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to Pikeville on a certain day. Section 597 of 13. FRAUDULENT CONVEYANCES 241 - Acthe Civil Code is as follows: TIONS TO SET ASIDE-CONDITIONS PRECE

"A witness may be impeached by the party against whom he is produced, by contradictory evidence, by showing that he has made statements different from his present testimony, or by evidence that his general reputation for untruthfulness or immorality renders him unworthy of belief; but not by evidence of particular wrongful acts, except that it may be shown by the examination of a witness, or record of a judgment, that he has been convicted of felony."

There was no attempt to show, either by the witness himself or by the record of a judgment, that the witness had been convicted of false swearing. By the express provisions of the Code, and by the uniform decisions of this court, it is not proper to impeach a witness by evidence of, or inquiry as to, particular acts or crimes, nor is it proper to ask him whether or not he has been indicted or arrested for a particular offense. The only proper method of inquiry in regard to every offense is to ask him whether or not he has been convicted of a felony. Ashcraft v. Com., 60 S. W. 931, 22 Ky. Law. Rep. 1542; Powers v. Com., 110 Ky. 386, 61 S. W. 735, 63 S. W. 976, 22 Ky. Law Rep. 1807, 23 Ky. Law Rep. 146, 53 L. R. A. 245; Howard v. Com., 110 Ky. 356, 61 S. W. 756, 22 Ky. Law Rep. 1845; Com. v. Welch, 111 Ky. 530, 63 S. W. 984; Welsh v. Com., 60 S. W. 185, 948, 1118, 63 S. W. 984, 64 S. W. 262, 23 Ky. Law Rep. 151; Parker v. Com., 51 S. W. 573, 21 Ky. Law Rep. 406: Wilson v. Com., 64 S. W. 457, 23 Ky. Law Rep. 1044; Mitchell v. Com., 64 S. W. 751, 23 Ky. Law Rep. 1084; Pennington v. Com., 51 S. W. 818, 21 Ky. Law Rep. 542; Leslie v. Com., 42 S. W. 1095, 19 Ky. Law Rep. 1201; Baker v. Com., 106 Ky. 212, 50 S. W. 54, 20 Ky. Law Rep. 1778; Britton v. Com., 123 Ky. 411, 96 S. W. 556, 29 Ky. Law Rep. 857; Hayden v. Com., 140 Ky. 634, 131 S. W. 521.

DENT.

Under Ky. St. 1915, § 1907a, declaring that it shall be lawful for any person aggrieved, when realty has been fraudulently conveyed, to file in a court having jurisdiction a petition against the parties to such transfer, and when done a lis pendens shall be created on the property so described while the suit shall progress and be determined as other suits in equity, it is unnecessary that execution against the debtor who transferred the property be returned unsatisfied, or that an attachment be attempted.

[Ed. Note.-For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 694, 696-726; Dec. Dig. 241.]

Appeal from Circuit Court, Pike County. Suit by Matilda Morris against Tilden Williamson, who counterclaimed. From a judgment for plaintiff, defendant appeals. Reversed, with directions.

J. S. Cline, of Pikeville, for appellant. J. J. Moore and R. H. Cooper, both of Pikeville, for appellee.

TURNER, J. In August, 1900, W. T. Charles and wife conveyed to K. B. Morris and Matilda Morris, his wife, jointly, a tract of land in Pike county, and they continued to be the owners thereof until September, 1909, when K. B. Morris conveyed his interest in the land to his wife, the appellee, Matilda Morris. Prior to that time, however, and in 1997, K. B. Morris sold to appellant, Tilden Williamson, 11 walnut trees on the tract of land and received the money therefor. After the conveyance After the conveyance of September, 1909, to his wife, and in about 1910 or 1911, K. B. Morris cut and sold the 11 walnut trees sold to Williamson in 1907 and received the money therefor. About the 1st of January, 1913, appellant, Williamson, instituted an action in the Pike quarterly court against K. B. Morris for the value of the trees so appropriated by him, and on or about the 22d of January, 1913, recovered in that court a judgment against him on that account for $75 and his costs. An execution thereon was issued from the quarterly court and returned no property found, whereupon appellant secured a transcript, filed the same in the office of the circuit clerk, and had issued therefrom another execution, which was levied on the land as the property of K. B. Morris. A sale was had of the Morris land under this execution, and appellant became the purchaser at the amount of his debt, interest, and cost, which was less than two-thirds of the appraised value. While the deed of September, 1909, from K. B. Morris to his wife is shown by the evidence to have been executUnder Ky. St. 1915, § 1906, declaring ed by him and delivered to her at the time that every gift, conveyance, or transfer of land made with intent to delay, hinder, or defraud it bears date, it was not lodged for record or creditors shall be void, a conveyance made with recorded until the 21st day of January, 1913, intent to hinder subsequent creditors is void a short time after the institution of the suit and may be set aside.

