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close or seal the envelope, but placed it in the ballot box along with the other returns, and delivered it to the clerk of the county court on the evening of the day of the election. They did not accompany the questioned ballots with any certificate signed by them stating whether or not the ballots or any of them had been counted, or were not counted, or as to whom, or which of them were counted in the canvass which they had made of the votes cast at the precinct.
On the same day, at the Plow Factory precinct, in McCracken county, after the polls had been closed, when the precinct officers proceeded to canvass and certify the result of the election at the precinct, they found, among other ballots in the ballot box, 35 ballots which the voters casting them had exercised their right of suffrage by stamping with the stencil in the circle under the Democratic device or the Republican device, and also in the circle under the device of the independent candidate. The precinct officers did not count these ballots as being cast for any one, but placed them in the envelope upon which was printed the words "Questioned Ballots." They then sealed the envelope, and at the point of the seal on the envelope each of the officers of the election wrote his name. This envelope was then placed in the ballot box along with the other election returns from that precinct and locked, and delivered to the clerk of the county court immediately after the close of the polls on that evening. The precinct officers of the election did not accompany the envelope nor attach to it a statement or certificate signed by them showing whether they had included in the count of the votes cast in the precinct the questioned ballots, or had not included them in that count, or whether they had counted them for any one, or for whom.
The county court clerk and his deputy, when the ballot boxes were delivered to them, caused them to be unlocked, and took from the boxes the stub books and the envelopes containing the questioned ballots, and tied them in a bundle with a heavy cord and deposited them in the vault of the clerk's office.
from the 'Diegels precinct or the Plow Factory precinct, presumably for the reason of the absence of a statement signed by the officers as to whether they had or had not counted the questioned ballots, and, if they were counted, what part of them had been counted, and for whom they were counted. The board of election commissioners was about to complete its canvass of the returns of the election in the county, and to adjourn and issue certificates of election, when R. R. Treadway, who was the Republican candidate for member of the House of Representatives from McCracken county, instituted this suit again Z. C. Graham, his Democratic opponent, and the precinct election officers who had served at Diegels precinct and the Plow Factory precinct, the members of the board of election commissioners, and the clerk of the county court, in which he set up the failure of the precinct election officers to perform their duties with regard to the questioned ballots, by sealing them in envelopes and returning a statement signed by them as to whether they were counted or not counted by them in their canvass of the ballots at their respective precincts, and that the board of election commissioners were refusing to consider or to count these ballots, and that, if they should fail to do so, he would be defeated for the office of member of the Legislature, to which he alleged he had been elected, and sought a mandatory injunction against the precinct officers requiring them to convene and to secure the questioned ballots for their precincts, respectively, and to place them in an envelope, and to seal the envelope as required by law, and to make out a statement by which they would certify as to what had been done in regard to counting the ballots which were returned as questioned by them, and would deliver the ballots and the certificate to the clerk of the county court or the board of election commissioners, and that the board of election commissioners should then be required to convene and to complete the canvass of the returns of the election, and to enjoin them from delivering a certificate of election to Z. C. Graham, his opponent, until the returns of the election could be completed and canvassed, as above requested.
When the board of election commissioners convened on Friday, following the election on Tuesday, it convened in a room which The Republican candidates for the state ofadjoins the vault of the clerk's office in which fices also filed their petition against their the election returns were deposited and kept Democratic opponents and the precinct offiby the clerk. The board of election commis- cers at Diegels and Plow Factory precincts, sioners proceeded to canvass the returns of the members of the board of election comthe election at that time by calling upon the missioners, and the clerk of the county court, clerk for the returns of one precinct at a in which they made substantially the same time, and when the returns from that pre- allegations and sought the same relief as cinct had been canvassed, they were return- was sought by Treadway in his action, except ed to the vault of the clerk's office, or were they asked that the election commissioners be placed in a pile upon the table at which the enjoined from certifying the returns from election commissioners were sitting while en- the election as to any one until further orgaged in their work. The board of election dered. The defendants filed answer in each commissioners refused to consider or to make case traversing the allegations of the petiany count of the questioned ballots returned tion. The suits were consolidated and heard
before a special judge of the McCracken circuit court on the 11th day of November, 1915. A temporary restraining order was obtained in each case restraining the members of the board of election commissioners from completing the canvass of the returns and certifying the result of the election of the county until further ordered by the court, and, in the case of Treadway v. Graham, from issuing a certificate of election to Graham until the further order of the court. The two cases were consolidated and heard to gether.
