the policy excludes Ellington from bodily-injury benefits.\\nBefore turning to the policy itself, it is worth noting that the Court of Appeals was incorrect in claiming that the ALJ found that the policy was ambiguous. What the ALJ found was that there \\\"may have been some ambiguity,\\\" (emphasis added), but that the seeming ambiguity \\\"should have been clarified\\\" by the language of the exclusion endorsement. Though the ALJ used the normative language \\\"should have,\\\" he was, in effect, concluding that there was no ambiguity.\\nThis seeming ambiguity in the ALJ's decision, however, ultimately does not matter. As the Court of Appeals correctly noted, interpretation of an insurance contract is a question of law. Cincinnati Ins. Co. v. Motorists Mut. Ins. Co., 306 S.W.3d 69, 73 (Ky.2010). Appellate review, therefore, is de novo, and no deference is given to the decisions of lower tribunals, even as to the existence of an ambiguity.\\nThe language of the policy is clear. The exclusion endorsement specifically named Ellington, as the sole proprietor of R & J Cabinets, as excluded from coverage for bodily injury. It bears repeating: \\\"The policy does not cover bodily injury to any person described in the Schedule.\\\" The only person \\\"described in the Schedule\\\" was \\\"Randy Ellington,\\\" the \\\"Sole Proprietor\\\" of R & J Cabinets.\\nThat Ellington was also named as an \\\"insured\\\" does not make this term ambiguous or otherwise create conflict in the policy. \\\"Insured\\\" means \\\"[s]omeone who is covered or protected by an insurance policy.\\\" Black's Law Dictionary (10th ed.2014). In other words, he was entitled to some type of benefit from the policy. But that does not mean he was entitled to benefits for his injury. Even if he does not get paid for his injuries under the insurance contract, Ellington is still protected by it.\\nMany contracts of insurance offer two benefits or types of protection. The first kind offsets the insured's liability to third parties. The second kind pays the insured for his own injuries. Tb^is is most often seen with automobile insurance, where there is liability coverage for damage done to third parties by the insured's vehicle, and collision (and PIP) coverage that pays for injuries to the insured and his vehicle. But a driver is not required to have both types of protection, and many opt to have only liability insurance.\\nWorkers' compensation insurance, by its very nature, splits these two protections. By law, employers are required to maintain insurance (or be selfinsured) for the benefit of their employees. In a sense, this works like liability coverage, as it shields the employer- by providing coverage for any liability claim the employee may have against the employer. (Of course, the benefit to the employee is actually greater than with standard insurance because the covered employer in workers' compensation does not have to be at fault for there to be a recovery.) But the legal default with workers' compensation insurance is that the owner of a business (the employer) is not entitled to workers' compensation benefits, whether they are paid under an insurance policy or from a selfin-surance fund. KRS 342.012(1). Instead, to receive such benefits, the owner must elect to be covered, id. and obtain a separate policy endorsement, KRS 342.012(2), which comes at an added cost.\\nAt the very least, Ellington, as the owner of the business, received liability protection from his policy. If he chose to hire an employee, and the employee was injured, the policy would cover the ensuing liability (to the extent of the policy limits). Had Ellington not had insurance, he would be personally liable for the workers' compensation benefits owed to the employee. The employee would have no independent cause of action because workers' compen sation benefits are the exclusive remedy for on-the-job injuries when the employer has a workers^ compensation insurance policy. See KRS 342.690.\\nThus, there is no conflict, and no ambiguity, in the insurance policy. An owner-employer like Ellington can be both an insured (and thus receive liability protection from the policy) and yet be excluded from monetary benefits for bodily injury under the policy. That split in benefits is the default nature of workers' compensation insurance in Kentucky. The policy acknowledges this default split.\\nThe Court of Appeals tried to find an ambiguity by contrasting the named-insured endorsement with the exclusion endorsement. From this contrast, the court concluded that \\\"the policy could reasonably be interpreted to exclude Ellington in his capacity as the business owner while including him under its coverage as its sole employee.\\\" Although one source has described the sole proprietor as both the \\\"owner and principal employee\\\" of a sole proprietorship, 17 James Seiffert, Ky. Prac. Corp. Law with Forms \\u00a7 1:2, for most purposes, \\\"the individual proprietor is not treated as an employee of the business (as are those employed by him),\\\" 4A William B. Bardenwerper et ah, Ky. Prac. Methods of Prac. \\u00a7 18:2. Indeed, this is why sole proprietors cannot take advantage of many tax deductions and similar benefits available to business entities like corporations. Id. Where such benefits extend to sole proprietors, it has come through legislative or regulatory action. Cf. 26 C.F.R. \\u00a7 1.7476-1 (stating that \\\"a sole proprietor shall be considered such person's own employer\\\" for purposes of interested-party rules related to qualified retirement plans).\\nIt is thus evident that the Court of Appeals' reading misunderstands the nature of a sole proprietorship. Unlike a corporation or a limited-liability company, a sole proprietorship is not an entity separate from the proprietor. They are one and the same. Cf. Black's Law Dictionary (10th ed.2014) (defining sole proprietorship as \\\"[a] business in which one person owns all the assets, owes all the liabilities, and operates in his or her personal capacity \\\" (emphasis added)). Though we often' speak of such people as being self-employed, no one really contemplates that a sole proprietor acts in two capacities, both as employer and employee. The Court of Appeals' confusion appears to stem from the fact that Ellington operated his business under an assumed name, rather than his own, as is allowed under KRS 365.015. But again, that does mean that R & J Cabinets was a separate entity from Ellington. Rather, the use of the assumed name for the sole proprietorship further demonstrates that Ellington and the business were one and the same.\\nMoreover, the Court of Appeals' reading would essentially render the exclusion superfluous. If Ellington was covered when acting as an \\\"employee,\\\" i.e., when doing work, but excluded when \\\"acting\\\" as an owner, there is no need for the exclusion. The only time Ellington could conceivably be entitled to workers' compensation benefits would be if his injuries occurred on the job, that is, when he was acting as an employee. The policy exists only to pay benefits that a worker would be owed because of the workers' compensation law. Ellington's status as an owner exists at all times. Injuries that might happen to him when only that status was in effect, such as after work hours, would not be subject to the workers' compensation law.\\nDespite the apparent clarity of the agreement, courts are nevertheless bound to look at an insured's reasonable expectations in deciding whether the insurance contract is ambiguous and what the contract means. See Simon v. Continental Ins. Co., 724 S.W.2d 210, 212 (Ky.1986) (\\\"An essential tool in deciding whether an insurance policy is ambiguous . is the so-called 'doctrine of reasonable expectations.' \\\"). But in applying the doctrine of reasonable expectations, even if there were some residual ambiguity in the insurance policy, we could not find that Ellington was entitled to benefits for his injury.\\n\\\"The rule of interpretation known as the 'reasonable expectations doctrine' resolves an insurance policy ambiguity in favor of the insured's reasonable expectations.\\\" Aetna Cas. & Sur. Co. v. Commonwealth, 179 S.W.3d 880, 837 (Ky. 2005); see also True v. Raines, 99 S.W.3d 439, 443 (Ky.2003) (\\\"[T]he reasonable expectation doctrine . resolves an insurance-policy ambiguity in favor of the insured's reasonable expectation....\\\"). The basic thrust of this doctrine is \\\"that the insured is entitled to all the coverage he may reasonably expect to be provided under the policy.\\\" Simon, 724 S.W.2d at 212 (quoting R.H. Long, The Law of Liability Insurance \\u00a7 5.10B). Where a person has paid a premium for a policy, the policy should not be read technically to avoid paying benefits. See Aetna Cas. & Sur. Co., 179 S.W.3d at 837 (\\\"We believe 'an insurance company should not be allowed to collect premiums by stimulating a reasonable expectation of risk protection in the mind of the consumer, and then hide behind a technical definition to snatch away the protection which induced the premium payment.' \\\" (quoting Moore v. Commonwealth Life Ins. Co., 759 S.W.2d 598, 599 (Ky.App.1988))). \\\"Only an unequivocally conspicuous, plain and clear manifestation of the company's intent to exclude coverage will defeat that expectation.\\\" Simon, 724 S.W.2d at 212 (quoting R.H. Long, The Law of Liability Insurance \\u00a7 5.10B). This test looks to the reasonableness of what an insured may believe about coverage, and necessarily relies heavily on the facts.\\nThis Court has also stated that the rule of contra \\\"proferentem, i.e., that an agreement is construed strictly against the drafter, should be used in interpreting insurance contracts. Indeed, we have specifically stated that \\\"doctrine of reasonable expectations is used in conjunction with the principle that ambiguities should.be resolved against the drafter,\\\" Id. at 213 (quoting R.H. Long, The Law of Liability Insurance \\u00a7 5.10B). Although we have said that \\\"Kentucky has consistently recognized that an ambiguous policy is to be construed against the drafter, and so as to effectuate the policy of indemnity,\\\" Bituminous Cas. Corp. v. Kenway Contracting, Inc., 240 S.W.3d 633, 638 (Ky.2007), we have also said that \\\"[t]he rule of strict construction against an insurance company certainly does not mean that every doubt must be resolved against it and does not interfere with the rule that the policy must receive a reasonable interpretation consistent with the parties' object and intent or narrowly expressed in the plain meaning and/or language of the contract.\\\" St. Paul Fire & Marine Ins. Co. v. Powell-Walton-Milward, Inc., 870 S.W.2d 223, 226 (Ky.1994).\\nSo what could Ellington have reasonably expected from the insurance policy he bought from KEMI? The reasonable expectations rule requires more than finding the existence of an ambiguity and, without considering the surrounding facts, ruling against the insurer. Nevertheless, in deciding this case, the Court of Appeals did not give adequate consideration to the surrounding facts. Instead it based its decision to reverse merely on the existence of an ambiguity, finding that the Board and ALJ had misconstrued the law in light of the ambiguity. After considering the facts and circumstances of this case, including Ellington's application for the policy, his audits, and the language of the policy itself, this Court can only conclude that Ellington could not have reasonably expected to get benefits for his bodily injury.\\nFirst, Ellington's computer-generated application for the policy in 2006 stated that he was not \\\"covered\\\" by it. In light of this fact, from the beginning, it was not reasonable for Ellington to expect to be paid benefits under the policy.\\nIn the two years after obtaining the policy, Ellington filled out audit forms. These forms also stated that Ellington was not included in the policy's coverage. The forms also listed Ellington's employees and their salaries for the year.\\nAt no time did Ellington report his personal income for use in calculating the premium, and Ellington testified that he understood that the premium would change based on his employees' payroll. From this, Ellington certainly should have known that he was only paying for coverage for employees. In fact, the amount of his premiums changed over the first two years because of the differing number of employees.\\nAll of this is evidence that at the time the policy was written, and as it renewed, Ellington clearly understood \\u2014 or at least should have reasonably expected \\u2014 that he was not covered for bodily injury under the policy.\\nThat he really did not believe he was covered is highlighted by the fact that when he went to the hospital for his injury in 2010, he did not tell the hospital that he was covered by workers' compensation insurance. Instead, he called his lawyer from the hospital and thereafter directed inquiries about payment to the lawyer. This clearly does not sound like a person who believed he had insurance coverage.\\nDespite this proof, the Court of Appeals held that the ALJ and the Board misconstrued the controlling law of the reasonable-expectations and contra proferentem doctrines. But, in fact, neither the ALJ nor the Board misconstrued the law. The ALJ accurately applied it, which the Board recognized. Under the facts of this case, the ALJ determined that \\\"it is not credible that the Plaintiff believed that he had worker's [sic] compensation coverage at the time of his injury in light of the weight of the evidence to the contrary.\\\" (Emphasis added.) The ALJ considered all the facts surrounding the claim of ambiguity, and took into consideration the audit forms saying Ellington personally was not covered; the lower premiums he negotiated when his employee level changed; the vast difference between premiums for employee-only policies versus the premium if a principal is included; his failure to claim insurance coverage when he was admitted to the hospital; and various other factors that came from examining the insurance documents over the entire coverage period. The Board could not say, nor can we, that the evidence did not support the ALJ's conclusion that Ellington did not believe he had coverage under this policy. Certainly, if the evidence shows Ellington did not actually believe he had coverage, he could not have \\\"reasonably believed\\\" that he did.\\nFinally, counsel for Ellington argued to the ALJ that an unpublished decision of this Court, Kentucky Employers' Mutual Insurance v. Decker, 2010-SC-000459-WC, 2011 WL 1642183 (Ky. Apr. 21, 2011), supported his position. As an unpublished opinion, it can have at most a persuasive effect and is not binding.\\nAs importantly, the opinion does not support Ellington's position. In fact, in Decker this Court clearly stated that \\\"[a]l-though a court must enforce an unambiguous contract strictly, according to the ordinary meaning of its terms and without resort to extrinsic evidence, the court may consider extrinsic evidence when interpreting an ambiguous contract.\\\" Id. at \\u215c6 (citations omitted, emphasis added). This standard was morphed by the Court of Appeals in this case into the statement that the Board misconstrued the law because it did not \\\"interpret the exclusion contained in KEMI's policy strictly against the insurer.\\\"\\nBut in applying the reasonable expectations doctrine, a tribunal considers all the circumstance surrounding the policy, including extrinsic evidence, in interpreting the effect of the ambiguity in the policy. The extrinsic evidence \\u2014 the facts \\u2014 in this case, though superficially similar, are actually quite different than those in Decker. Here, the policy listed the company name, not just Ellington's name alone, as Decker's policy did. Ellington listed employees, where Decker did not. Decker claimed only one employee \\u2014 himself. Ellington had a high school education with some further vocational education, and could read and understand the policy and subsequent audit forms. Decker, however, completed only the ninth grade, could only read some of the policy, and no audit forms were introduced. Decker made a workers' compensation claim immediately after his accident, and Ellington did not.\\nThere was also a complicated, fact pattern about why and how Decker obtained the insurance, and at least one significant difference in the language of the policy \\u2014 a statement on the named-insured endorsement that the \\\" 'Named Insured' . was 'included in policy coverage.' \\\" Id. at *3. The named-insured endorsement on Ellington's policy included no such language. In short, the facts demonstrated that Decker had been led to believe he had appropriate coverage and that he always believed he did. But the facts in this case compel a different conclusion.\\nIII. Conclusion\\nAs explained above, Ellington was excluded from benefits for bodily injury occurring on the job under the workers' compensation insurance policy he purchased from KEMI. For that reason, the judgment of the Court of Appeals is reversed, and the order of the Board affirming the decision of the ALJ is reinstated.\\nAll sitting. All concur.\\n. According to testimony in the record, the manual premium was calculated based on the business's employee payroll, excluding money paid to Ellington. This calculation is not explicitly shown in the \\\"Classifications\\\" portion of the policy. Other documents, however, show that Ellington reported his employee payroll to KEMI from time to time.\\n. The full language is as follows:\\nThe policy does not cover bodily injury to any person described in the Schedule.\\nThe premium basis for the policy does not include the remuneration of such persons.\\nYou will reimburse us for any payment we must make because of bodily injury to such persons.\\n. According to the AU, Ellington once operated the business with a partner, suggesting that the business was a general partnership at that time, but the partner had left the business at least six years before the accident in this case.\\n. Another form filled out around that time by the underwriter included the question, \\\"Any owners/officers included in coverage?\\\" The space after this was left blank. It is not clear whether Ellington saw this form.\\n. The ALJ noted several phone records showing that Ellington reported changes in the number of employees he had when renewing his policy, which affected the amount of premium to be paid. The Board noted that this evidence was submitted after the evidence had been closed and thus was improperly considered.\"}"
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+"{\"id\": \"6903454\", \"name\": \"ST. JOSEPH CATHOLIC ORPHAN SOCIETY, et al., Appellants v. Honorable Brian C. EDWARDS, Judge, Jefferson Circuit Court, Appellee and St. Joseph Home Alumni Association, et al., Real Parties in Interest\", \"name_abbreviation\": \"St. Joseph Catholic Orphan Society v. Edwards\", \"decision_date\": \"2014-12-18\", \"docket_number\": \"2013-SC-000803-MR\", \"first_page\": \"727\", \"last_page\": \"741\", \"citations\": \"449 S.W.3d 727\", \"volume\": \"449\", \"reporter\": \"South Western Reporter Third Series\", \"court\": \"Supreme Court of Kentucky\", \"jurisdiction\": \"Kentucky\", \"last_updated\": \"2021-08-10T18:30:05.831752+00:00\", \"provenance\": \"CAP\", \"judges\": \"All sitting. All concur.\", \"parties\": \"ST. JOSEPH CATHOLIC ORPHAN SOCIETY, et al., Appellants v. Honorable Brian C. EDWARDS, Judge, Jefferson Circuit Court, Appellee and St. Joseph Home Alumni Association, et al., Real Parties in Interest\", \"head_matter\": \"ST. JOSEPH CATHOLIC ORPHAN SOCIETY, et al., Appellants v. Honorable Brian C. EDWARDS, Judge, Jefferson Circuit Court, Appellee and St. Joseph Home Alumni Association, et al., Real Parties in Interest\\n2013-SC-000803-MR\\nSupreme Court of Kentucky.\\nRENDERED: DECEMBER 18, 2014\\nCOUNSEL FOR APPELLANTS: Walter L. Sales, Leah Rupp Smith, Joseph A. Bilby, Stoll Keenon Ogden PLLC, Louisville, Charles Harding Cassis, Jennifer Kaelin Luhrs, Goldberg Simpson, LLC, Prospect, The Honorable Brian Clifford Edwards, Judge, Jefferson Circuit Court, Division Eleven\\nCOUNSEL FOR REAL PARTIES IN INTEREST: Charles Thomas Hectus, Hectus Law Office, William Joseph Walsh IV, Buchenberger Walsh, PLLC, Louisville\", \"word_count\": \"6024\", \"char_count\": \"39243\", \"text\": \"OPINION OF THE COURT BY\\nCHIEF JUSTICE MINTON\\nAfter being removed from their seats on St. Joseph Catholic Orphan Society's Board of Trustees, certain individuals who also identify themselves as members of the St. Joseph Home Alumni Association, filed suit against St. Joseph and the newly-elected Board members. The suit challenges the validity of the Board's resolution effectuating their removal and seeks reappointment of the ousted members to St. Joseph's Board of Trustees.\\nSt. Joseph sought dismissal of the suit, arguing the trial court was without subject-matter jurisdiction because of the application of the ecclesiastical-abstention doctrine. The trial court denied St. Joseph's motion to dismiss because it found the ecclesiastical-abstention doctrine inapplicable.\\nSt. Joseph is now before this Court seeking a writ of mandamus requiring the trial court to dismiss the underlying action. It again claims the trial court is without subject-matter jurisdiction to hear the Alumni's cause of action because of the application of ecclesiastical abstention. The Court of Appeals, where this writ action originated, declined to issue a writ, concluding ecclesiastical abstention did not apply because the underlying case could be adjudicated on the basis of neutral principles of law. St. Joseph appeals the writ denial to this Court as a matter of right.\\nBefore this Court, St. Joseph contends the Court of Appeals erred in declining to issue a writ because, regardless of the neutrality of the applicable secular law, the underlying suit is one concerning the internal governance of a religious entity. As such, St. Joseph argues, the ecclesiastical-abstention doctrine applies and deprives the circuit court of subject-matter jurisdiction to hear the suit.\\nWe affirm the denial of a writ by the Court of Appeals, but we do so on other grounds. We conclude the ecclesiastical-abstention doctrine does not divest our courts of subject-matter jurisdiction to hear cases they are otherwise authorized to adjudicate. So the issuance of a writ is improper. Instead, we reason that the ecclesiastical-abstention doctrine is to be applied as an affirmative defense akin to the ministerial exception, including the right to an interlocutory appeal following a trial court's denial of its application. As such and in the interests of judicial economy, we treat St. Joseph's petition for a writ of mandamus as an interlocutory appeal from the trial court's denial of its motion to dismiss based on the ecclesiastical-abstention doctrine. And on the merits of St. Joseph's claim, we agree that the underlying action presents a question of ecclesiastical governance, which means that the ecclesiastical-abstention doctrine prohibits the underlying action from going forward in the trial court. Accordingly, we reverse the trial court's order denying St. Joseph's motion to dismiss, and we remand the case to the trial court with instructions to dismiss the action.\\nI. FACTUAL AND PROCEDURAL HISTORY.\\nA. We are Constrained to Deny Alumni's Untimely Motion for Enlargement of Time to File a Brief. Without a Brief From the Appellees, we Accept the Appellant's Version of the Facts and Issues.\\nBefore our customary recitation of the circumstances encompassing this case, we must address a pending motion that bears directly on our view of the relevant facts. Alumni has not filed a timely brief in response to St. Joseph's brief and has moved this Court for an enlargement of time to do so.\\nThe original deadline for Alumni's appel-lees' brief was March 3, 2014. Alumni first moved this Court for an enlargement of time on that date, requesting the deadline be extended to March 21, 2014. We granted Alumni's motion with little objection from St. Joseph. But Alumni failed to meet this extended deadline and did not mail their appellees' brief to the Court until March 24, 2014, one working day after the deadline. The clerk returned Alumni's brief, which prompted the pending motion for an enlargement of time to allow Alumni to file its appellees' brief.\\nWhen a party seeks an enlargement of time after the expiration of the time period to be enlarged, as is the case here, the Court may, in its discretion, grant the enlargement if it finds \\\"the failure to act was the result of excusable neglect.\\\" Our predecessor court has defined excusable neglect as \\\"the act of a reasonably prudent person under the same circumstances.\\\" Alumni's counsel attempts to show excusable neglect by citing his transcription of the incorrect date in his calendar and distraction caused by his mother's impending surgery.\\nWe are unconvinced that Alumni has shown its failure to comply with this Court's deadline was the result of excusable neglect. We cannot find that incorrectly transcribing the filing deadline, a date Alumni's counsel specifically requested when seeking the first enlargement, constitutes excusable neglect. And we are likewise unconvinced that counsel's preoccupation caused by his mother's impending surgery rises to the level of excusable neglect. The surgery was scheduled to take place four days after the filing deadline for the brief, and counsel does not disclose the nature of the procedure or the precipitating condition to allow us to gauge what level of preoccupation might befall \\\"a reasonably prudent person\\\" in counsel's circumstances. To be sure, family medical emergencies and ongoing medical treatment may give rise to excusable neglect in some instances, but the existence of a relative's scheduled medical procedure, without more, does not precipitate the kind of neglect that excuses failure to comply with filing deadlines. Alumni's motion for an enlargement of time is, therefore, denied.\\nBecause we have denied Alumni's motion for enlargement of time, we have no brief from Alumni filed consistently with our rules. CR 76.12(8)(c) provides the range of penalties that may be levied against an appellee for failing to file a timely brief. In our discretion, we may: \\\"(i) accept the appellant's statement of the facts and issues as correct; (ii) reverse the judgment if appellant's brief reasonably appears to sustain such action; or (iii) regard the appellee's failure as a confession of error and reverse the judgment without considering the merits of the case.\\\"\\nSt. Joseph urges us to reverse the ruling of the Court of Appeals because its brief \\\"reasonably appears to sustain such action.\\\" Although St. Joseph's argument is not unreasonable, reversal of the decision of the Court of Appeals would result in dismissal of Alumni's underlying claim. The fault for failing to comply with the deadline ostensibly lies with Alumni's counsel, so dismissal of Alumni's cause of action seems too harsh a punishment to levy against the faultless party. We find it more appropriate to accept St. Joseph's version of the facts and issues as true. So the facts portrayed below are completely aligned with those presented by St. Joseph.\\nB. The Facts and Issues Before This Court.\\nSt. Joseph Catholic Orphan Society was founded in Louisville by several German-Catholic parishes in 1848. These parishes worked together to manage the orphanage according to the teachings of the Roman Catholic Church. St. Joseph has' since incorporated, but its Catholic roots endure.\\nA golden cross adorns the dome atop the orphanage, and a statue of St. Joseph holding the infant Jesus stands above the main entrance. A functioning Roman Catholic chapel lies at the center of the orphanage, but St. Joseph does not proselytize or force religion upon its residents or employees.\\nBeyond housing and educating needy and at-risk youth, St. Joseph's Articles of Incorporation include \\\"assist[ing] the Roman Catholic Archbishop of Louisville in providing for the care, counseling, and education of children\\\" as its mission. This principle is echoed in the preamble of its bylaws, stating that St. Joseph \\\"operates according to the beliefs, teaching, and mission of the Catholic Church.\\\"\\nSt. Joseph's relationship with the Roman Catholic Church is also recognized in its tax treatment. St. Joseph enjoys federal tax-exempt status based on a group exemption granted to the United States Conference of Catholic Bishops. This exemption applies to all organizations operated, supervised, or controlled by the Roman Catholic Church. St. Joseph is still required to make tax filings in light of its exempt status, but does not make the required filings on its own. behalf. Instead, the Archdiocese of Louisville includes St. Joseph's documentation in it's own filings. St. Joseph also successfully held itself out as a religious entity when claiming its ERISA retirement plan was a \\\"religious plan.\\\"\\nThe Roman Catholic Archbishop of Louisville (or his designee) is also provided a permanent seat on St. Joseph's Board of Trustees. The Board's actions are \\\"sub ject to [the Archbishop's] authority in matters concerning the beliefs, teachings, and mission of the Roman Catholic Church,\\\" and the Board cannot amend its bylaws without the Archbishop's determination that the proposed amendments are not in conflict with Roman Catholic Church doctrine. The Archbishop also has the authority to invalidate any Board action he finds contrary to the Roman Catholic Church's beliefs, teaching, or mission.\\nEarl Hartlage was a member of St. Joseph's Board of Trustees when several employees accused him of harassment. In response to these allegations, the Board entertained a vote to remove Hartlage. A simple majority voted in favor of his removal, but St. Joseph's bylaws require a two-thirds majority to remove a Board member. So Hartlage was not removed.\\nOutraged over Hartlage's continued presence on St. Joseph's Board, some Board members resigned immediately following the unsuccessful removal vote. The Archbishop withdrew his personal representative shortly thereafter, citing concern over potential liability as a result of Hartlage's alleged harassment and continued post on the Board of Trustees.\\nSt. Joseph's annual meeting took place nearly six months after the unsuccessful attempt to remove Hartlage. During the meeting, concerned members, including the resigned Board members, proposed a resolution replacing the then-current Board members and amending St. Joseph's bylaws to include measures to protect against Board-member misconduct. The resolution passed resoundingly by a vote of 113 to 8. The Archbishop approved the resolution in full after concluding that it was not contrary to beliefs, teaching, or mission of the Roman Catholic Church.\\nThe ousted Board members, along with the St. Joseph Home Alumni Association, filed suit challenging the resolution effectuating their removal. The Alumni alleged the resolution was ineffective because it was not passed in accord with St. Joseph's bylaws. The suit sought vacation of the amendment to St. Joseph's bylaws, an injunction preventing the newly-installed Board members from holding themselves out as St. Joseph's Board of Trustees, restoration of the Alumni to their positions on St. Joseph's Board of Trustees, and, alternatively, resumption of voting on the challenged resolution after reasonable notice to the membership of St. Joseph.