Judgment reversed, and cause remanded for proceedings consistent with this opinion.

WILLIAMSON v. MORRIS. (Court of Appeals of Kentucky. Oct. 15, 1915.) 1. FRAUDULENT CONVEYANCES 299

Ac

TIONS-EVIDENCE-SUFFICIENCY. Evidence held to show that a conveyance by a husband of his land to his wife was in

fraud of creditors.

[Ed. Note.-For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 876-890; Dec. Dig. *mm 299.]

2. FRAUDULENT CONVEYANCES ARE-STATUTES.

208-WHAT

[Ed. Note.-For other cases, see Fraudulent by Williamson against K. B. Morris, and only Conveyances, Cent. Dig. §§ 631, 633; Dec. one day before he recovered a judgment in Dig.208.] that action. This is an equitable action by

Matilda Morris against Williamson and the [ of the conveyance in September, 1909, to his sheriff to cancel and set aside the execution wife to defraud appellant by appropriating sale and to enjoin the sheriff from making his timber, yet it is apparent from the eviWilliamson a deed thereunder, and to quiet dence that he at that time had it in mind her title to the land as against any claim and made the conveyance with a fraudulent of Williamson. Williamson made his answer design to avoid the payment of obligations in the action a counterclaim against the which he feared would come upon him under plaintiff, and prayed that the deed of 1909 existing contracts. Section 1906, Carroll's from K. B. Morris to his wife be declared 1915 Ed. Ky. St. provides: fraudulent, and that said land be subjected to the payment of his debt. The lower court in its judgment set aside the execution sale and quieted the title of the plaintiff against any claim of Williamson by reason thereof, and Williamson has appealed.

[1, 2] It is unnecessary to determine, for the purposes of this case, whether Williamson

"Every gift, conveyance, assignment or transfer of, or charge upon, any estate, real or personal, or right or thing in action, or any rent or profit thereof, made with the intent to delay, hinder or defraud creditors, purchasers or other persons, and every bond, or other evidence of debt given, action commenced, or judgment suffered, with like intent, shall be void, as against such creditors, purchasers and other persons."

[3] This act has been held to apply where the conveyance has been made with a fraudulent design to defraud subsequent purchasers and creditors, as well as pre-existing creditors. Section 1907a of the same statute provides:

was, at the time of the conveyance in September, 1909, from K. B. Morris to his wife, an existing creditor of Morris, although he at the time owned the 11 walnut trees which were standing on the land, but which were not actually appropriated by Morris until after the conveyance; for a conveyance actually fraudulent is void as to subsequent purchasers for value just as it is as to pre-file, in a court having jurisdiction of the subexisting creditors.

"That hereafter in this commonwealth it shall be lawful for any party who may be aggrieved thereby, when any real property has been fraudulently conveyed, transferred or mortgaged, to

Prior to the enactment of this last statute in 1896, it was held that a return of “no property" or an attachment was necessary before a creditor might subject real estate to his demand, but under its provisions he may now acquire a lis pendens in the manner there indicated.

ject-matter, a petition in equity against the Every fact and circumstance in the record parties to such fraudulent transfer or conveyshows that there was a fraudulent intent up- ance or mortgage, or their representatives or on the part of Morris when he made the con- heirs, alleging therein the facts showing their right of action and alleging such fraud, or the veyance to his wife to defraud his creditors; facts constituting it, and describing such prophe was at the time only 44 years of age and erty, and when done a lis pendens shall be crea reasonably active. man; no reason is ated upon the property so described, and said shown why he should suddenly have convey-suits in equity, and as though it had been suit shall progress and be determined as other ed his property to his wife, except that he brought on a return of nulla bona, as has herehad made some timber contracts which he tofore been required." feared would get him in trouble, and the evidence of at least two or three witnesses shows that he had in mind the design to defeat future obligations which he feared would come upon him by reason of the existing timber contracts. The deed to his wife recites a consideration of $5 and love and affection, and there is no pretense that she paid anything more than this for the land. The evidence is that since that conveyance he has continued to manage and control the farm just as he did before, and that they have actually received since that time something like $5,000 from the sale of timber off of this land, a large part of which was paid to K. B. Morris himself. While K. B. Morris may not have had it in his mind at the time

Under the circumstances of this case the wife will be deemed to have been a privy to the fraudulent intent of her husband and will be bound thereby.

