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to work on each road, the judge did not put, This section contemplates that before a this road in any road precinct, or appoint road opened to the public shall be recognized an overseer therefor, or allot hands thereto. as a county road, entitled to its share of im

The circuit judge directed a writ of man-provements and repair, it must have been damus to issue compelling the county judge established by order of court. So that, alto set apart this road in a road precinct and though a road may have existed for many appoint an overseer therefor and allot hands years and have been used continuously by thereto. From this order, the county judge the public, this does not constitute it a public appeals.

road in the meaning of the statute. The Leg[1, 2] The road in question had been used islature evidently intended by this statute by the public for a sufficient period of time to change the manner in which roads might to constitute it a highway, with the right of be treated as having been accepted by the free travel thereon as between the public county as public roads, and to make it a and the owners of the soil over which the prerequisite to their recognition as county road runs. But this use by the public did not roads that they should be established as impose on the county the duty of keeping the such by an order of court, and, it appearing road in repair as a part of the system of that this road had never been established by public roads under the control of the county. the county court, it follows that the county

Section 4287 of the Kentucky Statutes judge could not be compelled by mandamus provides in part that:

to allot hands or appoint overseers to work “All public roads heretofore established by the it. The failure, however, of the county to several county courts, which have not been va- establish a road used by the public as a cated according to law, are hereby declared to be public roads, without regard to any informal- county road does not deprive the public of ity in the order of the county court by which its use as a highway if, independent of the they were established."

statute, the conditions surrounding its use And section 4295 reads in part:

are such as to create in the public a right to "Every public road * * * heretofore estab- the use. The statute was not designed to lished and opened pursuant to law and which interfere with the settled law of the state as has not been lawfully discontinued or vacated announced in numerous decisions of this shall continue as such, until properly discon- court respecting the right of the public to tinued, and every road * used and occupied as a public road * shall in all the use of roads. It was only intended to courts and places be taken and deemed to be a make appropriate action by the county necespublic road, *

whenever the establish-sary to the establishment of the road as a ment thereof as such may come in question."

part of the road system of the county. Under these statutes, before the county is

Wherefore the judgment is reversed, with charged with the duty of maintaining a road directions to dismiss the petition. used by the public, it must be established or accepted as a road by the county. The mere fact that the public use a road and have used it for such a period of time as to give them OHIO VALLEY BANKING & TRUST CO. the right to its use does not impose on the

v. WATHEN'S EX’RS. county the duty of maintaining it as a coun- (Court of Appeals of Kentucky. Oct. 19, 1915.) ty road. It is with the county to say what roads it will assume the control and main-1. TROVER AND CONVERSION C9 – CONVER

SION OF BANK STOCK-WHAT CONSTITUTES. tenance of, and until it does assume such Where, in an action against a bank for the control and maintenance by regular action value of stock issued by it to plaintiff's decedent of its authorities a road, although used by and alleged to have been converted by the bank,

it appears that the certificate was never deliverthe public, does not become a part of the sys-ed to decedent; that upon sale of the stock after tem of the roads of the county in the sense her death delivery to the purchaser was prethat the county may be compelled by manda- vented because the certificate could not be tory process to impair or improve it or rec- found; that upon finding the certificate 10 days

afterward the president of the bank requested ognize it as a part of its road system.

plaintiff to come and get it, which plaintiff reThe Acts of 1914 (chapter 80), sections of fused to do because of the refusal of the purwhich we have set out, changed the rule laid chaser to then accept it-the bank was not guilty

of a conversion, since it offered to deliver the down in Riley v. Buchanan, 116 Ky. 625, 76 stock at a time when the purchaser was legally S. W. 527, 25 Ky. Law Rep. 863, 63 L. R. A. bound to accept. 642, 3 Ann. Cas. 788, and other like cases, [Ed. Note.-For other cases, see Trover and as to what acts of the county will be suffi- Conversion, Cent. Dig. $$ 58–83; Dec. Dig. em

9.] cient to constitute the acceptance of a public road as a part of the recognized system 2. EXECUTORS AND ADMINISTRATORS Eww164—

SALE OF PROPERTY-RELEASE OF BUYER. of roads in the county. It will be noticed

The fact that the executors could not dethat section 4287, supra, declares that: liver the certificate to the purchaser for 10

"All public roads heretofore established by the days after the sale did not release him from liseveral county courts, which have not been va- ability on his bid, as time was not an essential cated according to law, are hereby declared to part of the contract. be public roads, without regard to any informal- [Ed. Note.-For other cases, see Executors ity in the order of the county court by which and Administrators, Cent. Dig. $ 641; Dec. Dig. they were established.”

