pellants and had charge of keeping the plan-, tation's accounts for them. The drafts which were drawn by appellee in Harrison's favor for salary, nearly all prior to the year 1914, showed on their face that they were for salary. These drafts were turned in to appellant for examination annually. If any examination had been made by appellants they would have seen at the end of each year that Harrison had overdrawn his account. By continuing to pay drafts for his salary when they knew that his salary accounts were overdrawn, or were in possession of facts which would lead to such knowledge, they ratified the action of appellee. It was the duty of appellants to have examined the drafts showing overpayments of salary to Harrison, and they will be deemed to have been in possession of the knowledge which such an examination would have imparted to them. The continued payment of drafts drawn by appellee in favor of Harrison for his salary after this, as above stated, constituted a ratification of appellee's action. Hence the instruction was not erroneous. [2] It is next insisted by counsel for appellants that the court erred in refusing to give the following instruction: "No. 6. Even if the jury find from the evidence that the plaintiff did not know what the salary of R. E. Harrison was, still this fact would be no answer to the defendant's counterclaim, because unless the plaintiff had this information he should not have drawn the drafts." There was no error in refusing this instruction. It is true, as stated by counsel for appellants, that the instruction was in the language of the court on the former appeal in this case, but it is not always proper to use the language of the court in an instruction. The court in using this language was considering the subject of a directed verdict for appellee. The court said in testing the correctness of a directed verdict it must view the evidence in the light most favorable to appellants, and on that account must assume that appellee exceeded his authority in drawing drafts in favor of Harrison when his salary was overpaid. The court further stated that it was no answer to this contention for appellee to say that he did not know the amount due, for unless he had this information he should not have drawn the drafts. The language was correct in the discussion of the point then under review by the court. It would be incorrect for the court to have given the instruction as asked, for the instruction did not take into consideration the question of ratification at all, and this was the main defense to the counterclaim relied upon by appellee. [3] Counsel for appellants also assign as error the action of the court in refusing to give the following instruction: "The jury are instructed that if they find from the testimony that the plaintiff was the agent for the defendants, and, as such agent, had charge of the business of managing the plantation of the defendants, and, if you further find from the evidence that the plaintiff transaction of his agency, he cannot recover in was guilty of any fraud or unfaithfulness in the this action, and your verdict will be for the defendants." The court modified, by adding to the end of the instruction "for the amount of the counterclaim," and this modification it is insisted is error. To sustain this contention they cite the opinion on a former appeal in which the court quoted from the case of Doss v. Long Prairie Levee District, 96 Ark. 451, 132 S. W. 443, as follows: "The rule is well settled, both by the textwriters and the adjudicated cases, that where the agent is guilty of fraud, dishonesty, or unfaithfulness in the transaction of his agency, such conduct is a bar to the recovery by him of wages or compensation." That case was only cited as tending to show that the view of the court was that unliquidated damages flowing from a tort could be set up by way of a counterclaim. The facts in that case were essentially different from those in the present case. There it was charged, and evidence was adduced to prove, that the chief engineer of a levee district had conspired with the construction company to defraud the levee district in the coustruction of the levee. It was held that where the agent is guilty of actual fraud towards his principal and causes his principal trouble and expense of litigation in order to secure his rights, the agent forfeits his rights to compensation for his services as the penalty for his fraudulent conduct. There No such state of facts exists here. is no fraud shown or attempted to be shown on the part of appellee. There is no proof tending to show collusion between him and Harrison in drawing the drafts for Harrison's salary. The most that can be said with reference to his conduct is that he negligently permitted Harrison to overdraw his salary. There is no testimony tending to show that his conduct in this respect was fraudulent. Therefore the rule announced in the case just cited does not apply, and the court was right in modifying the instruction. [4] Finally, it is contended that the court erred in allowing appellee interest on yearly balances. Appellee was employed by the year to manage the plantation of appellants. His compensation was due at the end of the year. According to his testimony he refrained from collecting his salary during the last three years of his service in order to accommodate the appellants. It would have been better to have calculated the interest on these amounts up to the date of the rendition of the judgment against appellants for a stated sum, but the language of the judgment amounts to this and no prejudice resulted to appellants in this respect. It follows that the judgment will be affirmed. DANVILLE LIGHT, POWER & TRAC- the upper half had been moved into the building and was being raised by means of a derrick or windlass, the cable of which extended into the building, through several pulleys, 1060(2)-TRIAL to the portion of the flywheel being elevated. 