The court, upon the trial of the motion below for a mandatory injunction, heard all the evidence offered by either side, including the testimony of the county court clerk and his deputy, the members of the board of election commissioners, and the precinct officers who held the election at the precincts from which the questioned ballots in controversy were returned. At the conclusion of the trial it rendered a judgment granting the prayer of the petition for a mandatory injunction requiring the precinct election officers at Diegels and Plow Factory precincts to convene at the office of the county court clerk on the 16th day of November, 1915, and to obtain from the clerk, who was ordered to deliver them to them, the uncounted ballots which were returned by them, respectively, and to place the ballots in envelopes, to seal same, and to write their names across the seal, and at the point of the seal indicated for that purpose, the judges of the election, in the presence of the clerk and sheriff, to place the county election seal in hot wax so that it can be plainly read, and to return the same to the county clerk with a true statement as to whether the questioned ballots have or have not been counted, and, if counted, what part and for whom, and then the election commissioners were ordered to convene on November 16, 1915, at 1 o'clock p. m. and complete the canvass of the election returns for the county, and to certify same according to law. The appellants excepted to this judgment, and prayed an appeal to this court, and by agreement of parties the cases were set upon the docket and agreed to be heard and decided at once.
The evidence in the case shows without question that the questioned ballots were not counted by the precinct election officers in the canvass and tabulation made by them of the votes cast at their respective precincts, and the board of election commissioners has refused to canvass them. We will not undertake to detail all the evidence heard bearing upon the question of the preservation of the questioned ballots, but suffice to say that they have at all times since their delivery to the clerk on the evening of the election been in the custody and under the control of the clerk and election commissioners, so far as the evidence discloses.
 It is insisted that the judgment should
questioned or disputed ballots will not be counted when the precinct election officers have not accompanied them with a statement which shows whether or not they have been counted in the tabulation made by them in their canvass of the votes at the precincts, and, if counted, for whom they were counted, and for such reason the precinct election officers, after they have returned them to the clerk of the county court without such statement, ought not thereafter to be compelled to do what by law it was their duty to do in the first instance. The evil effects of a rule which would permit election officers, either from ignorance or fraud, to fail to do the duties required of them by law in the return of ballots about which they may have or pretend to have doubts as to how they should be counted, is easily discernible. It is true that it has been held by this court, in the cases of Struss v. Johnson, 100 Ky. 319, 38 S. W. 680, 18 Ky. Law Rep. 771, Edwards v. Logan, 114 Ky. 312, 70 S. W. 852, 75 S. W. 257, 24 Ky. Law Rep. 1099, 25 Ky. Law Rep. 435, Childress v. Pinson, 100 S. W. 278, 30 Ky. Law Rep. 767, Anderson v. Likens, 104 Ky. 699, 47 S. W. 867, 20 Ky. Law Rep. 1001, Cole v. Nunnelly, 140 Ky. 138, 130 S. W. 972, Banks v. Sergent, 104 Ky. 849, 48 S. W. 149, 20 Ky. Law Rep. 1024, Neeley v. Rice, 123 Ky. 806, 97 S. W. 737, 29 Ky. Law Rep. 1142, Duff v. Crawford, 124 Ky. 73, 97 S. W. 1124, 30 Ky. Law Rep. 323, and others, that questioned ballots, unaccompanied by a statement from the precinct officers of the election as to whether or not they had counted them, and, if so, for whom, would not be considered in a suit contesting an election. This rule had its origin at a time when the law required the ballots which were counted to be at once destroyed by the precinct officers, and thus, if unaccompanied by a statement as to whether or not questioned ballots had been counted, it was impossible to know whether they should be added to or taken from the number of votes which were certified, as having been received by a candidate at an election. The law now, however, provides that all of the ballots shall be preserved and kept, and, it now being possible in a contested election to count all of the ballots, the rule adhered to in the cases supra has become unnecessary. In the recent case of Snowden v. Flanery, 159 Ky. 574, 167 S. W. 896, the court, considering this question, said:
"Upon a reconsideration of the matter, however, we have reached the determination that when upon a contest the ballot boxes are openquestioned ballots, although they may not be ed, and a recount is had by the court, then the certified in such a manner as to authorize the canvassing board to consider them, if they are otherwise properly preserved, they may be counted by the court; for in that event there is no necessity for a certificate showing whether, and, if so, how, the questioned ballots were counted by the precinct election officers."
[2, 3] It would now seem that the proper
The judgment is therefore affirmed.
