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Ky.)

WILLIAMSON v, MORRIS

45

to Pikeville on a certain day. Section 597 of 3. FRAUDULENT CONVEYANCES 241 - ACthe Civil Code is as follows:

TIONS TO SET ASIDE_CONDITIONS PRECE

DENT. "A witness may be impeached by the party Under Ky. St. 1915, 8 1907a, declaring against whom he is produced, by contradictory that it shall be lawful for any person aggrieved, evidence, by showing that he has made state when realty has been fraudulently conveyed, ments different from his present testimony, or to file in a court having jurisdiction a petition by evidence that his general reputation for un- against the parties to such transfer, and when truthfulness or immorality renders him un- done a lis pendens shall be created on the propworthy of belief; but not by evidence of par. erty so described while the suit shall progress ticular wrongful' acts, except that it may be and be determined as other suits in equity, it shown by the examination of a witness, or is unnecessary that execution against the debtor record of a judgment, that he has been convicted who transferred the property be returned unsatof felony.”

isfied, or that an attachment be attempted. There was no attempt to show, either by [Ed. Note. For other cases, see Fraudulent the witness himself or by the record of a Conveyances, Cent. Dig. $$ 694, 696–726; Dec. judgment, that the witness had been convict- Dig. Oww241.] ed of false swearing. By the express provi- Appeal from Circuit Court, Pike County. sions of the Code, and by the uniform deci- Suit by Matilda Morris against Tilden Wilsions of this court, it is not proper to im- liamson, who counterclaimed. From a judgpeach a witness by evidence of, or inquiry ment for plaintiff, defendant appeals. as to, particular acts or crimes, nor is it prop- versed, with directions. er to ask him whether or not he has been in

J. S. Cline, of Pikeville, for appellant. J. dicted or arrested for a particular offense. J. Moore and R. H. Cooper, both of Pikeville, The only proper method of inquiry in regard for appellee. to every offense is to ask him whether or not he has been convicted of a felony. Ashcraft

TURNER, J. In August, 1900, W. T. v. Com., 60 S. W.931, 22 Ky. Law. Rep. 1542; Charles and wife conveyed to K. B. Morris Powers v. Com., 110 Ky. 386, 61 S. W. 735, and Matilda Morris, his wife, jointly, a tract 63 S. W. 976, 22 Ky. Law Rep. 1807, 23 Ky. of land in Pike county, and they continued Law Rep. 146, 53 L. R. A. 245; Howard v. to be the owners thereof until September, Com., 110 Ky. 356, 61 S. W. 756, 22 Ky. Law 1909, when K. B. Morris conveyed his interRep. 1845; Com. v. Welch, 111 Ky. 530, 63 est in the land to his wife, the appellee, MaS. W. 984; ,

Welsh v. Com., 60 S. W. 185, tilda Morris. Prior to that time, however, 948, 1118, 63 S. W. 984, 64 S. W. 262, 23 Ky. and in 1997, K. B. Morris sold to appellant, Law Rep. 151; Parker v. Com., 51 S. W. 573, Tilden Williamson, 11 walnut trees on the 21 Ky. Law Rep. 406; Wilson v. Com., 64 S. tract of land and received the money thereW. 457, 23 Ky. Law Rep. 1044; Mitchell v. for. After the conveyance of September, Com., 64 S. W. 751, 23 Ky. Law Rep. 1084; 1909, to his wife, and in about 1910 or 1911, Pennington v. Com., 51 S. W. 818, 21 Ky. K. B. Morris cut and sold the 11 walnut trees Law Rep. 542; Leslie v. Com., 42 S. W. 1095, sold to Williamson in 1907 and received the 19 Ky. Law Rep. 1201 ; Baker v. Com., 106 money therefor. About the 1st of January, Ky. 212, 50 S. W. 54, 20 Ky. Law Rep. 1778; 1913, appellant, Williamson, instituted an acBritton v. Com., 123 Ky. 411, 96 S. W. 556, tion in the Pike quarterly court against K. 29 Ky. Law Rep. 857; Hayden v. Com., 140 B. Morris for the value of the trees so approKy. 634, 131 S. W. 521.

priated by him, and on or about the 22d of Judgment reversed, and cause remanded January, 1913, recovered in that court a for proceedings consistent with this opinion. 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 seWILLIAMSON V. MORRIS.

cured a transcript, filed the same in the office (Court of Appeals of Kentucky. Oct. 15, 1915.) of the circuit clerk, and had issued therefrom 1. FRAUDULENT CONVEYANCES C299 - AC

another execution, which was levied on the TIONS--EVIDENCE-SUFFICIENCY.

land as the property of K. B. Morris. A Evidence held to show that a conveyance sale was had of the Morris land under this by a husband of his land to his wife was in execution, and appellant became the purchasfraud of creditors.