127-EVIDENCE OF INSURANCE AGAINST LIA- Four other employés of defendant were turnBILITY-HARMLESS ERRor. (Court of Appeals of Kentucky. Dec. 4, 1917.) 1. APPEAL AND ERROR In an action for injuries, evidence that de-ing the wheel or drum of the windlass, and fendant is protected by indemnity insurance in this way hoisting the upper half of the against loss is incompetent, and its admission flywheel attached to the other end of the is reversible error. 2. MASIER AND SERVANT cable. Plaintiff was inside the building 301(4)-LIABILI- watching the portion of the flywheel as it TY FOR SERVANT'S NEGLIGENCE-RELATION Plaintiff was employed by defendant by the If the employés operating the windlass were under plaintiff's direction and control, defendant was not liable. 4. MASTER AND SERVANT 233(4)—CONTRIBUTORY NEGLIGENCE-CONTROL OF CAUSE OF INJURY. If a defective condition in the apparatus or the manner in which it was set up was the proximate cause of the accident, plaintiff was responsible for his own injury. 5. TRIAL 252(11) — INSTRUCTIONS-CONFORMITY TO EVIDENCE. Where there was evidence making questions for the jury as to whether the proximate cause of the injury was the negligent manner, in which the windlass was operated by defendant's employés under the immediate direction and control of its superintendent, or a defective condition in the apparatus, or the negligent manner in which it was set up, these theories should have been submitted by concrete instructions sharply defining the issues. was being hoisted, and after it had been lifted some little distance from the ground it ceased to go up, and plaintiff went to the door of the building, through which the cable passed, and just as he reached the door the drum or wheel flew off the spindle and struck him with such force as to break his leg and otherwise injure him. The windlass, pulleys, cable, and other apparatus used in the operation were the property of the plaintiff and furnished by him for the purpose, as part of the consideration for which he was being paid by defendant. To recover for the injuries thus sustained, plaintiff instituted. this action, alleging as the cause of his injuries the negligent operation of the windlass by the defendant, through its employés and agents. The defendant's answer was a traverse of the allegations of the petition and a plea of contributory negligence, which was traversed. The trial resulted in a verdict and judgment in favor of plaintiff for $3,400, from which the defendant has appealed. [1] Among the numerous alleged errors of the trial court assigned as reasons for reversal is the admission, over the objection and exception of defendant, of evidence that the defendant was protected by indemnity insurance against loss from accident to its employés, such as was involved in this case. That such evidence is incompetent and its admission reversible error is thoroughly esAppeal from Circuit Court, Boyle County. tablished by frequent and uniform decisions Action by Charles W. Baldwin against the of this court. Belle of Nelson Distillery Co. Danville Light, Power & Traction Com-v. Riggs, 104 Ky. 1, 45 S. W. 99, 20 Ky. Law pany. From a judgment for plaintiff, defendant appeals. Reversed and remanded. Robert Harding, John W. Rawlings, and Emmett V. Puryear, all of Danville, for appellant. Bagby & Huguely and Henry Jack-v. Thompson, 157 Ky. 304, 162 S. W. 1139. son, all of Danville, for appellee. CLARKE, J. In June, 1915, the appellant employed appellee, Charles W. Baldwin, at $8 a day to assist in, or superintend, the installation of certain heavy machinery in its plant at Danville. One part of the machinery to be installed was a flywheel which, divided into two equal parts weighing about 8,500 pounds each, had been delivered near to or just outside the defendant's building. At the time of the accident complained of, the lower half of the flywheel had been placed in the desired place in the building, and Rep. 499; Owensboro Wagon Co. v. Boling, Plaintiff, over the objection and exception of the defendant, was permitted to introduce such evidence. Counsel for plaintiff, while conceding the rule, insist that the evidence was admissible here as a legitimate crossexamination of one of defendant's witnesses upon a proposition introduced in evidence by defendant. But this is not true, as the question of insurance was in no wise involved in any evidence introduced by defendant. It is manifest, therefore, that the court, in admitting this evidence, erred to the prejudice of the defendant. As the judgment must be reversed for the reason indicated, it will not be necessary to consider the other questions raised, except for the purposes of a new trial, and for that purpose we need discuss only some of the instructions given and refused. [2, 3] Instruction