IMPERIAL JELLICO COAL CO. v. FOX. (Court of Appeals of Kentucky. Nov. 23, 1915.) 1. JURY 75-IMPANELING-STATUTE.
tioned ballots have been so preserved that Janything of the election officers, except such they have not been tampered with, they should duties as are ministerial, and such duties as be counted, whether accompanied by a state- by law are required of them, and which they ment of the officers or not, as required by have failed to perform. section 1482, Ky. Statutes. The policy of the law of this state has always been not to permit mistakes of the election officers to disfranchise the voters or to defeat the will of the people expressed at the ballot box, where the truth of the matter is apparent. There is an absence of all proof or insistence that the ballots have been tampered with or changed since they were delivered to the clerk. From the proof in the case, as it now appears, the ballots have been so preserved that they should be canvassed. If they should be counted, then they ought to be put in such condition that the board of election commissioners may lawfully consider and canvass them. This court has frequently held that
election commissioners are not authorized to consider or canvass questioned ballots, unless the statement required by section 1482, Ky. St., accompanies them. Potter v. Campbell, 155 Ky. 784, 160 S. W. 763; Booe, County Judge, v. Kenner, 105 Ky. 517, 49 S. W. 330, 20 Ky. Law Rep. 1343; Houston v. Steele, 98 Ky. 596, 34 S. W. 6, 17 Ky. Law Rep. 1149.
[4, 5] A proceeding by a mandatory injunction is a proper remedy to require election officers to perform their duties. The duty of the precinct officers to inclose the questioned ballots in an envelope, to seal it up, write their names across the seal, place the county election seal in hot wax at the point of the seal, and return a statement as to whether they have or have not counted them, and, if counted, what part and for whom, are ministerial duties, about which they exercise no discretion. They exercised their discretion when they determined not to count the ballots. The election commissioners can be lawfully required to canvass the returns of an election, and to canvass the questioned ballots, when they are accompanied by the proper statement. As to how they shall count them, or whether they shall be counted at all, if the purpose of the voter is not expressed upon the ballot, or if it is not intelligible, are matters within the discretion of the election commissioners, and the court will not control their discretion. Potter v. Campbell, 155 Ky. 784, 160 S. W. 763; Riddell v. Childers, 156 Ky. 315, 160 S. W. 1067; Richardson v. Grinstead, 156 Ky. 319, 160 S. W. 1069; Denny v. Bosworth, 113 Ky. 785, 68 S. W. 1078, 24 Ky. Law Rep. 554; Bennett v. Richards, 83 S. W. 154; Mason v. Byrley, 84 S. W. 767, 26 Ky. Law Rep. 487; Anderson v. Likens, 104 Ky. 699, 47 S. W. 867, 20 Ky. Law Rep. 1001; State v. Gibbs, 13 Fla. 55, 7 Am. Rep. 233; State v. Pigott, 97 Miss. 599, 54 South. 257, Ann. Cas. 1912C, 1254; cases cited in note to State et al. v. Jackson & Prather, 36 L. R. A. (N. S.) 1091. The court below does not seem by its judgment to have required
Ky. St. § 2261, providing that the court may discharge the regular first panel of a jury panel another jury as provided in the chapter, after they shall have served one week and imauthorizes trial courts to discharge only the regular first panel of the jury after they shall Under it courts are without authority to dishave served one week and to impanel another. charge the latter jury thus impaneled after a week's service and impanel a jury for the succeeding week, and to continue the practice for each week of the term.
[Ed. Note. For other cases, see Jury, Cent. Dig. §§ 384-390; Dec. Dig. 75.] 2. MASTER AND SERVANT 217-INJURIES TO SERVANT-ASSUMPTION OF OBVIOUS RISK.
Where a coal miner engaged in "robbing"
Appeal from Circuit
Suit by John Fox against the Imperial Jellico Coal Company. Judgment for plaintiff, Reversed. and defendant appeals.
Tye, Siler & Gatliff, of Williamsburg, for appellant. Golden & Lay, of Barbourville, for appellee.
MILLER, C. J. The appellee Fox brought this suit to recover damages for personal injuries received by him while at work for the defendant in pulling stumps and pillars in its coal mine. Fox was 38 years old, and of more than 12 years' experience as a miner. The work of pulling stumps and pillars, sometimes called "robbing" work, consists in removing the pillars of coal that have been left standing as a support to the roof of the mine while the ordinary work of mining was going on. That it is very dangerous work is well known to any experienced miner. In this case a piece of slate had been hanging from the roof for some time, and had been noticed by Fox, as well as by Harp, his "buddy." Fox and Harp, accompanied by Mays, whom they had employed to operate their cutting machine, began work on the pillar in question about 8 o'clock in the eve
ning. Fox and Harp examined the projecting | had been asking for props for about two slate in the roof, and Harp struck it several weeks. Appellant concedes it to be a sound times with his pick, to ascertain its condi- proposition of law that if the slate, without tion; Fox standing by and looking on. Harp being molested, had fallen upon and injured says he found the roof “about half and half," the plaintiff, then, in the light of the proof, meaning that the center of the projecting he should recover; but that when Fox, by his slate was "drummy," while around the edges own act, and without notice to the company, it was hard or solid. Harp undertook to made the place more dangerous, and was pull the slate down, and did remove a small injured by reason thereof, no recovery should part of it. Harp finally said he believed the be allowed him. In other words, defendant slate in the roof would stand until they could insists that since plaintiff bases his right of finish their work at that place. Whereupon recovery on the failure of the company to Fox said; "I don't know; we can try it." furnish props so that he might make safe a They at once began to operate the machine, dangerous roof which he thereafter examundercutting the coal, thereby causing the ined, and, after having reached the concluslate "to take on more weight"; and, in about sion that it would not fall within a certain 40 minutes later, four or five carloads of length of time, he went to work during that slate fell from the roof, mashing Fox's left time, with a machine undercutting the coal, foot to such an extent that it became neces- and thereby caused the slate to take weight, sary to amputate the foot at the arch. He become more dangerous, and fall upon plainrecovered a judgment for $1,000, and the tiff, he, himself, was the sole cause of the accompany appeals. cident and cannot recover.
The plaintiff based his cause of action on the failure of the company to furnish props after having been requested so to do. The testimony for plaintiff shows there was one prop at his working place, but he claims it was about 18 inches too long, and could not be used without being cut off.
 1. The judgment will have to be reversed on account of the error of the circuit court in requiring the appellant, over its objection, to try this case before a jury taken from the third panel selected by the court during its May term, 1914. Under section 2261 of the Kentucky Statutes, trial courts are authorized to discharge only the regular first panel of the jury after they shall have served one week, and impanel another jury; they are without authority to discharge the second jury thus impaneled after a week's service, and impanel a third jury for the succeeding week, and thus continue this practice for each week of the term, as seems to have been the practice in the Whitley circuit. This precise question was before the court in Louisville & Nashville R. Co. v. Owens, 164 Ky. 557, 175 S. W. 1039, and again in Louisville & Nashville R. Co. v. Messer, 165 Ky. 506, 176 S. W. 1200; and, in each case, the action of the court in discharging the second panel and impaneling another jury, as was done in this case, was held to be a reversible error. But, as the case will have to be retried, it is proper to consider at least one of the other alleged errors, in order that it may hereafter be avoided.
 2. Appellant insists that its motion for a directed verdict in its favor, at the end of all the evidence, should have been sustained. The proof shows that the slate had been in the condition in which Fox and Harp found it for at least a month, and Harp says he
It should be borne in mind there was no assurance upon the part of the mine boss, or anybody representing the company, that the place was safe; on the contrary, Fox and Harp both say they examined the roof and came to the conclusion that it would hold until after they had finished their work, and that they would take that chance. On the other hand, they say they had called for props, and that the mine boss had promised to furnish them, but had failed to do so; and Harp and Fox both say it was their duty to do the propping of the roof in the place in question. So the case finally comes to the proposition that, although the plaintiff had called for props and had not received them, yet, is he entitled to recover where he proceeded to work, after satisfying himself, from an examination of the roof, that he could afford to take the chance of its falling? We think not.
The rule is well settled that, where the danger is so obvious to the servant that no man of ordinary prudence would continue to work under the circumstances, the servant assumes the risk if he undertakes the work, and the master is not liable if injury results. And we are of opinion this case comes within that rule. The failure of the company to furnish props, even though that fact be conceded, did not prevent the operation of the rule above announced, since it was the plaintiff's duty, in protecting himself, to decline to work when the danger was as obvious as he describes it.
Appellant's motion for a peremptory instruction should have been sustained; and, under this view of the case, it becomes unnecessary to consider the alleged errors in the instructions.
LOUISVILLE TRUST CO. v. BAYER STEAM SOOT BLOWER CO. (Court of Appeals of Kentucky. Nov. 17, 1915.) 1. SALES 1682-SATISFACTION OF BUYERTEST-DUTY.
Where, in an action to recover the price of soot blowers, it appeared that under the purchase contract defendant was allowed six months in which to try them, agreeing to pay at the end of that time if the blowers proved satisfactory, an answer seeking to excuse a failure to try the blowers on the ground that they had proven unsatisfactory to other corporations haying similar boiler pressure, and that defendant, to save the useless expense of installation, treated them in good faith as unsatisfactory, was bad, since it was defendant's duty under the contract to determine the sufficiency of the blowers by actual test.
[Ed. Note.-For other cases, see Sales, Cent. Dig. 88 409-421; Dec. Dig. 1682.] 2. EVIDENCE 441-PAROL EVIDENCE.
A demurrer was properly sustained to defendant's answer alleging that at the time the contract was made plaintiff agreed to send a man to help installation, and charging a failure so to do, since a collateral parol agreement cannot vary the terms of a previous written contract, unless omitted therefrom through fraud or mistake.
[Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 1719, 1723-1763, 1765-1845, 20302047; Dec. Dig. 441; Sales, Cent. Dig. § 721.]
3. SALES 347-ACTIONS-PLEADING-WANT OF CONSIDERATION.
A demurrer was properly sustained to defendant's third paragraph of the answer, alleging that after the suit was in issue defendant offered to perform the contract if plaintiff would send a helper, which plaintiff agreed to do, and charging plaintiff's failure to perform, with a loss of $48 expended by defendant on the faith of such agreement, since plaintiff's right under the original contract had already accrued, and the agreement set up was without consideration.
[Ed. Note.-For other cases, see Sales, Cent. Dig. 88 962-972; Dec. Dig. 347; Contracts, Cent. Dig. § 1196.]
4. COMMERCE 40-INTERSTATE COMMERCEFOREIGN CORPORATION - ACTS OF SALES' AGENT-EFFECT.
A foreign corporation maintaining a place of business in the state and selling machines through traveling agents, who send their orders to the home office, whence the goods are shipped, is engaged in and the transaction is one of interstate commerce unaffected by the fact that the salesman measures the building and the proposed location therein of the machine.
[Ed. Note. For other cases, see Commerce, Cent. Dig. §§ 29, 30; Dec. Dig. 40.] 5. COMMERCE 80-FOREIGN CORPORATIONS' ACT-OPERATION-SERVICE OF PROCESS. Since Ky. St. § 571, requiring foreign corporations to maintain an agent in the state to receive service of process as a condition precedent to doing business therein, prevents a noncomplying corporation from recovering on a contract made in the prosecution of its business in the state, it is inoperative as to interstate commerce transactions, in that it imposes an unreasonable burden on interstate commerce, in conflict with the commerce clause of
the federal Constitution.
[Ed. Note.--For other cases, see Commerce, Dec. Dig. 80.]
Appeal from Circuit Court, Jefferson County, Common Pleas Branch, Third Division. Action by the Bayer Steam Soot Blower Company against the Louisville Trust Company. Judgment for plaintiff, and defendant appeals. Affirmed.
Wehle & Wehle, of Louisville, for appellant. Grubbs & Grubbs, of Louisville, for appellee.
CLAY, C. Plaintiff, Bayer Steam Soot Blower Company, a Missouri corporation, brought this action against the Louisville Trust Company to recover $330, the price of two soot blowers which it furnished defendant for use in its office building. Judgment was rendered on the pleadings in favor of plaintiff, and the defendant asks that an appeal be granted.
The contract between the parties was entered into on August 1, 1913. The contract provided, in substance, that the Louisville Trust Company was to have the privilege of trying the blowers for a period of six months, dating from the date of receipt of the blowers, and, if at the end of that time it was not satisfied and did not desire to retain the blowers, they would be removed by plaintiff at its expense. The contract also provided that, if the blowers did not prove satisfactory, the trust company was to notify plaintiff to that effect in writing within ten days after the expiration of the trial period; otherwise the purchase price was to become due and payable six months from the date of the receipt of the blowers.
The petition was filed on August 17, 1914. After setting out the contract between the parties, it states that the two blower systems were delivered to defendant in the month of August, 1913, and although defendant had had ample opportunity after receiving the machinery to give the system a fair trial, it had never given the system any trial whatever, but had retained the machinery in its possession ever since its delivery. Defendant answered in three paragraphs.
By the first paragraph it pleaded, in substance, that it failed to make a trial of the blower system, because it had ascertained that the system had been tried by other corporations in the city of Louisville having a similar boiler pressure to that of defendant's plant, and that the soot blowers were found unsatisfactory, and had to be removed and returned to St. Louis; that to install the system would have entailed an expense of from $150 to $160, which, in view of the experience of other concerns having a similar boiler pressure to that of plaintiff, would have been a useless waste; that, for this reason, defendant failed to make the connections and give the machinery a trial, and considered and treated the blowers in good faith as unsatisfactory to itself, and offered to return same to plaintiff.