[Ed. Note.-For other cases, see Fraudulent er at the amount of his debt, interest, and Conveyances, Cent. Dig. 88 876–890 ; Dec. Diy. cost, which was less than two-thirds of the Om 299.]

appraised value. While the deed of Sep2. FRAUDULENT CONVEYANCES Ow208—WHAT tember, 1909, from K. B. Morris to his wife ARE-STATUTES.

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.

[Ed. Note.-For other cases, see Fraudulent by Williamson against K. B. Morris, and only Conveyances, Cent. Dig. 88 631, 633; Dec. one day before he recovered a judgment in Dig. Om 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 "Every gift, conveyance, assignment or transto the payment of his debt. The lower court fer of, or charge upon, any estate, real or perin its judgment set aside the execution sale or profit thereof, made with the intent to delay,

sonal, or right or thing in action, or any rent and quieted the title of the plaintiff against hinder or defraud creditors, purchasers or other any claim of Williamson by reason thereof, persons, and every bond, or other evidence of and Williamson has appealed.

debt given, action commenced, or judgment suf[1, 2] It is unnecessary to determine, for fered, with like intent, shall be void, as against

such creditors, purchasers and other persons." the purposes of this case, whether Williamson

[3] This act has been held to apply where was, at the time of the conveyance in Sep- the conveyance has been made with a fraudtember, 1909, from K. B. Morris to his wife, ulent design to defraud subsequent purchasan existing creditor of Morris, although he at the time owned the 11 walnut trees which ers and creditors, as well as pre-existing

creditors. Section 1907a of the same statwere standing on the land, but which were

ute provides: not actually appropriated by Morris until

“That hereafter in this commonwealth it shall after the conveyance; for a conveyance ac- be lawful for any party who may be aggrieved tually fraudulent is void as to subsequent thereby, when any real property has been fraudpurchasers for value just as it is as to pre- ulently conveyed, transferred or mortgaged, to existing creditors.

file, in a court having jurisdiction of the sub

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 veyance to his wife to defraud his creditors; facts constituting it, and describing such prop

right of action and alleging such fraud, or the he 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 evi Prior to the enactment of this last statute dence of at least two or three witnesses in 1896, it was held that a return of “no shows that he had in mind the design to de- property” or an attachment was necessary feat future obligations which he feared before a creditor might subject real estate would come upon him by reason of the exist- to his demand, but under its provisions he ing timber contracts. The deed to his wife may now acquire a lis pendens in the manner recites a consideration of $5 and love and there indicated. affection, and there is no pretense that she Under the circumstances of this case the paid anything more than this for the land. wife will be deemed to have been a privy to The evidence is that since that conveyance the fraudulent intent of her husband and he has continued to manage and control the will be bound thereby. farm just as he did before, and that they It is apparent that appellant acquired a have actually received since that time some- lien on the one-half undivided interest of K. thing like $5,000 from the sale of timber off B. Morris in the land, which he was entitled of this land, a large part of which was paid to have enforced under his counterclaim. to K. B. Morris himself. While K. B. Morris The judgment is reversed, with directions may not have had it in his mind at the time to enter a judgment as herein indicated.

Ky.)

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

47

ward.” He fell with his head towards the LOUISVILLE & N. R. CO. V. STOKES' north, and rolled from the concrete into the ADM’X.

place between it and the rail. The record (Court of Appeals of Kentucky. Oct. 12, 1915.) is silent as to the nature of his wounds. He

lived but a short time. CARRIERS 347-INJURY TO PASSENGERNEGLIGENCE-QUESTION FOR JURY.

Plaintiff relies on the following' evidence: In an action against a railroad for death of The two rear coaches and the space between a passenger killed while attempting to leave a them measured 125 feet. Plaintiff was not train in motion, evidence on the point of defend- struck by the front trucks of the ladies' ant's negligence after its servants had discovered coach, but fell around them on the concrete decedent's position of peril held insufficient to take the case to the jury.

and rolled towards the train. Riordan, the [Ed. Note.-For other cases, see Carriers, engineer, says that he had his hand on the Cent. Dig. $$ 1346, 1350–1386, 1388-1397, 1402; throttle or brake valve when he received a Dec. Dig. Om 347.]

signal by the bell cord and stopped the train Appeal from Circuit Court, Hopkins

within about 10 or 12 feet. Jones, the porCounty.

