order of court. The bill of evidence in the case at bar, which seems to have been prepared by the official stenographer and approved by the judge, might be treated by agreement, no doubt, as a sufficient bill of exceptions in this case; but there is no order of court showing its approval or the filing it or making it any part of the record, or whether it was prepared or presented during the time required by law. A good reason for the requirement that a bill of exceptions or bill of evidence, before becoming a part of the record, must be approved and signed by the judge and filed by an order of court, is that parties to a suit are presumed to know and take cognizance of what is done by orders of the court in the conduct of a case, and if the bill is filed and made a part of the record by an order of court, the parties may have opportunity to examine it and secure the correction of any errors in it and the addition to it of anything which may have been omitted from it by oversight or otherwise. If the bill could be made a part of the record without being filed in open court and an order made showing that fact, the opposing parties would have no opportunity for its examination previous to its becoming a part of the record. That the stenographer's bill must be made a part of the record by order of the court was held in McGeever v. Kennedy, 42 S. W. 114, 19 Ky. Law Rep. 845; Southern Railway Co. in Kentucky v. Thurman, 25 Ky. Law Rep. 804; and other cases.

[4] There being no evidence in the record, the only thing to be considered is whether the pleadings and proceedings in the case are sufficient to support the action of the court in rendering the judgment appealed from. McAllister v. Insurance Co., 78 Ky. 531; Helm v. Coffey, 80 Ky. 176; Owensboro Ry. Co. v. Barker, 22 S. W. 444, 15 Ky. Law Rep. 175; Martin v. Richardson, 94 Ky. 183, 21 S. W. 1039, 14 Ky. Law Rep. 847, 19 L. R. A. 692, 42 Am. St. Rep. 353; C., O. & S. W. R. R. Co. Receivers v. Smith, 101 Ky. 707, 42 S. W. 538, 19 Ky. Law Rep. 1826. The pleadings and other proceedings seem to fully support the judgment.

[5] Where exceptions to a judicial sale are heard upon evidence, and the evidence does not accompany the record, the questions raised will not be considered. Creutz v. Knecht, 6 S. W. 717, 9 Ky. Law Rep. 772.

rial practice has been to put upon the one excepting the burden of the proof of his allegations without further pleading, and, in the absence of proof supporting his contention, the exceptions must be overruled.

The judgment appealed from is therefore affirmed.

SANDUSKY v. SANDUSKY.* (Court of Appeals of Kentucky. Oct. 28, 1915.) 1. DIVORCE 249-PROPERTY RIGHTS-JURIS

DICTION-STATUTES.

judgment for divorce the court shall restore While Ky. St. § 2121, providing that on final property which either party obtained from or through the other before or during the marriage, and Civ. Code Prac. § 425, providing that a judgment for divorce shall restore any property not which either party may have obtained from or disposed of at the commencement of the action through the other during marriage, did not authorize the court granting the wife a divorce to manent improvements placed on her property by order that she pay the husband the value of perhim, yet the court was authorized to make such order so as to adjust the property rights of the parties and to settle all questions presented by the pleadings and to avoid the necessity of an

other suit.

Dig. §§ 701-705, 707, 709, 712; Dec. Dig.
[Ed. Note.-For other cases, see Divorce, Cent.
249.]

2. DIVORCE

249-PROPERTY HUSBAND'S PERMANENT IMPROVEMENTS-RECOVERY.

As a husband and wife may contract with each other and have all the remedies extended to other persons for the enforcement of contracts, a husband who, under an agreement with his wife that he should be repaid out of the rents of the property for the amount spent in making permanent improvements on her land, was entitled in her suit for divorce, to recover the amount so spent.

[Ed. Note.-For other cases, see Divorce, Cent. Dig. §§ 701-705, 707, 709, 712; Dec. Dig. 249.]

Appeal from Circuit Court, Daviess County. Suit for divorce by Mary E. Sandusky against Wesley Sandusky, with lien claim on improved property by defendant. Judgment granting plaintiff a divorce and directing her to pay the value of improvements placed on her property by defendants, and she appeals. Affirmed.

Frank C. Malin, of Owensboro, for appellant. W. T. Ellis and J. Houston Payne, both of Owensboro, for appellee.

CARROLL, J. Although the amount in controversy in this case is less than $500, and the judgment will be affirmed, we have granted an appeal, and will write an opinion, as the decision of the questions presented may be of some interest in the administration of law.