\\nSt. Joseph responded to the Alumni's complaint with a motion to dismiss, arguing, among other matters, the trial court's subject-matter jurisdiction was barred by the ecclesiastical-abstention doctrine. The trial court found the ecclesiastical-abstention doctrine inapplicable and denied St. Joseph's motion to dismiss because it concluded St. Joseph was not acting on behalf of the Roman Catholic Church when convening its annual meeting. St. Joseph then moved the trial court to stay the underlying case pending disposition of a writ proceeding adjudicating its jurisdictional challenge. St. Joseph filed its petition for writ of mandamus, and the trial court granted the requested stay.\\nThe Court of Appeals declined to issue a writ, finding that ecclesiastical abstention does not apply in St. Joseph's case because neutral principles of secular law can be applied to resolve the dispute. This appeal followed.\\nII. ANALYSIS.\\nThe issuance of a writ is an extraordinary remedy. As such, a writ may issue in only very limited circumstances:\\nA writ of prohibition may be granted upon a showing that (1) the lower court is proceeding or is about to proceed outside of its jurisdiction and there is no remedy through an application to an intermediate court; or (2) that the lower court is acting or is about to act erroneously, although within its jurisdiction, and there exists no adequate remedy by appeal or otherwise and great injustice and irreparable injury will result if the petition is not granted.\\nSt. Joseph seeks the first class of writ, alleging the trial court was without jurisdiction to hear the underlying case by virtue of the ecclesiastical-abstention doctrine. By erroneously denying its motion to dismiss and allowing the case to proceed, the trial court, St. Joseph argues, acted outside its jurisdiction.\\nThe standard for writs of the first class \\u2014 like the one sought here \\u2014 is often misconstrued to require the petitioner prove irreparable harm and the lack of an adequate remedy on appeal. We take this opportunity to reiterate those elements apply only to writs of the second class where the petitioner claims the lower court is acting erroneously but within its jurisdiction.\\nSt. Joseph's challenge to the trial court's subject-matter jurisdiction to adjudicate the case below presents solely an issue of law, which we review de novo.\\nA. Ecclesiastical Abstention is not a bar to Subject-Matter Jurisdiction.\\nWe find it prudent to determine the ecclesiastical-abstention doctrine's impact on trial court subject-matter jurisdiction before addressing the doctrine's application. Although our case law has routinely considered ecclesiastical abstention a bar to trial court jurisdiction, we have yet to analyze that doctrine in light of our jurisprudence addressing subject-matter jurisdiction. Courts in other jurisdictions have reached various conclusions when deciding the effect of ecclesiastical abstention, so we find now to be an appropriate juncture to revisit our ecclesiastical-abstention precedent as it relates to the subject-matter jurisdiction of the courts of this Commonwealth.\\n1. Kentucky's treatment of ecclesiastical abstention, though deeply rooted, is lacking a serious analysis of subject-matter jurisdiction principles.\\nThe ecclesiastical-abstention doctrine, discussed in greater detail below, is a mechanism employed to prevent secular courts from violating the guarantees embodied in the Establishment and Free Exercise Clauses of the First Amendment. Broadly, this doctrine prohibits secular courts from adjudicating quintessentially ecclesiastical issues, such as matters relating to faith, doctrine, and ecclesiastical governance. To be sure, the mere involvement of a church or other religious entity in a suit before a secular court does not require invocation of the ecclesiastical-abstention doctrine.\\nOur treatment of the ecclesiastical-abstention doctrine as a bar to subject-matter jurisdiction can be traced to the seminal case on the matter, Marsh v. Johnson, In Marsh, our predecessor court held that \\\"secular courts have no jurisdiction over ecclesiastic controversies.\\\" This holding was in \\\"recognition of the vital principle of separation of church and state\\\" guaranteed by the First Amendment. But Marsh failed to provide further citation or analysis explaining why that vital principle must bar jurisdiction instead of protecting First Amendment guarantees in another manner.\\nThe Marsh holding remained the eminent declaration of the ecclesiastical-abstention doctrine in the Commonwealth until it found a home in a more recent iteration of controlling ecclesiastical-abstention case law, Music v. United Methodist Church.\\nIn Music, a case heavily relied upon by St. Joseph, we recognized Marsh's holding that secular courts are without jurisdiction to decide non-secular controversies and, citing the First and Fourteenth Amendments, held that ecclesiastical abstention preempts the subject-matter jurisdiction of Kentucky courts. Unlike in Marsh, the precise effect of ecclesiastical abstention did impact the outcome of Music. Just as here, the issue presented in Music was the propriety of a writ of the first class based on the application of the ecclesiastical-abstention doctrine. A writ could only issue if ecclesiastical abstention barred the trial court's subject-matter jurisdiction. But the Music court neglected to analyze the impact of ecclesiastical abstention on the trial court's subject-matter jurisdiction. Its holding was instead anchored in specious citations to Marsh and the First and Fourteenth Amendments.\\nThe most recent of our trilogy of ecclesiastical-abstention cases is Kirby v. Lexington Theological Seminary. Kirby, of course, cites Marsh as the starting point of our ecclesiastical-abstention jurisprudence. But Kirby appears to soften our stance on ecclesiastical abstention operating as a bar to subject-matter jurisdiction when framing the precedential value of Music. We explained that, when faced with an ecclesiastical controversy, \\\"Music stands for the proposition that secular courts must cede jurisdiction,\\\" implying courts retain jurisdiction in the face of the application of ecclesiastical abstention.\\nThese cases speak in terms of jurisdiction and subject-matter jurisdiction but avoid a more robust analysis as required here. The time has come for an examination of the effect of ecclesiastical abstention through the lens of subject-matter jurisdiction principles.\\n2. Applying Principles of Subject-Matter-Jurisdiction Jurisprudence, Ecclesiastical Abstention Does not Operate to Divest Kentucky Courts of Subject-Matter Jurisdiction.\\nKentucky circuit courts are courts of \\\"general jurisdiction,\\\" meaning they \\\"shall have original jurisdiction of all justi-ciable causes not vested in some other court.\\\" This jurisdiction, and the jurisdiction challenged when seeking a writ of. the first class, as St. Joseph does here, refers to the circuit court's subject-matter jurisdiction. A court acts outside its jurisdiction only \\\"where [it] has not been given, by constitutional provision or statute, the power to do anything at all.\\\" In addressing the viability of a court's subject-matter jurisdiction, we seek to decide \\\"whether a court has the ability to hear 'this kind of case' instead of 'this case.' \\\"\\nTo aid in our determination of whether ecclesiastical abstention prevents general-jurisdiction courts from hearing a broad \\\"kind of case\\\" or \\\"this case\\\" specifically, it is instructive to contemplate the analysis relevant to assessing the pertinence of ecclesiastical abstention. When addressing whether to invoke the doctrine, \\\"[c]ourts must look not at the label placed on the action but at the actual issues the court has been asked to decide.\\\" This analytical process makes clear that courts must look past the type of case presented and to the case-specific issues presented when contemplating the application of the ecclesiastical-abstention doctrine. There is no one type of case that Kentucky courts are universally unable to hear as a result of ecclesiastical abstention. Instead, when religious issues permeate distinct cases of a traditionally-recognized type, such as employment disputes, tort suits, or business-association conflicts, Kentucky courts are without authority to adjudicate that specific case.\\nThat all cases where ecclesiastical abstention applies have similar characteristics, namely that they involve ecclesiastical issues, does not render them a type of case any more than cases invoking qualified governmental immunity are a case type for purposes of precluding circuit-court jurisdiction. We, therefore, conclude that ecclesiastical abstention does not divest Kentucky courts of subject-matter jurisdiction because it does not render our courts unable to hear types of cases, only specific cases pervaded by religious issues. To hold otherwise would be to require all plaintiffs to plead affirmatively the inapplicability of ecclesiastical abstention in their complaint to establish proper subject-matter jurisdiction.\\nOther courts have reached a similar conclusion when faced with this issue. The Indiana Supreme Court has held that Indiana courts, \\\"with general authority to hear matters like employment disputes[, are] not ousted of subject matter or personal jurisdiction because the defendant pleads a religious defense.\\\" Likewise, the Tenth Circuit concluded the application of the church-autonomy doctrine is not a challenge to the court's subject-matter jurisdiction, and \\\"the assertion that the First Amendment precludes the . suit is similar to a government official's defense of qualified immunity.\\\"\\nDetermining what the ecclesiastical-abstention doctrine is not \\u2014 a bar to subject-matter jurisdiction \\u2014 begs the question of what it is. In answering this question, we find persuasive our reasoning espoused in Kirby, used to conclude the ministerial exception \\u2014 a related doctrine also borne of the First Amendment's religion clauses \\u2014 operates as an affirmative defense. We reasoned \\\"the ministerial exception does not strip a court of its jurisdiction but, instead, simply disallows the forward progress of the particular suit.\\\" This description is particularly applicable to ecclesiastical abstention in light of our holding above. Consistent with the logic of Kirby, and in recognition of the similar purposes served by both the ministerial exception and ecclesiastical abstention, we conclude that the ecclesiastical-abstention doctrine is an affirmative defense.\\nLike other affirmative defenses recognized by this Commonwealth, ecclesiastical abstention operates in confession and avoidance, meaning that even assuming the plaintiffs allegations to be true, he is nonetheless not entitled to recover. So, just as in Kirby, we draw an analogy to perhaps the most commonly encountered defense of confession and avoidance, qualified governmental immunity, and aver that the ecclesiastical-abstention defense is to be applied in a manner that is procedurally consistent with the application of qualified governmental immunity. Specifically, the party asserting the ecclesiastical-abstention defense bears the burden of proving its applicability, the applicability of the ecclesiastical-abstention defense is a question of law to be decided by the court as a threshold matter, and the denial of ecclesiastical abstention is \\\"subject to prompt appellate review.\\\"\\nWe pause to acknowledge that the ecclesiastical-abstention approach we adopt today, on our own motion, is a departure from our precedent. As the law was situated when St. Joseph was aggrieved by the trial court's unfavorable ecclesiastical-abstention ruling, our precedent dictated the only tenable avenue of redress was via a petition for a writ challenging the trial court's subject-matter jurisdiction to hear the underlying case. Today, we reject that path and forge a new one in which parties similarly situated to St. Joseph\\u2014 parties aggrieved by a trial court's rejection of the ecclesiastical-abstention defense \\u2014 are afforded an immediate appeal instead of being forced to seek an extraordinary remedy by writ. In the end, the only difference between the method of redress we today reject and the one we replace it with is a mere technical one, which brings us to a crossroads in the present case.\\nWe must decide whether to allow this technicality, which was not extensively argued in briefing, to win the day and mandate denial of the relief St. Joseph seeks. We find that equity and judicial economy mandate we reach the merits of St. Joseph's claim. This shift in our ecclesiastical-abstention jurisprudence was unexpected, and St. Joseph had followed the appropriate path to redress by seeking a writ. So St. Joseph's actions in pursuing this action cannot be faulted. But if we deny St. Joseph a writ without reaching the merits of its claim, it will be too late for St. Joseph to avail itself of the interlocutory review procedure we establish today. Further, if a tolling provision is found to apply allowing St. Joseph the benefit of an immediate appeal, it will present the same argument, under the same standard of review\\u2014 de novo \\u2014 that we would decide today. So, in contemplation of equity and judicial economy, we will consider the merits of St. Joseph's argument that the trial court erred in failing to terminate litigation on the basis of ecclesiastical abstention as if this were an interlocutory appeal.\\nB. The Trial Court Erred in Denying St. Joseph's Motion to Dismiss on the Basis of Ecclesiastical Abstention.\\nThe concept of ecclesiastical abstention or church autonomy has long been recognized as a necessary corollary to the First Amendment's religion clauses. To protect the rights embodied in the Free Exercise and Establishment Clauses of the First Amendment, ecclesiastical abstention provides \\\"a spirit of freedom for religious organizations, an independence from secular control or manipulation \\u2014 in short, power to decide for themselves, free from state interference \\u2014 matters of church government as well as those of faith and doctrine.\\\" Thus, when resolution of a case is \\\"dependent on the question of doctrine, discipline, ecclesiastical law, rule, or custom, or church government,\\\" secular courts must abstain from hearing the case. Put differently, \\\"where resolution of the disputes cannot be made without extensive inquiry by civil courts into religious law and polity, the First and Fourteenth Amendments mandate that civil courts shall\\\" not act.\\n\\\"At bottom, the ecclesiastical-abstention doctrine is primarily interested in preventing any chilling effect on church practices as a result of government intrusion in the form of secular courts.\\\" But churches are not the only benefactors of ecclesiastical abstention. All religious organizations are entitled to protection under the First Amendment, so all suits that present an ecclesiastical character, those \\\"which concern\\u00ed] theological controversy, church discipline, ecclesiastical government, or the conformity of the members of the church to the standard of morals required of them\\\" fall within the scope of the ecclesiastical-abstention doctrine.\\nThe mere inclusion of a religious organization as a party to a suit does not necessarily implicate the ecclesiastical-abstention doctrine. Secular courts are not prohibited from hearing cases involving religious organizations where the dispute can be resolved by the application of neutral principles of secular law. But \\\"[t]he 'neutral principles' doctrine should not be extended to religious controversies in the area[] of church government.\\\" In its analysis of the merits of St. Joseph's claim, the Court of Appeals conclud-\\ned ecclesiastical abstention to be inapplicable because it found the underlying suit could be adjudicated to resolution through the application of neutral principles of law without wading into doctrinal waters. St. Joseph challenges this conclusion, arguing that this case concerns the internal governance of a religious organization, and neutral principles of law may not be applied to such cases.\\nWe agree with St. Joseph that the neutral-principles doctrine does not extend to issues of ecclesiastical governance, so we now analyze whether the suit brought by Alumni presents an issue of internal government of a religious organization. This, of course, requires a two-pronged analysis in which we must decide: (1) if the underlying suit presents an issue regarding the internal government of St. Joseph, and (2) if St. Joseph is a religious organization.\\nIt is axiomatic that the underlying dispute is about the internal governance of St. Joseph. The crux of the controversy revolves around who is entitled to govern St. Joseph by way of their position on the Board of Trustees. Alumni's counsel conceded as much at oral argument before the Court of Appeals, and its complaint seeks removal of the current Board and reinstatement of Alumni. It could not be clearer that this suit concerns the internal governance of St. Joseph. We are now left to decide whether St. Joseph is a religious organization.\\nThe definition of religious entity is not so narrow as to apply ecclesiastical abstention only to traditional religious entities such as churches, synagogues, and mosques. Instead, purported religious organizations will be considered such \\\"whenever that entity's mission is marked by clear or obvious religious characteristics.\\\"\\nSt. Joseph's religious mission is no more clearly described that in its Articles of Incorporation where part of its mission is to \\\"assist the Roman Catholic Archbishop of Louisville in providing for the care, counseling, and education of children.\\\" The preamble to St. Joseph's bylaws also asserts it \\\"operates according to the beliefs, teaching, and mission of the Catholic Church.\\\"\\nSt. Joseph's religious identity can also be seen in its unique relationship with the Roman Catholic Archbishop of Louisville. He (or his designee) has a permanent seat on St. Joseph's Board of Trustees. The Archbishop must review any amendments to St. Joseph's bylaws to ensure that they are consistent with the \\\"beliefs, teachings, and missions\\\" of the Roman Catholic Church before they can be effectuated. The Archbishop is also vested with the power to invalidate unilaterally any action of the Board that he deems contrary to the principles of Roman Catholicism.\\nThe campus of St. Joseph is adorned with many of the embellishments of religious symbolism expected in a religious institution, including crosses and a statue of St. Joseph and the infant Jesus prominently displayed atop the roof above the main entrance.\\nOther facts not necessarily relevant to show St. Joseph's religious mission but are nonetheless pertinent to show St. Joseph's general religious nature include: its tax-exempt status under the United States Conference of Catholic Bishops' group exemption; the inclusion of its tax filings in the Archdiocese tax return; and, its' successful claim that its ERISA retirement plan qualified as a \\\"religious plan.\\\"\\nUpon consideration of the facts before us, we are constrained to conclude that St. Joseph is a religious organization. Although there are surely countervailing facts not outlined above, any such facts are not within our reach because of Alumni's failure to file a timely brief in the record, and our requisite deference to the facts as outlined by St. Joseph. Therefore, we conclude that the trial court erred by denying St. Joseph's motion to dismiss. We find applicable to the present case the ecclesiastical-abstention defense because the underlying suit unquestionably concerns the internal governance of a religious entity.\\nIII. CONCLUSION.\\nBased on the foregoing, we affirm the Court of Appeals' denial of a writ because we conclude the ecclesiastical-abstention doctrine is not a bar to subject-matter jurisdiction. But we conclude the underlying suit presents an issue of ecclesiastical governance that is subject to ecclesiastical abstention. So we reverse the trial court's denial of St. Joseph's motion to dismiss. Accordingly, this case is remanded to the trial court for entry of an order dismissing the complaint.\\nAll sitting. All concur.\\n. Robert Beam, Frank Campisano, Milton Hettinger, Jack Fihe, John Straub, Francis Paalz, Billie Satterly, and Charlie Steier along with the St. Joseph Home Alumni Association, are the Appellees, real parties in interest, in this writ proceeding and plaintiffs in the underlying suit. For the sake of brevity, they will be jointly referred to as the \\\"Alumni.\\\"\\n. The newly-elected Board members were Thurman Senn, Kelly Henry, James Hilleb-rand, Barbara Carter, Craig Harbsmeier, and Charles Nopper. They, along with St. Joseph, are the appellants in this action.\\n.Kentucky Rules of Civil Procedure (CR) 76.36(7)(a) (\\\"An appeal may be taken to the Supreme Court as a matter of right from a judgment or final order in any proceeding originating in the Court of Appeals.\\\"); see also Ky. Const. \\u00a7 115 (\\\"In all cases, civil and criminal, there shall be allowed as a matter of right at least one appeal to another court....\\\").\\n. March 22 and 23 constituted a weekend.\\n. CR 6.02(b).\\n. Conlan v. Conlan, 293 S.W.2d 710, 712 (Ky.1956).\\n. St. Joseph is quick to point out that Alumni's counsel's mother was not scheduled to have surgery until March 25, 2014, four days after the deadline had already passed.\\n.See AK Steel Corp. v. Carico, 122 S.W.3d 585, 586 (Ky.2003) (\\\"[A] misunderstanding over the filing date is not the type of excusable neglect that would enlarge the time for filing..\\n. CR 76.12(2).\\n. Including Appellants Senn, Henry, Hilleb-rand, and Nopper.\\n. Although it is a named party in both this action and the underlying suit, it appears that St. Joseph Home Alumni Association is not a registered entity of any kind. This may raise questions, including its ability to prosecute a suit in its name, in the future, but those tentative issues are not presently before us, so we do not raise them on our own. See Harrison v. Leach, 323 S.W.3d 702 (Ky.2010) (holding that issues, such as standing, that may be waived are not to be raised on an appellate court's own motion).\\n. Hoskins v. Maricle, 150 S.W.3d 1, 10 (Ky.2004).\\n. Davis v. Wingate, 437 S.W.3d 720, 724 (Ky.2014); Hoskins, 150 S.W.3d at 9-10.\\n. Grange Mut. Ins. Co. v. Trude, 151 S.W.3d 803, 810 (Ky.2004); Lee v. George, 369. S.W.3d 29, 33 (Ky.2012) (\\\"In the context of extraordinary writs, 'jurisdiction' refers not to mere legal errors but to subject-matter jurisdiction, which goes to the court's core authority to even hear cases.\\\") (internal citations and quotation marks omitted).\\n.See, e.g., Westbrook, Jr. v. Penley, 231 S.W.3d 389, 394, n.3 (Tex.2007) (noting that \\\"[m]ost courts agree that the general prohibition on the adjudication of religious questions, once triggered, precludes further adjudication of the issue in question,\\\" and compiling cases that treat ecclesiastical abstention as \\\"a question of justiciability,\\\" \\\"an affirmative defense to liability,\\\" and a \\\"subject-matter bar to jurisdiction\\\").\\n. 259 Ky. 305, 82 S.W.2d 345 (1935).\\n. Id. at 346.\\n. Id.\\n. The Marsh court may have lacked a bit of precision in its use of jurisdiction because, due to the procedural posture of the case, the precise nature of the application of the ecclesiastical-abstention doctrine \\u2014 whether a bar to jurisdiction, a form of mandatory abstention, or an affirmative defense \\u2014 was irrelevant. The end result was the same: reversal of the trial court and dismissal of the cause of action.\\n. 864 S.W.2d 286 (Ky.1993).\\n. Id. at 290.\\n. Id.\\n. 426 S.W.3d 597 (Ky.2014).\\n. Id. at 618.\\n. Id. (emphasis added).\\n. KRS 23A.010(1).\\n. Ky. Const. \\u00a7 112(5) (emphasis added).\\n. Davis, 437 S.W.3d at 725 (\\\"Jurisdiction, when used here, refers to subject-matter jurisdiction _\\\").\\n. Daugherty v. Telek, 366 S.W.3d 463, 467 (Ky.2012).\\n. Harrison, 323 S.W.3d at 705-06 (citing Gordon v. NKC Hospitals, Inc., 887 S.W.2d 360, 362 (Ky.1994); Duncan v. O'Nan, 451 S.W.2d 626, 631 (Ky.1970)).\\n. Kirby, 426 S.W.3d at 619. (internal quotation marks and citation omitted).\\n. Daugherty, 366 S.W.3d at 467 (\\\"Once filed, a court has subject matter jurisdiction of the case so long as the pleadings reveal that it is the kind of case assigned to that court by a statute or constitutional provision.\\\").\\n. Brazauskas v. Fort Wayne-South Bend Diocese, Inc., 796 N.E.2d 286, 290 (Ind.2003).\\n. Bryce v. Episcopal Church in the Diocese of Colorado, 289 F.3d 648, 654 (10th Cir.2002).\\n. Kirby, 426 S.W.3d at 608.\\n. Breathitt Cnty. Bd. of Educ. v. Prater, 292 S.W.3d 883, 886 (Ky.2009); see also Kirby, 426 S.W.3d at 609 n.45 (\\\"Interlocutory appellate review is available \\u2014 even in the absence of a final judgment \\u2014 because the denial of immunity is a 'substantial claim[] of right which would be rendered moot by litigation and thus [is] not subject to meaningful review in the ordinary course following a final judgment.' Id. Likewise, the denial of a religious institution's assertion of the ministerial exception . is appropriate for interlocutory appeal.\\\").\\n. Music, 864 S.W.2d at 290.\\n. See Bryce, 289 F.3d at 654\\u201455(affirming a trial court's conversion of a motion to dismiss for lack of subject-matter jurisdiction based on ecclesiastical abstention to a motion for summary judgment).\\n. Kedroff v. St. Nicholas Cathedral of Russian Orthodox Church in N. Am., 344 U.S. 94, 116, 73 S.Ct. 143, 97 L.Ed. 120 (1952).\\n. Watson v. Jones, 80 U.S. (13 Wall.) 679, 680, 20 L.Ed. 666 (1871).\\n. Serbian E. Orthodox Diocese for U.S. of America and Canada v. Milivojevich, 426 U.S. 696, 709, 96 S.Ct. 2372, 49 L.Ed.2d 151 (1976).\\n. Kirby, 426 S.W.3d at 619.\\n. Watson, 80 U.S. at 733.\\n. \\\"We reiterate that the intent of ecclesiastical abstention is not to render 'civil and property rights . unenforceable in the civil court simply because the parties involved might be the church and members, officers, or the ministry of the church.'\\\" Kant v. Lexington Theological Seminary, 426 S.W.3d 587, 596 (Ky.2014) (quoting Jenkins v. Trinity Evangelical Lutheran Church, 356 Ill.App.3d 504, 292 Ill.Dec. 195, 825 N.E.2d 1206, 1212 (2005)). \\\"It must never be overlooked that the church alone has jurisdiction of communion, faith, or discipline, and the members must submit to such rules and regulations governing these matters as may be prescribed by their church, but the church does not always have exclusive jurisdiction over property or personal liberty, or over any right which it is the duty of the civil power to protect.\\\" Thomas v. Lewis, 224 Ky. 307, 6 S.W.2d 255, 257 (1928).\\n. Kirby, 426 S.W.3d at 618 (citing Jones v. Wolf, 443 U.S. 595, 99 S.Ct. 3020, 61 L.Ed.2d 775 (1979)).\\n. Music, 864 S.W.2d at 288.\\n. Id.\\n. Kirby, 426 S.W.3d at 609 (quoting Hollins v. Methodist Healthcare, Inc., 474 F.3d 223, 226 (6th Cir.2007)).\\n. We urge the bench and bar to recognize that our conclusion that St. Joseph is a religious organization under the ecclesiastical-abstention defense is of very limited prece-dential value. Our inability to weigh the entire factual scenario surrounding the operation of St. Joseph has constrained us to reach the conclusion we do today. This case is not to stand for the proposition that every similarly situated orphanage or allegedly religious entity is entitled to the benefit of ecclesiastical abstention.\"}"