ter, said that he presumed the signal from Action by James D. Stokes' administratrix the conductor went immediately to the engiagainst the Louisville & Nashville Railroad neer; that the train could have been stopped Company. Judgment for plaintiff, and de- by service application of the air brakes in fendant appeals. Reversed.

about 10 feet. Bohon, another witness, stat

ed that the signal by means of the whistle Laffoon & Waddill, of Madisonville, and cord was transmitted instantaneously, and Benjamin D. Warfield, of Louisville, for ap- that the engineer, after receiving the signal, pellant. Gordon & Gordon & Cox, of Madi- ought to stop the train in about 8 or 10 feet. sonville, V. Y. Moore, of Marion, and Fox & Canstler, who had had some experience in Powell, of Madisonville, for appellee. the railroading, said that the time necessary

to transmit the signal by means of the bell CLAY, C. On January 18, 1913, James D. cord was so short he did not know how to Stokes was struck and killed by a train own- express it. It further appears that the coned and operated by the Louisville & Nash- ductor was just mounting the steps of the ville Railroad Company. In this action by combination coach when the decedent fell his administratrix to recover damages for and he saw decedent fall. his death there was a verdict and judgment

J. T. Smith testifies as follows: in favor of the plaintiff for $5,000. The rail

“Q. Describe to the jury what happened to road company appeals.

him after he fell in that position. A. The train

passed on over him, and when the springs would It is not insisted that the defendant owed pass over him they would sorter catch in his coat the decedent the duty of using ordinary care and sorter jump him up, and he would fall back, to discover his peril, or that his peril could and when the last coach went over him that have been discovered sooner than it was by parts of the car that extended towards the con

doubled him up. Q. When the springs or the the exercise of ordinary care. The only crete would pass over him, it would brush his ground on which the case was submitted to coat? A. Brush his coat up a little. Q. And the jury was the failure of the defendant, when the hind end of the last coach passed over its agents and servants, to use ordinary care ed him over? A. Yes, sir; doubled him over.”

him it doubled him up? A. Yes, sir. Q. Mashto avoid injuring the decedent after his peril was discovered. Defendant insists that

Yateman Cox, appellant's flagman, testithe trial court erred in refusing it a peremp

fies as follows: The question turns on tory instruction.

"Q. Where were you at the time of this oc

currence? Tell the jury what you heard and whether or not there was sufficient evidence saw concerning that matter. A. I was on the to take the case to the jury.

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 Madisonville station. A concrete plat

the floor to represent the train.) A. I was form extends along the entire front of the taking down my markers, when I first notic

standing on the rear end of the platform station building. The platform is 1112 inched 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 from the edge of the innermost rail.

back taking my markers down to change from The

this car to this one on account of switching this train which struck decedent consisted of an 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 look-car, ladies' coach, and another car known as a like this (indicating)—and I had to turn around, "miners' rescue car." The coaches were

and when I turned around I noticed a man lying

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 Cox further testified that the train stopcoach from the rear. While the train was ped in about 8 feet after he heard the signal. going at the rate of about 5 or 6 miles an For the defendant the conductor testifies hour, he stepped off with his “left foot back- 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 743 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. 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

In reply to the suggestive question, the injury. If the injury may as reasonably “When the springs or the parts of the car be attributed to a cause that will excuse the that extended towards the concrete would defendant as to a cause that will subject pass over him it would brush his coat?" he him to liability, then the well-settled rule is said, “Brush his coat up a little.” It is man- that a recovery cannot be had. Stuart v. ifest that this evidence does not possess the N. C. & St. L. Ry., 146 Ky. 127, 142 S. W. 232; quality of proof. It is not sufficient to in- Weidekamp v. L. & N. R. R. Co., 159 Ky. duce conviction. It by no means follows 674, 167 S. W. 882; Osborne's Adm'r v. C., that, because the parts of the train "jumped N. 0. & T. P. Ry., 158 Ky. 176, 164 S. W. him up" or "brushed his coat up a little,” 818; L. & N. R. R. Co. v. Stayton's Adm'r, the contact of the train with decedent's body 163 Ky. 760, 174 S. W. 1104. was not sufficient to injure him. Here the In our opinion, the trial court should have decedent fell on the concrete. He rolled in directed a verdict in favor of the defendant. between the concrete and the track. Being a Judgment reversed, and cause remanded man, it was practically impossible to place for a new trial consistent with this opinion.

up."

Ky.)

LIVERPOOL & LONDON & GLOBE INS. CO. v. WRIGHT

49

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.

be set aside.

[Ed. Note. For other cases, see New Trial, (Court of Appeals of Kentucky. Oct. 13, 1915.) Cent. Dig. 88 97–99; Dec. Dig. Om49.] 1. JUDGMENT Om 559-RES JUDICATA-CRIMINAL JUDGMENT.

