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in each year, or within thirty days thereafter, insurance company, other than fraternal asreturn to the Auditor of Public Accounts for sessment life insurance companies, not ordeposit in the insurance department a statement under oath of all premiums receipted for onganized under the laws of this state, but dothe face of the policy for original insurance and ing business therein.” Clearly plaintiff is a all renewal premiums received in cash or other- life insurance company. It is not organized wise in this state, or out of this state, on busi- under the laws of this state. It is doing ness done in this state during the year ending the 31st day of December, and no deductions business in this state and, though an assessshall be made for dividends, or since the last re- ment life insurance company, it is not a fraturns were made, on all premium receipts, which ternal assessinent life insurance company. shall include single premiums, annuity premiums, The statute plainly provides for a statement and premiums received for renewal, revival, or reinstatement of policies, annual and periodical of all premiums receipted for on the face of premiums, dividends applied for premiums and the policy for original insurance and all additions and all other premium payments re- renewal premiums received in cash or otherceived during the preceding year on all policies which have been written in, or on the wise in this state, or out of this state on lives of residents of this state, or out of this business done in this state during the year state on business done in this state, and shall at ending the 31st day of December. It goes the same time pay into the state treasury a tax further and provides that no deduction shall of two dollars upon each one hundred dollars of said premiums as ascertained. Every life in- be made for dividends, or since the last resurance company not organized under the laws turns were made, on all premium receipts, of this state, but doing business therein on what which shall include single premiums, annuity is known as the industrial insurance plan, premiums, and premiums received for rewhereby weekly premiums are collected, shall at the same time make a return to the Auditor of newal, revival, or reinstatement of policies, Public Accounts for deposit in the insurance de- annual and periodical premiums, dividends partment, a statement under oath of all pre-applied for premiums and additions, and "all miums received on insurance written exclusively on the industrial plan, and shall at the same other premium payments received during the time pay into the state treasury a tax of two preceding year on all policies which have dollars upon each one hundred dollars of said been written in, or on, the lives of residents pany mentioned in this section doing insurance of this state.” The statute provides for a tax business other than on the industrial plan, shall of $2 on each $100 of said premiums as make reports and pay into the statē treasury ascertained. In view of the fact that the the taxes due thereon under each report."

statute plainly shows a legislative purpose to Plaintiff is authorized to do business in tax assessment life insurance companies, this state as an assessment life insurance other than fraternal assessment life insurance company under and by virtue of subdivision companies, and in view of the use, not only 3, art. 4, Kentucky Statutes, c. 32, entitled of the word “premium,” but of the words “Assessment or Co-operative Life Insurance premium receipts" and "premium payments," Companies.”

we think it clear that the Legislature intendTo sustain the contention of plaintiff that ed to tax the premium income, or the charge it is not taxable under section 4226, Ken- for the insurance, regardless of the manner tucky Statutes, it is argued that that section or form of payment or of the name by which provides for the payment of a tax on premi- it might be called. Here the plaintiff reums alone, and nowhere provides for a tax ceives from its members in this state dues on assessments. It is further argued that amounting to $3 per annum on each $1,000 the various sections of subdivision 3, art. 4, of insurance. These dues are fixed in adKentucky Statutes, define assessment of co-vance and are payable just as premiums are operative life insurance companies, provide paid. That they are called "dues" instead of for their organization, prescribe the terms on "premiums” is immaterial. They serve exwhich they can do business in the state, actly the same purpose. Though it does not and further provide that such companies cleárly appear from the petition, we take “shall be subject only to the provisions of it that, if the dues be not sufficient to disthis subdivision.” It must be remembered, charge the company's obligation, then addihowever, that the provisions of subdivision tional assessments may be made. When or 3, art. 4, Kentucky Statutes, do not relate in how often this occurs does not appear. Since any way to the question of taxation. They the assessments are a portion of the charge cover merely the subjects above referred to, for insurance, we conclude that both the asand do not in any wise restrict the right of sessments and so-called dues should be covthe Legislature to impose a tax on assess-ered by the report which the company is ment companies, nor do they evince a legis- required to make, and are properly taxable lative intent not to do so. The only ques- under the statute. It follows that the trial tion in the case, therefore, is whether or not court should have sustained the demurrer to section 4226 of the Kentucky Statutes is the petition. broad enough to cover assessment companies. Judgment reversed, and cause remanded By its very terms, it embraces "every life for proceedings consistent with this opinion. damages for injuries sustained to her person EAGAN V. CITY OF COVINGTON. resulting from a fall into a hole of water in (Court of Appeals of Kentucky. Nov. 19, 1915.) a sidewalk, which, it was alleged, appellee 1. TRIAL Cm139 — EVIDENCE-QUESTION FOR had knowingly and negligently maintained JURY.