It is apparent that appellant acquired a lien on the one-half undivided interest of K. B. Morris in the land, which he was entitled to have enforced under his counterclaim.

The judgment is reversed, with directions to enter a judgment as herein indicated.

LOUISVILLE & N. R. CO. v. STOKES'
ADM'X.

(Court of Appeals of Kentucky. Oct. 12, 1915.)
CARRIERS 347-INJURY TO PASSENGER-
NEGLIGENCE-QUESTION FOR JURY.

In an action against a railroad for death of a passenger killed while attempting to leave a train in motion, evidence on the point of defendant's negligence after its servants had discovered decedent's position of peril held insufficient to take the case to the jury.

[Ed. Note. For other cases, see Carriers, Cent. Dig. §§ 1346, 1350-1386, 1388-1397, 1402; Dec. Dig. 347.]

Appeal from Circuit Court, Hopkins County.

Action by James D. Stokes' administratrix against the Louisville & Nashville Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed.

Laffoon & Waddill, of Madisonville, and Benjamin D. Warfield, of Louisville, for appellant. Gordon & Gordon & Cox, of Madisonville, V. Y. Moore, of Marion, and Fox & Powell, of Madisonville, for appellee.

CLAY, C. On January 18, 1913, James D. Stokes was struck and killed by a train owned and operated by the Louisville & Nashville Railroad Company. In this action by his administratrix to recover damages for his death there was a verdict and judgment in favor of the plaintiff for $5,000. The railroad company appeals.

It is not insisted that the defendant owed the decedent the duty of using ordinary care to discover his peril, or that his peril could have been discovered sooner than it was by the exercise of ordinary care. The only ground on which the case was submitted to the jury was the failure of the defendant, its agents and servants, to use ordinary care to avoid injuring the decedent after his peril was discovered. Defendant insists that the trial court erred in refusing it a peremptory instruction. The question turns on whether or not there was sufficient evidence to take the case to the jury.

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Plaintiff relies on the following evidence: The two rear coaches and the space between them measured 125 feet. Plaintiff was not struck by the front trucks of the ladies' coach, but fell around them on the concrete and rolled towards the train. Riordan, the engineer, says that he had his hand on the throttle or brake valve when he received a signal by the bell cord and stopped the train within about 10 or 12 feet. Jones, the porter, said that he presumed the signal from the conductor went immediately to the engineer; that the train could have been stopped by service application of the air brakes in about 10 feet. Bohon, another witness, stated that the signal by means of the whistle cord was transmitted instantaneously, and that the engineer, after receiving the signal, ought to stop the train in about 8 or 10 feet. Canstler, who had had some experience in the railroading, said that the time necessary to transmit the signal by means of the bell cord was so short he did not know how to express it. It further appears that the conductor was just mounting the steps of the combination coach when the decedent fell and he saw decedent fall.

J. T. Smith testifies as follows:

"Q. Describe to the jury what happened to him after he fell in that position. A. The train passed on over him, and when the springs would pass over him they would sorter catch in his coat and sorter jump him up, and he would fall back, and when the last coach went over him that doubled him up. Q. When the springs or the parts of the car that extended towards the concrete would pass over him, it would brush his coat? A. Brush his coat up a little. Q. And when the hind end of the last coach passed over him it doubled him up? A. Yes, sir. Q. Mashed him over? A. Yes, sir; doubled him over."