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 plaintiffs was reversed, but subsequently one of surance Company, consolidated with actions them was convicted of having set fire to the by the same plaintiffs against the Old Colony building. Defendants on the second trial sought Fire Insurance Company, against the Citito amend the answers to show the conviction as zens' Fire Insurance Company, and against res judicata. Held, that the motion was proper; the People's National Fire Insurance Comly denied, because defendants were not entitled to rely upon a judgment to which they were not pany. Judgment was for plaintiffs, and departies, and upon which estoppel was not mu- fendants moved for a new trial, which was tual, as a bar, and, since defendants would not denied, and they appeal. Reversed. be estopped by acquittal, the plaintiff could not be estopped by conviction.

M. B. Holifield and Bunk Gardner, both of [Ed. Note. -For other cases, see Judgment, Mayfield, and Leslie Hindman, of Clinton, Cent. Dig. $$ 1077, 1078; Dec. Dig. Om559.)

for appellants. W. J. Webb and Robbins & 2. WITNESSES O345 – IMPEACHMENT – CON- Thomas, all of Mayfield, and Sea & Via, of VICTION OF FELONY.

Clinton, for appellees. Conviction of plaintiff for having fired a building may be offered in evidence in an action on an insurance policy on the building to impeach

HURT, J. The appellees, B. W. Wright his testimony.

and V. E. Allen, were partners, and engaged [Ed. Note. For other cases, see Witnesses, in the business of buying, prizing, and sellCent. Dig. S$ 1126–1128; Dec. Dig. Om345.]

ing tobacco, in Mayfield, Ky., under the firm 3. NEW TRIAL 100 - NEWLY DISCOVERED name and style of B. W. Wright, and, as EVIDENCE-DILIGENCE.

Where a defendant knew of evidence which such, occupied for the purposes of their busimight have been given and failed to produce the ness a barn, which was the property of G. witness solely because he said he would not testify R. Allen and W. A. Usher. The appellants, because it would tend to incriminate himself, he Liverpool & London & Globe Insurance Comis not entitled to a new trial on the ground of pany, old Colony Fire Insurance Company, newly discovered evidence..

[Ed. Note. For other cases, see New Trial. Ctizens' Fire Insurance Company, and PeoCent. Dig. 88 183, 201-204, 205, 209; Dec. Dig? ple's National Fire Insurance Company, each On 100.]

issued to the firm of B. W. Wright a policy 4. EVIDENCE 577 EVIDENCE AT FORMER of insurance upon the tobacco in the barn, TRIAL-FOUNDATION FOR ADMISSION.

insuring it against destruction or damage by It is error to permit the reading of the fire. The owners of the barn also carried intranscript of material evidence given at a former trial, when there is nothing to show that the surance against damage from fire upon the witness whose testimony is read cannot be pro- barn, but in what companies it does not apduced.

pear. The barn and the greater part of its [Ed. Note. For other cases, see Evidence, contents were consumed by fire, and thereCent. Dig. $ 2406; Dec. Dig. 577.]

after, the appellants having declined to pay 5. WITNESSES 379 - IMPEACHMENT - CON- the losses on account of the destruction of

TRADICTORY STATEMENTS—RULINGS-RECEP-
TION OF EVIDENCE.

and damages by fire to the tobacco, the appelQuestions asked a witness as to statements lees filed a suit against each of them to rehe was alleged to have made out of court in con- cover the damages which were insured against flict with his testimony were improperly exclud- by reason of the policies. A separate suit was ed, since the other party was entitled to im- filed against each of the appellants, and anpeach his credibility by that method.

[Ed. Note.-For other cases, see Witnesses, swers and other pleadings were filed in each Cent. Dig. $$ 1209, 1220-1222, 1247-1256; Dec. of the cases until the issues were made. Dig. Cum 379.]

Each of the answers presented substantially 6. NEW TRIAL Om29—GROUNDS-MISCONDUCT the same defense against a recovery. The

OF COUNSEL-STATEMENTS OUTSIDE RECORD. defense relied upon was the allegation that ported by the record and are palpably intended the appellees had willfully set fire to the to improperly influence the jury are prejudicial, barn and the stock of tobacco which was and verdict thereafter rendered in his client's fa- contained in it and caused the barn and tovor should be set aside.

bacco to be burned, for the fraudulent pur[Ed. Note.- For other cases, see New Trial, pose of collecting the insurance carried upon Cent, Dig. $$ 43, 44; Dec. Dig. Omw29.]

the tobacco. This defense was controverted 7. New TRIAL Cw49-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 d against the appellants for a portion of the

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

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