161.]

Ky.)

OHIO VALLEY BANKING & TRUST CO. v. WATHEN'S EX'RS

231

3. EXECUTORS AND ADMINISTRATORS 167– she received the usual dividends on the SALE OF STOCK-RIGHTS OF PURCHASER.

stock. In March, 1914, her executors had a The purchaser of stock at an executor's sale has the right to demand the identical sale of her personal effects, and offered for shares purchased.

sale this stock, and it was bought by J. M. [Ed. Note.-For other cases, see Executors and Baskett for $178 per share, or $1,780. On Administrators, Cent. Dig. § 644; Dec. Dig. the day Baskett purchased the stock it was 167.]

agreed between him and one of the executors 4. EXECUTORS AND ADMINISTRATORS Eww164that they should meet the next day at a desSALE-DELIVERY.

In the absence of injury to the purchaser. ignated place, when the certificate would be a delay of 10 days does not affect the tender of delivered. On the next day, before the apa certificate of stock sold at an executor's sale, pointed time for the delivery of the stock, since the executor has a reasonable time after the executor applied to the bank for the certhe sale within which to deliver.

[Ed. Note.-For other cases, see Executors and tificate, and was informed by the acting cashAdministrators, Cent. Dig. § 641; Dec. Dig. ier that he did not know where it was, and Om 164.]

he told the executor to see Mr. Merritt, the 5. BANKS AND BANKING Om 123–STOCK CER- president of the bank. The executor went TIFICATE-ISSUE-CUSTODY OF BANK-LIA

to see Mr. Merritt, and, some time afterBILITY.

Where a stock certificate of a bank is left wards, but on the same day, Mr. Merritt told in its custody by the owner, it is the bank's him he could not find the certificate. Thereduty to deliver it within a reasonable time after upon the executor notified Baskett what had demand, and upon a failure so to do the bank is liable for any damage thereby resulting to happened, and said to him he would have to the owner or his representatives.

wait a while until he could get the certificate. [Ed. Note.-For other cases, see Banks and It further appears that about 10 days afterBanking, Cent. Dig. 88 303, 308, 311; Dec. Dig. wards the certificate was found in the bank Om123.)

in the original certificate book. It had never Appeal from Circuit Court, Henderson been torn out of the book, and there was inCounty.

dorsed across the face of it in pencil the Action by A. J. Wathen's Esecutors word "Canceled.” A book in the bank also against the Ohio Valley Banking & Trust showed that these 10 shares of stock had been Company. From a judgment for plaintiffs, transferred to Ingram Crockett, the cashier defendant appeals. Reversed.

of the bank, on October 3, 1913, and on the

same day another entry showed that CrockMontgomery Merritt and Yeaman & Yea- ett had sold 10 shares of bank stock to Amos man, all of Henderson, Ky., for appellant. Becker. When the certificate was found the N. Powell Taylor and S. V. Dixon, both of executor was requested by the president to Henderson, for appellees.

come and get it, but he said that Baskett

would not take it, and therefore declined to CARROLL, J. This suit was brought by accept it. The executor further testified the executors of Mrs. A. J. Wathen to re- that two or three days after the stock had cover from the appellant bank $1,780, the al- been sold, Baskett told him to get this certifleged value of a certificate for 10 shares of icate, and he would pay for it. stock in the bank that it was charged the It might here be noticed that shortly before bank had converted to its own use, and for this sale the affairs of the bank were in an this reason the executors could not deliver involved condition on account of some misit to J. M. Baskett, to whom they had sold conduct of the cashier, Ingram Crockett, and it for $1,780. After the issues had been made it is apparent that the condition of the bank up, the case was tried before a jury under had become pretty well known, although peran instruction telling the jury that they haps at that time it was not known to what should find for the

extent the capital of the bank had been im“plaintiff such an amount in damages as they paired and the value of the stock depreciated. believed from the evidence was the reasonable But a few days after the sale it was known market value of the 10 shares of stock in ques that the affairs of the bank were in a bad tion at the time the plaintiffs demanded possession of the same.”

condition, and that the stock was not worth Under this instruction the jury found a near so much as Baskett bid for it. Baskett verdict in favor of the plaintiffs for $1,780, testified that he bid on the stock for himself and judgment went accordingly, and the bank and a Mr. Nichols, and that it was knocked appeals.