No. 1 given by the court, in which plaintiff's right to recover is defined, is not subject to criticism by the defendant, unless it be that the reference therein to the superintendency or direction of Mr. Irvine is too general, and not sufficiently confined to the particular operation from which the accident resulted. Upon the other hand, it is more favorable to the defendant than it should have been, in that it limited plaintiff's right of recovery to the gross negligence of the responsible employés if, in the judgment of the jury, the accident resulted from the manner in which the windlass was being operated, since if the employés operating the windlass were under the control and direction of Irvine, plaintiff was not an independent contractor, and defendant was responsible for their negligent acts, regardless of whether the negligence was gross or ordinary, while if on the other hand they were under the control and direction of plaintiff, the defendant was not liable. The negligence of defendant, if any, was of its employés operating the windlass and not of its superintendent, Irvine, if these employés were under his control and direction. ant offered an instruction upon its theory of the proximate cause of the accident, the court should have, by proper instruction, presented that question to the jury, as well as the question of whether Irvine or plaintiff was in control of the employés at the windlass. Counsel for defendant insist that it was entitled to a peremptory instruction, both because the plaintiff was an independent contractor and because he was guilty of contributory negligence. These two questions, however, were at issue on the evidence, and they were properly submitted to the jury by instructions which do not seem to us to be open to criticism, and are not, in fact, criticized. It is also insisted for defendant that its employés operating the windlass were fellow servants of the plaintiff, and defendant was not, therefore, liable, even though the proximate cause of the injury was the negligent operation of the windlass. But whether or not plaintiff was a fellow servant was, from the evidence, at most a question of fact for the jury, if in fact there was any evidence to that effect, a question we do not now decide, as it was not raised in the lower court, except upon the motion for a peremptory. and the evidence was not such as to authorize the court to hold, as a matter of law, that plaintiff and the employés at the windlass were fellow servants. As the evidence upon another trial may differ materially from that in the record before us, we have thought it better to indicate. in a general way, the questions of fact the instructions should have covered, rather than to prepare instructions which might be rendered inapplicable because of the presentation of a different state of facts upon a retrial of the case. Judgment is reversed and cause remanded for a new trial consistent herewith. GREEN et al. v. ISAACS et al. (Court of Appeals of Kentucky. Dec. 7, 1917.) WILLS 324(2, 3) — MENTAL CAPACITY AND UNDUE INFLUENCE-DIRECTING VERDICT. [4, 5] If, however, a defective condition in the apparatus, or the manner in which it was set up, was the proximate cause of the accident, the plaintiff was responsible for his own injury, because the apparatus was owned, furnished, and set up by him, in the way he desired, without the direction or control of any other agent of the defendant, in so far as the evidence discloses. Whether the proximate cause of the injury was the negligent manner in which the windlass was operated by employés of the defendant under the immediate direction and control of its superintendent, Mr. Irvine, as contended by the plaintiff and supported by evidence, or a defective condition in the apparatus or the negligent manner in which it was set up, as contended by the defendant and also supported by evidence, were questions for the jury, and these theories of the respective parties as to the accident should have been submitted by concrete constructions sharply defining the issues. L. & N. R. Co. v. King, 131 Ky. 347, 115 S. W. 196; Hackworth v. Ashby, 165 Ky. 796, 178 S. W. 1074; L. & N. R. Co. v. Shoemake, 161 Ky. 746, 171 S. W. 383; Western Union Telegraph Co. v. Sisson, 155 Ky. 624, 160 S. W. 168; Lewis, Wilson & Hicks v. Durhan, 144 Ky. 704, 139 S. W. 952; Stearns Coal & Lumber Co. v. Williams, 171 Ky. 46, 186 S. W. 931; Cumberland Railroad Co. v. Girdner, 174 Ky. 761, 192 S. W. 873. CLAY, C. Edward Green, Franklin Green, The instruction above referred to submit- and James Green, brothers of Mrs. Mollie ted only plaintiff's theory, and as the defend-Schwaner, and Mrs. Sallie Burks, her sister, The evidence in a suit to set aside a will for mental incapacity and undue influence not amounting to proof, but tending only to excite suspicion, verdict for defendants is properly directed. Appeal from Circuit Court, Marion County. Action by Edward Green and others against J. E. Isaacs and others. From an adverse judgment, plaintiffs appeal. Affirmed. C. S. Hill and S. A. Russell, both of Lebanon, for appellants. P. K. McElroy and H. S. McElroy, both of Lebanon, for appellees. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes brought this suit to set aside Mrs. Schwan- | testified that her sister told her that she er's will on the ground of undue influence wanted Father Hogarty to have some of her and mental incapacity. At the conclusion money. When this conversation took place of the evidence, the trial court directed the her sister's mind was all right. Edward jury to return a verdict sustaining the will. Green testified that his sister made money Judgment was entered accordingly, and the by sewing, and that when he called to see contestants appeal. her, just prior to the execution of the will, she asked him about his tobacco crop. At that time she never said anything about what she was going to do with her property. Obe Newton testified that he came to see the testatrix about a note which his son owed. At that time the testatrix said that she wanted her sister Sallie to have the note. The testatrix also told him that she had written her will so that Mr. Schwaner would be taken care of during his lifetime. Caleb Ballard, who saw the testatrix in her last illness, testified that he went there to pay her some money. Testatrix said that she wanted to give that money to Sallie. Bridelia Green called to see the testatrix on the 4th of July. At that time testatrix spoke of her sister Sallie's waiting on her and said that her sister would be well paid for it. Father Hogarty, who visited testatrix frequently before her death, testified that the testatrix spoke in a general way of her desire to make a donation to the church. At that time she was physically weak, but mentally all right. The testatrix died in the year 1914, a resident of Marion county. By her will, which was duly probated in the county court, her husband was to receive the income from all of her property until his death, and thereupon her sister, Mrs. Sallie Burks, was to receive a one-half undivided interest in a certain house and lot in Lebanon, while the remainder of the property was to be divided equally among the children of her husband. It appears that the testatrix was a seamstress and married Casper Schwaner late in life. When the will was executed, her husband was mentally and physically feeble. J. E. Isaacs, who was named as executor of the will, had been in the habit of advising her in regard to her business. On the day the will was executed, he called on the testatrix, and she told him exactly how she wished to dispose of her property. He then went to the office of H. S. McElroy and had him prepare the will in accordance with the directions of the testatrix. Thereupon they both returned to the home of the testatrix, and, after each paragraph of the will was It will be observed that not a single witexplained to her, she signed the will in ness testified to any act tending to show mentheir presence, and they signed it as attest-tal incapacity on the part of the testatrix. ing witnesses, in her presence and at her request, and in the presence of each other. At that time her mind was clear and she fully understood what she was doing. It further appears that the testatrix kept an account at one of the banks, and that this account by the direction of her husband had been trans The sum and substance of all the testimony is that she either gave, or intended to give, her property to her sister, or to her brothers and sister, or to the church. It is argued, however, that the testatrix was under the domination of Mr. Isaacs, and that, in mak ferred from his name to the name of the tes-ing the devise in favor of her husband's chiltatrix. It also appears that the testatrix in- dren, she carried out his wishes, and not herited about $136. There is also testimony to the effect that she received $500 insurance money, but this testimony is not very persuasive. The brothers and sisters of the testatrix, with the exception of Mrs. Burks, rarely ever visited her. Mrs. Burks nursed her several weeks prior to her death. her own. The difficulty with this argument is that it is based on mere suspicion, and not on facts. It does not appear that any of her husband's children ever suggested to the testatrix, or to Mr. Isaacs, that the testatrix make a will in their favor. It does not appear that the relations between Mr. Isaacs For the contestants, Mrs. Burks testified and the children of Casper Schwaner were that she nursed the testatrix at her request. intimate. No reason is shown why Mr. Isaacs None of Casper Schwaner's children lived should have used his influence in their behalf, in the home of the testatrix for a period of nor does it appear that he ever suggested to 10 years prior to her death, though Logan testatrix that she make a will in their favor. Schwaner occasionally visited his father. On the contrary, the evidence shows that the On the day the will was executed, Mrs. will was made to conform solely to the wishIsaacs, wife of the executor, suggested to wit-es of the testatrix herself. ness that they leave the room while the will was under consideration. After they left the testatrix told her that she wanted her testatrix had any property of her own, beto have her money and gave her two bank books. Prior to that time, testatrix had told her that the property was for Mr. Schwaner to live off of, and after his death it was to be equally divided; after his death it was to be equally divided between the Furthermore, it was not shown that the sides her inheritance and the insurance money, which aggregated $636. It does appear, however, that her husband's deposit was transferred to her. She did reward her sister by giving