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+"{\"id\": \"7092020\", \"name\": \"KENTUCKY BAR ASSOCIATION, Movant v. Thomas Edward KEATING, Respondent\", \"name_abbreviation\": \"Kentucky Bar Ass'n v. Keating\", \"decision_date\": \"2013-08-29\", \"docket_number\": \"No. 2013-SC-000313-KB\", \"first_page\": \"462\", \"last_page\": \"465\", \"citations\": \"405 S.W.3d 462\", \"volume\": \"405\", \"reporter\": \"South Western Reporter Third Series\", \"court\": \"Supreme Court of Kentucky\", \"jurisdiction\": \"Kentucky\", \"last_updated\": \"2021-08-10T22:08:10.483985+00:00\", \"provenance\": \"CAP\", \"judges\": \"All sitting. All concur.\", \"parties\": \"KENTUCKY BAR ASSOCIATION, Movant v. Thomas Edward KEATING, Respondent.\", \"head_matter\": \"KENTUCKY BAR ASSOCIATION, Movant v. Thomas Edward KEATING, Respondent.\\nNo. 2013-SC-000313-KB.\\nSupreme Court of Kentucky.\\nAug. 29, 2013.\", \"word_count\": \"1165\", \"char_count\": \"7178\", \"text\": \"OPINION AND ORDER\\nThe Board of Governors (Board) of the Kentucky Bar Association (KBA) recommends this Court suspend Thomas Edward Keating, V from the practice of law for eighteen months to run consecutively to his current suspension. The Board also recommends that Keating be referred to Kentucky Lawyers Assistance Program (KYLAP). Finding sufficient cause to do so, we adopt the Board's recommendation. Keating, whose KBA number is 86532 and whose bar roster address is 313 Romany Road # 4, Lexington, Kentucky 40502, was admitted to the practice of law in the Commonwealth of Kentucky on October 18,1996. Keating was suspended from the practice of law on January 23, 2013, for nonpayment of his 2012-2013 bar dues.\\nKBA File 21293\\nShelia Peyton Conrad hired Keating in 2011 to represent her regarding a personal injury matter that arose from a car accident. Thereafter, Ms. Conrad had sporadic contact with Keating. Keating told Ms. Conrad that the matter could take several years and that she should expect periods of inaction. During one point in the representation, Ms. Conrad was unable to reach Keating by telephone for several months.\\nIn November 2009, Keating told Ms. Conrad that the case had been settled and that she would be getting a settlement check soon. Keating told Ms. Conrad that, because she had been so patient, he was going to advance her a check for $5,000. Keating then gave Ms. Conrad a check for $5,000 dated December 30, 2009.\\nIn November 2010, Keating admitted to Ms. Conrad that he had failed to file her personal injury case in a timely manner and asked whether she would accept a promissory note from him in the amount of $35,000 to settle her potential legal malpractice case against him. Keating failed to advise Ms. Conrad to seek independent legal advice regarding the settlement of any claim she might have had against him. Ultimately, Ms. Conrad accepted Keating's offer.\\nThereafter, Keating executed a promissory note in favor of Ms. Conrad dated January 11, 2011, in the amount of $85,000. Keating was to make monthly payments to Ms. Conrad of $1,039.96 and one lump sum payment of $5,000. Keating made a few payments to Ms. Conrad but stopped making payments after July 2011. Ms. Conrad unsuccessfully attempted to contact Keat-ing several times regarding his failure to make payments. Eventually, Ms. Conrad filed a bar complaint against Keating.\\nKeating was served with a copy of Ms. Conrad's bar complaint by certified mail on October 13, 2012. Keating did not file a response. Thereafter, the Inquiry Commission issued a five-count charge against Keating, and Keating failed to file an answer. Having received no response from Keating, the matter was submitted to the Board as a default case pursuant to Supreme Court Rule (SCR) 3.210(1). The charge alleged Keating violated: (1) SCR 3.130-1.3 for failing to diligently proceed with Ms. Conrad's personal injury matter; (2) SCR 3.130-1.4(a) (in effect through July 15, 2009) and SCR 3.130-1.4(a)(3) for failing to keep Ms. Conrad reasonably informed about the status of her matter and by failing to promptly comply with her reasonable requests for information; (3) SCR 3.130-1.8(h)(2) for settling Ms. Conrad's potential claim against him for legal malpractice without advising her in writing of the desirability of seeking, and giving her a reasonable opportunity to seek, the advice of independent legal counsel in connection therewith; (4) SCR 3.130-8.3(c) (in effect through July 15, 2009) and current SCR 3.130-8.4(c) by. making repeated misrepresentations to Ms. Conrad regarding the procedural status of her personal injury matter; and (5) SCR 3.130-8.1(b) for failing to respond to the bar complaint.\\nThe Board unanimously found Keating guilty on all five counts and recommends the Court suspend Keating for eighteen months and set the suspension to run consecutively to his current suspension. The Board also recommends that Keating be referred to KYLAP.\\nWe agree with the Board's findings and adopt its recommendations.\\nORDER\\nACCORDINGLY, IT IS ORDERED THAT:\\n1. Thomas Edward Keating, V is suspended from the practice of law in the Commonwealth of Kentucky for eighteen months, effective if and when he is restored to the practice of law from his current suspension;\\n2. This suspension shall run consecutively to Keating's current suspension;\\n3. If he has not already done so, pursuant to SCR 3.390, Keating shall promptly take all reasonable steps to protect the interests of his clients, including, within ten days after the issuance of this order, notifying by letter all clients of his inability to represent them and of the necessity and urgency of promptly retaining new counsel and notifying all courts or other tribunals in which Keating has matters pending. Keating shall simultaneously provide a copy of all such letters of notification to the Office of Bar Counsel;\\n4. If he has not already done so, pursuant to SCR 3.390, Keating shall immediately cancel any pending advertisements; shall terminate any advertising activity for the duration of the term of suspension; and shall not allow his name to be used by a law firm in any manner until he is reinstated;\\n5. Pursuant to SCR 3.390, Keating shall not, during the term of suspension, accept new clients or collect unearned fees;\\n6. Keating is referred to and shall make an appointment with KYLAP immediately upon the filing of this Order and is directed to participate in and complete the KYLAP program if deemed appropriate by a KYLAP evaluator; and\\n7. Pursuant to SCR 3.450, Keating is directed to pay all costs associated with this disciplinary proceeding, in the amount of $571.70, for which execution may issue from this Court upon finality of this Opinion and Order.\\nAll sitting. All concur.\\nENTERED: August 29, 2013\\n/s/ John D. Minton, Jr.\\n. SCR 3.130-1.3 provides that \\\"[a] lawyer shall act with reasonable diligence and promptness in representing a client.\\\"\\n. SCR 3.130-1.4(a) (in effect through July 15, 2009) provides that \\\"[a] lawyer should keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.\\\"\\n. SCR 3.130-1.4(a)(3) provides that \\\"[a] lawyer shall . keep the client reasonably informed about the status of the matter.\\\"\\n. SCR 3.130-1.8(h)(2) provides that \\\"[a] lawyer shall not . settle a claim or potential claim for such liability with an unrepresented client or former client unless that person is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel in connection therewith.\\\"\\n. SCR 3.130 \\u2014 8.3(c) (in effect through July 15, 2009) and SCR 3.130-8.4(c) both provide that \\\"[i]t is professional misconduct for a lawyer to . engage in conduct involving dishonesty, fraud, deceit or misrepresentation.\\\"\\n. SCR 3.130-8.1(b) provides that a lawyer \\\"in connection with a disciplinary matter shall not . knowingly fail to respond to a lawful demand for information from . [a] disciplinary authority.\\\"\"}"
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+"{\"id\": \"7299738\", \"name\": \"John HICKS, Appellant, v. MAGOFFIN COUNTY BOARD OF EDUCATION, Appellee\", \"name_abbreviation\": \"Hicks v. Magoffin County Board of Education\", \"decision_date\": \"2009-08-21\", \"docket_number\": \"No. 2008-CA-001025-MR\", \"first_page\": \"335\", \"last_page\": \"337\", \"citations\": \"292 S.W.3d 335\", \"volume\": \"292\", \"reporter\": \"South Western Reporter Third Series\", \"court\": \"Kentucky Court of Appeals\", \"jurisdiction\": \"Kentucky\", \"last_updated\": \"2021-08-10T21:48:25.943689+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before COMBS, Chief Judge; VANMETER, Judge; LAMBERT, Senior Judge.\", \"parties\": \"John HICKS, Appellant, v. MAGOFFIN COUNTY BOARD OF EDUCATION, Appellee.\", \"head_matter\": \"John HICKS, Appellant, v. MAGOFFIN COUNTY BOARD OF EDUCATION, Appellee.\\nNo. 2008-CA-001025-MR.\\nCourt of Appeals of Kentucky.\\nAug. 21, 2009.\\nTimothy Parker, Prestonsburg, KY, for appellant.\\nDonald W. McFarland, Salyersville, KY, for appellee.\\nBefore COMBS, Chief Judge; VANMETER, Judge; LAMBERT, Senior Judge.\\n. Senior Judge Joseph E. Lambert sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes (KRS) 21.580.\", \"word_count\": \"1228\", \"char_count\": \"7972\", \"text\": \"OPINION\\nVANMETER, Judge.\\nJohn Hicks appeals from a summary judgment entered by the Magoffin Circuit Court dismissing his claim relating to the failure of the Magoffin County Board of Education (Board) to hire him for the position of special education teacher/director. We affirm.\\nHicks, a certified special education teacher, applied to the Board seeking the position of special education teacher/director for the 2002-03 school year. The Board declined to hire Hicks, instead hiring a noncertified but otherwise qualified teacher after obtaining an emergency certificate approved by the Kentucky Education Professional Standards Board. Hicks filed a complaint in the Magoffin Circuit Court, and discovery was conducted. Eventually both parties filed motions for summary judgment, and the trial court granted summary judgment for the Board. This appeal followed.\\nHicks contends that the trial court erred by granting summary judgment for the Board. We disagree.\\nSummary judgment shall be granted only if \\\"the pleadings, depositions, answers to interrogatories, stipulations, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.\\\" CR 56.03. The trial court must view the record \\\"in a light most favorable to the party opposing the motion for summary judgment and all doubts are to be resolved in his favor.\\\" Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 480 (Ky.1991). Further, \\\"a party opposing a properly supported summary judgment motion cannot defeat it without presenting at least some affirmative evidence showing that there is a genuine issue of material fact for trial.\\\" Id. at 482. On review, the appellate court must determine \\\"whether the trial court correctly found that there were no genuine issues as to any material fact and that the moving party was entitled to judgment as a matter of law.\\\" Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky.App.1996).\\nThe matter now before us turns on the application of KRS 161.100, which addresses the issuance of emergency teaching certificates in pertinent part as follows:\\nWhen a district board of education satisfies the Education Professional Standards Board that it is impossible to secure qualified teachers for a position in a school under the control of the district board, the Education Professional Standards Board may issue emergency certificates to persons who meet the qualifications determined by the Education Professional Standards Board for emergency certificates.\\nA \\\"qualified teacher\\\" is defined by 16 KAR 2:120, \\u00a7 1, as a teacher \\\"who holds the appropriate certification for the position unless the superintendent of the employing school district has documented evidence that the teacher is unsuitable for appointment.\\\"\\nThe application of KRS 161.100 was examined by this court in Roberts v. Fayette County Bd. of Educ., 173 S.W.3d 918 (Ky.App.2005). Roberts was a certified special education teacher who was employed for four years but then was not rehired for the fifth year which would have provided him tenure. The record showed that students had complained of harassment by Roberts and that his previous principal had recommended that Roberts not be rehired. After submitting a letter of resignation, Roberts applied but was not hired for other teaching positions. Instead, pursuant to KRS 161.100, emergency certified teachers were hired for some of the positions. The circuit court granted summary judgment for the school board, finding that the record contained sufficient documentation to support the school superintendent's determination that Roberts was \\\"unsuitable for appointment[,]\\\" and therefore was not a qualified teacher for purposes of KRS 161.100 and 16 KAR 2:120. On appeal, Roberts argued that although the superintendent had the right to determine whether a certified teacher was \\\"qualified\\\" pursuant to 16 KAR 2:120, a genuine issue of material fact existed as to whether he in fact was qualified. This court disagreed, finding that Roberts had provided no evidence to support his claim that the superintendent abused her discretion in finding that Roberts was unqualified or to support his claim that the school board violated KRS 161.100 by implementing the superintendent's recommendation. The record was \\\"replete with evidence that Roberts could indeed be found unsui table for appointment^]\\\" 173 S.W.3d at 924, and Roberts had failed to meet his burden of presenting \\\" 'at least some affirmative evidence demonstrating that there [was] a genuine issue of material fact requiring trial' \\\" Id. at 923 (quoting Hubble v. Johnson, 841 S.W.2d 169, 171 (Ky.1992)). Therefore, this court affirmed the trial court's summary judgment in favor of the school board.\\nHere, as in Roberts, Hicks was a certified special education teacher who was rejected as a candidate for a teaching position which was awarded to an emergency certified teacher. The trial court reviewed the deposition testimony and concluded that the evidence was sufficient to show that Hicks was\\nnot a qualified teacher for purposes of being hired by the Defendant Magoffin County School System. Mr. Hicks' former employer, Floyd County School System, provided a poor recommendation of Plaintiff Hicks to the Defendant and absolutely did not recommend him for employment with Magoffin County and further there was testimony of record that Mr. Hicks was under review by the Professional Standards Board at the time of his application. The Court has also considered other testimony of record indicating additional factors which indicated that [Hicks] was not suitable for employment with [the Board] that included his poor communication skills and a poorly drafted application regarding spelling, punctuation and capitalization.\\nThe trial court noted that the Board's hiring policy required it to consider the teacher's certification level, educational background, prior work experience, recommendations, and personal characteristics shown during the interview process. However, regardless of whether Hicks was under review or already had been admonished by the Professional Standards Board at the time of his application, the Board clearly had before it substantial evidence relating to the factors it was required to consider.\\nThe record on appeal does not include the deposition testimony and other evidence considered by the trial court below. Thus, as in Roberts, this court must presume, \\\"[t]o the extent that the record is incomplete, . that the omitted portions support the summary judgment.\\\" 173 S.W.3d at 923 (citing Commonwealth, Dept. of Highways v. Richardson, 424 S.W.2d 601, 603 (Ky.1967)). Because Hicks failed to meet his burden of providing affirmative evidence to show the existence of a genuine issue of material fact, we must conclude that the trial court did not err by granting summary judgment for the Board.\\nHicks also contends on appeal that the Board erred by considering his admonishment by the state Education Professional Standards Board as a basis for finding him not qualified for appointment as a special education teacher. Not only was this issue not raised below, but the record shows that the Board relied upon substantial other grounds in reaching its decision.\\nThe summary judgment entered by the Magoffin Circuit Court is affirmed.\\nALL CONCUR.\\n. Kentucky Rules of Civil Procedure.\\n. Kentucky Administrative Regulations.\"}"
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+"{\"id\": \"7315719\", \"name\": \"Lloyd W. HAMMOND, Appellant, v. COMMONWEALTH of Kentucky, Appellee\", \"name_abbreviation\": \"Hammond v. Commonwealth\", \"decision_date\": \"2012-05-24\", \"docket_number\": \"No. 2010-SC-000639-MR\", \"first_page\": \"425\", \"last_page\": \"435\", \"citations\": \"366 S.W.3d 425\", \"volume\": \"366\", \"reporter\": \"South Western Reporter Third Series\", \"court\": \"Supreme Court of Kentucky\", \"jurisdiction\": \"Kentucky\", \"last_updated\": \"2021-08-11T00:49:39.497621+00:00\", \"provenance\": \"CAP\", \"judges\": \"All sitting. All concur.\", \"parties\": \"Lloyd W. HAMMOND, Appellant, v. COMMONWEALTH of Kentucky, Appellee.\", \"head_matter\": \"Lloyd W. HAMMOND, Appellant, v. COMMONWEALTH of Kentucky, Appellee.\\nNo. 2010-SC-000639-MR.\\nSupreme Court of Kentucky.\\nMay 24, 2012.\\nElizabeth B. McMahon, Assistant Public Defender, Office of the Louisville Metro Public Defender, Louisville, KY, Counsel for Appellant.\\nJack Conway, Attorney General, David Wayne Barr, Assistant Attorney General, Office of the Attorney General, Office of Criminal Appeals, Frankfort, KY, Counsel for Appellee.\", \"word_count\": \"4319\", \"char_count\": \"27364\", \"text\": \"Opinion of the Court by\\nJustice VENTERS.\\nAppellant, Lloyd W. Hammond, was convicted by a Jefferson Circuit Court jury of three counts of murder, one count of first-degree burglary, one count of first-degree unlawful imprisonment, and retaliating against a participant in the legal process. Although the Commonwealth sought the death penalty, Appellant was sentenced on each murder count to imprisonment for life without the possibility of parole in accordance with the jury's verdict. He also received a total sentence of thirty years' imprisonment for the other crimes. Appellant now appeals to this Court as a matter of right. Ky. Const. \\u00a7 110.\\nWe now reverse Appellant's convictions and remand to the Jefferson Court for a new trial upon the grounds that Appellant was deprived of a fair trial when one of the murder charges was improperly joined for trial with the other charges, and because the admission of hearsay statements of a material witness under the doctrine of forfeiture by wrongdoing was not based upon substantial evidence. Appellant raises other issues which we decline to address because they are unlikely to recur upon retrial, or would recur under such different circumstances that our opinion would not provide useful guidance.\\nI. FACTUAL AND PROCEDURAL BACKGROUND\\nWithin the span of two weeks in June 2006, William Sawyers, Terrell Cherry, and Kerry Williams were all shot and killed in Louisville. First, intruders unlawfully entered the home of Troya Sheck-les, where they murdered William Sawyers. A few hours later, Terrell Cherry was found shot and killed in a parked car. Two weeks later, Kerry Williams was shot and killed as he stood on his porch talking to visitors.\\nPolice gathered evidence identifying Appellant and Terrell Cherry as the perpetrators of the Sheckles burglary and the Sawyers murder. Evidence also indicated that shortly after the Sheckles burglary, Appellant murdered Cherry to keep him from testifying about that crime and the Sawyers murder. Appellant was charged with the murders of Sawyers and Cherry, as well as the other crimes that occurred during the Sheckles burglary. Evidence was also developed identifying Appellant as the gunman who killed Williams.\\nInitially, it was determined that the Williams murder case would be tried separately from the Sawyers-Cherry murders and the related charges connected with the Sheckles burglary. However, before either case could be tried, the Commonwealth moved to dismiss all charges without prejudice. The charges relating to the Sawyers and Cherry murders were dismissed because Troya Sheckles, the only eye witness to the Sawyers murder, could not be located. The Williams murder case was dismissed when a key witness asserted his Fifth Amendment privilege to not testify.\\nIn due course, Appellant was re-indicted on all of the previously dismissed charges. The murder of Kerry Williams was contained in Indictment 09-CR-2661. The murders of Sawyers and Cherry and the crimes connected to the Sheckles burglary were charged in Indictment 09-CR-0329. The trial of Indictment 09-CR-0329 (Sawyers-Cherry murders and related crimes) ended in mistrial when a potential juror disrupted the proceedings. Over Appellant's objection, the case was re-scheduled for trial and consolidated with the Williams murder, Indictment 09-SC-2661. A joint trial on all charges was held, resulting in Appellant's conviction on all counts. This appeal followed.\\nII. JOINDER OF THE WILLIAMS MURDER WITH THE SAWYERS AND CHERRY MURDERS AND OTHER CRIMES ARISING FROM THE SHECKLES BURGLARY WAS IMPROPER\\nAppellant argues that the trial court abused its discretion by consolidating the indictment containing the Sawyers and Cherry murder charges with the indictment containing the Williams murder charge. Appellant objected to the joinder of the two indictments for trial and moved unsuccessfully to sever the Williams murder trial from the other charges. He now ai'gues that the trial court erred to his prejudice by consolidating all of the charges into a single trial. He specifically argues that the Williams murder was not connected to the other crimes as part of a common scheme or plan, and that the Williams murder was not \\\"of the same or similar character of the other crimes charged.\\\" We agree, and because we further find the improper joinder of charges was prejudicial to Appellant, we reverse the judgment and remand for new, and separate, trials.\\nThe interaction of RCr 9.12 and RCr 6.18 allows the charges brought in separate indictments to be joined for trial only when the offenses are \\\"of the same or similar character\\\" or are \\\"based on the same acts or transactions connected together or constituting parts of a common scheme or plan.\\\" When the conditions set forth in RCr 6.18 and RCr 9.12 are present, the trial judge has broad discretion to allow the joinder of offenses charged in separate indictments. Brown v. Commonwealth, 458 S.W.2d 444, 447 (Ky.1970). We review such decisions for abuse of discretion. Violett v. Commonwealth, 907 S.W.2d 778, 775 (Ky.1995). Nevertheless, to be reversible, an erroneous joinder of offenses must be accompanied by \\\"a showing of prejudice\\\" to the defendant. Rearick v. Commonwealth, 858 S.W.2d 185, 187 (Ky.1993). This showing of prejudice cannot be based on mere speculation, but must be supported by the record. Jackson v. Commonwealth, 20 S.W.3d 906, 908 (Ky.2000).\\nHere, no serious contention was made that the Williams murder was connected to the other crimes as part of the \\\"same acts or transactions connected together or constituting parts of a common scheme or plan.\\\" That rationale for join-der under RCr 9.12/RCr 6.18 has no application here. The Commonwealth instead contends that joinder was proper because the Williams murder was \\\"of the same or similar character\\\" as the Cherry-Sawyers murders.\\nSpecifically, the Commonwealth argues that \\\"murder is murder\\\" and, therefore, any charge of murder may be properly joined with any other charge of murder. We reject that oversimplification of RCr 6.18. Offenses are not \\\"of the same or similar character\\\" under RCr 6.18 simply because they involve conduct criminalized under the same chapter or section of the penal code. And even if we agreed with that point, the Commonwealth shows no authority for the joinder of the Williams murder charge with the totally dissimilar and unrelated crimes of burglary, retaliation against a witness, and unlawful imprisonment.\\nThe Commonwealth supplements its argument with the fact that all of the alleged crimes occurred \\\"close in time\\\" to each other and in Jefferson County. While temporal and geographic proximity will often be relevant considerations when the question is whether the \\\"acts or transactions [are] connected together or constitute] parts of a common scheme or plan,\\\" those factors often have little to do with whether the offenses are \\\"of the same or similar character.\\\"\\nUpon consideration of the question on a previous occasion, we held that a \\\"significant factor in identifying prejudice from joining offenses for a single trial is the extent to which evidence of one offense would be inadmissible in the trial of the other offense.\\\" Rearick, 858 S.W.2d at 187 (citing Spencer v. Commonwealth, 554 S.W.2d 355, 357 (Ky.1977)). Rearick holds, for example, that for sexual offenses to qualify for joinder as offenses \\\"of the same or similar character,\\\" the crimes must be so strikingly similar as to meet the requirements for admission under KRE 404(b) as set out in Billings v. Commonwealth, 843 S.W.2d 890 (Ky.1992), and Gray v. Commonwealth, 843 S.W.2d 895 (Ky.1992).\\nThe Commonwealth claims that test-was met here because the Cherry and Sawyers murders would be admissible in the sentencing phase of a trial for the Williams murder. That answer is unpersuasive. First, we note that KRS 532.055(2)(a)(2) allows evidence in the sentencing phase of \\\"prior offenses for which [a defendant] was convicted.\\\" If Appellant was being tried only upon the Williams murder, the Sawyers and Cherry murders would not be admissible at the sentencing phase because he had obviously not yet been convicted of those murders. Furthermore, during the sentencing phase, guilt has already been fairly determined and the danger that evidence of other crimes will cause undue prejudice has largely passed. Indeed, at the sentencing phase we permit the jury to hear evidence of virtually any other criminal conviction on the defendant's record, regardless of its similarity or lack thereof. Under the Reariek analysis, we see no basis upon which evidence of the Cherry and Sawyers murders could have been introduced in the prosecution of Appellant for the Williams murder; neither do we see how evidence of the Williams murder could have been admitted in Appellant's trial for killing Cherry and Sawyers.\\nThe \\\"Commonwealth further argues that joinder of the -Williams murder charges with the other murders was proper because this was a capital case in which each murder would necessarily serve as an aggravating factor under KRS 532.025(3) for imposition of the death penalty (or life without possibility of parole) for the other murders. We are aware of no authority and we are cited to none that supports the view that unrelated capital offenses may be joined for trial notwithstanding their failure to meet the requirements of RCr 6.18 and RCr 9.12. The consequence of such a rule would be that a defendant facing the death penalty would have less protection from the prejudicial effects of other crimes evidence than a non-capital defendant. We reject that argument.\\nFinally, we address the Commonwealth's reliance upon Parker v. Commonwealth, 291 S.W.3d 647 (Ky.2009) as authority supporting the consolidation of the charges for trial. In Parker, the defendant was charged with multiple offenses including criminal syndication. Under RCr 6.18, joinder becomes an easy fit for the various crimes allegedly committed in the furtherance of a criminal syndicate because, as we said in Parker, \\\"the criminal syndication charge serves to link the other charges together.\\\" Id. at 657. They are \\\"acts or transactions connected together or constituting parts of a common scheme or plan.\\\" Appellant's crimes were not charged as elements of a criminal syndicate, and as noted above, no argument was made that Appellant's crimes were linked together as parts of a common scheme or plan. Parker does not serve as authority for the joinder of the Williams murder with the other crimes.\\nFor the reasons stated above, we conclude that the trial court abused its discretion when it joined the Williams murder trial with the unrelated charges arising from the Sheckles burglary, including the Cherry and Sawyers murders. We next consider whether that error was prejudicial to Appellant.\\nWhatever chance Appellant might have had to present a defense to the Williams murder was substantially impaired by the unrelated evidence that he had also killed both Cherry and Sawyer, unlawfully invaded Sheckles's home and held her in unlawful imprisonment. We said in Reariek that joinder of offenses with no more than a general similarity in character created \\\"a substantial likelihood that the inadmissible 'other crimes' evidence tainted the jury's belief as to each of the crimes charged and that each additional unrelated charge took on a weight by virtue of being joined with the others whereby the whole exceeded the sum of its parts.\\\" Rearick, 858 S.W.2d at 188. Because of this prejudice, we reverse Appellant's convictions and remand this matter to the Jefferson Circuit Court for new trials consistent with this opinion.\\nIII. ADMISSION OP SHECKLES'S OUT-OF-COURT STATEMENT TO POLICE UNDER THE DOCTRINE OP FORFEITURE BY WRONGDOING\\nAppellant next argues that the trial court erred by allowing the Commonwealth to admit into evidence the audio recordings of Troya Sheckles's statement to police investigators. Sheckles was the only eyewitness to the Sawyers murder and the related crimes but, as noted above in footnote 1, she was unavailable as a witness because she was murdered before Appellant's trial began. It is not disputed that Sheckles's out-of-court statement would ordinarily be inadmissible under the hearsay rules and that, in ordinary circumstances, its admission would violate the Sixth Amendment right of confrontation under Crawford v. Washington, 541 U.S. 36, 62, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).\\nHowever, the Commonwealth claimed that Appellant orchestrated Sheckles's murder to prevent her from testifying against him at trial. It filed a motion to have Sheckles's out-of-court statement admitted into evidence at trial under the forfeiture by wrongdoing exception to the hearsay rule. KRE 804(b)(5) provides that the hearsay rule does not apply to \\\"[a] statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.\\\" The Sixth Amendment right of confrontation is also subject to the doctrine of forfeiture by wrongdoing. Davis v. Washington, 547 U.S. 813, 833, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006). (\\\"One who obtains the absence of a witness by wrongdoing forfeits the constitutional right to confrontation.\\\")\\nThe Commonwealth's motion was heard by the trial court at a pre-trial conference. To sustain its burden of proving that Appellant procured Sheckles's unavailability as a witness, the Commonwealth presented the trial court with an eighty-four page set of documents pertaining to the investigation by police into Sheckles's murder. The prosecutor then outlined for the trial court his theory of how Appellant arranged for Sheckles to be killed. The prosecutor averred that his theory was supported by information gleaned from the stack of documents. There was no formal evidentiary hearing. No live witnesses testified to establish the verity of the documents or to be cross-examined about the contents or preparation of the documents. There was no stipulation of facts or evidence. Appellant argued that the hearsay statement at issue could not be ruled admissible under KRE 804(b)(5) without an evidentiary hearing, and that the of stack of documents, as presented to the court, could not be regarded as \\\"evidence\\\" without a proper foundation.\\nOver Appellant's objection, the trial court took the matter under submission. Based exclusively upon the documents, tendered without any supporting testimony or foundation, the court found upon \\\"reasonable inferences\\\" drawn from the documents that Sheckles was killed by Appellant's brother and another individual \\\"at the behest of, or at the very least, the acquiescence of [Appellant]\\\" in order to prevent her from testifying at Appellant's trial. Written findings were entered accordingly, along with an order granting the Commonwealth's motion to admit into evidence at trial the out-of-court statement Sheckles made to police. At trial, the jury was allowed to hear the out-of-court statement Sheckles had provided to police officers.\\nAppellant's complaint on appeal is twofold. First, he contends that the hearing held by the trial court was not a proper evidentiary hearing as required by Parker, 291 S.W.3d at 669-670, and that it did not otherwise conform to due process standards. Second, he contends that the information submitted to the court did not sufficiently prove his involvement in the Sheckles murder.\\nParker holds that when the issue of forfeiture by wrongdoing is raised \\\"[the] trial court must hold an evidentiary hearing before ruling on the admissibility of the proposed hearsay,\\\" and \\\"the proponent of the hearsay must first introduce evidence establishing good reason to believe that the defendant intentionally procured the absence of the declarant.\\\" Id The \\\"burden [then] shifts to the party opposing introduction of the hearsay to offer credible evidence to the contrary.\\\" Id. The proponent of the hearsay evidence bears the burden of proving its claim by a preponderance of the evidence. Id.\\nFinally, Parker cited Young v. Commonwealth, 50 S.W.3d 148, 167 (Ky.2001) for the following, regarding our standard of review on appeal:\\n[W]hen the determination depends upon the resolution of a preliminary question of fact, the resolution is determined by the trial judge under KRE 104(a) on the basis of a preponderance of the evidence, Bourjaily v. United States, 483 U.S. 171, 175 [107 S.Ct. 2775, 97 L.Ed.2d 144] (1987); and the resolution will not be overturned unless clearly erroneous, i.e., unless unsupported by substantial evidence. Cf. Commonwealth v. Deloney, Ky., 20 S.W.3d 471, 473-74 (2000) (trial judge's findings of fact are not clearly erroneous if supported by substantial evidence).\\nWhile Parker does specify with particularity the essential elements of due process required for a proper forfeiture by wrongdoing hearing, it clearly states that \\\"the proponent of the hearsay must first introduce evidence\\\" to establish the factual basis for applying the doctrine. Parker, 291 5.W.3d at 670 (emphasis added). Moreover, implicit in the Commonwealth's burden of proving the issue by a \\\"preponderance of the evidence\\\" is that evidence is necessary. Thus, while we recognize that the evidentiary hearing to determine the question of forfeiture by wrongdoing is not governed by the Kentucky Rules of Evidence, it should go without saying that the party with the burden of proof must present some evidence to prove the material facts at issue.