179 S.W.-65

or permitted to exist. The accident, accordWhere any evidence is introduced tending to sustain the cause of action set out in the ing to the evidence, occurred under the folcomplaint, the case must be submitted to the lowing circumstances: On March 26, 1913, jury.

about 5 o'clock p. m., appellant left a street [Ed. Note. For other cases, see Trial, Cent. car, upon which she had been a passenger, Dig. $$ 332, 333, 338-341, 365; Dec. Dig. Om

near the intersection of Third street and 139.]

Crescent avenue, for the purpose of going 2. MUNICIPAL CORPORATIONS Omm 762—PUBLIC WAYS-SAFETY-DUTY.

to her home, about half a square on and be The duty of a municipality to keep its yond Crescent avenue. Third street runs streets and sidewalks reasonably safe for travel into and ends upon Crescent avenue. On extends to cases where the unsafe condition is caused by the act of persons other than the its west side Crescent avenue is bounded by agents of the municipality.

a hill or hills. Third street is the first one [Ed. Note. For other cases, see Municipal reached in entering the city at that point Corporations, Cent. Dig. $$ 1605–1611; Dec. from the Ohio river, and runs parallel with Dig. Cum 762.]

the river. The street cars run along Third 3. MUNICIPAL CORPORATIONS Om788-DEFECTIVE STREETS-LIABILITY-KNOWLEDGE.

street, and upon reaching Crescent avenue A municipality is not liable for injuries turn northwardly. The regular stopping due to the unsafe condition of a street or a side- place of the cars is on Crescent avenue at its walk, created by the act of a third person, unless it had, or by ordinary care might have had, intersection with Third street, but, as at the knowledge thereof.

time of the accident the Ohio river, owing to [Ed. Note.-For other cases, see Municipal frequent heavy rains, was out of its banks, Corporations, Cent. Dig. $8 1641-1643, 1646, and the presence of a large body of back 1652; Dec. Dig. 788.]

water from a sewer overflowed Crescent 4. MUNICIPAL CORPORATIONS Omw 788-DEFEC

avenue at the point of its intersection with TIVE WAYS-KNOWLEDGE-LIABILITY.

Where plaintiff, while walking along a Third street, the car upon which appellant street partly submerged by an overflow, was in- was a passenger had to turn northwardly jured by falling into a week old water hole cre- and run several yards on Crescent avenue ated by a previous overflow, which defect had

before stopping. not rendered the sidewalk unsafe until the day

When appellant left the of the accident, and the municipal authorities car she could not, owing to the presence of had no notice or reasonable opportunity to learn the standing water on Crescent avenue, imof its dangerous condition, the city was not liable, since a municipality is not liable for inju- mediately cross to the west side thereof withries from defects in its ways unless it has actu-out wading through the water, nor could she al or constructive notice thereof.

cross Crescent avenue from Third street in [Ed. Note.-For other cases, see Municipal a southerly direction, for the same reason. Corporations, Cent. Dig. $8 1641–1643, 1646, She was therefore compelled to walk along 1652; Dec. Dig. On 788.]

the north side of Third street eastwardly to 5. MUNICIPAL CORPORATIONS O 821 – EVIDENCE-QUESTION FOR COURT.

a point where there was no water between Where but one inference can be drawn the curbs, in order to cross from the north from the evidence, the question whether a city side of Third street to the sidewalk on the is charged with notice of a defective way so as to render it liable to a person injured thereby south side thereof, from which she could is for the court.

proceed in a westerly direction to Crescent [Ed. Note. For other cases, see Municipal avenue, where it was sufficiently elevated Corporations, Cent. Dig. $S 1745–1757; Dec. above the water to enable her to reach its Dig. Om 821.]

west side and proceed to her home. Third Appeal from Circuit Court, Kenton Coun- street is paved with brick between the curbty, Common-Law and Equity Division.

ing; but the sidewalk on the north side Action by Josephine Eagan against the thereof, upon which appellant had to travel,

After leaving the street car City of Covington. From judgment for de- is not paved. fendant, plaintiff appeals. Affirmed.

and walking eastwardly on the north side

walk of Third street a distance of about B. F. Graziani, of Covington, for appellant. 40 feet, appellant claimed to have stepped Fred W. Schmitz and John A. Richmond, upon two boards which lay upon the sideboth of Covington, for appellee.

walk with one end of each resting upon the

curbing. Upon stepping upon the boards SETTLE, J. This is an appeal from a they either broke or separated, and she fell judgment of the Kenton circuit court, law between or from them into a hole of water and equity division, entered upon a verdict of such depth that her person was completely in favor of the appellee, city of Covington, submerged. She, however, rose with her returned by the jury in obedience to a per-head to the surface, and succeeded in catchemptory instruction from the court. The ing hold of the curbing, to which she clung, action was brought by the appellant, Joseph- until rescued by two young men who came ine Eagan, to recover of the appellee city out of a nearby saloon in time to witness the

accident. After being taken out of the wa- ! contained little or no water. When first ter appellant was carried to her home. It seen by him, there was space enough north does not appear that any of her bones were of the hole to enable those traveling the broken, or that her body was materially sidewalk to pass it in safety. At that time bruised by the fall, but the wetting and there were boards lying on the sidewalk and shock she received greatly chilled her and curbing near the hole, but none across or caused her to contract a cold, which resulted upon it. He further testified, however, that in rheumatism, and confined her to her room on the day of the accident the sudden rise or bed for about three weeks, by all of of the river or overflow of the sewer filled which she was caused very considerable the hole with water, and he then observed physical and mental suffering.

for the first time that two boards had been The answer of the city is in two para- placed across the hole. Leo Harrington, one graphs, the first containing a traverse, and of the two young men who rescued appellant the second a plea of contributory negligence from the water hole at the time of the acciA reply was filed controverting the plea of dent, never saw or knew of the existence of contributory negligence, and with the issues the hole until the rescue was effected. Henthus joined the case went to trial. The per- ry Wanderla saw the washout or hole about emptory instruction directing the verdict for a week before the accident. It was not then the appellee city was granted by the court at filled with water, nor was it so large as on the conclusion of the appellant's evidence, the day of the accident. When first seen and we are now called upon to say whether by him, there were boards scattered along this action of the trial court was or was not and upon the sidewalk from Crescent avenue error.

to a point beyond the hole, but there were [1-3] If there was any evidence introduced no boards across the hole, and there was in behalf of appellant conducing to sustain space on the north of it of sufficient width the cause of action set out in her petition, to be used by persons traveling the sidewalk. the case should have gone to the jury; oth- According to his further testimony, he again erwise the nonsuit was properly directed. saw the hole on the day of the accident, and It is admittedly the duty of a municipality to the two boards lying across it. It was then keep its streets and sidewalks in a reason-filled with water, and the water covered the ably safe condition for persons traveling sidewalk where the hole was situated to thereon, and this duty extends to cases within about an inch of the top of the curbwhere the obstruction or unsafe condition of ing. Anna Williams first saw the hole three the street or sidewalk is brought about by or four days before it was filled with water, persons other than the agents of the city; and knew that it did not become filled with but in such case the party seeking to recover water until the day of the accident. Nearly against the city for a failure to perform all of the witnesses mentioned testified that such duty must show that it had knowledge at the time of the accident the water in the of the defect, or might have had knowledge hole must have been of the depth of ten or thereof by the use of ordinary care. In more feet. other words, the city is not liable for inju- [4] It is patent from the foregoing eviries caused by such defects in its streets, dence that the hole into which appellant fell in the absence of actual notice thereof, or was caused by a previous rise in the river or unless they have existed so long that notice overflow of the sewer; that it had not exshould be imputed to it. Bell v. City of isted for more than a week; that it containHenderson, 74 S. W. 206, 24 Ky. Law Rep. ed no water of consequence until the day of 2434; Mayfield v. Hughley, 135 Ky. 532, 122 the accident, when it was filled by a sudden S. W. 838; Canfield v. City of Newport, 73 rise in the river or overflow from the sewer ; S. W. 788, 24 Ky. Law Rep. 2213.