off to him at $178 a share; that he knew at In 1907 Mrs. Wathen bought from the the time the stock could not be delivered. Planters' State Bank 10 shares of its capital Asked to state for what purpose he bid $178, stock of the par value of $100 per share. he said he had reason to believe that the There was issued to her one certificate, serial stock could not be delivered, and bid on it to No. 275, for these shares of stock. Mrs. boost the stock of the bank. He further said Wathen, as it appears, never had in her pos- that shortly after the sale, but on the same session this certificate. It remained with the day, he told the executor he was ready to bank from the time of her purchase until take the stock, and that if he could not get her death in 1913, although during this time the identical stock he bought would not take any. He further said that he knew on the [4] There is no claim that the executors day of the sale, but before the sale, that the suffered any damage by the failure of the executor could not deliver to him the stock bank to promptly deliver this certificate exhe bought, and that he bid on the stock be- cept such as it is alleged arose from the recause he believed it could not be delivered to fusal of Baskett to accept the stock under the him. Mr. Merritt, the president of the bank, circumstances stated, and the refusal of Bassaid that a few days after the executor ask- kett to take the stock under these circumed him about this certificate he went to the stances did not make the bank liable for the bank and found it in the stock book with the value of the stock. It does not appear that word “Canceled” written in pencil across Baskett sustained any damage by reason of the face of it; that upon discovering that the the delay, and the executors had a right to certificate had been improperly canceled, he tender the stock to Baskett within a reasonerased, or had erased, the word “Canceled” able time after the sale, and this it appears written in pencil and told the executor that they could have done. the stock was there subject to his order, but If, however, it should develop that the that the executor declined to take it because bank could not and did not offer to deliver Baskett would not have it.

to the executor the certificate owned by Mrs. [1] Under this evidence it is not disputed Wathen, and which Baskett

Baskett bought, we that if the certificate could have been deliv- would have another question. But there is ered to Baskett on the day of the sale, or the no showing in the record that it did not and following day, he would have taken it, or could not have delivered this certificate. The else could have been compelled to take it or meager evidence as to the entries on the pay such sum in damages as the estate suf- books and other circumstances throw little fered by reason of his failure to execute his or no light on the question here involved, bid. This being so, the remaining question which is simply this: Did the bank, within is, did the delay of about 10 days that elapsed 10 days or 2 weeks after the sale, tender to between the day of the sale and the date the executor the certificate owned by Mrs. when the bank offered to deliver to the execu- Wathen, and was the bank in a position to tor the certificate for the 10 shares issued tender and deliver this certificate representto Mrs. Wathen have the effect of releasing ing the 10 shares of stock owned by her? IL Baskett from liability on his bid, and the fur- it did this, there should be a verdict for the ther effect of charging the bank with the bank. value of the stock as though it had convert- [5] On the other hand, this certificate had ed it?

apparently been left by Mrs. Wathen in the [2] Baskett is not a party to this appeal, care of the bank, and it was the duty of the and therefore what may be said as to him for bank to deliver it to her, or her representathe purpose of illustrating our view of this tive, within a reasonable time after demand, case is not to be taken in any manner as and if the bank did not and could not deliver, prejudicial to his rights in the event there within the time mentioned, the certificate should be litigation between him and the ex- owned by Mrs. Wathen representing the numecutors. But it seems to us, on the record we ber of shares owned by her, then the execuhave, that the executors should have brought tors should have damages for the loss they this suit against Baskett in place of the bank. sustained on account of the failure of the The fact that the executors could not deliver bank to do this. The real issue in the case the certificate of stock to Baskett for about as we have outlined it, was not submitted to 10 days after the sale did not release Bas- the jury. kett from his obligation, created by the bid, On the record before us, the plaintiffs to take the stock, as it does not appear that wholly failed to make out a case, and the time was an essential part of the contract of judgment is reversed, with directions for a purchase.

new trial in conformity with this opinion. [3] Baskett had the right to insist that there should be delivered to him the identical shares of stock that he bought; that is, the shares of stock owned by Mrs. Wathen and LOUISVILLE GAS & ELECTRIC CO. v. which were represented by certificate No.

WULF. * 275. But within 10 days after the sale the (Court of Appeals of Kentucky. Oct. 19, executors, as shown by the record, could have

1915.) delivered to him this identical certificate. 1. LIBEL AND SLANDER 123-QUESTION FOR The pencil memorandum of the cashier show

COURT-MEANING. ing that it had been canceled did not, so farly innocent on its face, the question whether,

Where the language of letters is apparentas this record discloses, present any reason under the facts disclosed by the inducement and why the bank officers should not have erased, colloquium, it is fairly susceptible of the deas they did, the word "Canceled,” or prevent famatory meaning sought to be impressed by them from tendering, as they did, the cer

the innuendo is one of law. tificate representing the identical shares of slander, Cent. Dig. 88 356-364; Dec. Dig. Om

[Ed. Note. For other cases, see Libel and stock that was sold.

123.]

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Ky.)

LOUISVILLE GAS & ELECTRIC CO. v. WULF

233

2. LIBEL AND SLANDER Ow7-LETTERS,EM-, bills at the expiration of the discount pe BEZZLEMENT.

riod—the company would send its collector Plaintiff, who conducted a drug store, arranged with a gas and electric company, where to Wulf's place of business to receive the by its patrons might pay their bills at his amounts so collected by him. For a numstore, adding a fee for his collection, and was ber of years prior to his removal from Presheld out by the company's bills as its agent ton and Catherine streets, Wulf had colto receive payment. After the company's bills for December, 1913, were paid to and receipted lected for the Gas & Electric Company and by him and turned over to the company's col- companies afterwards merged into it, unlector, who receipted therefor, the company, der an arrangement of the same nature. which had participated in a merger of gas com- Wulf collected and paid over to the companies and, in the press of business, had transferred a clerk to its credit department, sent out pany the amounts due to it from its patrons notices to patrons who had paid plaintiff, to in his district for the month of June, 1913, the effect that their bills were still unpaid, and thereafter up to and including the month and requesting payment. Other letters, requesting payment and stating that the service of December, 1913. In the latter month bills would be discontinued if remittance was not were sent out by the company to its patrons Held, that the letters were not libelous in December 31, 1913. These bills were paid made within three days, were also sent out. in his district, the discount period expiring charging plaintiff with the offense of embezzling the money received from the company's patrons. to him, and on January 2, 1914, the amounts

[Ed. Note. For other cases, see_Libel and so collected were, by him, paid over to the Slander, Cent. Dig. &$ 17-78; Dec. Dig. Om7.] company's collector, who receipted therefor Nunn, J., dissenting.

in itemized form on a book or record fur

nished to Wulf by the company for that purAppeal from Circuit Court, Jefferson Coun- pose; the book being kept by Wulf at his ty, Common Pleas Branch, Fourth Division. store. On January 9, 1914, the company,

Action by John H. Wulf against the Louis- through a misunderstanding or mistake upon ville Gas & Electric Company. Judgment the part of the clerical force in charge of for plaintiff, and defendant appeals. Re delinquent collections, sent to a number of versed.

its patrons who had paid their bills for DeO'Doherty & Yonts, of Louisville, for ap- cember, to Wulf, a letter which read as folpellant. Elmer C. Underwood, Robt. G. lows: Wulf, and O'Neal & O'Neal, all of Louisville,

According to our records, the above bill still for appellee.

remains unpaid. I presume that our failure to receive your remittance is simply due to an

oversight and not from any disposition on your HANNAH, J. During a period of 28 years let us have your check by return mail, and

part to neglect this payment. Will you kindly prior to May, 1913, John H. Wulf was en- oblige." gaged in the retail drug business, first as

To other patrons, who had previously paid salesman and later as proprietor, at Preston

their bills to Wulf, there was sent a letter and St. Catherine streets in Louisville.

which read as follows: May, 1913, he completed the construction of a modern business building at the cor- remains unpaid.

“According to our records, the above bill still

remains unpaid. Failure to receive your rener of Barrett avenue and Kentucky street mittance for the same within three days from in Louisville, a point said to be about two date of this letter will be considered as a notice miles distant from his former location, and shall have same discontinued at that time. For

that the service is no longer desired, and we he thereupon removed to, and embarked in, your information, we wish to say that if the the retail drug business at this latter lo- service is discontinued for nonpayment, a charge cation, his total investment, including an of $1.00 will be collected before reconnection is

made." equipment of handsome fixtures and a large stock of merchandise, being about $20,000. In

And, later, the following letter was sent June, 1913, he entered into an arrangement by the company to some of its patrons who with the Louisville Gas & Electric Company, had paid their bills to Wulf: whereby patrons of that company were au

“We have not received a reply to the letter thorized to pay their bills for gas and elec-i mailed to you a few days ago in reference to

the above account. As this account is considtricity at Wulf's drug store, by paying to erably past due, we would appreciate if you him, in addition to the face of the bill, a fee would call at this office and make settlement of two cents, which was

his compensa

for same." tion for making the collection. Under this Asserting that the letters mentioned chargarrangement, bills were made out by the ed him with the offense of embezzling the company and mailed to its patrons in the money so paid to him by the company's padistrict wherein Wulf was authorized to re-trons who received such letters, and were so ceive payment thereof, in the latter part of understood by such patrons, Wulf brought each month. These bills advised the cus- this action against the Louisville Gas & tomers that Wulf was the agent of the com- Electric Company, in the Jefferson circuit pany authorized to receive payment thereof. court, to recover damages for the alleged They were presented and paid to Wulf, re- libel. He recovered a verdict and judgment ceipted by him, and returned to the custom- in the sum of $5,000, and the defendant ap

About nine days after mailing out the peals.

er.

ed."

[1] The language of the letters is appar- such a communication, being unable to acently innocent on its face; but it is con- count for its publication in any other reatended by appellee that under the facts dis- sonable manner, might be justified in asclosed by the inducement and colloquium, suming that the communication is an atthe letters are fairly susceptible of the de- tempt to libel by indirection. famatory meaning with which they are But, in the instant case, there is shown by sought to be impressed by the innuendo. uncontradicted evidence, indeed by the conThis is a question of law.

ceded facts, a reasonable explanation of and "If the words are not reasonably susceptible occasion for, the writing and sending of the of any defamatory meaning, the judge at the letters mentioned. A short time before this, trial will direct a nonsuit. words of an alleged libelous publication are not there had been effected a merger of several reasonably susceptible of any defamatory mean- heating and light companies in Louisville, ing, the court is justified in sustaining a de- and in the press of business occasioned by er words, it is for the court to decide whether the work of bringing the whole into one a publication is capable of the meaning ascribed system, and on account of a change in the to it by an innuendo, and for the jury to de- accounting methods, a clerk, who had been termine whether such meaning is truly ascrib-transferred to the credit department to as

Newell on Slander & Libel (3d Ed.) $8 sist in sending out the notices to delinquent 341, 345.

"It is the duty of the court to say whether a patrons, acting under the impression that the publication is capable of the meaning ascribed cashier had noted on the list of delinquents to it by the innuendo. But when the court is all those who had paid their bills after the satisfied of that, it must be left to the jury closure of the books on a former day, sent to say whether the publication has the meaning so ascribed to it.” 25 Cyc. 545.

out the letters here involved; the names of [2] In determining this question, in a case of the list. The sums were small, and each

such persons not having been so checked off like this, where the language used is entire- bill had printed upon it a notice to the effect ly innocent and harmless on its face, but is that Wulf was the agent of the company, such that it might possibly, in connection authorized to receive payment thereof, and with certain extrinsic facts, convey a covert each bill so paid had been receipted by Wulf nary interpretation, the inquiry is not wheth- and returned to and was then in the posses

sion of the patrons mentioned. Wulf was er the language was understood in its covert sense by those who received the letters, for living in the immediate vicinity, was the that would be to substitute the irresponsi- owner of considerable property, permanentble, hasty opinions of perhaps prejudiced ly located, and doing a prosperous business; minds for the calm and careful judgment of and it is unreasonable to presume that any the court, and to place the defendant at the from the letters in question that Wulf had

person of average intelligence would conclude mercy of the misconception or morbid imagi- embezzled the money. It seems to us that nations of the witnesses, permitting them to usurp the functions of court and jury. The know that the receipted bills in the posses

any person of average intelligence would real inquiry is rather whether, under all the sion of the company's customers would comcircumstances, the language of the letters

pletely exonerate them from having to pay mentioned was fairly and reasonably calcu- the items a second time, and that there could lated to produce upon the minds of the re- be no inducement on the part of the company cipients thereof, assuming them to be persons to lay before its customers a charge that of average intelligence and free from bias for Wulf had retained this money, or to attempt or against the plaintiff, the impression that to collect bills which had already been paid the company was charging plaintiff with the

to its authorized agent. offense of embezzlement or wrongdoing in

Under these circumstances, the only imconnection with the money collected by him pression that these letters were fairly and from its patrons. Thompson v. Lewiston

reasonably calculated to produce upon the Daily Pub. Co., 91 Me. 203, 39 Atl. 556.

mind of a person of average intelligence and If there be a publication of matter which, free from bias was that an error had been though apparently innocent and harmless on made somewhere in the records of the comits face, is sought to be shown to be defama- pany which would be corrected upon the tory by reference to extrinsic facts, and such presentation of the receipted bill. We are publication is made without the existence of therefore of the opinion that the innuendo any seeming occasion therefor, this is a fac- asserted by the plaintiff is not justified; and tor of considerable weight in determining the trial court should have directed a verwhether the language was reasonably calcu- dict for the defendant. lated to convey to the recipients of the com

The judgment is reversed. munication the defamatory meaning sought to be impressed thereupon. The recipient of NUNN, J., dissenting.

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