Yateman Cox, appellant's flagman, testifies as follows:

"Q. Where were you at the time of this occurrence? Tell the jury what you heard and saw concerning that matter. A. I was on the rear platform of the train. Q. Let this repreThe accident occurred at 6:20 p. m. at sent the train. (Attorney places some books on the floor to represent the train.) A. I was the Madisonville station. A concrete plat-standing on the rear end of the platform form extends along the entire front of the taking down my markers, when I first noticstation building. The platform is 111⁄2 inch- ed the accident. The car bumped like it had es higher than the track, and is 23 inches run over a stick or broken rail. I was leaning back taking my markers down to change from from the edge of the innermost rail. The this car to this one on account of switching this train which struck decedent consisted of an car off by the ice plant. car off by the ice plant. When I heard the engine and tender, baggage car, combination noise I was in such a position I could not lookcar, ladies' coach, and another car known as a like this (indicating)—and I had to turn around, and when I turned around I noticed a man lying "miners' rescue car." The coaches were on the track. Q. You did not see Mr. Stokes about 60 feet in length. The train started falling? A. No, sir. Q. The first you knew of for the purpose of setting out the "miners' his falling the rear wheel of the mine rescue car rescue car." The decedent was standing on ran over some substance? A. Yes, sir." the steps of the ladies' coach, the second coach from the rear. While the train was going at the rate of about 5 or 6 miles an hour, he stepped off with his "left foot back

Cox further testified that the train stopped in about 8 feet after he heard the signal.

For the defendant the conductor testifies that he was on the station platform when

decedent fell. It took him eight or ten sec- | him between the rail and the concrete so onds to get from the platform to the plat-that his body would not come in contact with form of the car. It took an interval of from some part of the car. All that the witness one to two seconds between the pull of the Smith says may be true, and yet the decord to give the signal properly. He gave the cedent may have been seriously injured by signal as soon as he could. parts of the car other than the rear trucks

There is evidence pro and con as to wheth- of the last car. Unfortunately, too, men do er or not decedent was intoxicated.

not think and act in an emergency with the From the above facts the following argu- same dispatch with which others, in their ment is made by plaintiff: The evidence calmer moments and who are free from the shows that decedent was not injured until excitement of the occasion, think they should struck by the rear trucks of the last car. have acted. It necessarily took some time These trucks were 117 feet from the place for the decedent to fall to the concrete and where decedent fell. The train was going roll under the train. It took some time for about 5 miles an hour, or 7% feet per second. the conductor to realize and appreciate the An interval of 1521/22 seconds elapsed be- peril in which he was thus placed. It took tween the time decedent's peril was discovered some time for him to decide on what was and his injuries were inflicted. In view of the best to be done. It took further time for evidence to the effect that it would require him to mount the steps and reach the bell but a second or two for the conductor to cord. It took further time for him to give reach the platform, another second or two to the proper signal to the engineer. It took pull the bell cord, and another second or two further time for the engineer to think and for the engineer to stop the train, it is act. It took further time for the train to claimed that the evidence shows the con- stop after the engineer had acted. It seems ductor was guilty of negligence in not sooner to us, therefore, that the statements of the transmitting the stop signal. The difficulty witnesses that a particular thing could have with this argument is that it grows out of been done instantaneously, or another thing the assumption that the evidence of Smith in a second or two, or that the train could and Cox was sufficient to show that the de- have been stopped in from 8 to 10 feet, are cedent was injured by the rear trucks of the mere speculations, based on what might train, and that men in an emergency think have possibly happened if all the participants and act almost instantaneously. Cox's evi- were apprised before hand what would take dence merely tends to show that the decedent place, and the verdict of the jury, founded was struck by the trucks of the last car. on such statements, is mere guesswork. NeiIt does not tend to show that he had not ther courts nor juries are authorized to inbeen previously struck by that car or the dulge in speculation or guesswork as to the one preceding. Smith says that when the cause of accidents. To authorize a recovery springs would pass over decedent "they would there must be some tangible evidence from sorter catch in his coat and sorter jump him which it may be fairly inferred that the deup, and he would fall back, and when the fendant was guilty of negligence, and that last coach went over him that doubled him such negligence was the proximate cause of up." the injury. If the injury may as reasonably be attributed to a cause that will excuse the defendant as to a cause that will subject him to liability, then the well-settled rule is that a recovery cannot be had. Stuart v. N. C. & St. L. Ry., 146 Ky. 127, 142 S. W. 232; Weidekamp v. L. & N. R. R. Co., 159 Ky. 674, 167 S. W. 882; Osborne's Adm'r v. C., N. O. & T. P. Ry., 158 Ky. 176, 164 S. W. 818; L. & N. R. R. Co. v. Stayton's Adm'r, 163 Ky. 760, 174 S. W. 1104.