that down to the day of the accident it was Appellant introduced six witnesses besides plainly discernible, and that those traveling herself. Her testimony only shows how the the sidewalk had sufficient space in the sideaccident occurred, and that she had no in- walk to pass it without danger; in other formation of the existence of the water hole words, that its presence did not make the until she fell therein. Mrs. Canfield testi- sidewalk dangerous until the day on which fied as to the manner in which the accident the accident occurred, and we have been unoccurred and to the effect that she knew able to find in the record any evidence connothing about the water hole, other than ducing to show that the authorities of the the fact that she had observed the boards appellee city had any knowledge or informalying across it about an hour before the action of its existence prior to the accident recident. Mrs. Vandruff saw the accident, but sulting in appellant's injuries. This is not knew nothing of the existence of the hole strange, as the place of the accident is in a until the morning of the day the accident oc- suburb of the city of Covington. It is true curred, at which time it was not entirely one or two witnesses testified that members filled with water and was covered by the of the police force of the city occasionally boards. Clifford Johnson first saw the water visited that neighborhood, but no witness hole about two days before the accident. testified that any of them were seen at or According to his testimony, the hole had near the place of the accident on the day it of the police force of a defect in a city street by running over a pile of crushed stone three is only notice to the city when he is charged feet high and eight feet wide. The evidence with some duty with reference thereto. City introduced in his behalf showed that the obof Louisville v. Lenehan, 149 Ky. 537, 149 s. struction was first seen by the witnesses at W. 932, Ann. Cas. 1914B, 164.

5 o'clock that afternoon, three hours before It is not apparent from the evidence how the accident. The trial court, at the concluor by whom the planks from which appellant sion of the plaintiff's evidence, granted a fell were placed over the water hole. They peremptory instruction directing a verdict in were probably floated over the hole by the favor of the defendant, city of Frankfort. water that overflowed the sidewalk. At any In affirming that judgment we in part said:

. rate, there was no attempt to show that the "In order to render the city liable, it must planks were placed over the hole by any could have known of the existence of the ob

be shown that it, by exercising ordinary care, agent or employé of the appellee city, and struction in the street and removed the danger. neither the facts shown nor any reasonable We cannot say that it is actionable neglect for inference deducible therefrom make it fairly the city to fail to discover in three hours an apparent that the exercise of ordinary care obstruction in one of its streets caused by a on the part of the city authorities would have There is no evidence that the city knew of the

. enabled them to discover the dangerous con- obstruction, and the bare fact that it had been dition of the sidewalk before the occurrence there for three hours is not sufficient to charge

it with liability.” of the accident resulting in appellant's injuries.

In Reed v. City of Detroit, 99 Mich. 204,58 In Canfield v. City of Newport, supra, it is N. W. 44, it was held that: in the opinion said:

"Where the evidence for plaintiff showed that “The appellant, Patrick J. Canfield, brought outlying residence street, which hole was first

she stepped through a hole in a culvert in an this suit against the appellee, the city of New- seen on the morning before the accident, a verport, to recover damages for injuries which re- dict should have been directed for the city.” sulted from falling into a manhole in the gutter at the southeast corner of Saratoga and In Bell v. City of Henderson, supra, the Fifth streets, in the city of Newport, which he appellant sued the city of Henderson to realleges the defendant negligently and knowingly permitted to remain open and unguarded. The cover damages for a personal injury sustaintestimony shows that on a Sunday morning in ed by stepping into a hole in a platform which October, 1899, between 11 and 12 o'clock, some had, with the permission of the city, been boys took the iron covering from this manhole erected by Norris & Lockett, hardware merto release a cat which had fallen into the sewer: chants, in front of their business house on and that when they attempted to replace the