\\nWithout a stipulation by Appellant, it was incumbent upon the Commonwealth to establish that the documents submitted to the trial court were, in fact, what they were purported to be and that the information upon which it relied to make its case was credible. Ordinarily, that would be done by witness testimony, presumably the police investigator who prepared the documents or was otherwise sufficiently apprised of their creation and content, and competent as a witness to authenticate them and answer questions posed by the court or the opposing party. Without even some rudimentary authentication of the documents, the opposing party has no reasonable means to challenge the veracity of the contents of documents and the trial court cannot reasonably accept the documents as evidence worthy of its consideration. We do not say that in all cases this requirement can only be satisfied by the testimony of a live witness. But, we do say that until some manner of accreditation was provided to cloak the information contained in the documents with even a modicum of reliability, the eighty-four-page stack of papers did not become \\\"evidence,\\\" and findings drawn from it cannot be regarded as being supported by \\\"substantial evidence.\\\" It is simply not enough to presume the contents of the documents are reliable because they were gathered by the police investigating a homicide.\\nBecause the trial court's findings with respect to the forfeiture by wrongdoing doctrine were based exclusively on the unauthenticated documents tendered by the Commonwealth without any evidentiary foundation, we conclude that they are not supported by substantial evidence as required by Young, 50 S.W.3d at 167, and therefore the trial court's decision to admit Sheckles's out-of-court statement was clearly erroneous. It follows that the Appellant's convictions for the crimes associated with the burglary of Sheckles's home, including the Sawyers murder and the Cherry murder must be reversed and remanded for a new trial.\\nAppellant's second argument \\u2014 that the information contained in the eighty-four pages of documents does not support the finding that Appellant procured Sheckles's death for the purpose of rendering her unavailable to testify at his trial \\u2014 exposes an additional problem inherent in the trial court's informal method of resolving this issue. We address the point to avoid its repetition upon retrial. Nowhere in the record before this Court does the Commonwealth connect the assortment of facts and circumstances that comprise its theory of Appellant's role in Sheckles's murder to the specific documents where those facts are established. For example, the trial court finds that \\\"The Commonwealth has produced evidence that [Appellant's brother] procured a juvenile with the initials S.P. a/k/a Pedro to perform the killing [of Sheckles.]\\\" We have been provided no citations to the record, such as it is, to review what that \\\"evidence\\\" is, short of sifting through the eighty-four pages of documents.\\nThe Commonwealth contends that Appellant's involvement in the Sheckles murder is \\\"well-documented.\\\" If so, it would be a simple matter for the Commonwealth to identify by chapter and verse the parts of documents that establish those facts. Our only means of reviewing the claim that the \\\"evidence\\\" was sufficient is to examine whole stack of the documents to see if we can ascertain how they support the trial court's findings. That we cannot do. The truncated hearing that was held in the trial court, coupled with the lack of any citations connecting the trial court's finding to any specific source, renders meaningful appellate review impossible.\\nUpon retrial, the Commonwealth bears the burden of proving forfeiture by wrongdoing and we trust that if the issue arises upon remand, the Commonwealth will properly establish at a Parker hearing the authenticity and reliability of the documents upon which it relies, and that the evidentiary hearing will be conducted so as to provide an adequate record of the evidence for appellate review. If upon retrial, the forfeiture by wrongdoing standards as discussed herein are met, Sheckles's statement would be admissible in the Sawyers and Cherry proceeding.\\nIY. OTHER ISSUES\\nAppellant raised several other issues: 1) that the trial court erred by failing to strike three jurors for cause; 2) that the trial court erred by failing to declare a mistrial when, on the fifth day of testimony, a juror was approached during the lunch break in an intimidating manner by a suspicious individual. We decline to address those claims because upon retrial, it is unlikely they would arise again under the same circumstances.\\nFinally, Appellant also argues that the trial court erred by allowing the jury to hear the entire tape-recorded statement that witness Ericka Ford made to police detectives about Appellant because, when called as a witness at trial, Ford was unable to remember any relevant facts. Generally, a prior inconsistent statement of a witness may be used, not only to attack the credibility of the declar-ant, but also as substantive evidence with respect to the matter asserted. See Jett v. Commonwealth, 436 S.W.2d 788 (Ky.1969), and KRE 801A(a)(l) which codifies the rule in Jett. In Brown v. Commonwealth, 313 S.W.3d 577, 623 (Ky.2010) we expressly declined \\\"to jettison KRE 801A(a)(l), the rule permitting the introduction of a witness's prior inconsistent statement as substantive evidence as well as for impeachment . a rule that has served us well for forty years.\\\". It is also well-settled that an inconsistent statement, under KRE 801A(a)(l) includes situations where a witness testifies that he does not remember making a certain statement. Wise v. Commonwealth, 600 S.W.2d 470, 472 (Ky.App.1978).\\nWe agree with Appellant that some portions of Ford's statements, and the comments of her inquisitors, were irrelevant, but upon consideration of the totality of the evidence properly admitted against Appellant, we conclude that admission of those remarks had no \\\"substantial influence\\\" upon Appellant's trial and did not substantially sway the jury's verdict to his detriment. Winstead v. Commonwealth, 283 S.W.3d 678, 688-689 (Ky.2009). Upon retrial, should Ford again fail to recollect relevant information in a manner inconsistent with her earlier statements, we trust the sound discretion of the trial court in determining what portions, if any, of her earlier dialogue with police should be admitted.\\nV. CONCLUSION\\nThus, for the above stated reasons, we reverse Appellant's convictions and sentences, and remand for a new trial or such other proceedings as are consistent with this opinion.\\nAll sitting. All concur.\\n. Sheckles was later found, and Appellant was re-indicted. Before the case could be brought to trial, Sheckles was shot and killed as she sat in a park near her home on March 29, 2009.\\n. RCr 9,12 provides that two or more indictments may be tried together if the offenses could have been joined in a single indictment. Under RCr 6.18, separate offenses may be joined in a single indictment when they are \\\"of the same or similar character,\\\" or are \\\"based on the same acts or transactions connected together or constituting parts of a common scheme or plan.\\\"\\n. See also Marcum v. Commonwealth, 390 S.W.2d 884, 886 (Ky.1965) (\\\"The admissibility of evidence of other crimes in separate trials is a significant factor in determining whether joinder of crimes for trial is prejudicial\\\").\\n. The documents which had been provided in advance to defense counsel, included copies of the 911 log, the statement of the first responders to the shooting, transcripts of police interviews with witnesses to Sheckles's shooting, a log from the jail showing the times for Hammond's visits with his brother, an aerial photo of the scene of the shooting, autopsy records, and the arrest reports of the alleged shooter.\\n. Giles V. California, 554 U.S. 353, 359, 128 S.Ct. 2678, 171 L.Ed.2d 488 (2008) clarifies that the burden is on the state to show that the defendant \\\"engaged in conduct designed to prevent the witness from testifying\\\" at trial. Showing merely that the defendant caused the witness's unavailability is insufficient. In cases where the evidence suggested that the defendant had caused a person to be absent, but had not done so to prevent the person from testifying \\u2014 as in the typical murder case involving accusatorial statements by the victim \\u2014 the testimony was excluded. Id. at 306-361, 128 S.Ct. 2678.\\n. KRE 104(a) provides that \\\"preliminary questions concerning . the admissibility of evidence shall be determined by the court[.] In making its determination [the court] is not bound by the rules of evidence except those with respect to privileges.\\\"\\n. Obviously, the requirement for evidence at an evidentiary hearing can be waived, for example when the opposing parties enter into a stipulation of facts.\\n. Compare, for example, Rodgers v. Commonwealth, 285 S.W.3d 740, 755 (Ky.2009), where a defendant's right to self-defense immunity under KRS 503.085 could be defeated by the Commonwealth upon a showing of probable cause based upon \\\"witness statements, investigative letters prepared by law enforcement officers, photographs and other documents of record\\\" because one claiming self-defense immunity from prosecution has no right to an evidentiary hearing on the issue.\\n. Cert, denied, \\u2014 U.S.-, 131 S.Ct. 904, 178 L.Ed.2d 803 (2011).\"}"
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+"{\"id\": \"8519653\", \"name\": \"Gaither vs. Slaughter\", \"name_abbreviation\": \"Gaither v. Slaughter\", \"decision_date\": \"1833-10-12\", \"docket_number\": \"\", \"first_page\": \"369\", \"last_page\": \"370\", \"citations\": \"1 Dana 369\", \"volume\": \"31\", \"reporter\": \"Kentucky Reports\", \"court\": \"Kentucky Court of Appeals\", \"jurisdiction\": \"Kentucky\", \"last_updated\": \"2021-08-10T21:22:47.166486+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Gaither vs. Slaughter.\", \"head_matter\": \"Gaither vs. Slaughter.\\nMottos'.\\nOctober 12.\\nThe motion of a county creditor against a delinquent collector,\\u00bb not barred by any statute of limitations, nor affected by lapse of time short of 20years.\\nMr. Monroe for Plaintiff: Messrs. Morehead and Brown for Defendant.']\\nFrom the County Court or Hardin County.\", \"word_count\": \"432\", \"char_count\": \"2495\", \"text\": \"Judge Underwood\\ndelivered the Opinion of the Court.\\nThe Hardin county court, in October, 1818, levied one hundred dollars upon their county for the use of Gaither, being the compensation allowed him as county attorney. In December, 1830, Gaither moved the county court of Hardin for judgment against Slaughter, upon his official bond, who was high sheriff and collector of the county levy of 1818, for the above sum. The court dismissed the motion. Two questions are now made for our decision. First. Is Gaither's demand barred by lapse of time ? Second. If it be not, does the evidence shew that it has been satisfied or paid ?\\nFirst. The statute giving a county creditor remedy by motion, against the delinquent collector, does not prescribe any limitation. The act of 1796 u to reduce into one the several acts or parts of acts concerning limitations of actions,\\\" contains no provision expressly embracing the case. Nor is there any principle known to us, upon which we could bring this case within the operation of that act. An action of debt founded on the collector's official bond, would not be affected by lapse of time in any manner short of twenty years. The motion is only a diffident remedy, and we see no reason to restrict it to a period short of that which would allow an action of debt to be successfully prosecuted on the bond.\\nSecond. The evidence is not sufficient to shew that the demand has been paid. There are circumstances which, in some minds, may excite suspicion, but they are too weak to shew that the debt has been paid. It was Slaughter's duty to make satisfactory proof of payment. Offers of compromise amount to nothing. The witnesses ought not to have been permitted to state what they heard Samuel Martin say, unless it had been shewn, that Martin was at the time the owner of the accepted order. His statements after returning the order to Gaither amounted to nothing. He should have been introduced as a witness. The testimony of other witnesses as to what he said was no better than hearsay. Without commenting further on the character of the evidence, we deem it proper to reverse the judgment, with costs, and to remand the cause for a new trial.\"}"
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+"{\"id\": \"8521207\", \"name\": \"Dyott vs. Letcher & McKee\", \"name_abbreviation\": \"Dyott v. Letcher\", \"decision_date\": \"1831-10-17\", \"docket_number\": \"\", \"first_page\": \"541\", \"last_page\": \"548\", \"citations\": \"6 J.J. Marsh. 541\", \"volume\": \"29\", \"reporter\": \"Kentucky Reports\", \"court\": \"Kentucky Court of Appeals\", \"jurisdiction\": \"Kentucky\", \"last_updated\": \"2021-08-10T20:37:27.635669+00:00\", \"provenance\": \"CAP\", \"judges\": \".Note. \\u2014 Absent Chief Justice Robertson*.\", \"parties\": \"Dyott vs. Letcher & McKee\", \"head_matter\": \"Dyott vs. Letcher & McKee\\nOctober 17.\\nError to the Garrard Circuit; John L. Bridges, Judge.\\nLimitation, statute of. Merchants accounts. Current and stated accounts.\\nAssumpsit.\\nCase 138.\", \"word_count\": \"2714\", \"char_count\": \"16115\", \"text\": \"Judge Buckner\\ndelivered the opinion of the court.\\nThis is a writ of error, prosecuted by the plaintiff in error, to reverse a judgment entered against him, in an action of assumpsit, instituted by him, against the defendants.\\nThe only question necessary to be considered, re* lates to the sufficiency of the defendant's plea to the-ancj second counts of the declaralion, and of the replication thereto.\\nIn the first count, it is averred that the defendants, late merchants, trading under the style of Letcher & McKee, in consideration of $419 worth of patent medicine, sold and delivered to them by plaintiff, promised and assumed upon themselves to pay said sum on demand.\\nIn the second (count, it is averred) that the defendants being indebted to the plaintiff, in the further sum of $500, for goods, wares, and merchandize, sold delivered, &c-, promised to pay the same, on demand.\\nThe defendants pleaded non-assumpserunt to each; and also that the causes of action, as there in set forth, are founded upon accounts for goods, wares, and merchandize, sold and delivered by plaintiff to defendants ; and, that said causes of action'had not accrued within twelve months, next preceding the sueing out the cnpias, in this suit. To this the plaintiff replied, that at the time of the sale of the goods, mentioned in first and second counts, the defendants were merchants; and that the-debt, therein specified, was due, on an account created between plaintiff and defendants, as merchants, for goods, wares, and merchandize; and that the plaintiff was, when his action accrued, and hitherto has remained, a non-resident of the State.of Kentucky,\\nThe declaration contains other counts, to which pleas were filed, on which issues were joined; and a verdict having been returned in favor of the defendants, the plaintiff moved for a new trial, on the grounds that the court had improperly instructed (ha jury; and that the verdict was contrary to law and evidence; but the motion was overruled.\\nThe errors assigned, question the correctness of various opinions given by the court, during the progress of the cause; but we shall not notice any of them, except those mentioned.'\\nUpon the demurrer to the replication of the plaintiff, the whole pleadings were brought before the court. As, therefore, it has been insisted that the defendant's plea of the statute of limitations is invalid: we shall, in the first place, inquire the objection to it be tenable. It is, that as the 5th section of the statute of limitations, of December 1796, upon which the plea is based, embraces the accounts of merchants only, it is essential to the validity of the plea, that the fact of the plaintiff's being a merchant should be expressly averred. That it should appear from the pleadings, that the medicines were sold by plaintiff as a merchant, is, no doubt, correct; but that it must be averred, in totidem verbis, cannot be admitted. It is sufficient, if it be substantially averred, in other words, if from the pleadings, admitting their truth, he must necessarily have been such.By tlie section referred to, it is provided, that all actions or suits founded upon account for goods, wares, or merchandize, sold and delivered, or for any article charged in any store account, shall be commenced and sued, within twelve months next after the cause of such action or suit, or the delivery of such goods, wares, and merchandize, and not after, except &c. The plea under consideration conforms to the words of the statute; and the averment, that the causes of action, as set forth in the first and second counts, are founded on accounts for goods, wares, and merchandize, sold and delivered by the plaintiff to the defendants, is equivalent to a declaration or averment, that the plaintiff was, at the time, a merchant. Those articles only, which are sold kept for sale by \\u00e1 merchant, can be properly denominated goods, wares, and merchandize. That which, if sold by a merchant, in the course of his business such, may, with propriety, be termed merchandize, could not be truly so styled, if sold by a farmer. The linsey or linen of a farmer, which he sells, are not merchandize; nor does a lapse of twelve months, from the time of such sale, until suit instituted, bar his right to recover the value or price of them, in an action of assumpsit. But should a merchant buy them, and again vend them, or keep them for sale, in the course of his mercantile pursuits, they would be merchandize; and the bar provided by the 5th section of the act referred to, would apply to his demand for the price of them, in an action of assumpsit, on an account, if twelve months from the delivery of such goods, &c., should elapse previous to the insti-of the suit. \\\"Those only, who traffic in the way of commerce, by importation or exportation; or carry on business, by way of emption, vendition, barter, permutation, or exchange; and who make it their living to buy and sell, by a continued assiduity, or frequent negotiations in the mystery of merchandize, are esteemed 'merchants.\\\" \\u2014 Jacob's Law Dic. vol. IV. 275.\\norThofgarticles oniy1 which are sold or for sa'e chant, can be properly denominated a\\u00b0(\\u00b0i merchandise.\\nWe are therefore of opinion, that (he plea is goood, unless the charge in the declaration against the defendants, as merchants, be considered as a sufficient averment of that fact; and if it be not sufficient, the fact that the account was created between plaintiff and defendant, as merchant and merchants, is distinctly averred, in the plaintiff's replication to the plea. We shall, therefore, proceed to examine in what attitude that phices the parties.\\nBy the fourth section of the act already cited, it is provided, \\\"that all actions of account, and upon the case, other than such accounts, as concern the trade of merchandize, between merchant and merchant, their factors or servants, (and various other actions there mentioned) shall be commenced and sued, within the time and limitation, hereafter expressed, and not after; that is to saj', the said actions upon the case, other than for slander; and the said actions for account, (and other actions there enumerated) within live years, next after the cause of such action or suit, and not after.\\\"\\nIn considering the plea and replication, this question presents itself. Is there, under our statute of limitations, any limitation to actions of account, or of assumpsit, founded on open or current accounts, which concern the trade of merchandize, between merchant and merchant?\\nThat each of these actions is placed in this respect, on the same footing; and that each is embraced by the exception in the Virginia statute, which is similar to ours, was decided (and we think correctly) by the Supreme Court of the United States, in the case of Mandeville and Jameson vs. Wilson, V. Cranch, 15; see also Sergeant Williams's note to the case of Webber vs. Tivill, in his edition of Saunder's Rep. II. vol. 124.\\n-That there is no limitation provided in the 4th -section, is too plain to require comment. The exception which it contains is explicit, and does not admit serious controversy as to its meaning; and renders it a matter of surprise, that, by some decisions \\u2022of the English courts, upon a similar clause of their statute of limitations, such accounts should have been so far confounded with those of a different character, as to be placed within the operation of the limita-tion provided in the statute for ordinary accounts, where all dealings between plaintiff and defendant had ceased, for more than six years, before action or suit instituted. The only ground on which to rest such, decision, with the slightest plausibility, is to consider the account, although it concern the trade of merchandize, between merchant and merchant, their factors or servants, as a stated account; merely because dealings between the parties had ceased. But such a ground, to make the most of it, is merely plausible.\\nIn the above cited case of Mandeville & Jameson vs. Wilson, it is decided, that an account closed by the cessation of dealings, between the parties, is not an account stated; that it is not necessary that any of the-items should come within the five years; and that the exception extended to all accounts current, which concern the trade of merchandize, between merchant and merchant.\\nIn the case of Landsdale against Brashear, III. Mon. 333; this .court, in speaking of the exception under consideration, says, that it was certainly intended by the expression, \\\"such accounts as concern the trade of merchandize, between merchant and merchant, fyc.f to distinguish a certain class of accounts from others, and to place them on a more privileged footing; and that a construction which brings them to the same level with others, or raises others to the-same privilege, cannot be correct; see, also, the case of Patterson vs. Brown, VI. Monroe, 10; in which it is said, that between merchants dealing with each other, in their several business, there is no bar.\\nUnder our statuteofhm-js^t)0\\\"imita-6 tion to actions of account or founded on \\u2022 open or cur-vent accounts, cern the trade of merchandize) between merchant and\\nIf, then, the fourth section presents no bar, in such cases> is one to be found in the fifth? We are of opinion that it is not. Had the legislature intended to provide a limitation in such cases, having expressly excepted them in the fourth, they would, doubtless, have expressly included them in the fifth section. It is true that their meaning has not been as happily eXpressed as it might have been; for, whilst from the fourth section the period of five years, next after the cause of action, is the limitation fixed, within which, to commence all actions of account and assumpsit, except those founded on accounts which concern the trade of merchandize between merchant ancj merchant, their factors or servants, the fifth sec^on reduces the limitation in a class of actions of account and of assumpsit, not embraced within the exception, to the period of twelve months, next after the cause of action, or delivery of the goods, wares, and merchandize.\\nTo have expressed their intention clearly, after the words, \\\"their factors or servants,\\\" in the fourth section, the exception should have been extended, by adding, and other than such accounts for goods, wares, and merchandize, sold and delivered, as are embraced by the fifth section of this act. Then the fifth section providing the limitation for one class of the excepted cases, and omitting to say any thing as to the other, would have left no room for argument. But it is nevertheless apparent, taking a view of the two sections in connection, even as they stand, that the fifth was not intended to embrace that class of accounts which are excepted by the previous section. The replication in this case ayerring, that at the time of the sale of the goods, mentioned in the first and second counts, the defendants were merchants, and that the debt therein specified was due on an account created between plaintiff and defendants as merchants, for goods, wares, and merchandize, brings the case within the substance, if not the letter, of the exception in the fourth section; so far as relates to its being an account concerning the trade of merchandize, between merchant and merchant. The \\u2022demurrer to the replication was, therefore, erroneously sustained; unless it is defective because it \\u2022does not aver that the account, on which the action is founded, is an open or current account; for such only are embraced by the exception, in the fourth section of the act of limitations. Had the limitation relied on in the plea, been five years, instead of twelve months, such an averment would, no doubt, have been necessary to the validity of the replication; because five years is a bar to stated or settled accounts; and as there is no form of declaring, in an indebitatus assumpsit, upon an open or current account, so as to shew, by averment, in the declaration that it is an account of that character, the fact, that the account sued on was open or current, must appear by averment in the replication to such plea. See the case of Edwards vs. Davis, IV. Bibb, 213. But as the bar relied on, in this case, is twelve months, the plea of the defendant is insufficient, unless it be considered as applying to an open account; in which case it would be unnecessary to aver in the replication, that.it was such an account; or unless the fifth section can be correctly construed as applicable to stated accounts. It therefore becomes necessary to enquire into that matter.\\nThe language of the fifth section is, indeed, in very general and comprehensive terms, \\\"all actions or suits founded upon account for goods, wares, and merchandize, sold and delivered; or for any article charged, in any store account, shall be commenced, &c.\\\" But in endeavoring to ascertain its proper construction, we must have regard to the evils intended to be guarded against by its enactment, as well as to the language employed; and if that view of it, shall confine its application to current accounts, it will not be indulging a greater latitude of construction, so to determine, than that which has been allowed in relation to the exception in the fourth section, where expressions equally comprehensive, \\\"such accounts as concern the trade of merchandize, between merchant and merchant,\\\" have been adjudged not to apply to stated accounts. The embarrassment and distress, which so frequently resulted, to persons influenced by the hope of extensive credit, from creating accounts with their merchants, often to extents far beyond what they supposed to be due, until they made settlements, as well as the facility with which the merchant, if dishonestly disposed, might in many cases practice frauds in making out his accounts, dictated the policy of ths fifth section. But if the defendant chooses to enter into a settlement, and the parties, by such settlement,, and-striking a balance, change that which was before a current into a stated account, or if the defendant make an express promise to pay, a new foundation of action is thereby laid. \\\"It is advisable, (says Chilty) in all declarations in assumpsit, for the recovery of a money demand, except against an infant who cannot state an account, to insert a count, on an account stated. The acknowledgment by the defendant, that.a.sum certain is due, creates an implied promise to pay the amount, and it is not necessary to set forth the subject matter of the original debt; nor is the sum alleged, to be due, material; nor is it necessary that the defendant's admission should relate to more than one iterri.or transaction; see I. vol. 254. Thus we find, that in an insimul compu-tassent count, the subject of the original debt or account is not set forth, but it is only avered, that the parties having accounted the defendant was found to be in arrear to the plaintiff in a named sum; and that, in consideration thereof, he undertook, &c. Now in such case the suit is not founded on an account, any more than an action of express assumpsit would be; and in the case of Beal vs. Edmondson; Call's Reports, III. vol. 514, it was decided, that the limitation of six months to actions on store accounts, provided by the Virginia statue of 1779, the provisions of which, in relation to such actions and accounts, are similar to the fifth section of our act of limitations, cannot be applied to an express assumpsit to pay the amount of a store account.\\nThe twelve months limitation to merchants accounts, embraces only currenli accounts ,.\\nTurner, for plaintiff; Owsley for defendant.\\nWherefore the judgment of the circuit court must be reversed, and the cause remanded, with directions to.overrule the demurrer to the replication; and for such, further proceedings to be paid, as may not be inconsistent with this opinion.\\n.Note. \\u2014 Absent Chief Justice Robertson*.\"}"
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+"{\"id\": \"8522168\", \"name\": \"Thompson, &c. vs. Dougherty's heirs\", \"name_abbreviation\": \"Thompson v. Dougherty's Heirs\", \"decision_date\": \"1830-04-17\", \"docket_number\": \"\", \"first_page\": \"564\", \"last_page\": \"567\", \"citations\": \"3 J.J. Marsh. 564\", \"volume\": \"26\", \"reporter\": \"Kentucky Reports\", \"court\": \"Kentucky Court of Appeals\", \"jurisdiction\": \"Kentucky\", \"last_updated\": \"2021-08-10T18:39:35.173771+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Thompson, &c. vs. Dougherty's heirs.\", \"head_matter\": \"Thompson, &c. vs. Dougherty's heirs.\\nSoUlE PACIAS, Casel61.\\nApril 17.\\nError to the Madison Circuit: Richard French, Judge.\\nScire facias. Ejectment. Costs. Administrators. Parties.\", \"word_count\": \"1086\", \"char_count\": \"6408\", \"text\": \"Judge Underwood\\ndelivored the opinion of the court.\\nThe heirs of Dougherty as lessors of the plaintiff, recovered a judgment in an action of-ejectment against Thomas Thompson, John Breed-1 love, Solomon Hays and Samuel R. Combs. Thompson injoined the judgment. The injunction was made perpetual as to 9 acres, 1 rod and 24 poles of the land recovered, and dissolved as to the residue. Thompson died, leaving a son bearing his own na.me, his heir at law. A. W. Turner was appointed administrator of the goods and chattels of the defedant. In this state of things, a scire facias was sued out in the name of John Doe, on the demise, of Dougherty's heirs against the administrator and heir of Thomas Thompson, dec'd. Breedlove,Hays and Combs, jointly requir-' ing them to appear and shew cause why the writ of habere facias should not be awarded. Turner was summoned, and the sheriff returned \\\"not found\\\" as to the other defendants. Thompson's heir at law being an infant, a guardian ad litem was appointed to defend for him. The administrator and heir by his guardian, filed a joint plea of nul tiel record, on which issue was taken. Two nehils having been returned as to the other defendants, the court gave judgment, awarding a writ of possession, to reverse which this writ of error is prosecuted with supersedeas.\\nScire facias, !\\u00b0 revive a io'^a^ew action; that def't. may quPnt to the\\\" judgment, in ba\\u00a3 ther?of; li^ua jucl\\u00a3\\\" cialwrit,so w'ith'theorig-inal record, *liat itmay by \\\"^ende\\nIt is assigned for error, 1st. That the scire facias is defective, in not shewing what land the judgment in ejectment was for, and in not shewing what John Doe's term in the land was.\\n2d. Thompson's administrator was improperly made a defendant.\\n3d. The sheriff's return did not authorize a judgment against Breedlove, Hays and Combs.\\n4th. The original judgment being against several; no scire facias was necessary.\\nAnd, Sth. That the court improperly rendered judgment for the plaintiff, on the plea of nul tiel record.\\n1st. We areof opinion that the scire facias is substantially good. It recites the names ofthe parties to the suit, the court and day of the term on which the judgment was rendered, and gives an extract from the judgment, from which it appears that the plaintiff recovered \\\"his term yet to come,\\\" in the premises mentioned in the declaration. A reference is then made to the record of the proceedings in the suit, in which the judgment was rendered, for greater certainty. The description thus given, and the reference thus made, points with entire certainty to the judgment sought to be revived, and thus the scire facias was connected with the original suit, so far as to identi-fythe land, and the duration of the plaintiff's term, Id cerium est quod cerium reddi potest, a scire facias to revive a judgment, although it may be regarded as a new action, to which the defendants may plead any matter subsequent to the judgment in bar of execution, is nevertheless a judicial writ, intimately con- nccled with the original record, so much so, that it may be amended by it. Patrick vs. Woods, III. Bibb, 232. If judgment for execution is awarded upon the trial of the scire facias, the execution goes on the original judgment, and thus, in this case, the award of the habere facias on the original judgment, which embraced the land and term set out in the declasation, would be sufficiently certain. If the term had expired, the defendants might have shewn it in their de-fence, and if disregarded by exception, they might have exhibited the fact to this court. They have not done so, and from their failure, we presume the fact was against them.\\nTo scire facias sued out. vs surviving defendant, and heirs of dec'll dof't to re-vivo judgment in ejedment, for costs, administrator of deceased defendant, is in-disppnsible party. But, to scire facias, to re-viv'-judgment in ejectment, only so far as to obtain luc-iere facias, adm'r of deceased dePt is not necessary party; yet if adm'r be in ., possession of the land, and refuse to surrender, he may as ierra-tenant, be be made party to scire fa-cias-, and styling him adm'r will not vitiate the writ.\\nIf no execution was ever issued on the judgment, and a year & a day have elapsed, since dissolution of the injunction to the judgment, scire facias may be sued out to revive the judgment.\\n2d. If the scire facias in the present case had been sued out, for the purpose of reviving a judgment against Thompson's representatives, and the defend*ants, Breedlove, &r. for costs, then the administrator of Thompson would have been an indispensrble party. Mitchell's heirs vs Smith's heirs, I. Litt. Rep. 243; bul as it does hot appear from the scire facias, that the plaintiff was proceeding for any thing except a writof habere facias: it is admitted that there was no necessity to make the administrator of Thompson a defendant, merely because he was administrator. The scire facias avers that Turner, the administrator, and Thompson's heir,-were in possession of the land, and refused to surrender, &c. As terre-tenant therefore, it was not improper to make Turnera defendant. Styling him administrator, cannot vitiate.\\n3d. According to the returns of the officer on the original and alias writ, the defendants, Breedlove, &e. were not found. The provisions of the act of 1801,1. Dig. 257, were complied with. There is nothing in the third err^r assigned.\\n4th More than a yea and day had elapsed after the rendition of the decree in the chancery suit in behalf of Thompson, before'.!-e scire facias was sued out. If. does not appear that any process of execution was ever issued on the original judgment. A scire facias was, therefore, properly p osecuted. Lowry, &c. vs. Jenkins, III. Bibb, 314; and that it was properly issued against the heir of Thompson, and the surviving defendants jointly, and terre-tenant Turner, is proved by the cases of Gray's adm'r. vs. M'Dowell, V. Mop. 501: Holder's heirs vs. The commonwealth, III. Mar. 410.\\nTurner, for plaintiff; Owsley and Caperton, for defendants.\\n. 5th. There is nothing in the record, by bill of exception, upon which the fifth error assigned canope-rate.\\nThe judgment of the circuit court is affirmed with costs.\"}"
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+"{\"id\": \"8523332\", \"name\": \"Ballard vs. Davis\", \"name_abbreviation\": \"Ballard v. Davis\", \"decision_date\": \"1830-04-24\", \"docket_number\": \"\", \"first_page\": \"656\", \"last_page\": \"658\", \"citations\": \"3 J.J. Marsh. 656\", \"volume\": \"26\", \"reporter\": \"Kentucky Reports\", \"court\": \"Kentucky Court of Appeals\", \"jurisdiction\": \"Kentucky\", \"last_updated\": \"2021-08-10T18:39:35.173771+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Ballard vs. Davis.\", \"head_matter\": \"Ballard vs. Davis.\\nVllDJSli. Case 190.\\nApril 24.\\nError to \\u00bflie Madison Circuit; Richard French, Judge.\\nMandate. Damages. Certainly. Power of circuit court to amend.\", \"word_count\": \"758\", \"char_count\": \"4325\", \"text\": \"Judge Underwood\\ndelivered the opinion of the court.\\nOn the 8i.h of March, 1827, an opinion of this court delivered in a chancery suit, in which Ballard was complainant, and .Oavin was defendant. and upon the cross bill of Davis against Ballard and others, was presented to the Madison circuit court. The mandate of this court directed the circuit to \\\"dissolve Ballard's injunction with damages.\\\"\\nThe circuit t!n\\u00b0 subsequent, to correct ei-t\\u00b0\\\"by the^* cw^tn atpri- or term .Mero ba\\\"becor-\\\" rected.\\nThe opinion and mandate of this court were spread on the record of the Madison circuit court, and this order made: \\\"Whereupon, in pursuance of the foregoing opinion of the court of appeals, it is decreed and ordered that the original bill herein of the \\u2022complainant, Ballard, be, and the same is hereby dismissed, and that the said Ballard pay to the defendant, Davis, his costs about his defence expended, also damages mentioned in the foregoing opinion.\\\" It ap\\u00bb pears from a bill of exceptions then filed, that Davis moved the court for damages on the amount of the judgment at lav/, named in Ballard's bill; but the court refused to say that damages should be computed on the amount of that judgment, or to fix the rate of damages\\u00bb\\nUnder the idea that the mandate of this court was obligatory, the circuit court, with a view to comply with it, said that Davis should recover the damages mentioned in the opinion; but refused to liquidate them upon the ground, that no injunction had in fact, ever been granted to the judgment at law. Atibe September term, 1828, of the Madison circuit court, the following order was entered of record, \\\"on the motion of the defendant, Davis, by his attorney, it is ordered that the decree and order in this \\u00ab^as\\u00e9 made, on the return of this case from the court of appeals, -at the March term, 1827, be so amended, as to read, \\\"and that the said Ballard also pay to the said Davis, ten per centum damages, on the amount mentioned in the foregoing opinion of the court of appeals.\\\"\\nTo reverse this order or amendment of the decree of March, 1827, Ballard prosecutes a writ of error with supersedeas.\\nWe are of opinion, that the circuit court hail no authority in September, 1828, to amend the decree of March, 1827, on the exparte motion of Davis, sons to subject Ballard to add tionai responsibility. If the decree of March had been defectively entered, through any clerical misprision, it would have been competent for the court, at a subsequent term to amend; but it is manifest there is no clerical error in the present case, and that if there be error, it was of court expressly adjudicating upon the matter. Prrors can alone be corrected after the expira-ti01' -\\u00b0f \\u00a1he term by (he appellate court. See Berry vs. Triplett's heirs, II. Mar. 61. If Davis has been injured by a refusal of the circuit court, to carry into effect the mandate of this court, he yet has his remedy by writ of ci ror, if his delay in prosecuting it, has not barred him.\\nDuty ol'circ't court when damages are decreed on dissolution of injunction to ascertain and liquidate them.\\nTurner, for plaintiff\\nUpon the return of the cause to the circuit court, it was the duty of that court, if it gave damages in pursuance of the mandate, to have liquidated their amount. If, at a subsequent term, the circuit court might have reversed its former opinion, and given damages, it was equally necessary to liquidate them. That has not been done by the amendment attempted, which says that Ballard shall pay Davis ten per centum, on the amount mentioned in the foregoing opinion. Now, when the opinion is examined, two sums are therein mentioned, to-wit: $4000, and .\\u00a7\\u20222000. On which shall the ten per cent bo estimated? The $2000 was, no doubt intended, because that was the amount of the judgment at law. The uncertainty of the reference to the sum on which the damages should be calculated in this case, is another instance, shewing the propriety of the rule, requiring circuit courts to fix with certainty in their decrees, the amount of damages.\\nThe order of September term, 1028, is reversed and set aside.\\nThe plaintiff in error must recover his costs.\"}"
\ No newline at end of file
diff --git a/ky/8592291.json b/ky/8592291.json
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+"{\"id\": \"8592291\", \"name\": \"Grundy's Heirs &c. vs Grundy; and Beam vs Grundy's heirs, &c.\", \"name_abbreviation\": \"Grundy's Heirs v. Grundy\", \"decision_date\": \"1851-09-30\", \"docket_number\": \"\", \"first_page\": \"269\", \"last_page\": \"277\", \"citations\": \"12 B. Mon 269\", \"volume\": \"51\", \"reporter\": \"Kentucky Reports\", \"court\": \"Kentucky Court of Appeals\", \"jurisdiction\": \"Kentucky\", \"last_updated\": \"2021-08-11T00:10:56.567587+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Grundy\\u2019s Heirs &c. vs Grundy, and Beam vs Grundy\\u2019s heirs, &c.\", \"head_matter\": \"Grundy\\u2019s Heirs &c. vs Grundy, and Beam vs Grundy\\u2019s heirs, &c.\\nWrits or error to the-Nelson Circuit.\\nSurplus Land. Mistakes. Interest.\\nChancery.\\nCase 58.\\nSeptember 30.\\ngtatecU The case\", \"word_count\": \"3211\", \"char_count\": \"17873\", \"text\": \"Judge Crenshaw\\ndelivered the opinion of the Court.\\nZachariah Hobbs, deceased, owned in his lifetime a tract of land in the county of Washington, supposed to contain 500 acres; and, after having sold 53 acres of the tract to Jesse Hobbs, he died, and the remainder of the tract descended to his only child, Lucy Grundy. And in 1829, Lucy Grundy and her husband, Joseph Grundy, conveyed the said remainder of the said tract, supposed to be 447 acres, to Samuel Grundy at $6 per acre. In 1835, Samuel Grundy sold the samedo David Beam, for the sum of $4000, and in 1839, made him a deed of conveyance-therefor. Joseph Grundy, died in 1844, and his widow, the said Lucy, in April, 1848, instituted suit in the Nelson Circuit Court, against the executors heirs and devisees of said Samuel Grundy, and against said Beam and John Thomas, who were in possession, alleging that she had recently ascertained that there was a considerable surplus in the tract, and claiming compensation therefor. In the progress of the suit the land was surveyed, and a surplus of 101 acres and 26 poles, ascertained to exist.\\nit is immaterial wheiher a sale of land be by I he acre or in gloss, a Court of Chancery will relieve where the parties labor under a palpable mistake as to the quantity, and lhat quantity is beyond, what it may be they reas onably infeied intended to risk.\\nThe executors and heirs of Samuel- Grundy make their answer a cross bill against Beam, in which they allege, substantially, the ignorance of said Samuel of the existence of said surplus, and that they knew nothing o\\u00ed it until sued by said Lucy. They charge that their ancestor sold to Beam at $9 per acre, and was not paid for all the land in the tract by more than 100 acres, and that the surplus was conveyed to Beam by mistake \\u2014 the entire boundary having always been estimated to contain what the original survey called for, to-wit, 500 acres, when, in truth, it contained more than 600 acres.\\nLapse of time is relied upon by the defendants to the original, and by the defendant, Beam, to the cross bill; and it is insisted by him, that the sale to him was in gross, being for a tract of land described in the deed to him as a tract containing 500 acres more or less, with a specific boundary.\\nThere is a surplus of 101 acres and 26 poles, and, unless it appears that the parties intended to risk the quantity, whatever it might be, it is immaterial whether the sale was by the acre or by the tract as containing by survey so many acres. Where sales are made by the acre, a less surplus or deficit, it is true, will induce the Chancellor to afford relief, than where they are made by the tract, supposed to contain, or as containing by survey, so many acres. But whether sales are made by the acre or in gross, courts of chancery will give relief, if it appears that the parties were under a palpable mistake as to the quantity mentioned, and that that quantity is beyond what they intended to risk, or, is less or more than \\\" might be reasonably calculated on as within the range of ordinary contingency.\\\" We are satisfied that, in this case, the parties were under a gross mistake as to the number of acres in the tract. The locality, and price of the land, the large excess, and the times at which the sales were made, and the facts that the title papers had all described the land as a tract containing by survey 500 acres, and that it was so known and estimated in the neighborhood, forbid our coming to any other conclusion. If, therefore, lapse of time does not constitute a bar, the complainants upon the original and cross bills are entitled to relief.\\nLimitation does not run against claims for mistake until it is discovered.\\nWhere a wife unites with her husband in the c o nveyance of her land and surplus is conveyed, the limitations does not ran against her Tight to recover the surplus s o conveyed until she became dis-covert.\\nIt is contended by the counsel of Beam, that, although in cases of fraud, time does not begin to run until the discovery of the fraud, such is not, and ought not to be, the rule in cases'of mistake. It is conceded by the counsel that, as the law is laid down in the case of Crane vs Prather, (4th J. J. Marshall, 77,) the rule is applied to mistakes as well as fraud ; but it was urged in argument, that this is the only case which recognizes this doctrine, and we are respectfully asked to review it.\\nWe have done so, and find the same doctrine recognized in several other cases, and also in Story's Equity. We are of opinion, therefore, that the statute of limitations which, in these cases, is five years, did not commence running until by the exercise of ordinary diligence the discovery of the mistake was made, or until it ought to have been made.\\nLucy Grundy states that she did not, until a short time since, discover the surplus. This is a very loose and indefinite statement. What she means by a short time, may he more than, five, more than ten years; and, after such a lapse of time as intervened between the conveyance to Samuel Grundy, and the institution of her suit, her right to recover, if it depended upon so vague and uncertain a statement, might, and would be, very questionable. But, within five years before she commenced her suit, she was still a feme covert-, the land which was sold was her land, and, for the surplus which was conveyed by her and her husband, she in her own right, and not as administratrix of her husband is entitled to recover, if entitled to recover at all. If, therefore, she had known of the surplus in her hus band's lifetime, the statute of limitations would not have commenced to run against her, until she became discovert, and her suit having been commenced within five years after the death of her husband, she is not barred by the statute of limitations.\\nWhere a mistake isMiseovered or caught t o have been discovered by the vendor more than five years before suit brought to recov e r for surplus land the chancellor will not grant relief.\\nThe question now occurs, whether the claim for the same surplus, set up by Smuel Grundy's heirs and executors in their cross bill against Beam, is barred by time. The council of Beam assumes that, although the complainants allege that they did not discover the surplus until sued by Lucy Grundy, they do not state that their ancestor acquired no knowledge of it after his conveyance, and, consequently, he may have known it before his death. But they-allege that, by a survey recently-made, it was ascertained that the boundary contains \\\"upwards of one hundred acres more than Samuel Grundy ever knew or believed or supposed was contained in said boundaryAnd they state that they were ignorant of the surplus until sued by Lucy Grun-vdy. These allegations we -esteem sufficient to show, 'that the discovery was made within five years before their suit, and according to the principle laid down in the case of Craig vs Prather, &c., supra the statute of limitations interposes no bar, unless the mistake aught to have been discovered more than five years before the commencement of their suit.\\nIn the case of Ewin vs Ware, &c., 2 B. Monroe, 65, it said, that the statute of limitations \\\"should be applied, whenever the mistake had been, or aught to have been, discovered .more than five years before the commencement of the suit;\\\" Relief was refused in that case, because, in. the language of the Court, \\\"the facts strongly conduced to show that the complainant was apprlzed-of the surplus five yeais at least before he set up his claim, and that he had reason to believe (as it seemed probable,) at the date of his conveyance, that there was a surplus in the tract, and that, continuing to reside in the neighborhood, he' aught, as a reasonably vigilant man, (o have ascertained the existence and ex tent of the surplus, and especially, as others in the neighborhood had knowledge of it from about the date of his conveyance to Anderson, and seemed to have no motive for concealing the fact\\\".\\nIt appears that, by the title papers in regard to the land in controversy, the survey has always been called and known as a survey ot 500 acres, and there is no good reason to suppose that Samuel Grundy ever knew or believed, that there was a surplus in the tract. It is true, that he and his representatives continue to reside in the vicinity of the land, and they might have ascertained the surplus, but there is nothing to show that they had ascertained it, or even suspected a surplus until the original suit was brought. And there is no testimony to show, that it was known in the neighborhood by more than one man, Gregory. He says that some 10 or 12 years prior to the time of giving his deposition, he surveyed the land with \\\"Win. Knott as surveyor, and they made it contain 615 acres.\\\" It does not appear at whose instance he and Knott made this \\u2022survey; whether Knott resides \\\" in the neighborhood; nor, whether he or Knott ever made known to others the fact which they had ascertained. It would seem, it is true, from the question which elicited this part of his deposition, that the complainants might have been informed of it, but at what time does not appear. Considering the time at which this survey was made, we conclude that Beam, must have been residing upon the land, and that the probability is stronger that he knew of its being made, than that Samuel Grundy knew it.\\nThe facts, therefore, which appeared in the case in 2 B. Monroe, supra, do not exist in this case. The complainants have, it is true, continued to reside in the neighborhood of the land, but it does not appear that they or their ancestor suspected or believed, that there was a surplus in the tract. There was nothing, therefore, to prompt them to take any steps to ascertain the \\u2022certain number of acres which the tract contained. Had not the suit of Lucy Grundy been instituted, we perceive nothing to induce the conclusion that we should ever have heard of a suit on the part of the complainants jn tjie cr0Ss bill for the surplus land. But, being; sued themselves, they turn to their ancestor's vendee for the same surplus.\\nIf they or their ancestor believed that a surplus ex-existed, they ought to be required to have used ordinary vigilance to ascertain it; and such is the rule which is recognized and approved in the cases of Crane vs Prather &c., and of Ewin vs Ware &c., supra.\\nIn the former case, the suit was not instituted under eleven years after the conveyance from Crane to Prather. Prather conveyed the same tract, with the same boundary, to Thompson, and Thompson sold the same, with the same description, to three persons, who, in dividing it, ascertained the deficit. Neither party liad any reason to apprehend a deficit until, for the purposes of a division, the land was surveyed ; and hence, it was decided, that there had been no laches in not ascertaining the deficit sooner. So with Grundy, and his representatives \\u2014 they had no reason to apprehend, so far as shown, that there was a surplus, until they were sued by Mrs. Grundy. There was, therefore, nothing to induce them to take any steps to find out the true quantity, when they thought it was correctly staled in the title papers. We are of opinion, therefore, that-the. complainants in the cross bill are entitled to relief.\\nIt has been contended by counsel, that the surplus had been ascertained and settled in the lifetime of Sam. Grundy, but there is no admission, (as supposed.) nor proof that such is the fact.\\nThe Circuit Court was of opinion, that the complainants in the original and cross bills, were entitled to relief, and decreed upon both bills the same amount of compensation, and this amount was ascertained by the contract price between Joseph Grundy and wife, and Sam. Grundy, and interest thereon to the time of rendering the decree. The price stipulated in the two. sales being different, the measure of compensation should, of course, be different. The price stipulated between Joseph and Sam. Grundy was six dollars per acre, and that between Sam. Grundy, and Beam, being $4000 for the whole tract sold, was at the rate of \\u2022$8 94\\u00a7 per acre. The surplus is 101 acres and 26 poles. In ascertaining the amount for which Mrs. Grundy is entitled to a decree, the surplus should be 'calculated at $6 per acre, and at $8 94f per acre to ascertain the amount which the executors of Sam. Grundy are entitled to.\\nThe measures of compensation to the vendor for surplus land eon veyed shall be the price pet acre ior the num ber ol'a'ies in the surplus, and interest for such time e.\\u00ab the. shatt cellor in his discretion under 1he circumstances of the case may think it equitable.\\nThe only remaining question is, whether interest should be given upon their respective amounts from the time of the respective deeds or contracts. And we are of opinion that, under the circumstances, it should not be given. The rule of compensation was investigated in the case of Meriwether vs Lewis, (9 B. Mon., 163,) and no case was found requiring as a general rule that interest should be given. The case of Rogers vs Garnett,(4 Mon. 271,) is there referred to, in which it is said that, whether relief should be had \\\"by'a re-conveyance of the surplus, or compensation at the contract price, or at the present value, would depend upon circumstances.\\\" And the Court add, \\\"It is clear that the principle thus laid down, excludes from consideration, both interest upon the contract price, and rent for' the use of the land, unless the circumstances of the case-should make one or the other, an equitable ground of charge, and even then it would seem that this equity should operate only upon the question, whether the -vendor should have the land itself, or its contract price, o.r its present value.\\\"\\nWe have determined^ that as a matter of law, the 'complainants of both bills are entitled to relief. But, surely, claims which have lain dormant \\u2014 one for at least seventeen years, and the other for at least thirteen, can demand from the chancellor no. particular favor. After so great a lapse of time, it may be impossible to prove many of the facts which attended the tran sactions, or transpired afterwards, which might destroy the right of recovery entirely. As a matter of law, Mrs. Grundy, whilst a feme covert, was bound to no diligence, and could be guilty of no laches, nor can be held responsible for any negligence of her husband; yet) who doubts but that, in fact, she was as free to act in search of this surplus when covert, as when discovert, or that her husband would have agreed to unite with her in a suit to recover her rights. And, at no time, since the sales and conveyances were made, was it out of the power of any of the parties to ascertain the number of acres in this tract of land. Nothing was necessary but a surveyor, chain-carriers, and compass. They laid by, and failed to make an effort for the discovery. True, that, in accordance with what we understand tobe the settled law, we decide that compensation must be made, but, when called upon to increase this compensation by the addition of interest, we have a right to look into the circumstances, and if they do not favor the call, to refuse it.\\nInterest in this case given irom the time of filing ilie respective bills.\\nAs a general rule a party ought not to be bound to pay interest until he is in default, and can it be said that he is in default until it is ascertained that he ought to pay? We think not. It may be said that the vendors had the use of the land, and, therefore, they ought to account for interest. But it may be replied, that it is by no means certain that the vendees have received a single dollar more profit by having in possession the whole tract, than if they had possession of the remainder only, after deducting the surplus. A vendee in possession has a right to surrender the surplus off one side or end of the tract, which it is probable, in a tract of the size of this, has not added any thing to his income. Besides, it is contrary to the policy of the law, to encourage men to sleep upon their rights with the expectation that they can wake up at any remote period of time, and receive the\\\" same countenance from the Courts as is extended to the vigilant; and this, to the disturbance of the tranquility of the community. the peace and happiness of families, and, it may be, to the ruin of some who had long reposed in fancied safety and security. We think that in cases like this, where one's rights can be ascertained at any day, and where there has been such long delay, it is, in general, extending the rule far enough, to allow a recovery of the contract price at any time within five years from the discovery of the mistake. It may be worthy of en-quiry, whether, under ordinary circumstances'', it would not be a safe and wholesome rule, to compel a party to make the discovery within five years, upon pain of forfeiting his claim. ' Nothing is more harassing and vexatious, than to have our security suddenly disturbed by the unwelcome salutation of a dormant claim.\\n\\u00a1 Grigsby and Thurman for Grundy's ex'or.; B. Monroe and Wickliffe for Lucy Grundy; B. Hardin and Reed for Beam.\\nWe think, therefore, that interest upon the respective- amounts arising from the surplus, should be calculated only from the time of filing the respective bills. But, Beam must be allowed to make his election to pay the money, or surrender to Grundy's heirs and devisees the amount of the surplus, to be laid off at one side or end of the tract.\\nWherefore the decree of the Circuit Court upon the bill and cross bill, is reversed, and the causes remanded, that a decree may be rendered in conformity to this opinion.\"}"
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diff --git a/ky/9929667.json b/ky/9929667.json
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--- /dev/null
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+"{\"id\": \"9929667\", \"name\": \"Stephen P. SMITH, Individually and as Designated Executor of the Estate of Floyd O. Neikirk, and Lucille C. Norman, Appellants, v. Fred B. NEIKIRK (also known as Fred Byron Neikirk), Individually and as Executor of the Estate of Floyd O. Neikirk, et al., Appellees\", \"name_abbreviation\": \"Smith v. Neikirk\", \"decision_date\": \"1977-02-18\", \"docket_number\": \"\", \"first_page\": \"156\", \"last_page\": \"158\", \"citations\": \"548 S.W.2d 156\", \"volume\": \"548\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Kentucky Court of Appeals\", \"jurisdiction\": \"Kentucky\", \"last_updated\": \"2021-08-10T23:02:32.651735+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before WINTERSHEIMER, LESTER and WILHOIT, JJ.\", \"parties\": \"Stephen P. SMITH, Individually and as Designated Executor of the Estate of Floyd O. Neikirk, and Lucille C. Norman, Appellants, v. Fred B. NEIKIRK (also known as Fred Byron Neikirk), Individually and as Executor of the Estate of Floyd O. Neikirk, et al., Appellees.\", \"head_matter\": \"Stephen P. SMITH, Individually and as Designated Executor of the Estate of Floyd O. Neikirk, and Lucille C. Norman, Appellants, v. Fred B. NEIKIRK (also known as Fred Byron Neikirk), Individually and as Executor of the Estate of Floyd O. Neikirk, et al., Appellees.\\nCourt of Appeals of Kentucky.\\nFeb. 18, 1977.\\nCecil F. Dunn, Lexington, Eugene Watson, Irvine, for appellants.\\nBilly L. Wilson, Irvine, for appellees.\\nBefore WINTERSHEIMER, LESTER and WILHOIT, JJ.\", \"word_count\": \"780\", \"char_count\": \"4540\", \"text\": \"WINTERSHEIMER, Judge.\\nThe Appellants, Stephen P. Smith, individually and as designated executor of the estate of Floyd O. Neikirk, and Lucille C. Norman, filed a statement of appeal from the order of the Estill County Court admitting the will to probate on June 3, 1972. Floyd 0. Neikirk died August 21, 1971. A paper purported to be his Last Will and Testament, dated July 20, 1971, was admitted to probate in the Estill County Court on January 28,1972. The jury trial of the will contest was concluded and a verdict was rendered on February 26, 1974. The trial court overruled the Appellants' motion for a new trial on February 19, 1974, and a notice of appeal was filed on February 28, 1974. On October 8, 1976, the Supreme Court of Kentucky transferred this case to the Court of Appeals. This Court affirms the judgment of the trial court.\\nThe will of July 20,1971, was executed by the testator while he was a patient at the Veterans Administration Hospital in Lexington, Kentucky. The will is typewritten and signed by the testator, has no attestation clause, but has the signatures of two witnesses and is notarized by a third party. The Appellees introduced testimony of one of the subscribing witnesses and of the notary public.\\nThe questions presented are:\\n1. Whether the trial court correctly ruled that as a matter of law the instrument offered for probate was properly executed.\\n2. Whether the designation of an official capacity, such as a notary, for a person signing a will disqualifies that person as a witness to the will under KRS 394.-040.\\nKRS 394.040 states: \\\"No will is valid unless it is in writing with the name of the testator subscribed thereto by himself, or by some other person in his presence and by his direction. If the will is not wholly written by the testator, the subscription shall be made or the will acknowledged by him in the presence of at least two (2) creditable witnesses, who shall subscribe the will with their names in the presence of the testator.\\\"\\nIt is well settled that the burden of proving a will is placed upon those who present it. The record of testimony indicates that witness Runk was within the presence of the testator and the other witnesses at all times. The fact that she may have had her back turned at the moment of execution does not disqualify her as a witness. All that is required to be proved by the subscribing witness is the identification of the signature. Wroblewski v. Yeager, Ky., 361 S.W.2d 108 (1962). It has been repeatedly held that substantial rather that a literal compliance with the statute (KRS 394.040) will suffice. This Court has also indicated that where the technical requirements for execution of wills have been substantially complied with, the will should be probated. Miller's Exr. v. Shannon, Ky., 299 S.W.2d 103 (1957); Madden v. Cornett, 290 Ky. 268, 160 S.W.2d 607 (1942); Rybolt v. Futrell, 296 Ky. 158, 176 S.W.2d 269 (1943). Testimony presented by Mrs. Bush indicates that she witnessed the testator sign the will, then signed the will as a notary, and returned the will to him. The entire transaction indicates that Mrs. Bush was there to witness the will and to further sign in an official capacity. The fact that she signed as a notary is merely surplusage. As mentioned in the case of Madden v. Cornett, supra, \\\"All that was required of this witness was to sign his name, and the fact that he attached more writing to the instrument than was necessary under the statute does not vitiate his signature\\nThe instrument complained of in this appeal may leave much to be desired from the point of view of legal drafting. However, it appears that from a complete examination of the record that it reflects the intention of the testator. As mentioned above, substantial compliance with the statute is all that is necessary. The proof is sufficient and therefore the will should be probated. The trial court had a valid legal basis for ruling that as a matter of law the instrument offered for probate was properly executed.\\nThe judgment of the trial court is affirmed.\\nAll concur.\"}"
\ No newline at end of file
diff --git a/ky/9936125.json b/ky/9936125.json
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+"{\"id\": \"9936125\", \"name\": \"BLUE CROSS AND BLUE SHIELD OF KENTUCKY, INC., Appellant, v. Maude S. SMITHER, Appellee\", \"name_abbreviation\": \"Blue Cross & Blue Shield of Kentucky, Inc. v. Smither\", \"decision_date\": \"1978-10-06\", \"docket_number\": \"\", \"first_page\": \"363\", \"last_page\": \"365\", \"citations\": \"573 S.W.2d 363\", \"volume\": \"573\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Kentucky Court of Appeals\", \"jurisdiction\": \"Kentucky\", \"last_updated\": \"2021-08-10T22:03:07.985892+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before HOWARD, HOWERTON and PARK, JJ.\", \"parties\": \"BLUE CROSS AND BLUE SHIELD OF KENTUCKY, INC., Appellant, v. Maude S. SMITHER, Appellee.\", \"head_matter\": \"BLUE CROSS AND BLUE SHIELD OF KENTUCKY, INC., Appellant, v. Maude S. SMITHER, Appellee.\\nCourt of Appeals of Kentucky.\\nOct. 6, 1978.\\nJoseph M. Day, Ronald L. Gaffney, Charles D. Barnett, Barnett & Alagia, Louisville, for appellant.\\nCharles E. Carter, Owenton, for appellee.\\nBefore HOWARD, HOWERTON and PARK, JJ.\", \"word_count\": \"1321\", \"char_count\": \"8372\", \"text\": \"HOWARD, Judge.\\nThis is an appeal from a summary judgment entered in the Owen Circuit Court in favor of plaintiff-appellee, Maude S. Smith-er (hereinafter referred to as Smither), entitling her to recover certain benefits under the medical benefits plan of defendant-appellant, Blue Cross and Blue Shield of Kentucky, Inc. (hereinafter referred to as Blue Cross and Blue Shield). Blue Cross and Blue Shield argue that there was a genuine issue as to whether the entire period of Smither's hospitalization was \\\"medically necessary\\\" and therefore properly payable under the medical benefits plan.\\nSmither, being a 63-year-old retired postal worker, was a subscriber to the Blue Cross and Blue Shield medical plan through the Federal Employee Program, Contract No. CS 1039. On August 13, 1975, Smither was admitted to the Owen County Memorial Hospital pursuant to the orders of her physician, Dr. Maurice Bowling. The ad mitting diagnosis was injury to the anterior chest wall and thoracic spine occurring as a result of a fall in her bathtub. Shortly after her admission to the hospital, she suffered a cerebral vascular incident with residual weakness of the right upper and lower extremities. On October 29,1975, Smith-er was discharged after 77 days of continuous confinement in the hospital, with the final diagnosis being sprain of the right anterior chest and thoracic spine, hypertension and cerebral thrombosis.\\nSmither thereafter filed a claim for benefits for the entire hospital stay of 77 days, which claim was submitted to the medical services review board of Blue Cross and Blue Shield. Subsequently, the claim was submitted to the Kentucky Medical Association Seventh Trustee Peer Review Committee (hereinafter referred to as the Peer Review Committee). Said Committee is an independent review board composed of physicians of various medical disciplines, who are not employees of Blue Cross and Blue Shield.\\nA review hearing was held by the Peer Review Committee, and the treating physician, Dr. Bowling, discussed Smither's case with the Committee. The Peer Review Committee recommended that benefits be paid to Smither for hospitalization only for the period from August 13, 1975 through September 6, 1975. The Committee also recommended that the remaining period of hospitalization from September 7, 1975 through October 29,1975, was not medically necessary and benefits therefor should be denied.\\nThe benefits for hospitalization were paid to Smither in accordance with the recommendations of the Peer Review Committee. She subsequently filed suit against Blue Cross and Blue Shield for payment of the remaining hospitalization period from September 7, 1975 through October 29, 1975.\\nThe provisions of Contract No. CS 1039 provide that hospital services are covered only when \\\"medically necessary\\\" and that \\\"[t]he fact that a physician may prescribe, order, recommend, or approve a service or supply does not, of itself, make it medically necessary or make the charge an allowable expense. . . .\\\" Another provision of the policy specifically excludes hospitalization and physician services for convalescent, domiciliary and custodial care, rest cures, physical therapy and rehabilitation.\\nBoth parties moved for summary judgment and submitted affidavits in support thereof. Blue Cross and Blue Shield submitted the affidavits of Branham B. Baugh-man, M.D., Chairman of the Peer Review Committee, and B. Frank Radmacher, M.D., Chief of the Medical Services Section of Blue Cross and Blue Shield. Both physicians stated in their affidavits that it was their opinion that Smither's confinement in an acute hospital facility from September 7, 1975, through October 29, 1975, was not a medical necessity. Smither filed the affidavit of Dr. Bowling, the treating physician, who stated that it was his opinion that Smither's hospitalization during the contested period was a medical necessity.\\nBlue Cross and Blue Shield contend that the affidavits submitted by both parties show there is a genuine issue of material fact, namely whether a portion of Smither's hospitalization was medically necessary.\\nSmither contends that neither Dr. Baugh-man nor Dr. Radmacher should be competent to testify concerning the medical necessity of the contested hospitalization period since their only knowledge of same consists of having read her medical records at some period of time after the hospitalization. She states that the treating physician should decide the question of the medical necessity of hospitalization at the time the question arises and that his decision should always be controlling. Smither therefore concludes that the opinions of the non-treating physicians should be inadmissible and since there would then be no genuine issue as to any material fact, the summary judgment was properly granted.\\nCR 56 provides for the summary judgment procedure and CR 56.05 reads as follows:\\nSupporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. .\\nIn Hill v. Fiscal Court of Warren County, Ky., 429 S.W.2d 419, 423 (1968), the court held that affidavits of experts were properly considered in support of a motion for summary judgment since their opinions expressed in the affidavits \\\"would be admissible in evidence\\\" within the meaning of CR 56.05.\\nAnd in Buckler v. Commonwealth, Ky., 541 S.W.2d 935, 940 (1976), the court adopted, as an exception to the hearsay rule, the rule that an expert may express an opinion based upon information supplied by third parties, which is not in evidence, but upon which experts customarily rely on in the practice of their professions. In Buckler, supra, the refusal by the trial court to allow an expert to express an opinion as to the appellant's mental condition, based on appellant's medical records and consultations, was held to be error.\\nIn the instant case, Drs. Baughman and Radmacher based their opinions on the lack of medical necessity of the hospitalization period after reading Smither's medical records. Their opinions would be admissible under Buckler, supra, and were properly submitted, under CR 56.05, by Blue Cross and Blue Shield in support of its motion for summary judgment.\\nSmither's argument is, in essence, that the only medical advice the patient has concerning his hospital stay is that provided by the treating physician, and therefore his opinion should be treated as correct and not be subject to contradiction. We do not believe a treating physician should be placed in this unassailable position. One need only look to the Medicare and Medicaid System for alleged evidence of fraud which may occur on the part of doctors and other persons in the medical care professions, if their decisions are always assumed correct.\\nSince a large part of today's rising medical costs are borne by organizations which offer medical benefits plans, such as Blue Cross and Blue Shield, we believe these organizations should be entitled to some measure of protection and should be allowed to challenge decisions made by doctors.\\nWe do not, of course, decide whether Smither's hospitalization during the contested period was or was not a medical necessity, but rather that a real issue does exist between the parties on that point. CR 56.03.\\nSee Pennsylvania Life Insurance Co. v. Mattingly, Ky., 464 S.W.2d 632 (1971), where in an action by an insured against the insurer, the court held that a jury issue was created as to whether the insured, who saw a doctor two days after an accident, had shown his injury required \\\"regular and personal attendance by a physician within 20 days\\\" as stated in the insurance policy as a prerequisite to recovery. See also 81 A.L. R.2d 967 Anno.: Blue Cross-Blue Shield-Coverage, \\u00a7 5, conditions covered and services provided, generally.\\nThe summary judgment entered by the trial court is reversed and the trial court is directed to give the appellant a trial on the merits.\\nAll concur.\"}"
\ No newline at end of file
diff --git a/ky/9950833.json b/ky/9950833.json
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--- /dev/null
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+"{\"id\": \"9950833\", \"name\": \"B. F. TAYLOR, Appellant, v. Wanda Lee TAYLOR, Appellee\", \"name_abbreviation\": \"Taylor v. Taylor\", \"decision_date\": \"1980-04-04\", \"docket_number\": \"\", \"first_page\": \"764\", \"last_page\": \"764\", \"citations\": \"598 S.W.2d 764\", \"volume\": \"598\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Kentucky Court of Appeals\", \"jurisdiction\": \"Kentucky\", \"last_updated\": \"2021-08-10T21:55:28.935190+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before GANT, HOWERTON and VANCE, JJ.\", \"parties\": \"B. F. TAYLOR, Appellant, v. Wanda Lee TAYLOR, Appellee.\", \"head_matter\": \"B. F. TAYLOR, Appellant, v. Wanda Lee TAYLOR, Appellee.\\nCourt of Appeals of Kentucky.\\nApril 4, 1980.\\nRehearing Denied May 16, 1980.\\nRobert P. Hastings, Hardy, Logan & Hastings, Stuart A. Handmaker, Handmaker, Weber & Meyer, Louisville, for appellant.\\nJames T. Carey, Louisville, for appellee.\\nBefore GANT, HOWERTON and VANCE, JJ.\", \"word_count\": \"314\", \"char_count\": \"1923\", \"text\": \"GANT, Judge.\\nThis lengthy divorce action, including a gross estate of some $5,735,000 and about 1,000 pages of testimony, concluded on September 28, 1978, with a division and allocation of the property of the parties. As a part of the final order, appellee/wife was awarded an apartment complex in Indianapolis, Indiana, with a fair market value of $2,300,000.00, and an outstanding mortgage of $1,772,772.00. The order directed that appellee should assume the assets and liabilities of this complex as of April 30, 1978.\\nSubsequent to the finality of the September 28, 1978 order, appellee discovered a tax warrant against the complex which was filed June 1, 1977 by the State of Indiana, and filed motion pursuant to CR 60.02 asking appellant/husband to be required to pay the $8,533.49 amount, plus interest. The court entered its order adjudging this to be the joint obligation of the parties, and the husband appeals.\\nBoth parties rely on Ping v. Denton, Ky., 562 S.W.2d 314 (1978), and Kidwell v. Mason, Ky., 564 S.W.2d 534 (1978). We feel that their reliance is misplaced, as nothing in those cases abrogates an aggrieved party's right to utilize CR 60.02.\\nCR 60.02 provides relief from a final order under numerous grounds, including: (a) mistake; (c) perjury or falsified evidence. Motions' under either of these two causes must be made within one year. In the instant case, the order became final in October, 1978, and motion to amend was made January 5, 1979. Under the facts of this case, either of the two grounds would have been applicable.\\nThe judgment is affirmed.\\nAll concur.\"}"
\ No newline at end of file
diff --git a/ky/9951615.json b/ky/9951615.json
new file mode 100644
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--- /dev/null
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@@ -0,0 +1 @@
+"{\"id\": \"9951615\", \"name\": \"COMMONWEALTH of Kentucky, DEPARTMENT OF REVENUE, Appellant, v. MAJESTIC COLLIERIES COMPANY and Sovereign Coal Corporation, Appellees\", \"name_abbreviation\": \"Commonwealth, Department of Revenue v. Majestic Collieries Co.\", \"decision_date\": \"1979-12-04\", \"docket_number\": \"\", \"first_page\": \"877\", \"last_page\": \"881\", \"citations\": \"594 S.W.2d 877\", \"volume\": \"594\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Supreme Court of Kentucky\", \"jurisdiction\": \"Kentucky\", \"last_updated\": \"2021-08-10T22:41:25.458118+00:00\", \"provenance\": \"CAP\", \"judges\": \"All concur except AKER and STEPHENSON, JJ., who dissent.\", \"parties\": \"COMMONWEALTH of Kentucky, DEPARTMENT OF REVENUE, Appellant, v. MAJESTIC COLLIERIES COMPANY and Sovereign Coal Corporation, Appellees.\", \"head_matter\": \"COMMONWEALTH of Kentucky, DEPARTMENT OF REVENUE, Appellant, v. MAJESTIC COLLIERIES COMPANY and Sovereign Coal Corporation, Appellees.\\nSupreme Court of Kentucky.\\nDec. 4, 1979.\\nRehearing Denied April 1, 1980.\\nFrank A. Logan, Louisville, William P. Curlin, Jr., Frankfort, for appellant,\\nJohn M. Stephens, Stephens, Combs & Page, Pikeville, for appellees.\\nJackson W. White, James Park, Jr., Lex- . \\u201e . mgton, for amicus curiae Cyclone Coal Corporation.\", \"word_count\": \"2631\", \"char_count\": \"15858\", \"text\": \"LUKOWSKY, Justice.\\nThe issue presented is whether the lessees of coal interests, who had contract miners extract coal from the leasehold for them were the taxpayers engaged in severing coal who should have paid the coal severance tax. The Board of Tax Appeals said yes. The Circuit Court said no. We granted a joint request for transfer from the Court of Appeals. We reverse.\\nThe facts are not in dispute. Majestic Collieries Company and Sovereign Coal Corporation are lessees of coal bearing properties having the right to remove and sell the coal and the duty to pay royalties to the lessor. These lessees entered into oral contracts with \\\"contract miners\\\" to physically sever the coal from the leasehold and to deliver the coal to the point at which it was loaded into rail cars. Sovereign and Majestic paid these contract miners for their services an agreed amount per ton of coal delivered over the scales. Sovereign and Majestic then sold the coal to the ultimate consumer through the use of a common marketing company.\\nSovereign and Majestic filed returns and paid the severance tax due under KRS Chapter 143 for the coal severed in the names of the contract miners. The funds came from either amounts withheld from payments made to the contract miners or by payments made on their behalf. The \\\"gross value\\\" used to compute the tax was the amount Majestic and Sovereign paid the contract miners for their services, not the proceeds from the sales to the ultimate consumer.\\nIn the briefs and at oral argument much ado was made about the \\\"independent contractor\\\" status, or lack thereof, of the con tract miners. We are shown that the hiring and firing of employees and the negotiation of collective bargaining agreements lies with the contract miners. Further, the equipment is owned by these contract miners, although financing is sometimes provided by Majestic or Sovereign. The strip mine permits are issued to the contract miners, but the lessees must consent as owners of the coal. The contract miners paid workmen's compensation insurance on their employees, except in a few cases in which Majestic and Sovereign stepped in and made the payments.\\nIf this was an agency case concerning the liability of the principal for the debts incurred by his agent, or if this was a tort case involving the responsibility of the master for the acts of his servant, then the evaluation of the contract miners and lessees relationship in terms of independent contractor would be pertinent. See Locust Coal Company v. Bennett, Ky., 325 S.W.2d 322, 324 (1959) for a list of the traditional evaluative factors to determine whether a particular relationship is that of independent contractor. But, it is neither. This is a tax case. The incidents of taxation are set out by the statute. It is to the statute we must look to determine who is the taxpayer.\\nKRS 143.010(5) stated: \\\" 'Taxpayer' shall mean and include any individual, partnership, joint venture, association, or corporation engaged in severing coal in this state.\\\" KRS 143.010(3) defined severing as \\\"the physical removal of coal from the earth in this state.\\\" Majestic and Sovereign submit that because the contract miners actually do the mining of the coal, they are the ones who \\\"sever\\\" the coal and are the taxpayers.\\nMajestic and Sovereign owned the right to extract the coal and sell it. They arranged with the contract miners to perform the mining and transportation tasks for them. They paid the contract miners a per ton compensation for the cost of removing the coal. The contract miners never owned the coal nor sold it to Sovereign and Majestic. Rather, the contract miners dug the coal which Sovereign and Majestic wanted mined. Logically, the \\\"gross value\\\" of the coal severed is not the price paid the contract miners for their labors. This figure is but a cost of doing business of Majestic and Sovereign.\\nKRS 143.010(5) required this result. A \\\"taxpayer\\\" is one \\\"engaged in severing coal.\\\" The argument of Majestic and Sovereign, taken to its logical conclusion, would result in the coal severance tax being levied upon the individual pick miner or machine operator merely because he is the one who physically removes the coal from the earth. Majestic and Sovereign were engaged in severing coal from their leaseholds, and the payments to the contract miners were a business expense necessary to get the coal out of the ground and to the rail car where it could be sold at the market price. In short, the contract miners were the tools with which Majestic and Sovereign severed the coal. Accord, Clay County v. Leslie County, Ky., 531 S.W.2d 524 (1975).\\nBecause we conclude that KRS Chapter 143 clearly makes Majestic and Sovereign the taxpayers engaged in severing coal in Kentucky, it is unnecessary for us to decide whether the administrative regulations cited are ultra vires.\\nThe arguments that the 1978 amendments to the coal taxation statute indicate the legislature meant to clear an ambiguity (commonwealth) or to expand that tax and revenue (Majestic and Sovereign) are mere sophism. The conclusions are equally plausible. There is no legislative history and we decline to speculate. We rely on the language of the statutes.\\nThe judgment of the Pike Circuit Court is reversed and the cause is remanded with directions to reinstate the order of the Board of Tax Appeals.\\nAll concur except AKER and STEPHENSON, JJ., who dissent.\"}"
\ No newline at end of file
diff --git a/ky/9954891.json b/ky/9954891.json
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index 0000000000000000000000000000000000000000..889aad95d012824f3cf6f5c62fac1ca489566cc1
--- /dev/null
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+"{\"id\": \"9954891\", \"name\": \"Robert Wayne GOINGS, Appellant, v. COMMONWEALTH of Kentucky, Appellee\", \"name_abbreviation\": \"Goings v. Commonwealth\", \"decision_date\": \"1972-02-18\", \"docket_number\": \"\", \"first_page\": \"825\", \"last_page\": \"827\", \"citations\": \"476 S.W.2d 825\", \"volume\": \"476\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Kentucky Court of Appeals\", \"jurisdiction\": \"Kentucky\", \"last_updated\": \"2021-08-11T00:06:31.115067+00:00\", \"provenance\": \"CAP\", \"judges\": \"All concur.\", \"parties\": \"Robert Wayne GOINGS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.\", \"head_matter\": \"Robert Wayne GOINGS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.\\nCourt of Appeals of Kentucky.\\nFeb. 18, 1972.\\nJames K. McCrorey, Louisville, for appellant.\\nJohn B. Breckinridge, Atty. Gen., James M. Ringo, Asst. Atty. Gen., Frankfort, for appellee.\", \"word_count\": \"610\", \"char_count\": \"3489\", \"text\": \"CATINNA, Commissioner.\\nRobert Wayne Goings was indicted on two counts of armed robbery. KRS 433.140. He was found guilty on both counts and sentenced to ten years on each, the terms to run concurrently.\\nOn the night of January 25, 1971, at about 10:30 p. m., Goings robbed Mark A. Ascolose of the Rivermont Gulf Service with a deadly weapon, a pistol.\\nAscolose positively identified Goings as the armed bandit who had robbed him.\\nAt about 11:50 p. m. on the same day Goings also robbed Mitchell Jasper of Smith's Shell Service Station with a deadly weapon, a pistol.\\nJasper positively identified Goings as the person who had robbed him.\\nGoings' defense was an alibi. He testified that on the day of the robberies he was at his mother's house until about 10:30 p. m.; that he and his wife then went home, watched a Perry Mason movie, and then went to bed; and that he did not leave the house after going home. His wife testified that in the morning of that day they had gone to his mother's house, then to the house of her aunt, and back to his mother's house, getting there about 8:30 p. m. or 9 p. m., and leaving between 10:30 p. m. or 11 p. m. They went home, watched the news, and then went to bed. She did not recall their watching the Perry Mason movie but did say that her husband didn't leave the house that night. His mother testified that Goings and his wife were at her home on that day from about 11:30 until about 4 p. m., and then again from about 9 p. m. until 10:30 p. m. Goings did not leave her house during this last visit.\\nThe defendant's first contention is that certain evidence elicited by the Commonwealth was not only inadmissible but highly prejudicial. Upon cross-examination Goings testified that although he was a member of the Armed Forces he had been AWOL for several months (October 22, 1970) at the time of the robbery, January 24, 1971. He also testified that because of his AWOL status he was awaiting court-martial at that time.\\nThis court is of the opinion that the admission of evidence about Goings' AWOL status was error. Bell v. Commonwealth, Ky., 404 S.W.2d 462 (1966). However, evidence showing Goings' commission of the robberies was substantial. He received the least punishment the jury was authorized to inflict. Our conclusion is that the error was not prejudicial. See Abernathy v. Commonwealth, Ky., 439 S.W.2d 947 (1969).\\nFinally, Goings argues that the trial court should have declared a mistrial because of a prejudicial closing remark of the Commonwealth regarding his right of appeal. The remark was as follows:\\n\\\"Before we started the trial Mr. Gatz, Mr. Otte\\\"and Mr. Blakemore indicated that unless the facts were violent enough that they could not impose a death penalty in this case. And I submit to you that there are no facts which would justify the imposition of a death penalty. In fact if you were to return a death verdict it would probably be overruled by the Court of Appeals.\\\"\\nSuch remark could not be considered prejudicial to Goings, for it was in fact favorable. See Walton v. Commonwealth, Ky., 439 S.W.2d 953 (1969).\\nUpon a consideration of this whole case the court concludes that the errors, if any, were not prejudicial.\\nThe judgment is affirmed.\\nAll concur.\"}"
\ No newline at end of file
diff --git a/ky/9955803.json b/ky/9955803.json
new file mode 100644
index 0000000000000000000000000000000000000000..aef8918b3425b9f2a8b512d50745095d94571b11
--- /dev/null
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@@ -0,0 +1 @@
+"{\"id\": \"9955803\", \"name\": \"L. E. COOKE CORPORATION, Appellant, v. Alpha HAYES, Appellee; L. E. COOKE CORPORATION, Appellant, v. Donald L. SHANNON and Linda Shannon, Appellees; L. E. COOKE CORPORATION, Appellant, v. Luther GARTIN and Mary Gartin, Appellees; L. E. COOKE CORPORATION, Appellant, v. Leroy PACK, Appellee; L. E. COOKE CORPORATION, Appellant, v. J. W. AKERS and Dorothy Akers, Appellees\", \"name_abbreviation\": \"L. E. Cooke Corp. v. Hayes\", \"decision_date\": \"1977-02-04\", \"docket_number\": \"\", \"first_page\": \"837\", \"last_page\": \"839\", \"citations\": \"549 S.W.2d 837\", \"volume\": \"549\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Kentucky Court of Appeals\", \"jurisdiction\": \"Kentucky\", \"last_updated\": \"2021-08-10T22:24:20.298525+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before WHITE, WILHOIT and WIN-TERSHEIMER, JJ.\", \"parties\": \"L. E. COOKE CORPORATION, Appellant, v. Alpha HAYES, Appellee. L. E. COOKE CORPORATION, Appellant, v. Donald L. SHANNON and Linda Shannon, Appellees. L. E. COOKE CORPORATION, Appellant, v. Luther GARTIN and Mary Gartin, Appellees. L. E. COOKE CORPORATION, Appellant, v. Leroy PACK, Appellee. L. E. COOKE CORPORATION, Appellant, v. J. W. AKERS and Dorothy Akers, Appellees.\", \"head_matter\": \"L. E. COOKE CORPORATION, Appellant, v. Alpha HAYES, Appellee. L. E. COOKE CORPORATION, Appellant, v. Donald L. SHANNON and Linda Shannon, Appellees. L. E. COOKE CORPORATION, Appellant, v. Luther GARTIN and Mary Gartin, Appellees. L. E. COOKE CORPORATION, Appellant, v. Leroy PACK, Appellee. L. E. COOKE CORPORATION, Appellant, v. J. W. AKERS and Dorothy Akers, Appellees.\\nCourt of Appeals of Kentucky.\\nFeb. 4, 1977.\\nDiscretionary Review Granted May 17, 1977.\\nWilliam S. Kendrick, Francis, Kazee & Francis, Prestonsburg, for appellant.\\nDan Ball, Grover D. Adkins, Louisa, for appellee.\\nBefore WHITE, WILHOIT and WIN-TERSHEIMER, JJ.\", \"word_count\": \"707\", \"char_count\": \"4177\", \"text\": \"WHITE, Judge:\\nThe five above captioned cases are consolidated for purposes of this appeal since all involve common questions of law arising out of common factual situations. Each of the five individual leases were entered into the 1973 with L. E. Cooke Corporation as lessee and each of the five respective appel-lees as lessors. The leases provided for payments of twenty-five (25) cents per ton for each and every ton of coal mined and removed with a minimum royalty of one dollar ($1.00) per acre per year. There is another pertinent portion of this lease dealing with termination which states: \\\"This lease shall remain in full force and effect for one year and thereafter until notice is given by lessee of its intention to cancel said lease.\\\" No mining was ever done and consequently, no actual royalties were ever paid. When one year had elapsed and the appellant undertook to pay the minimum royalty, it was notified that the appellees considered the lease as terminated and they each, in turn, filed these actions to cancel said leases. Judgment was entered on the record as submitted and the leases were cancelled.\\nThe trial court in its conclusions of law cited Killebrew v. Murray, 151 Ky. 345, 151 S.W. 662 (1912) as standing for the proposition that where a lease is terminable at the will of the lessee it is terminable at the will of the lessor. Appellees here insist that the trial court was correct in such holding.\\nWhen one closely reviews the Kil-lebrew case, it is quite apparent that the heart of the holding is directed to the necessity for good, sufficient and valid consideration to have passed between the parties. Failure at that point is what made the lease there a unilateral agreement. Thus, when it was said that a lease which is terminable at the will of one of the parties is also terminable at the will of the other, it was enunciating a correct principle of law regarding unilateral agreements. This is sound, and it is still the law today. But, where consideration is good and sufficient (and one dollar per acre per year is) then rights relative to termination may be expressly contracted by either party without bringing such instrument under the unilateral rule. See Cleveland Wrecking Co. v. Aetna Oil Co., 287 Ky. 542, 154 S.W.2d 31 (1941).\\nHere, we are confronted with instruments that are clear and definite. They are for a year, with annual renewals at the rate of one dollar per year per acre. There is nothing ambiguous about the lease; and, the appellees clearly have a remedy if they are so disposed to avail themselves of it.\\nIn the case of Cameron v. Lebow, Ky., 338 S.W.2d 399 (1960), the law as applicable to situations such as those before us is quite adequately explicit. In the absence of contractual duty relative to commencing development, there is no obligation on the part of the lessee to commence the actual operations unless and until lessors have given sufficient notice demanding the same within a reasonable time thereafter; and, in addition thereto, the lessee fails to comply therewith, the lessor shall then have the right to seek an end to the contract. See also Monarch Oil, Gas & Coal Co. v. Richardson, 124 Ky. 602, 99 S.W. 668 (1907).\\nWe have reviewed the letters sent by appellees to L. E. Cooke Corporation, and we do not feel that they in any wise comport with the definitions of notice as set forth in Cameron v. Lebow, supra, and for that reason the judgment of the trial court is reversed and remanded for further proceedings consistent with this opinion.\\nAll concur.\"}"
\ No newline at end of file
diff --git a/ky/9971406.json b/ky/9971406.json
new file mode 100644
index 0000000000000000000000000000000000000000..51638e5ea2c28c6e40d15b36ead9c716b40684df
--- /dev/null
+++ b/ky/9971406.json
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+"{\"id\": \"9971406\", \"name\": \"Barry N. CALLISON, Appellant, v. COMMONWEALTH of Kentucky, Appellee\", \"name_abbreviation\": \"Callison v. Commonwealth\", \"decision_date\": \"1986-03-21\", \"docket_number\": \"\", \"first_page\": \"434\", \"last_page\": \"439\", \"citations\": \"706 S.W.2d 434\", \"volume\": \"706\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Kentucky Court of Appeals\", \"jurisdiction\": \"Kentucky\", \"last_updated\": \"2021-08-10T17:42:16.380118+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before HOWARD, COMBS and DUNN, JJ.\", \"parties\": \"Barry N. CALLISON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.\", \"head_matter\": \"Barry N. CALLISON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.\\nCourt of Appeals of Kentucky.\\nMarch 21, 1986.\\nRandall L. Wheeler, Asst. Public Advocate, Frankfort, for appellant.\\nDavid L. Armstrong, Atty. Gen., Robert Hensley, Asst. Atty. Gen., Frankfort, for appellee.\\nBefore HOWARD, COMBS and DUNN, JJ.\", \"word_count\": \"2079\", \"char_count\": \"12843\", \"text\": \"DUNN, Judge.\\nBarry N. Callison appeals from a judgment of the Fulton Circuit Court, which found him guilty of burglary in the third degree and of being a persistent felony offender (PFO) in the second degree, and sentenced him to eight years in prison. We reverse.\\nOn appeal Callison argues that the trial court erred (1) in refusing to instruct the jury regarding Callison's defense of voluntary intoxication, and on the lesser-included offense of criminal trespass; (2) in admitting, in the persistent felony offender stage of trial, evidence which was hearsay; (3) in overruling Callison's motion for a directed verdict on the PFO charge for insufficient evidence; (4) in admitting incompetent and irrelevant evidence of other felony convictions during the PFO hearing; and, (5) in overruling Callison's objections to improper remarks made by the prosecutor in closing argument in the PFO phase of the trial.\\nWe first consider Callison's contention that it was reversible error to refuse to instruct the jury on the issue of voluntary intoxication as a defense, and on the lesser-included offense of criminal trespass. This was error and we reverse.\\n\\\"In a criminal case, it is the duty of the court to prepare and give instructions on the whole law. This general rule requires instructions applicable to every state of [the] case covered by the indictment and deducible from or supported to any extent by the testimony.\\\" Lee v. Commonwealth, Ky., 329 S.W.2d 57, 60 (1959) (Emphasis added). See also J. Pal-more and R. Lawson, Kentucky Instructions to Juries: A revision of Stanley \\u00a7 1.06,1.07 (1975 and 1979 Supp.). Where there is sufficient evidence to support a reasonable inference concerning the ultimate fact in a case, the issue should be submitted to the jury with appropriate instructions. Commonwealth v. Sanders, Ky., 685 S.W.2d 557 (1985); Martin v. Commonwealth, Ky., 571 S.W.2d 613, 615 (1978). In order to require a jury instruction on voluntary intoxication as a defense to burglary a defendant must show (1) evidence of drunkenness or other intoxication; and (2) evidence that the defendant did not know what he was doing. Jewell v. Commonwealth, Ky., 549 S.W.2d 807, 812 (1977); Zeutzius v. Commonwealth, 280 Ky. 455, 133 S.W.2d 746, 747 (1939).\\nIn the ease before us, there was substantial evidence that Callison was intoxicated on the night he was arrested. First, Callison testified that he consumed a quart of whiskey along with a significant amount of other intoxicating drugs. Second, Callison's girlfriend confirmed that Callison was too intoxicated to dance earlier in the evening and that he had at one point lost consciousness. Finally, the police testified that Callison was taken to the hospital following his arrest to be treated for drug and alcohol overdose. Furthermore, Callison's testimony that he had no memory of his actions on the night in question was sufficient to support an inference that he did not know what he was doing. Jewell, supra, at 812. There was, therefore, sufficient evidence to require a jury instruction on the defense of voluntary intoxication.\\nSince we hold that the trial court should have instructed the jury on the issue of intoxication, we also hold that an instruction on the lesser-included offense of criminal trespass should have been given. Voluntary intoxication may negate intent. KRS 501.080(1). Where there is testimony such that the jury could infer that there was unlawful presence in a building with no intent to commit a crime, the criminal-trespass instruction should be given. Sanders, supra, at 559; Martin, supra, at 615. Upon remand, therefore, appropriate instructions concerning intoxication and criminal trespass must be presented to the jury by the trial court.\\nCallison next contends that the trial court erred in the PFO phase of the trial in admitting the testimony of Callison's probation and parole officer. Specifically, Cal- lison argues that insufficient foundation was laid to admit evidence taken from Cal-lison's parole records under the business entries exception to the hearsay rule. This exception has previously been extended to probation and parole records. Garner v. Commonwealth, Ky., 645 S.W.2d 705, 707 (1983). In our view, once it has been established that the evidence is being taken from a proper copy of an official record, no formal foundation need be laid, so long as there is no challenge to the accuracy of the information contained in the record. See Garner, supra, at 706. The testimony of the probation and parole officer was therefore properly admitted.\\nThe appellant next contends that there was insufficient evidence to sustain a conviction under KRS 532.080 as a persistent felony offender, since there was no direct evidence of Callison's parole status at the time he committed the principal offense. Callison's probation and parole officer testified that Callison was released on parole from sentence on a prior felony conviction on August 24, 1983. Previous testimony established that the principal offense was committed August 25, 1984.\\nEach element of the offense of being a persistent felony offender must be proven, beyond a reasonable doubt, by direct evidence. Hon v. Commonwealth, Ky., 670 S.W.2d 851, 853 (1984). \\\"Direct evidence is that method of proof which tends to show the existence or non-existence of a disputed fact without the intervention of proof of another fact.\\\" Starks Administratrix v. Herndon's Administrator, 292 Ky. 469, 166 S.W.2d 828, 830 (1942). In the Hon case, the Commonwealth had introduced evidence of the defendant's date of birth, as well as the date of the defendant's prior felony conviction. The Court ruled that there was no direct evidence that the defendant was eighteen years old on the date the offense was committed, and that there was insufficient proof to convict under the statute. The Court reasoned that as there was no proof of the actual time between the date the offense was committed and the date the defendant was convicted, a reasonable doubt existed as to the defendant's age on the date the offense was committed.\\nSuch is not the case here. KRS 532.080 states in pertinent part:\\nAs used in this provision, a previous felony conviction is a conviction of a felony in this state . provided:\\n. (c) That the offender:\\n1. Completed service of the sentence imposed on any of the previous felony convictions within five (5) years prior to the date of the commission of the felony for which he now stands convicted; or\\n2. Was on probation, parole, conditional discharge, conditional release, furlough, appeal bond, or any other form of legal release from any of the previous felony convictions at the time of commission of the felony for which he now stands convicted; or\\n3. Was discharged from probation, parole, conditional discharge, conditional release, or any other form of legal release on any other previous felony convictions within five (5) years prior to the date of the commission of the felony for which he now stands convicted; or\\n4. Was in custody from the previous felony conviction at the time of commission of the felony for which he now stands convicted; or\\n5. Had escaped from custody while serving any of the previous felony convictions at the time of commission of the felony for which he now stands convicted.\\nUnlike the age provision of the statute, which requires that a defendant must have been at least eighteen years old on the date a prior felony was committed, the parole status/release from sentence provisions are in the alternative, any one of which may be an element of the offense. The instructions to the jury in the case before us, which were unobjected to at trial, stated that the jury should find the defendant not guilty unless they believed from the evidence beyond a reasonable doubt that \\\"the present felony offense of third-degree burglary was committed while the defend ant was on parole or probation from [a] prior felony or was committed within five years of his discharge from parole or probation resulting from that prior felo-ny_\\\" (Emphasis added).\\nIf the jury believed direct evidence that the principal felony was committed within one year of Callison's release on parole, the only possible inferences were that he committed the offense (1) while still on parole, or (2) within five years of his release from parole. Since the jury was authorized to find Callison guilty in either case, it was necessary only that there be sufficient direct evidence to support either conclusion. Under the instructions as given, therefore, it was not necessary to present direct evidence of Callison's parole status. There being no possibility of speculation on the part of the jury, it was sufficient to show that the appellant was released on parole on a given date, and that he committed a second felony within five years of that date.\\nCallison next alleges that the trial court erred in permitting the probation and parole officer to testify concerning a second prior felony conviction during the PFO phase. We agree that this was error. First, although probation and parole records may be used to prove the age and parole status of defendants in a PFO trial, such records may not be used to prove prior felony convictions under KRS 532.-080. Garner v. Commonwealth, Ky., 645 S.W.2d 705, 707 (1983). See also Hobbs v. Commonwealth, Ky., 655 S.W.2d 472, 474 (1983) (Leibson, J., concurring). But cf. Whittaker v. Thornberry, 306 Ky. 830, 209 S.W.2d 498, 500 (1948) (hospital records are admissible as to all matters proper for inclusion in a record of such nature); Faught v. Commonwealth, Ky., 656 S.W.2d 740, 742 (1983) (orders of probation signed by district judge were competent evidence of prior convictions for enhancement of sentence under KRS 218A.990(1)).\\nSecond, the additional prior felony conviction was irrelevant, since, having been insufficiently proven under the holding of Hon v. Commonwealth, supra, it was not admissible to prove the appellant's status as a persistent felony offender. Evidence is relevant only when it renders a \\\"material ultimate fact\\\" more or less probable. R. Lawson, The Kentucky Evidence Law Handbook \\u00a7 2.00(B) (2d ed. 1984). As the Court stated in Pace v. Commonwealth, Ky., 636 S.W.2d 887, 890 (1982): \\\"In order to establish a persistent felony offender status, the Commonwealth merely needs to establish a simple checklist of technical statutory requirements. [Irrelevant] evidence can only lengthen what is intended to be a quick and simple procedure and to inflame the jury.\\\"\\nHad the second prior felony been proven with sufficient particularity by direct evidence, as required by Hon, supra, we believe that it would have been admissible, at the discretion of the trial court. This was not the case, however, and the evidence of the second prior conviction was therefore both incompetent and irrelevant. As a result, it was highly prejudicial to the appellant when the prosecutor, in closing argument, was allowed to argue that the jury should consider the significance of two pri- or convictions, when only one conviction had been properly admitted into evidence. Upon remand, therefore, no mention may be made, in the PFO phase of the trial, of any prior conviction, unless such conviction has been sufficiently proven pursuant to the holding in Hon v. Commonwealth.\\nWe consider, finally, the appellant's argument that the trial court erred in permitting the prosecutor to comment in closing argument in the PFO phase on the availability of drug treatment programs in prison for which Callison would presumably be eligible. This comment was apparently in response to defense counsel's remark during his closing argument that the appellant should not be imprisoned, but should be allowed to participate in a drug rehabilitation program within the community. Neither argument was proper, as neither had any bearing on the guilt or inno cence of the defendant/appellant. Payne v. Commonwealth, Ky., 623 S.W.2d 867, 870 (1981).\\nUnder the circumstances we believe that the remarks of counsel, though improper, were not so harmful, standing alone, as to require reversal. Upon remand, however, arguments of both counsel should be limited to reasonable inferences to be drawn from the evidence, and should not include comments as to the consequences of a particular verdict. Id.\\nFor reasons previously stated, the judgment of the Fulton Circuit Court is reversed, and this case is remanded to that court for further proceedings consistent with this opinion.\\nAll concur.\"}"
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+"{\"id\": \"9971562\", \"name\": \"KENTUCKY UTILITIES COMPANY, Movant, v. SOUTH EAST COAL COMPANY and Citizens Fidelity Bank & Trust Company, Respondents\", \"name_abbreviation\": \"Kentucky Utilities Co. v. South East Coal Co.\", \"decision_date\": \"1991-04-23\", \"docket_number\": \"No. 91-SC-357-D\", \"first_page\": \"388\", \"last_page\": \"392\", \"citations\": \"836 S.W.2d 388\", \"volume\": \"836\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Supreme Court of Kentucky\", \"jurisdiction\": \"Kentucky\", \"last_updated\": \"2021-08-10T21:38:45.637230+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"KENTUCKY UTILITIES COMPANY, Movant, v. SOUTH EAST COAL COMPANY and Citizens Fidelity Bank & Trust Company, Respondents.\", \"head_matter\": \"KENTUCKY UTILITIES COMPANY, Movant, v. SOUTH EAST COAL COMPANY and Citizens Fidelity Bank & Trust Company, Respondents.\\nNo. 91-SC-357-D.\\nSupreme Court of Kentucky.\\nApril 23, 1991.\\nAs Modified on Denial of Rehearing Aug. 25, 1992.\\nEscum L. Moore, Robert J. Turley, Lexington, Richard F. Newell and D. Brian Rattliff, Ogden, Sturgill & Welch, Louisville, for movant.\\nBert. T. Combs, William H. McCann, John R. Rhorer, Jr., and Penny R. Warren, Wyatt, Tarrant & Combs, Lexington, for South East Coal.\\nJames A. Kegley, Greenebaum, Doll & McDonald, Lexington, Hiram Ely, III, and J. Mark Grundy, Greenebaum, Doll & McDonald, Louisville, for Citizens Fidelity.\", \"word_count\": \"2441\", \"char_count\": \"14577\", \"text\": \"OPINION AND ORDER PURSUANT TO CR 76.33 GRANTING INTERMEDIATE RELIEF\\nLEIBSON, Justice.\\nKentucky Utilities Company (\\\"KU\\\") filed a Motion for Discretionary Review with the Supreme Court on April 15, 1991, accompanied by a Motion for Intermediate Relief pending a ruling on the Motion for Discretionary Review. CR 76.33 authorizes intermediate relief \\\"upon a satisfactory showing that otherwise [the moving party] will suffer immediate and irreparable injury before a hearing may be had on the motion.\\\"\\nBy Order entered April 18, 1991, Justice Charles M. Leibson was designated to hear and dispose of the Motion for Intermediate Belief. Commencing at 4:00 p.m. the same day, oral arguments were heard on this motion, with all parties present and given an opportunity to be heard. Before the hearing the movant, KU, had submitted a Memorandum in support of this Motion and both respondents, South East Coal Company (\\\"SECO\\\") and Citizens Fidelity Bank & Trust Company, as agent for Continental Illinois Bank & Trust Company of Chicago, Bank One of Columbus, and Citizens Fidelity Bank & Trust Company (the \\\"bank consortium\\\"), separately filed written Be-sponses to KU's Motion and Memorandum.\\nThe underlying case is a rather complicated Declaration of Bights action decided in Fayette Circuit Court by Judgment entered December 1, 1989. It involves interpretation of a contract entered June 30, 1978, between KU and SECO under terms of which SECO agreed to supply KU's Ghent No. 3 generating unit with \\\"compliance coal\\\" through December 1, 1990. The agreement contained both a \\\"base price\\\" section, Section 4, with automatic \\\"price adjustment provisions,\\\" and an entirely separate provision for \\\"triennial reviews,\\\" Section 12, to consider \\\"whether the . Base Price Adjustment Provisions of this Agreement [paragraphs 4.03 through 4.09] are required to be adjusted, on an equitable basis, because of the occurrence, after the effective date of this Agreement, of material unforeseen events or changed conditions.\\\"\\nAt the outset of this controversy, KU moved for, and obtained from, the trial court permission to establish a so-called \\\"Buie 67 fund.\\\" CB 67.01 provides:\\n\\\"In an action in which any part of the relief sought is a judgment for a sum of money or the disposition of a sum of money or the disposition of any other thing capable of delivery, a party, upon notice to every other party, and by leave of court, may deposit with the court all or any part of such sum or thing. Money paid into court under this rule shall be deposited in an interest-bearing account or invested in an interest-bearing instrument approved by the court....\\\"\\nInto this Buie 67 fund KU deposited the price differential between the sums it was being charged for coal on an ongoing basis and the lesser sums KU considered appropriate under its view of the correct price if the contract price was adjusted for unforeseen circumstances as called for by the triennial review section. Ultimately the trial court found for KU on the pricing issue, and in Paragraph 6 of its Declaratory Judgment specified that the sums deposited in the Buie 67 fund \\\"do not constitute a part of the price or prices for coal sold and delivered by the defendant [SECO] to the plaintiff [KU]. As such, the funds are, and always have been, the property of Kentucky Utilities Company.\\\" However, recognizing its decision would be appealed, this same paragraph provided, \\\"for the time being, the deposit shall remain intact and subject to further Orders of this Court.\\\" The amount in this Buie 67 fund amounted to some $36 million at the time of the trial court's final judgment, and now, with interest, some $40 million.\\nDuring the late stages of the litigation in the trial court, the trial court ordered a change to permit KU to retain these sums it had been paying into the Buie 67 account, and at the time of judgment the amount KU had retained amounted to some $28 million. In its final judgment the trial court awarded this $28 million to KU, plus the sums in the Buie 67 fund (now $40 million), and then, in addition, decided that SECO still owed another $12 million to KU in price adjustment. Thus the total price differential assessed by the trial court in favor of KU by its final judgment was some $80 million.\\nThe Court of Appeals has reversed the trial court. In an Opinion final on denial of Petition for Behearing on April 5, 1991, it held the trial court erred in applying the \\\"unforeseen contingency\\\" price alteration provision, that the decision in this case as to whether there were \\\"material unforeseen events or changed conditions,\\\" should turn on application of the Uniform Commercial Code \\u00a7 2-615 (KBS 355.2-615), and that under the terms of the Code there were no conditions present in this case which justified changing the amount due under base price provisions. This was a 2/1 decision by the Court of Appeals, with Judge Hayes in dissent stating \\\"age-old principles of contract law \\u2014 what was the intent of the parties when the contract was entered into in 1978,\\\" should control, and that, thus considered, \\\"there was substantial evidence on all issues supporting the trial judge's findings and conclusions.\\\"\\nKU's Motion for Discretionary Review to our Court states there are important questions for us to consider regarding proper interpretation of the Uniform Commercial Code, regarding the propriety of the trial court's use of a Rule 67 fund, and regarding erroneous fact-finding by the Court of Appeals. The question whether this case merits discretionary review has no relevance to the pending CR 76.33 motion except, if the discretionary review motion was patently frivolous, there would be no need to consider intermediate relief. In my view, as a preliminary, threshold determination, the discretionary review motion has sufficient substance to merit intermediate relief until the discretionary review motion is decided, if such relief is otherwise proper.\\nSECO is in Chapter 11 bankruptcy receivership. The Fayette Circuit Court Order of April 15, 1991, releases the $40 million on deposit in the Rule 67 fund to the U.S. Bankruptcy Court. This is viewed by the respondents, SECO and SECO's creditors, the bank consortium which intervened in this action and laid claim to the sums on deposit in the Rule 67 fund, as nothing more than a modification of a supersedeas arrangement as permitted by CR 73.06. In this April 15, 1991 Order, in addition to releasing the $40 million in the Rule 67 fund to the U.S. Bankruptcy Court, the trial court also modifies other supersedeas arrangements regarding SECO's property now encumbered by first mortgages to the Banks and subject to further claims from other creditors, all presently subject to disposition by the Bankruptcy Court. At the time of the initial appeal of this case, SECO was permitted to pledge this property in lieu of other supersedeas. In the Order of April 15, 1991, releasing the Rule 67 deposit and modifying security, as new security for KU's judgment pending appeal, with the permission of the Bankruptcy Court, the $40 million paid to the Bankruptcy Court is to be used in part to pay off the Bank mortgages and KU is to be substituted as first mortgagee in lieu of the Banks. This is called the \\\"new mortgage and security arrangement.\\\" SECO and the Banks maintain that, although SECO is in bankruptcy, this new security arrangement is adequate to protect KU's interest, and that, in any event, our Court should not intervene to prevent delivery of the $40 million deposit to the U.S. Bankruptcy Court unless it is prepared to say the new security arrangement is inadequate and the trial court's decision was an abuse of discretion.\\nOn the other hand, KU maintains our Court should stay the release of the money in the Rule 67 fund for three reasons: (1) the Court of Appeals' Opinion is not final until either discretionary review is denied or our Court affirms it (CR 76.30); (2) there are legal issues of importance not only to the parties, but to the legal system, regarding whether CR 67.01 could be utilized, as it was in this case, and regarding whether and how the Uniform Commercial Code should apply; and (3) unless the status quo is maintained by a stay, when the money is delivered to Bankruptcy Court our Kentucky courts will lose any authority thereafter to disburse the funds. KU believes it will be irreparably harmed because the new security arrangement will not protect its final judgment if ultimately affirmed.\\nSECO and the bank consortium maintain that the Rule 67 Order was nothing more than a pre-judgment attachment which should not have been permitted in the first place. This, of course, is precisely the issue which KU disputes, and which it wishes resolved by discretionary review. The Court of Appeals made no decision regarding whether the trial court acted properly in permitting KU to deposit portions of its payments to SECO in dispute pending a court decision interpreting the contract. The Court of Appeals held it was unneces sary to consider this issue once it ruled that the money belonged to SECO.\\nIn my view, the heart of the trial court's Order of April 15, 1991, is contained in this paragraph:\\n\\\"The [trial] Court is of the opinion, as previously stated, that the likelihood of success by KU has been diminished greatly as a result of the decision of the Court of Appeals which reversed my decision on the primary issue. The Court withheld money under Rule 67 on the likelihood of success to KU and the inability of South East at that time to respond in damages should KU be successful in the distant future. That likelihood of success has been greatly diminished and the Court in the int\\u00e9rest of justice now reverses that ruling and releases the Rule 67 deposit of approximately $40 million for disposition by Bankruptcy Court as herein provided.\\\" [Emphasis added].\\nIn modifying the security arrangement, no doubt the trial court was also concerned with the financial hardship on SECO resulting from withholding the funds, and no doubt the trial court was hopeful that paying these funds over into the hands of the bankruptcy receiver, and through the receiver to the banks, would greatly improve SECO's chances for survival. Nevertheless, KU points out with alarm that neither the trial court, nor the U.S. Bankruptcy Court which has offered to participate in the new security arrangement after it gets possession of the $40 million, has made a finding, or is prepared to represent, that the new security arrangement will in fact provided adequate security, or any security for the payment of KU's judgment.\\nIn my view the principal thrust of the trial court's April 15, 1991, decision was KU's \\\"likelihood of success has been greatly diminished\\\" by the decision of the Court of Appeals reversing the trial court on the primary issue. Once a motion for discretionary review has been filed, this reason evaporates. Until the motion is ruled on, or if granted, until the final decision of this Court, the \\\"likelihood\\\" of KU's \\\"success\\\" cannot be estimated, nor should it be the subject of speculation. On the contrary, the situation of the parties should be viewed as they stood when the final judgment was entered. Although CR 73.06(2) permits a trial court to modify a supersede-as bond while the case is on appeal, the right to modify is tied to the same considerations as control when setting the bond and providing a stay in the first place; CR 73.04 requires the appellant to provide a \\\"supersedeas bond with good and sufficient surety,\\\" and that the \\\"bond shall be in a fixed amount and conditioned for the satisfaction of the judgment in full....\\\" A trial court lacks authority to fix or to subsequently modify a supersedeas bond simply to assist a losing party in financial distress.\\nKU makes another argument of equal or greater force. The portion of the final judgment under appeal quoted herein at the outset, from Paragraph 6, states in part that the sums on deposit \\\"are, and always have been, the property of Kentucky Utilities Company.\\\" Paragraph 6 seems, at the same time, both to declare the money in the fund as KU's property, and then, by holding up its dispersal, to utilize it as a portion of SECO's supersede-as. The judgment further provides in Paragraph 22 that the court \\\"shall retain jurisdiction of this case for entry of further Orders related to\\\" this Rule 67 fund. In my view the trial court has exceeded its authority to utilize the money to serve as supersedeas once it finally declared the funds are KU's property. The effect of perfecting an appeal is to divest the trial court of jurisdiction to alter or amend its judgment, and, because of the way the judgment is worded, it would appear that the action taken by the trial court was thus precluded.\\nThere are two reasons why this stay of the trial court's April 15, 1991 Order must be granted:\\n1) There is substantial reason to be concerned that KU will be irreparably harmed by being denied security for payment of the final judgment entered in this case. The primary reason stated for that Order was not a valid consideration.\\n2) If, as would appear, the final judgment has declared the $40 million in the Rule 67 fund property of KU, the trial court's Order of April 15, 1991, irreparably harms KU by depriving it of its property before there has been any final decision divesting KU of such ownership.\\nTHEREFORE, IT IS THE ORDER OF THIS COURT that the Fayette Circuit Court's Order dated April 15, 1991, releasing the sums on deposit in the Rule 67 fund is stayed. No funds shall be released until final disposition of the Motion for Discretionary Review filed before the Kentucky Supreme Court in the above-styled action unless this Order is sooner terminated by further order of this Court. Further, the effective date for the termination of the within Order shall not occur until it has been superseded by further order of this Court.\"}"
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+"{\"id\": \"9974552\", \"name\": \"Essie WASHINGTON as Executrix of the Estate of Fielding Jones, Appellant, v. Robert P. GOODMAN, M.D., Appellee\", \"name_abbreviation\": \"Washington v. Goodman\", \"decision_date\": \"1992-05-01\", \"docket_number\": \"No. 91-CA-0470-MR\", \"first_page\": \"398\", \"last_page\": \"402\", \"citations\": \"830 S.W.2d 398\", \"volume\": \"830\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Kentucky Court of Appeals\", \"jurisdiction\": \"Kentucky\", \"last_updated\": \"2021-08-11T00:21:03.060850+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before DYCHE, MILLER and SCHRODER, JJ.\", \"parties\": \"Essie WASHINGTON as Executrix of the Estate of Fielding Jones, Appellant, v. Robert P. GOODMAN, M.D., Appellee.\", \"head_matter\": \"Essie WASHINGTON as Executrix of the Estate of Fielding Jones, Appellant, v. Robert P. GOODMAN, M.D., Appellee.\\nNo. 91-CA-0470-MR.\\nCourt of Appeals of Kentucky.\\nMay 1, 1992.\\nJoe F. Childers, Phillip J. Shepherd, Shepherd & Childers, Frankfort, for appellant.\\nJohn Famularo, James Taylor, Stites & Harbison, Lexington, for appellee.\\nBefore DYCHE, MILLER and SCHRODER, JJ.\", \"word_count\": \"1938\", \"char_count\": \"11957\", \"text\": \"MILLER, Judge.\\nEssie Washington, as executrix of the estate of Fielding Jones, brings this appeal from a judgment of the Fayette Circuit Court entered upon an adverse jury verdict. We remand with directions.\\nThe facts are these: On or about July 7, 1987, Essie's decedent, Fielding Jones, an elderly black man, fell at home and suffered a fracture of his right hip. He was taken to Central Baptist Hospital, Lexington, Kentucky, where Dr. Robert P. Goodman (Goodman), a white orthopedic surgeon, surgically pinned the broken hip with a hip nail. Jones was discharged on July 31, 1987, but was readmitted on August 4, 1987, when the hip became dislocated. At that time, it was discovered that Jones had contracted an infection. He was treated and discharged to the Lexington Manor Nursing Home (Lexington Manor) on September 14,1987. Although he continued to receive medication for the infection, it failed to respond. On October 28, 1989, his right leg was amputated.\\nOn September 16, 1988, Jones sued Dr. Goodman, alleging negligence in the care and treatment received by him. After Jones's death on June 22, 1990, his action was revived in the name of his executrix, Essie Washington. Kentucky Revised Statute (KRS) 411.140. The case proceeded to trial on December 3, 1990, and resulted in a verdict for Goodman. This appeal follows.\\nEssie raises the following issues on appeal: (1) Goodman improperly used his peremptory challenges to exclude black jurors; (2) the testimony of Goodman's expert, Dr. Michael Hattwick, should have been excluded; and (3) the trial court erred in not directing a verdict in her favor. We address the issues in reverse order.\\nIn addressing the trial court's refusal to grant a directed verdict, we deem that reasonable minds would have differed on the issue of negligence, and the trial court therefore properly submitted the case to the jury. Where the evidence is replete with conflicts from beginning to end, the resolution of those conflicts, as well as the resolution of questions of credibility of the many witnesses, is for the jury \\u2014 not the trial judge. The standard for granting a motion for directed verdict is clearly articulated in Taylor v. Kennedy, Ky.App., 700 S.W.2d 415 (1985). A trial court is precluded from entering a directed verdict unless there is a complete absence of proof on a material issue in the action, or if no disputed issue of fact exists upon which reasonable minds could differ. Id. at 416. We believe the trial judge properly denied Essie's motion for a directed verdict.\\nEssie's next allegation of error encompasses a variety of objections to the testimony of Goodman's expert, Dr. Michael Hattwick (Hattwick). Apparently, Hattwick had been identified by Central Baptist Hospital, prior to its dismissal, as an expert in the field of infectious diseases. However, Hattwick was a practicing internist. Essie, therefore, objects to Hatt-wick's qualifications to testify regarding the detection and treatment of Jones's infection. She also objects that Hattwick's testimony was \\\"duplicative,\\\" representing \\\"needless presentation of cumulative evidence.\\\" Finally, Essie complains that Hattwick was not identified by Goodman (as one of his experts) in a timely manner and, consequently, his testimony, which included references to Jones's claims against Central Baptist Hospital and Lexington Manor, should have been excluded.\\nWe assign no merit to Essie's complaints relative to Hattwick's testimony. As there are no precise standards for qualification of an expert, it has long been that the decision as to qualifications of a witness as an expert rests within the discretion of the trial court. Any lack of specialized training goes only to the weight, not to the competency, of the evidence. See Arndale v. Parndell Peay, Ky., 411 S.W.2d 473 (1967); Ingersoll-Rand Co. v. Rice, Ky.App., 775 S.W.2d 924 (1989); and Lee v. Butler, Ky.App., 605 S.W.2d 20 (1979). Furthermore, a trial court has the power to control the course of litigation, including control of the amount of evidence produced on a particular point. Woods v. Commonwealth, Ky., 305 S.W.2d 935 (1957), and Johnson v. May, 307 Ky. 399, 211 S.W.2d 135 (1948). The overall fairness of a trial is within the sound discretion of the trial judge. We find no error.\\nWe turn now to Essie's contention that Goodman's use of peremptory challenges to exclude black jurors was impermissible. Following voir dire, but before the parties actually exercised their peremptory challenges, Essie requested the trial court to apply to jury selection the rule of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) (holding that the Fourteenth Amendment precludes peremptory challenges predicated upon race, and that once a defendant in a criminal case makes a prima facie showing of discrimi nation, the burden shifts to the prosecution to demonstrate a neutral explanation for the challenges). The trial court denied application of the Batson rule, stating the rule was limited to criminal cases. After the court's ruling, Goodman used his three peremptory challenges to strike two black jurors and one white. A third black juror was seated to hear the case. It appears that after the conclusion of the case and before submission (there having been seated thirteen jurors), the single black juror was removed from the panel by lot, thus leaving the decision in the hands of twelve white jurors.\\nTo create the issue presented for our consideration, approximately six months after Essie's trial, the United States Supreme Court, in Edmonson v. Leesville Concrete Co., Inc., \\u2014 U.S.-, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991), extended the Batson rule to civil cases. The basis of the extension is that private litigants exercising peremptory challenges are involved in state action, thus implicating the Fourteenth Amendment.\\nHaving protected the record at trial, Essie on this direct appeal contends that the Edmonson decision should be retroactively applied. Such an application would require that the trial court reconsider the matter to determine whether Essie can make a pri-ma facie case of discrimination. The burden would then shift to Goodman to demonstrate a \\\"neutral explanation\\\" for employing two of his three allocated peremptory challenges to exclude members of the black race.\\nWe agree with Essie that her decedent, Jones, would have been entitled to the benefit of Edmonson. Because the rule enunciated in that case involves the extension of a federal right, we believe its fruits are mandated by the Supreme Court's decision in James B. Beam Distilling Co. v. Georgia, 501 U.S. -, 111 S.Ct. 2439, 115 L.Ed.2d 481 (1991). The question of re-troactivity of Supreme Court decisions wherein a new rule is announced has had a somewhat varied past. Cf., e.g. Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (holding the rule of Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987), does not require retroactive application to convictions challenged on habeas corpus); Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987) (retroactive application of newly declared constitutional rules to criminal cases pending on direct appeal); Allen v. Hardy, 478 U.S. 255, 106 S.Ct. 2878, 92 L.Ed.2d 199 (1986) (holding the Batson rule was not to be applied retroactively to a state conviction on federal habeas review); Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (19716) (recognizing prospective application of a new rule where, inter alia, inequities might arise from retroactive application); Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966) (holding a court may apply a new rule in the criminal case before it, but return to the old rule as to all other cases arising on facts pre-dating the pronouncement); Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965) (refusing to extend new exclusionary rule to state convictions that had become final); and Great Northern R. Co. v. Sunburst Oil & Refining Co., 287 U.S. 358, 53 S.Ct. 145, 77 L.Ed. 360 (1932) (holding federal law does not prevent a state from choosing between prospective operation of its decision and that of relation backward). In James B. Beam Distilling Co., 111 S.Ct. at 2449, however, the Supreme Court spoke with exceptional clarity to the effect that \\\"once the Court has applied a rule of law to the litigants in one case, it must do so with respect to all others not barred by procedural requirements or res judicata.\\\" We think that decision dispositive of the case before us, and it now seems that the rule of retroac-tivity in civil cases is limited only by the need for finality.\\nTo buttress our position, we have unearthed the state case of Robinson v. McBride Building Co., Inc., 16 Kan. App.2d 120, 818 P.2d 1184 (1991), involving the issue of Edmonson's retroactivity, which we think is particularly apropos. Trial counsel had raised the Batson issue and was rebuffed by the trial court. On appeal, the Kansas appellate court was faced with applying the Edmonson rule to the civil trial which had occurred some five months earlier and was not yet final. The Court, on the authority of James B. Beam Distilling Co., supra, remanded for a Bat-son determination.\\nIn view of the foregoing authorities and considering this case was terminated short of a prima facie showing of discrimination, we are compelled to remand this case to the circuit court for a hearing in order to determine if Essie can establish a prima facie case of discrimination in Goodman's exercise of his peremptory challenges. If so, the court must then ascertain if Goodman can articulate a neutral basis for the two black peremptory challenges. Failing to do so, the circuit court shall vacate the judgment and assign the case for retrial.\\nFor the foregoing reasons, this cause is remanded to the circuit court for proceedings on the allegation of impropriety in jury selection.\\nAll concur.\\n. Baptist Hospitals, Inc. (owner of Central Baptist Hospital), and Lexington Manor Nursing Home were also originally named as defendants in the suit, but were released following pre-trial settlements.\\n. Kentucky Rule of Civil Procedure 47.03 provides:\\nPEREMPTORY CHALLENGES\\n(1) In civil cases each opposing side shall have three peremptory challenges, but co-parties having antagonistic interests shall have three peremptory challenges each.\\n(2) If one or two additional jurors are called, the number of peremptory challenges for each side and antagonistic co-party shall be increased by one.\\n(3) After the parties have been given the opportunity of challenging jurors for cause, each side or party having the right to exercise peremptory challenges shall be handed a list of qualified jurors drawn from the box equal to the number of jurors to be seated plus the number of allowable peremptory challenges for all parties. Peremptory challenges shall be exercised simultaneously by striking names from the list and returning it to the trial judge. If the number of prospective jurors remaining on the list exceeds the number of jurors to be seated, the cards bearing numbers identifying the prospective jurors shall be placed in a box and thoroughly mixed, following which the clerk shall draw at random the number of cards necessary to comprise the jury or, if so directed by the court, a sufficient number of cards to reduce the jury to the number required by law, in which latter event the prospective jurors whose identifying cards remain in the box shall be empaneled as the jury.\"}"
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+"{\"id\": \"9994887\", \"name\": \"PICKANDS MATHER & COMPANY (Chisholm Mines), Appellant, v. Vicki G. NEWBERG, Acting Director of Special Fund; George Damron, Jr.; Ronald W. May, Administrative Law Judge; and Workers' Compensation Board, Appellees\", \"name_abbreviation\": \"Pickands Mather & Co. v. Newberg\", \"decision_date\": \"1995-03-23\", \"docket_number\": \"No. 94-SC-618-WC\", \"first_page\": \"3\", \"last_page\": \"6\", \"citations\": \"895 S.W.2d 3\", \"volume\": \"895\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Supreme Court of Kentucky\", \"jurisdiction\": \"Kentucky\", \"last_updated\": \"2021-08-10T21:30:17.805883+00:00\", \"provenance\": \"CAP\", \"judges\": \"All concur.\", \"parties\": \"PICKANDS MATHER & COMPANY (Chisholm Mines), Appellant, v. Vicki G. NEWBERG, Acting Director of Special Fund; George Damron, Jr.; Ronald W. May, Administrative Law Judge; and Workers\\u2019 Compensation Board, Appellees.\", \"head_matter\": \"PICKANDS MATHER & COMPANY (Chisholm Mines), Appellant, v. Vicki G. NEWBERG, Acting Director of Special Fund; George Damron, Jr.; Ronald W. May, Administrative Law Judge; and Workers\\u2019 Compensation Board, Appellees.\\nNo. 94-SC-618-WC.\\nSupreme Court of Kentucky.\\nMarch 23, 1995.\\nBenita J. Riley, Riley & Damron, P.S.C., Prestonsburg, for appellant.\\nDavid Randall Allen, Labor Cabinet, Sp. Fund, Louisville, for appellee Newberg.\\nRalph Roland Case, Friend & Case, Pike-ville, for appellee Damron.\", \"word_count\": \"2185\", \"char_count\": \"13658\", \"text\": \"OPINION OF\\nTHE COURT\\nClaimant was injured as well as exposed to the hazards of coal workers' pneumoconiosis. The date of the injury and last exposure was June 9, 1989. The Administrative Law Judge (ALJ) determined that claimant was 100% occupationally disabled due to coal workers' pneumoconiosis and 25% occupationally disabled due to an injury. Benefits were awarded for life in accordance with Teledyne-Wirz v. Willhite, Ky.App., 710 S.W.2d 858 (1986). On remand, pursuant to an appeal to the Workers' Compensation Board (Board), the liabilities of the employer and the Special Fund were corrected in order to conform to this Court's decision in Beale v. Shepherd, Ky., 809 S.W.2d 845 (1991). Subsequently, a petition for reconsideration was filed by the Special Fund concerning whether the Special Fund was liable for the payment of all benefits if the worker outlived his anticipated life expectancy or whether the employer and the Special Fund each would be required to pay their proportionate share of the award for the balance of the worker's life. The ALJ determined that, pursuant to KRS 342.120(5) [presently KRS 342.120(7)], the Special Fund was required to pay the entire weekly benefit for so long as claimant remained disabled.\\nOn appeal to the Board, however, the ALJ's decision was reversed. The Board concluded that, if claimant outlived his life expectancy, Beale v. Shepherd, supra, and Newberg v. Chumley, Ky., 824 S.W.2d 413 (1992), supported requiring the Special Fund to pay no more than its proportionate share of the weekly award. In so deciding, the Board chose to disregard, as dicta, language in Pennwalt Corporation v. Beale, Ky.App., 840 S.W.2d 830 (1992), which indicated that the Special Fund could be required to pay more than its proportionate share of the award in those instances where an injured worker outlived the anticipated life expectancy.\\nThe Court of Appeals affirmed the decision of the Board in an opinion which cited as additional authority the decisions in Newberg v. Weaver, Ky., 866 S.W.2d 435 (1993), and Stovall v. Williams, Ky.App., 675 S.W.2d 6 (1984). The court noted that the present payment scheme resulted from the 1982 amendments to KRS 342.120 which sought to minimize the increase in Special Fund assessments that was necessary in order to meet the unfunded obligations of the Special Fund. In view thereof, the court found it \\\"inconceivable that our legislature intended the Special Fund to bear the 'risk' of paying more than its proportionate share should a claimant fortuitously outlive his projected life span.\\\"\\nThe employer again appeals to this Court and asserts that the Special Fund is liable for all payments on a lifetime award after the expiration of the employer's payment period. We agree; hence, we reverse.\\nIn Stovall v. Williams, supra, the court rejected an argument that a permanent, total, occupational disability award was payable only for the injured worker's life expectancy and determined that occupational life was synonymous with physical life. Accordingly, the court determined that, where an injured worker outlived the period calculated for the commutation of the attorney's fee, the payment of income benefits must resume thereafter. Id. at 7.\\nContrary to the view taken below, Beale v. Shepherd, supra, provides no authority concerning the payment of an award after the worker's projected life expectancy has been reached. That case concerned the relative priority of an occupational disease award for permanent, total, occupational disability and an injury award for permanent, partial, occupational disability. The case concerned only the proper computation of the amount to be paid by each defendant during the worker's projected life expectancy. No party raised the issue of payment after that period; therefore, that issue was not addressed in the opinion.\\nIn Newberg v. Chumley, supra, the employer had settled its liability to the injured worker for a lump sum based on 25% of a permanent, total, occupational disability award for the worker's life. The Special Fund's liability was litigated, after which the AL J determined that the worker was entitled to a lifetime award which was apportioned 25% to the employer and 75% to the Special Fund. Because payment of the agreed-upon sum extinguished the employer's liability, the Special Fund's payment period was accelerated, but the amount of benefits payable during the worker's projected life expectancy was not affected. Payment of the agreed-upon sum by the employer compensated the worker for life for the 25% portion of his disability. Therefore, if the worker outlived his projected life expectancy, the Special Fund would again be liable only for 75% of a permanent, total, occupational disability for so long as the worker lived.\\nNewberg v. Weaver, supra, involved a structured settlement, the terms of which extended payment of the employer's share of the award throughout the worker's life. We determined that such a payment period was contrary to public policy because the employer's liability would not be extinguished during the worker's life, and the Special Fund's liability would never become due. In Newberg v. Weaver, we observed that, although KRS 342.120 set forth directions for apportioning the number of weeks in a worker's life expectancy between the employer and the Special Fund, the statute did not address the procedure to be followed where a worker outlived the projected life expectancy. In deciding the instant case, the Court of Appeals appeared to rely upon that observation as authority for the proposition that both the employer and the Special Fund should pay income benefits after the worker's life expectancy is exceeded. That reliance was misplaced.\\nOn the date relevant to this claim KRS 342.120 provided, in pertinent part, as follows:\\n(4) If it is found that the employe is a person mentioned in paragraphs (a) or (b) of subsection (2) of this section and a subsequent compensable injury or occupational disease has resulted in additional permanent disability so that the degree of disability caused by the combined disabilities is greater than that which would have re- suited from the subsequent injury or occupational disease alone, and the employe is entitled to receive compensation on the basis of the combined disabilities, the employer shall be liable for the payment of all income benefits until the benefits paid have reached a percentage of the full income benefits awarded by the administrative law judge which is equal to the percentage of disability which would have resulted from the latter injury or occupational disease had there been no pre-existing disability or dormant, but aroused disease or condition.\\n(5) The remaining compensation for which such resulting condition would entitle the employe, including any compensation for disability resulting from a dormant disease or condition aroused into disabling reality by the injury or occupational disease, shall be paid out of the special fund provided for in KRS 342.122. Such remaining compensation shall be paid directly to the employe under such regulations as the secretary of finance and administration may provide for such purpose.\\n(6) In making the computation for the apportionment of benefits under this section, the administrative law judge shall determine the amount of the employe's weekly income benefits and apportion the award between the employer and special fund as follows:\\n(a) For benefits awarded under KRS 342.730(l)(b), the portions shall be based on the number of weeks stated therein;\\n(b) For all other benefits awarded under this chapter, except retraining incentive benefits awarded pursuant to KRS 342.732, the portions shall be based on the life expectancies contained in the overall male or female mortality tables in the most recent available edition of the U.S. decennial life tables. If the most recent edition of the U.S. decennial life tables includes Kentucky tables, these tables shall be used. If it does not, the national tables shall be used.\\nAlthough subsections (4) and (5) have been renumbered as subsections (6) and (7) since 1989, the provision for consecutive payment periods by the employer and the Special Fund remains today. We note, however, that former subsection (6), presently subsection (8), was amended in 1994. Because the instant claim arose before the effective date of the 1994 amendment we will not address what, if any, effect the amendment would have on the outcome.\\nWe again observe that KRS 342.120 contains no explicit provision concerning the manner in which benefits are to be paid on a lifetime award after a worker has reached the anticipated life expectancy. Before it was amended in 1982, KRS 342.120 provided for payment of the entire award by the employer, with reimbursement to the employer by the Special Fund for its share of the award. Under that payment scheme, it was certain that each defendant would pay precisely its share of the award, regardless of the length of the worker's life. However, as noted by the Court of Appeals, problems arising from the unfunded liability of the Special Fund led the legislature to change the payment scheme.\\nIn 1982, KRS 342.-120 was amended in order to provide for consecutive payment periods. Since 1982, the employer has paid the entire weekly benefit directly to the worker for a period of time after which the Special Fund has done the same. The length of each defendant's payment period is that portion of the worker's life expectancy which is proportionate to the party's liability. This payment system, together with the unpredictability of life, results in an imperfect relar tionship between a defendant's percentage of liability and the actual sum which is paid on a given award, for it is only on average that people live precisely to them life expectancy. Under this system, where the worker does not live out his life expectancy, the employer will have overpaid; whereas, where the worker outlives his life expectancy, the Special Fund will overpay. Although this payment scheme may result in each defendant actually paying more or less than the assigned percentage of liability on a given award, it does not alter the underlying premise that each defendant is liable for its proportionate share of a lifetime award. Therefore, where the injured worker and the employer agree to settle a claim for a percent age of permanent, total disability, payment of the agreed-upon sum compensates the worker for life to the extent of the liability which the ALJ later apportions to the employer. Newberg v. Chumley, supra.\\nIn Pennwalt Corporation v. Beale, supra, the Court of Appeals recognized the imperfect relationship between assigned liability and actual liability on a given award and noted that, in practice, the employer benefits in some instances by not having to pay additional benefits where the worker lives beyond the projected life expectancy; whereas, in other instances the Special Fund benefits because the worker dies before it was projected and the entire liability apportioned to the Special Fund is never paid.\\nIn 1983, the Board, in accordance with its statutory authority, promulgated 803 KAR 25:070 in order to regulate the payment of attorney's fees by the defendants from the proceeds of a workers' compensation award in accordance with KRS 342.320. See Stovall v. Williams, supra. 803 KAR 25:070 \\u00a7 (4) provides, in pertinent part, as follows:\\n(4) When the defendant payor or payors has fulfilled its obligations as reduced pursuant to subsection (2) of this section, payments will commence by the Special Fund (there will be no stoppage to recover advance attorney fee payments at this time). The Special Fund shall continue weekly benefit payments until such time as the number of weeks remaining in the specified benefit period or the life expectancy as determined by mortality tables approved by the Workers' Compensation Board, multiplied by the weekly benefit rate is equal to the total attorney fee and discount paid by all payors on behalf of the injured worker. In claims where benefits are payable for a lifetime, the weekly benefit payments will be reinstituted by the Special Fund at such time as the payor surpasses the life expectancy as determined by the mortality table approved by the Workers' Compensation Board and shall continue until terminated by death or order of the Workers' Compensation Board.\\nThis regulation has neither been repealed nor modified since it became effective on November 2, 1983. The legislature has been fully aware of the foregoing regulation and judicial decisions, including that in Pennwalt Corporation v. Beale, supra, and has enacted no alternative scheme for the payment of benefits after a worker's life expectancy has been reached. Therefore, we conclude that 803 KAR 25:070 \\u00a7 (4) comports with the legislature's intent to the extent that it provides for the Special Fund to pay the entire weekly benefit to an injured worker who outlives the projected life expectancy.\\nAccordingly, the decision of the Court of Appeals is hereby reversed, and the award made by the ALJ is hereby reinstated.\\nAll concur.\"}"
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+"{\"id\": \"9997844\", \"name\": \"KENTUCKY BAR ASSOCIATION, Petitioner, v. Rhonda McClure WATSON, Respondent\", \"name_abbreviation\": \"Kentucky Bar Ass'n v. Watson\", \"decision_date\": \"1993-12-22\", \"docket_number\": \"No. 93-SC-871-KB\", \"first_page\": \"191\", \"last_page\": \"193\", \"citations\": \"867 S.W.2d 191\", \"volume\": \"867\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Supreme Court of Kentucky\", \"jurisdiction\": \"Kentucky\", \"last_updated\": \"2021-08-10T17:48:00.279470+00:00\", \"provenance\": \"CAP\", \"judges\": \"All concur.\", \"parties\": \"KENTUCKY BAR ASSOCIATION, Petitioner, v. Rhonda McClure WATSON, Respondent.\", \"head_matter\": \"KENTUCKY BAR ASSOCIATION, Petitioner, v. Rhonda McClure WATSON, Respondent.\\nNo. 93-SC-871-KB.\\nSupreme Court of Kentucky.\\nDec. 22, 1993.\\nBarbara S. Rea, Kentucky Bar Ass\\u2019n, Frankfort, Gardner L. Turner, Chair, Inquiry Tribunal, Lexington, for movant.\\nRhonda McClure Watson, Campbellsburg, for respondent.\", \"word_count\": \"590\", \"char_count\": \"3717\", \"text\": \"ORDER OF TEMPORARY SUSPENSION\\nPursuant to SCR 3.165(A), the Inquiry Tribunal filed a petition for temporary suspension against the respondent, Rhonda McClure Watson, on October 27, 1993. There has been no response to this Court's show cause order of October 28, 1993.\\nIn April, 1992, respondent gave Nelson Malone a $2,000.00 cheek on her escrow account as payment of his share of a settlement in a case styled Mark Carder, et al v. Metcalf & Associates, Inc., et al, Civil Action 89-CI-230 that had been filed in the Henry Circuit Court. The $2,000.00 check was returned to Nelson Malone by the First Farmers Bank & Trust Company because there were insufficient funds in Watson's escrow account to pay the check. Nelson Malone presented Watson's check to her bank for payment on three occasions and it was dishonored on each. On September 21, 1993, the Inquiry Tribunal issued a two-count charge against respondent alleging that she mishandled or otherwise misappropriated $2,000.00 from her client Nelson Malone.\\nRespondent represented Dennis and Freda Kegley of Buena Vista, Virginia, as sellers of a certain parcel of realty. At closing, respondent received funds designated for payment of a note and mortgage held by Crest-wood State Bank, Crestwood, Kentucky. On or about April 26, 1993, respondent tendered a check on account number 70019575 of the First Farmers Bank, Gratz, Kentucky,, which was titled \\\"Watson Escrow Account, Rhonda M. Watson.\\\" The check in the amount of $6,052.24 was made payable to Crestwood State Bank, and was issued in payment of the Kegleys' note and mortgage. The check was dishonored by the drawee bank. In August, 1993, after respondent was afforded numerous opportunities to make the check good, a representative of the Crestwood State Bank filed a criminal complaint against respondent alleging violation of KRS 514.040, theft by deception, a class D felony. Respondent was convicted of the offense of theft by deception, amended to a misdemean- or, and was sentenced to thirty days to serve conditionally discharged for two years in the Oldham District Court by judgment entered August 12, 1993. Although the record indicates respondent's conviction of a misdemeanor offense, the charge was amended from a felony and is substantial evidence that respondent has improperly dealt with client funds entrusted to her care.\\nThis Court, in an entirely separate matter, entered an opinion and order suspending respondent for fifty-nine (59) days on September 30, 1993. This order indicates that respondent tendered a check during May, 1992, as a filing fee in Bankruptcy Court and that the check was returned for insufficient funds and the bankruptcy petition of the client was dismissed.\\nUpon the foregoing, it appears that reasonable cause exists to believe that unless an order of temporary suspension is issued, a real and present danger exists to the public. Accordingly, IT IS ORDERED that the respondent, Rhonda McClure Watson, be and she is hereby temporarily suspended from the practice of law in the Commonwealth until further order of this Court. Within twenty (20) days from the date of the entry of this order of suspension, respondent shall notify all clients in writing of her inability to continue to represent them and shall furnish copies of said letters of notice to the Director of the Kentucky Bar Association.\\nAll concur.\\n/s/ Robert F. Stephens CHIEF JUSTICE\"}"
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