In reply to the suggestive question, "When the springs or the parts of the car that extended towards the concrete would pass over him it would brush his coat?" he said, "Brush his coat up a little." It is manifest that this evidence does not possess the quality of proof. It is not sufficient to induce conviction. It by no means follows that, because the parts of the train "jumped him up" or "brushed his coat up a little," the contact of the train with decedent's body was not sufficient to injure him. Here the decedent fell on the concrete. He rolled in between the concrete and the track. Being a man, it was practically impossible to place

In our opinion, the trial court should have directed a verdict in favor of the defendant. Judgment reversed, and cause remanded for a new trial consistent with this opinion.

influenced or not, its conduct was improper, and

LIVERPOOL & LONDON & GLOBE INS. a verdict in favor of such attorney's client should

CO. v. WRIGHT et al.

(Court of Appeals of Kentucky. Oct. 13, 1915.) 1. JUDGMENT 559-RES JUDICATA-CRIMINAL JUDGMENT.

be set aside.

[Ed. Note.-For other cases, see New Trial, Cent. Dig. §§ 97-99; Dec. Dig. 49.]

Appeal from Circuit Court, Graves County. In plaintiffs' suit on a fire policy, defend- Action by B. W. Wright and another ants pleaded that the fire was willfully set by against the Liverpool & London & Globe Inone of the plaintiffs. Judgment for the plain-surance Company, consolidated with actions tiffs was reversed, but subsequently one of them was convicted of having set fire to the building. Defendants on the second trial sought to amend the answers to show the conviction as res judicata. Held, that the motion was proper ly denied, because defendants were not entitled to rely upon a judgment to which they were not parties, and upon which estoppel was not mutual, as a bar, and, since defendants would not be estopped by acquittal, the plaintiff could not be estopped by conviction.

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29-GROUNDS-MISCONDUCT OF COUNSEL-STATEMENTS OUTSIDE RECORD. Statements of counsel which are not supported by the record and are palpably intended to improperly influence the jury are prejudicial, and verdict thereafter rendered in his client's favor should be set aside.

[Ed. Note. For other cases, see New Trial, Cent. Dig. §§ 43, 44; Dec. Dig. 29.]

by the same plaintiffs against the Old Colony Fire Insurance Company, against the Citizens' Fire Insurance Company, and against the People's National Fire Insurance Company. Judgment was for plaintiffs, and defendants moved for a new trial, which was denied, and they appeal. Reversed.

M. B. Holifield and Bunk Gardner, both of Mayfield, and Leslie Hindman, of Clinton, for appellants. W. J. Webb and Robbins & Thomas, all of Mayfield, and Sea & Via, of Clinton, for appellees.

HURT, J. The appellees, B. W. Wright and V. E. Allen, were partners, and engaged in the business of buying, prizing, and selling tobacco, in Mayfield, Ky., under the firm name and style of B. W. Wright, and, as such, occupied for the purposes of their business a barn, which was the property of G. R. Allen and W. A. Usher. The appellants, Liverpool & London & Globe Insurance Company, Old Colony Fire Insurance Company, Ctizens' Fire Insurance Company, and People's National Fire Insurance Company, each issued to the firm of B. W. Wright a policy of insurance upon the tobacco in the barn, insuring it against destruction or damage by fire. The owners of the barn also carried insurance against damage from fire upon the barn, but in what companies it does not apThe barn and the greater part of its contents were consumed by fire, and thereafter, the appellants having declined to pay the losses on account of the destruction of and damages by fire to the tobacco, the appellees filed a suit against each of them to recover the damages which were insured against by reason of the policies. A separate suit was filed against each of the appellants, and answers and other pleadings were filed in each of the cases until the issues were made. Each of the answers presented substantially the same defense against a recovery. The defense relied upon was the allegation that the appellees had willfully set fire to the barn and the stock of tobacco which was contained in it and caused the barn and tobacco to be burned, for the fraudulent purpose of collecting the insurance carried upon the tobacco. This defense was controverted

7. NEW TRIAL 49-GROUNDS-MISCONDUCT by reply in each case. Thereafter the four OF JURY COMMUNICATION WITH JURY TREATING JURY.

suits were consolidated and tried at the The jury in a civil action was placed in same time and before the same jury. The the custody of an officer. During the trial he trial resulted in a disagreement of the jury and the jurymen procured whisky from the at- and a continuance of the case. At a subsetorney of one of the parties. Members of the jury also talked in private with the same attor- quent trial the jury returned a verdict ney. Held that, whether the jury was actually against the appellants for a portion of the

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

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