, lid it fell into the hole, which was some nine First street, in the city of Henderson, the feet deep; that a citizen who lived in the vi- platform extending from the curbing of the cinity immediately place a barrel over the hole and weighted it down with rocks, thus furnish- pavement across the gutter to the street being an effectual barricade against accidents; yond, it being alleged that the platform was that it remained in this position during the day, rotten and unsafe, which fact was known to but was removed by some unauthorized person the city, or could by the exercise of ordinary during the following night; that the appellant, Patrick J. Canfield, fell into this hole on Mon- care have been known by it, in time to have day morning before daylight, while on his way prevented the accident. It appeared from from his home to the butcher shop. The testi- the evidence that on Friday evening before mony fails to show at what hour or by whom the the plaintiff was hurt on Saturday night a barrel was taken from over the hole, or that the city authorities had notice that the covering plank in the platform was broken. A verhad been removed. A city is not responsible for dict in behalf of the defendant was directed accidents which happen in its streets as the re- by a peremptory instruction from the trial sult of defects caused by the acts of persons court. In the opinion it is said: not connected with its government, unless such court. defect has existed for such a length of time "It was the duty of the defendant (city) to and under such circumstances that the city or use ordinary care to keep its streets and alleys its officers, in the exercise of proper care and free from obstructions and in safe condition for diligence, ought to have obtained knowledge of persons traveling in the usual modes by day and it. Elliott on Roads and Streets, $ 628; City night. When they permitted Norris & Lockett of Covington v. Asman [68 S. W. 646] 24 Ky. to erect and maintain a platform in the street, Law Rep. 415. There was no defect in the which was liable to be used by pedestrians passcovering of this manhole before it was interfered ing from the pavement to the street, it was as with by unauthorized persons, and the placing much bound to see that it was kept in good conof a barrel over it appears to have been a rea- dition as if they had erected it themselves. sonable precaution against accidents, although And their liability for defects in the platform not taken by the city, and no injury would have is exactly the same as their liability for defects resulted except for the unauthorized removal in any other part of the street. But a municiof it from the hole some time during Sunday pality is not an insurer against accidents to night. The facts in the case do not, therefore, persons using its thoroughfares. It is not liawarrant a presumption of negligence on the part ble for injuries caused by defective streets in of the city of Newport, and we think the trial the absence of actual notice of such defect, or court properly directed the jury to find a ver- unless they have existed so long that notice dict for appellee."

or knowledge thereof should be imputed to

them. And notice should not be imputed where In Hazelrigg v. City of Frankfort, 92 S. W. the defects are of recent origin, and particular584, 29 Ky. Law Rep. 207, damages were claim-ly where they are concealed in anywise. Whilst ed by the plaintiff (appellant) because of being tion of fact whether a city has such notice, yet,

generally the jury should determine as a questhrown out of a buggy he was driving along a a here the facts are undisputed, and but one rea

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becomes a question for the court to decide., ilar action by Edwin P. Morrow and others *

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City of Corbin v. Benton, 151 Ky. against John Thompson and others. Judg. 483, 152 S. W. 241, 43 L. R. A. (N. Ś.) 591.

ment for plaintiffs, and defendants appeal. [5] Applying the principle announced by Affirmed. the authorities supra to the facts of this case, they were not, in our opinion, sufficient to au

J. P. Hobson & Son, of Frankfort, and W. thorize its submission to the jury; and while, A. Berry, W. V. Eaton, S. E. Clay, S. H. ordinarily, whether a city has had such no. Crossland, and J. D. Mocquot, all of Paducah, tice of a defect in a street or sidewalk as to for appellants. J. C. Speight, of Mayfield, charge it with liability is a question for the T. N. Hazelip and David Browning, both of jury, yet, where but one inference can be Paducah, and O'Rear & Williams, of Frankdrawn from the facts, the question is for the fort, for appellees. court. In our opinion, there was no error in the

HURT, J. At the election held in the giving of the peremptory instruction direct state of Kentucky and in the various couning a verdict for appellee; therefore the judg-ties of it on the 2d day of November, 1915, ment is affirmed.

the Republican party had candidates for the various state offices, and in the county of

McCracken a candidate for member of the GRAHAM et al. v. TREADWAY.

House of Representatives from that county. THOMPSON et al. v. MORROW et al.

The Democratic party likewise had candi

dates for all of the state offices and for a (Court of Appeals of Kentucky. Nov. 18, 1915.) member of the House of Representatives from 1. INJUNCTION Om 80 - OFFICERS DUTIES

McCracken county. In the judicial district MANDATE.

Precinct election officers can be compelled in which McCracken county is situated there to perform their omitted duty to accompany the was a Democratic candidate for judge of the return of ballots to the county clerk with a circuit court, but no Republican candidate statement showing whether and how contested for that office, but there was an independent ballots have been counted, since the rule that contested ballots cannot be considered in an candidate for the office of circuit judge. election contest, has been abrogated by the stat- The names of all the Democratic candidates ute requiring all ballots to be preserved.

were placed upon the ballot under the Dem[Ed. Note. For other cases, see Injunction, ocratic device, and all of the Republican Cent. Dig. § 151; Dec. Dig. Om 80.]

candidates were placed under the Republican 2. ELECTIONS Omw 299—QUESTIONED BALLOTSWHEN COUNTED.

device, but the name of David Browning, Questioned ballots properly preserved and the independent candidate for circuit judge untampered with will be counted by the court in in the county of McCracken, was placed on an election contest, whether or not accompanied the ballot under a device of his own. His by the statement required of the precinct officers by Ky. St. § 1482, showing whether and device was his own picture, and immediately how they were counted; it being the policy of under it was a circle, such as is under the the law not to permit the disfranchisement Republican and Democratic devices, respecof voters through the mistakes of election offi- tively, and at the end of his name was a cials.

[Ed. Note. For other cases, see Elections, small square, such as follows the name of Cent. Dig. $$ 306, 307; Dec. Dig. Om 299.] each candidate whose name was upon the 3. ELECTIONS 260—COMMISSIONERS-QUES- ballot. In Diegels precinct of McCracken TIONED BALLOTS-AUTHORITY.

county, when the officers of the election came Election commissioners are not authorized to count the vote and certify the returns of to canvass questioned ballots unaccompanied by the statement as to whether they were counted the election from that precinct, there was and how, required of precinct officers by Ky. St. found 40 ballots which had been cast by § 1482.

voters who had exercised their suffrage, by [Ed. Note.-For other cases, see Elections, stamping with the stencil in the circle under Cent. Dig. § 236; Dec. Dig. On 260.)

the Republican device or the Democratic 4. INJUNCTION Omw 80%OFFICERS-MINISTERI- device, and also in the circle under the deAL DUTIES–MANDATE.

Mandatory injunction is a proper remedy vice of the independent, David Browning, to require the performance of purely ministerial and 11 ballots which had no stencil mark duties by precinct election officers.

upon them, and one spoiled ballot, making in [Ed. Note.-For other cases, see Injunction, all 52 ballots, such as are described above. Cent. Dig. $ 151; Dec. Dig. Om 80.]

The precinct officers of the election, being in 5. INJUNCTION Cm 80%OFFICERS-DISCRETION- doubt as to how they should count the 40 ARY DUTIES–MANDATE.

Duties of election commissioners involving ballots which were stamped under either the the exercise of discretion will not be enforced Democratic or the Republican device, and by mandatory injunction.

also in the circle under the device of the in[Ed. Note.--For other cases, see Injunction, dependent candidate, did not count them at Cent. Dig. $ 151; Dec. Dig. On 80.]

all as having been cast for any candidate, Appeal from Circuit Court, McCracken but, with the 11 unmarked ballots and the County.

spoiled ballot, placed them in the envelope, Action by R. R. Treadway against Z. c. which is marked "Questioned Ballots,” but Graham and others, consolidated with sim- , on account of their volume they could not

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