[6] The contention that, in the absence of the evidence heard by the circuit court, the exceptions to the report of sale must be held good, and the judgment overruling the exceptions reversed, because there was no denial of the truth of the allegations made in the exceptions by a written pleading, we do The parties to this litigation are husband not think is tenable. The rules of practice and wife, and in this suit by the wife, now in courts of equity have never required a the appellant, to obtain a divorce from her written traverse or confession and avoidance husband, now the appellee, the husband filed of the things set up in exceptions to the con- an answer in which, after controverting the firmation of a report of sale. The immemo- grounds of divorce relied on, he set up that For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

pellee.

at the instance and request of his wife he out of a contract between them, a separate invested in permanent and valuable improve-action to obtain the relief to which he was ments on land owned by her the sum of entitled should have been brought by the ap$1,000, under an agreement that she would repay to him the amount expended in the improvements; and he asked that he be adjudged a lien on the property on which these improvements were placed to secure the amount expended pursuant to the contract under which the improvements were made. After the case had been prepared for trial, the court rendered a judgment granting the appellant a divorce from the bonds of matrimony, and further found that the value of the improvements placed on the property of appellant by appellee was $350, and she was directed to pay to him this sum; and, it appearing that it was agreed between the parties that the rents of the improved property should be applied to satisfy the cost of the improvements, the commissioner of the court was ordered to take charge of that portion of the property described in the judgment and rent out the same and apply the proceeds to satisfy the judgment in favor of appellee.

Some minor grounds of reversal are relied on, but the only one that we deem of sufficient importance to write about is the contention that it was error to give appellee a judgment for the value of the money expended by him during the marriage in putting valuable and lasting improvements upon the property of his wife.

Section 2121 of the Kentucky Statutes provides in part:

"Upon final judgment of divorce from the bond of matrimony the parties shall be restored such property, not disposed of at the commencement of the action, as either obtained from or through the other before or during the marriage in con

sideration thereof."

And in section 425 of the Civil Code it is provided:

It is true that the right of the appellee to the relief granted by the lower court rested on and grew out of the contract made between these parties after their marriage, and did not arise from a state of facts coming within the meaning of the statutory provisions referred to. But, nevertheless we are of the opinion that the court had the power to grant the relief adjudged in this action. When a suit is brought by either party for a divorce from the bonds of matrimony, there seems to be no good reason why the property rights of the parties should not be adjusted in that suit, and thus avoid the necessity of bringing two suits for what might be accomplished in one. The section of the Code does not exclude the court from adjusting property rights arising under contract between the parties to a divorce suit; and when property rights are asserted in a divorce suit, whether they arise under the grounds specified in the Code or under grounds resting in contract, the court having jurisdiction of the subject-matter and the parties may settle all questions between them that are presented by the pleadings. It is the policy of the law to avoid a multiplicity of suits, and when the matters at issue between the parties litigant can be settled in one suit, this course should be pursued.

[2] Another objection urged to the judgment is that the court should not have given the husband a judgment against the wife for anything on account of the improvements placed by him on her property. Adopting the conclusion of the chancellor on the facts of this case, that the husband expended $350, putting permanent, useful, and valuable improvements on the land of the wife under an agreement that he should be repaid out of the rents of the property for the amount expended in making the improvements, we find no reason for disturbing the judgment of the chancellor upon the ground relied on by counsel for appellant.

"Every judgment for a divorce from the bond of matrimony shall contain an order restoring any property not disposed of at the commencement of the action, which either party may have obtained, directly or indirectly, from or through the other, during marriage, in consideration or by reason thereof; and any property so obtained, without valuable consideration, shall be In Coleman v. Coleman, 142 Ky. 36, 133 S. deemed to have been obtained by reason of mar-W. 1003, and many other cases, this court riage. The proceedings to enforce this order has held that the husband and wife may enmay be by petition of either party, specifying the property which the other has failed to restore; and the court may hear and determine the same in a summary manner, after ten days' notice to the party so failing.'

[1] One objection pointed out to so much of the judgment as awarded appellee $350 is that in an action for divorce the court is only authorized by these provisions of the statutes and Code to restore property which either party may have obtained from or through the other during marriage in consideration or by reason thereof, and that, as the claim asserted by the appellee was not to have restored to him property obtained by his wife in consideration of or by reason of their marriage, but to enforce a claim arising

ter into contracts with each other and have all of the remedies extended to persons other than husband and wife for the enforcement of the contracts so made. Therefore, if the husband, under a contract with his wife by which he is to be paid therefor, places on lands owned by her improvements, he may generally recover from her the agreed price, or, in the absence of an understanding as to the price, the cost of the improvements, if thẻ agreement under which they were made contemplated the payment to him of their cost.

It is, however, contended by counsel that in Nall v. Miller, 95 Ky. 448, 25 S. W. 1106, 15 Ky. Law Rep. 862, Carpenter v. Hazelrigg, 103 Ky. 538, 45 S. W. 666, 20 Ky. Law

There might, of course, be a case presenting facts and circumstances that would make it inequitable to allow the husband for improvements on the land of his wife, and in such a case the chancellor should disallow his claim, but the equitable reasons that might in some cases deny him a recovery do not appear in this case.

Rep. 231, Stroud v. Ross, 118 Ky. 630, 82 S. ground that under the circumstances of that W. 254, 26 Ky. Law Rep. 521, Ketterer v. Nel-case it would be inequitable to allow it. son, 146 Ky. 7, 141 S. W. 409, 37 L. R. A. (N. S.) 754, and Bean v. Bean, 164 Ky. 810, 176 S. W. 181, this court has ruled that the husband should not be compensated for the value of improvements. We do not, however, understand any of these cases to announce the rule that, although the husband puts permanent and lasting improvements on the land of his wife under a contract with her that he is to be compensated for the improvements, he cannot recover under the contract.

In the Nall Case the controversy was between the husband and the heirs of the wife,

Wherefore the judgment is affirmed.

KENTUCKY HIGHLANDS R. CO. v.
CREAL.

and, as showing that the question here in- (Court of Appeals of Kentucky. Oct. 28, 1915.)

volved was not before the court in that case, it is said in the opinion that:

"It does not appear Eliza J. Miller ever agreed to pay or charge her land with payment for improvements or repairs put upon it, or for any money paid or services rendered by her husband. * * * There being then no agreement on her part to pay him for such services or advances of money, the law will not imply any. Equity will, under particular circumstances, give effect to a contract between husband and wife, even at his suit, if fair, just, and founded upon a valuable consideration, but will not imply a promise by her to pay him for improvements or repairs on her land while possessed, used, and enjoyed in virtue of his marital rights, nor even for money advanced by him to remove an incumbrance from it."

To the same effect is Ketterer v. Nelson, 146 Ky. 7, 141 S. W. 409, 37 L. R. A. (N. S.) 754.

In the Carpenter Case it does not appear that the improvements with the value of which the husband sought to charge the estate of the wife were placed on her land under any agreement or understanding that the husband should be paid for them.

In the Stroud Case the husband, after the death of the wife, sought to recover from her estate money that he had expended in making improvements on land owned by her;

and the court said:

"We are of the opinion that to the extent appellant, on the faith of the agreement entered into with his wife, advanced his own money for the purchase and improvement of real estate, the title to which was taken to her, after the execution of the obligation between them, he is equitably entitled to be reimbursed therefor, either by the sale of the property or a transfer of the title to him."

But it denied Stroud the right to be reimbursed for taxes paid or improvements made upon real estate which the wife owned in her own right and to the purchase of which he did not contribute his money. But it is clear from reading the opinion that the husband was denied the right of recovery for the value of improvements he placed upon her real estate because there was no agreement made with her that he should be reimbursed for these improvements.

In the Bean Case the husband's claim to be reimbursed for improvements put upon the land of his wife was rejected upon the

1. CARRIERS

247-"PASSENGER"-PERSONS

As to one attempting to board a moving train a carrier owes no duty except that which it owes to a trespasser, and upon discovery of his peril must exercise ordinary care to avoid injury to him; and hence, where there was no failure on the part of the engineer to do all that could have been done to prevent injury after discovery of plaintiff's peril, there was no actionable negligence.

[Ed. Note. For other cases, see Carriers, Cent. Dig. §§ 1154-1159, 1161-1166; Dec. Dig. 6-287.]

Appeal from Circuit Court, Woodford County.

Action by Henry Creal against the Kentucky Highlands Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed.

T. L. Edelen, of Frankfort, for appellant. Leslie Morris, of Frankfort, and H. A. Schoberth, of Versailles, for appellee.

HANNAH, J. Henry Creal sued the Kentucky Highlands Railroad Company, in the Woodford circuit court, to recover damages for injuries sustained by him in an attempt to board a moving train operated by the defendant. He obtained a verdict and judgment in the sum of $500, and the defendant appeals.

Glenns Creek is a station on the line of railroad operated by appellant company between Frankfort and Versailles. It is about five or six miles from Frankfort. Between Frankfort and Glenns Creek appellant operates a mixed train consisting of both freight and passenger cars. This train leaves Frankfort and proceeds to Glenns Creek, where it takes the siding to await the passing of a through train which goes on to Versailles.. When that train has passed, the Glenns Creek train goes out on the main line on

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

the Versailles side of the Glenns Creek de- | they did not see him making the attempt to pot, and then starts on its return trip to Frankfort.

get on.

The engineer testified that he saw plaintiff approaching the train as though it were his purpose to attempt to board it, but that, on account of its speed, he did not think plaintiff would make the attempt; that he watched plaintiff, saw him make the attempt, and saw him fall; that he then shut off the steam and applied the brakes, and at the same time some one back on the train “angle-cocked" him; that is, some one opened a valve which is a part of the system of air brakes, the effect of which was to apply the full force of the brakes immediately. This is done only in emergencies. It is very probable that the opening of this angle cock was the cause of the jerk which the witnesses experienced; at least none of them mentioned any second jerking.

On the morning of November 1, 1913, the through train was delayed, and the Glenns Creek train was compelled to remain on the siding about 20 minutes. While this train was on the siding, appellee went into the ticket office and purchased a ticket to Frankfort, and then, as he says, boarded the train. gave his ticket to the conductor, and took a seat therein with several other negroes, destined to Frankfort to attend a funeral. Appellee testified that after boarding the train he discovered that he had neglected to bring his purse with him; that he asked the conductor if he would have time to go to his home, a few hundred feet from the depot in the direction of Frankfort, and get his purse, and that the conductor informed him that they would wait for the passing of the Counsel for appellee argues that the engithrough train; that he thereupon left the neer doubtless believed that plaintiff was safetrain and went to his home. When he re-ly aboard, and turned and opened the throttle turned to the depot, the through train had passed, and the Glenns Creek train had backed out from the siding on to the main line and was proceeding in the direction of Frankfort. It proceeded about 700 feet, and passed the Glenns Creek depot without stopping. Will Patterson, a companion of appellee's boarded it as it passed; another companion of appellee's, Frank Jordan, who had purchased a ticket, was at the depot as it passed, but refrained from any attempt to board it. Appellee, in his attempt to do so, was thrown between the coaches, and the wheels of the train passed over his foot, rendering necessary the amputation of the leg just above the ankle. Plaintiff testified that just as he grasped the handrails of the coach of the passing train a violent jerk thereof caused him to lose his grip and to be thrown under the wheels of the train.

[1] Upon his own evidence, appellee failed to make out a case. One who attempts to board a moving train is not a passenger, though he may have purchased a ticket entitling him to passage thereon. Ill. Cent. R. R. v. Cotter, 103 S. W. 279, 31 Ky. Law Rep. 679. Appellee was in no different position from that occupied by one who has purchased a ticket and attempts to board a train in motion, notwithstanding he had once been on the train.

valve, thereby suddenly increasing the speed and causing the jerk; but there was but one jerk, so far as the record shows, and, in addition, the engineer had no occasion to believe that plaintiff was safely aboard, for he saw plaintiff thrown under the train and then applied the brakes. But, if it be assumed that, as counsel for appellee contends, the true version of the matter is that the engineer believed plaintiff was safely aboard and suddenly increased the speed of the train, thereby throwing plaintiff under the train, there could be no recovery by him, because the railroad company owed him no duty unless his peril was discovered by its servants in time to have averted his injury by the exercise of ordinary care. He was in no peril while he was standing alongside the track, nor until he jumped and fell under the train, and there is no contention that there was any failure on the part of the engineer to do all that could have been done to prevent the injury after appellee fell.

There being no actionable negligence in either state of case, the plaintiff could not recover. The trial court should have directed a verdict for the defendant. Judgment reversed.

CO.

(Court of Appeals of Kentucky. Oct. 29, 1915.)
MASTER AND SERVANT 222
SERVANT-ASSUMPTION OF RISK.

INJURY TO

[2] To one in his position the railroad com- WHITE v. LOUISVILLE GAS & ELECTRIC pany owed no duty except that which it owes to a trespasser; that is, upon discovery of his occupancy of a perilous position, to exercise ordinary care to avoid injury to him. But, it is contended by appellee, and admitted by the engineer, that the engineer saw plaintiff in the act of boarding the train. Plaintiff and his mother testified that the jerk of the train occurred just as he was in the act of boarding it. Other witnesses for plaintiff testified to a jerk of the train, but

A laborer directed by his foreman to remove a wooden horse from its position across a freshly cut ditch assumed the obvious risk of its caving in from his placing his weight too close to the edge.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 648-651; Dec. Dig. 222.]

Appeal from Circuit Court, Jefferson County, Common Pleas Branch, Third Division. Action by Henry White against the Louis-ter would scald the flesh if it came in contact