her a one-half interest in a house and lot, of the estimated value of $800. she was shown to have acquired by her own efforts. In the absence of proof to the contrary, it is a reasonable supposition that the other property in her name was acquired through her husband, and, that being true, it was natural that she should give to his children after his death. Viewing the evidence of mental incapacity and undue influence as a whole, it is clear that it does not rise to the dignity of proof, but tends only to excite suspicion. Under these circumstances, the jury should not have been permitted to guess away the right of the testatrix to dispose of her property as she saw fit. Brent et al. v. Fleming, 165 Ky. 366, 176 S. W. 1134; Clark v. Young's Ex'x, 146 Ky. 377, 142 S. W. 1032. It follows that the trial court did not err in directing the jury to return a verdict in favor of the will. Judgment affirmed. HINES et al. v. HOLLINGSWORTH-YOUNG (Court of Appeals of Kentucky. Dec. 7, 1917.) Where the husband of a married woman contracted to have improvements on her land made upon his own credit, it being understood that mechanics and materialmen should not look to the lien to secure their debt, no implied promise arose to bind the wife, and no lien could be placed on her property, even though a married woman who accepts improvements on her property made under contracts with her husband may be held liable on the theory of implied promise arising out of the fact of ownership. 2. MECHANICS' LIENS 16-IMPOSITION-IN TEREST. Mechanics' or materialmen's liens may be imposed on whatever interest an individual who contracts for work or materials may own in the property on which the work is done or material used, whether the interest of such individual is legal or equitable. 3. MECHANICS' LIENS 72-CREATION-AUTHORITY OF TRUSTEE. A trustee of an express trust, unless authorized by statute or a court of competent jurisdiction or by the instrument creating the trust, cannot create a mechanic's lien on the trust estate for improvements. 4. MECHANICS' LIENS 189 ESTABLISH- The trustee of a testamentary trust refused to consent that improvements should be made on the credit of the beneficiary, a married woman, or that she should be in anywise responsible for them, or that the property should be incumbered. The beneficiary's husband contracted for supplies, the trustee furnishing part of the funds. Held, that though the beneficiary acquiesced in the improvements she could not subject the property to a lien, for, the legal title being in the trustee, the property could not be incumbered against his consent. Appeal from Circuit Court, Warren County. Action by C. S. Hollingsworth and Clive Young, copartners doing business as the Hollingsworth-Young Hardware Company, against Josie U. Hines and others. From a judgment for plaintiff, the defendants appeal. Reversed and remanded, with directions. W. B. Gaines and W. Perry Drake, both of Bowling Green, for appellants. Guy H. Herdman, of Bowling Green, for appellee. HURT, J. This action was instituted in the Warren circuit court by the appellees, C. S. Hollingsworth and Clive Young, who were partners under the firm name of Hollingsworth-Young Hardware Company, for a personal judgment against Josie U. Hines, and to enforce a materialman's lien, under chapter 79, Kentucky Statutes, upon her house and lot in the city of Bowling Green. By an amended petition, Samuel D. Hines, the husband of appellant Josie U. Hines and C. U. McElroy, trustee holding the legal title to the property for the use and benefit of Josie U. Hines, were made parties. The petition simply contented itself with alleging that C. U. McElroy was the trustee who held the legal title to the property under a deed executed to a former trustee, and was of record in the office of the clerk of the county court of the county. The deed was not filed with the record, nor was there any showing on the part of the plaintiffs that the deed under which it was held was such in its terms as would permit the placing of a materialman's lien upon the property by contract, either with the trustee or with the cestui que trust. Samuel D. Hines and C. U. McElroy, the trustee, offered separate answers, but they do not seem ever to have been filed. The record merely shows that the answers were offered, and for what reason they were not filed does not appear, as there were no objections appearing of record to their being filed. Not having been filed, they were not replied to nor was there any further mention of them in the record. The appellees, who were the plaintiffs below, stated that by a contract made with Josie U. Hines, by and through her husband Samuel D. Hines as her agent, and by her knowledge and consent, they furnished paints to the amount of $123, which were used in improving the dwelling house in which she lived. Further allegations were made to the effect that they had filed in due time and caused to be recorded in the proper office the statement of their lien required by chapter 79, supra, and this does not seem to be controverted. They asked for an enforcement of their lien, and a sale of the house and grounds upon which it stood in satisfaction of their debt. Josie U. Hines filed an amended answer, in which she denied that any contract had been made with her for furnishing the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |