SCOTT v. KIRTLEY. (Court of Appeals of Kentucky. Nov. 16, 1915.) 1. JURY 13-RIGHT TO TRIAL BY-EQUITA

BLE ACTION.

In an action by the owner to cancel a lien which defendant contractor was attempting to assert on a house he had repaired, the owner claiming that the work of reconstruction had been defectively done, damaging him, the contractor was entitled to a jury trial on the issue as to whether or not there was anything due him under the contract, since, as his right of action did not depend altogether on the mechanic's lien statute, he having an independent cause of action arising out of his contract with the owner, he had the right to a jury trial at common law.

tiff. On final hearing, the chancellor adjudged that defendant was not entitled to a lien on the property, and judgment was entered accordingly. Defendant appeals.

There

[1, 2] Defendant's chief complaint is that the trial court erred in refusing to transfer the case for trial by a jury of the disputed questions of fact. This precise question was before this court in the case of Carder & Vallandingham v. Weisenburgh, 95 Ky. 135, 23 S. W. 964, 15 Ky. Law Rep. 497. Weisenburgh, a contractor who had repaired and remodeled a flouring mill belonging to appellants, sought to enforce a lien on the mill for the contract price. Appellants admitted the contract, but claimed that the work was not done in a workmanlike manner, 2. APPEAL AND ERROR_685-PREJUDICIAL and asked damages in consequence. AppelERROR-REFUSAL OF JURY TRIAL IN EQUI-lants asked that the court transfer the legal

[Ed. Note. For other cases, see Jury, Cent. Dig. $$ 35-83; Dec. Dig. 13.]

TABLE ACTION.

Wherever, in an equitable action between an original contractor and the owner, involving such a legal issue as whether or not there was anything due the contractor under his contract, the record shows there was sufficient evidence to take the case to the jury, the refusal of a jury trial to the contractor was prejudicial error, but where the evidence is not in the record, it cannot be said that it was sufficient to raise a question for a jury and hence that it was prejudicial error to deny a jury trial.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 2891; Dec. Dig. 685.] Appeal from Circuit Court, Kenton County, Criminal, Common Law, and Equity Division.

Action by J. H. Kirtley against J. W. Scott. Judgment for plaintiff, and defendant appeals. Affirmed.

Stephens L. Blakely and Samuel W. Adams, both of Covington, for appellant. A. E. Stricklett, of Covington, for appellee.

CLAY, C. J. W. Scott, a contractor, contracted with J. H. Kirtley, the owner, to remodel an old house and build an addition thereto for the price of $1,890.03. Subsequently a few changes were made in the contract, which increased the contract price. Kirtley made certain payments on the contract. Scott, claiming a balance due under the contract of $456.98, filed a statement of mechanic's lien in the Kenton county clerk's office. Charging that the work of construction was defectively done, and that by reason thereof the plaintiff had been damaged in the sum of $600, and that there was nothing due defendant under the contract, plaintiff brought this action to cancel the lien which defendant was attempting to assert on the property. Defendant filed an answer and counterclaim, denying the allegations of the petition and seeking the enforcement of his lien. The allegations of the petition and counterclaim were denied by reply. Thereupon defendant moved for a jury trial as to the disputed issues of fact. The motion was overruled. The case was then referred to the commissioner, who reported in favor of plain

issues to the common law docket to be tried by a jury. The motion was overruled, and the case tried by the court. On appeal to this court the court held that the enforcement of the lien on the mill property depended on whether or not there was anything due under the contract, and that the latter question was an issue of fact properly triable by a jury. In discussing the question the court said:

"The Constitution of this state guarantees the right of jury trial. This means a trial according to the course of the common law, and secures the right only in cases where a jury trial was customarily used at common law; but in cases of purely equitable cognizance a trial by jury is not a matter of right, but it is addressed to the discretion of the chancellor. The right of trial by jury, as secured to the citizen by the Constitution of the state, cannot be taken away or placed at the discretion of the chancellor by converting a legal right into an equitable one, or by giving the chancellor an exclusive right to try legal issues, because there is some equitable right that arises out of the establishment of the legal issues, so as to infringe upon main inviolate as a secured constitutional right the right of trial by jury. That right must reof the citizen in all trials in which, according to the course of the common law, the right to a trial by jury exists."

In the case under consideration, Scott was not entitled to a lien unless there was a balance due under the contract. Whether or not there was a balance due was, under the rule above announced, properly triable by a jury. The case of Rieger et al. v. Schulte & Eicher et al., 151 Ky. 129, 151 S. W. 395, when properly understood, does not announce a contrary doctrine. There the lien claimants were subcontractors. They had no contract with the owner. There only rights were under and by virtue of the mechanics' lien statute. Having no rights at common law, no right of trial by jury as to the disputed issues of fact existed at the common law. was therefore held that the remedy afforded by the mechanics' lien statute, upon which their cause of action was solely based, was exclusive, and that they were not entitled to a trial by a jury of the disputed issues of

4. APPEAL AND ERROR 1070-PREJUDICIAL, merated, nothing further need be said conERROR-VERDICT AND FINDINGS. cerning it.

In an action for destruction of a barn by fire from sparks from a locomotive, failure of the jury to say whether the company owning the road or the company operating a train thereon started the fire was not prejudicial, where the company owning the road was liable for the negligence of the company operating the train.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4231-4233; Dec. Dig. 1070.1

Appeal from Circuit Court, Scott County. Action by Ellen Feeney against the Louisville & Nashville Railroad Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

Emmett M. Dickson, of Paris, and Benjamin D. Warfield, of Louisville, for appellant. James Bradley and B. M. Lee, both of Georgetown, for appellee.

MILLER, C. J. The appellee, Ellen Feeney, sued the Louisville & Nashville Railroad Company and the Chesapeake & Ohio Railway Company, jointly, for damages for

the burning of her barn at Payne's Depot, in

Scott county, on December 16, 1912. The petition alleges that the barn was set on fire

by sparks emitted from an engine belonging to one of the defendants, but that plaintiff did not know which company owned the engine that caused the fire, and that the trains of both companies used appellant's railway track where the fire occurred. Both defendants moved the court to require the plaintiff to elect which of the defendants she would sue, but the court overruled both motions. The issues were made, and upon a trial in October, 1913, the jury returned a verdict against both defendants, for $500; but, upon motions of both defendants, and the plaintiff, a new trial was granted. At a second trial, held in May, 1914, the court peremptorily instructed the jury to find for the Chesapeake Company; and, the case having been submitted to the jury as against the Louisville & Nashville Railroad Company, the jury returned a verdict against it for $659.46. This appeal is by that company.

At the point where the track passed appellee's barn there is a decided upgrade going eastwardly towards Lexington, and it is contended that the fire was caused by one of the three freight trains while ascending this grade.

[1] 1. Appellant first insists that the trial court erred in refusing to require the appellee to elect against which defendant she would prosecute her suit; and, it insists that the case of the Louisville & Nashville Railroad Co. v. Ft. Wayne Electric Co., 108 Ky. 113, 55 S. W. 918, 21 Ky. Law Rep. 1544, is conclusive of this question. A reading of that case, however, fails to convince us of that fact. And, in view of appellant's ownership of the track used by the trains of both companies in this case, it becomes unneces sary to discuss the question of pleading sugliable for the negligence, not only of its own gested by appellant, since the appellant was servants and employés, but also for the negligence of the servants and employés of the

Chesapeake Company.

In O'Bannion's Adm'r v. Southern Rail

way in Ky., 110 S. W. 329, 33 Ky. Law Rep.
436, we passed upon the question here raised,
saying:

licensed the Cincinnati, New Orleans & Texas
"The appellee railroad corporation having
Pacific Railway Company to run its cars over
its line, it is as responsible for whatever acci-
dent took place in the operation of the train as
far as the responsibility of the appellee for the
if it had been one of its own, and therefore, so
injury involved here is concerned, we will treat
the case as if the accident was occasioned by one
McCabe's Adm'r v. Mays-
of its own trains.
ville & B. S. R. R. Co., etc., 112 Ky. 861 [66 S.
W. 1054, 23 Ky. Law Rep. 2328]; Louisville
& Nashville R. Co. v. Breeden's Adm'r, 111 Ky.
729 [64 S. W. 667, 23 Ky. Law Rep. 1021,
1763]."

In overruling the motion to require the plaintiff to elect, the trial court was clearly right.

[2] 2. Appellant next insists that there was no evidence that any one of the three freight trains in question emitted any sparks, and consequently that its motion for a directed The evidence shows that shortly before verdict should have prevailed. There had plaintiff's barn was discovered to be on fire, been no fire in the barn during that day, or, about 4 o'clock in the afternoon, four trains so far as the evidence shows, for several passed the barn. The first was appellant's days. The first was appellant's days. The last person in the barn on the passenger train, going west from Lexington day of the fire closed the barn doors after to Louisville; the second was appellant's throwing in a load of corn; and, when he freight train, going east from Louisville to Lexington; the third was the first section of the Chesapeake Company's freight train No. 92, going east from Louisville to Lexington; and the fourth was the second section of said train No. 92, going in the same direction. The petition, however, alleges that the fire was caused by an east-bound train; and, as no claim is made, by either party to this appeal, that the fire was caused by the appellant's passenger train first above enu

left the barn there was no fire visible, either in or about it. Appellee's barn was situated about 150 feet north of the track, and the wind was blowing from the southeast. In the southeast end of the barn there was a window that was left open. This window faced the railroad track, and there was stored in the loft of the barn into which this window opened several tons of sheaf oats. There was also some straw in the stalls below the loft. The proof shows that the three

freight trains passed the barn shortly be fore the fire was discovered, and that in passing this barn shortly before the day of the fire they had set fire to the grass and fencing along the right of way. It further appears from the proof that the fire occurred on December 16, 1912, about 4 o'clock in the afternoon; that it was a gloomy and dark afternoon; that Miss Kate Feeney, the daughter of appellee, saw sparks emitted in great quantities from one of these engines as it ascended the grade; that Trowbridge, a neighbor, who was stripping tobacco in his barn near the track and near Mrs. Feeney's barn, had his attention called to these trains by the unusual puffing and laboring of the engines in ascending the grade; that he went to a crack in the barn and looked out to see what was the trouble; and that the engine was making such an effort to make the grade that he thought something was wrong with the train. The unusual puffing and laboring of the engine was also noticed by Branham, another neighbor; and all the witnesses who saw the fire testified that it occurred between 5 and 15 minutes after the engines had passed. The facts of this case make it very like I. C. R. R. Co. v. Scheible, 162 Ky. 471, 172 S. W. 910, where we said:

the case at bar is stronger for the plaintiff than the cases just cited, since at least one witness testified that she saw sparks emitted by the engine shortly before the fire. And, in the McGeoughey Case, supra, the property destroyed by the fire was 260 feet from the company's right of way.

In our opinion, the evidence was sufficient to authorize a submission of the case to the jury upon the issue of appellant's negligence in the operation of its trains.

[3] 3. Appellant further insists that the petition did not allege there was any defect in the engine, or in the spark arrester thereof; and as it only charged negligence in the operation and management of the trains, the proof which tended to show a defective spark arrester did not sustain the charge of negligent, operation. It is a general rule of pleading that in alleging an injury to any kind of property it will ordinarily be sufficient to state, in general terms, that it was caused by the negligence or carelessness of the defendant or his servants, without alleging all the circumstances necessary to show negligence; but where the petition specifies the acts of negligence relied upon, the plaintiff will be confined, in his proof, to the acts specified, and cannot recover by showing a "There is no direct evidence that sparks from different act of negligence. Here the allegathe engine of the train that passed a few min- tion of negligence is general in so far as it utes before the fire was discovered set the house re:ates to the operation of the train; and on fire, but direct evidence is not indispensable surely the charge that the train was so negto a recovery in this class of cases. Circumstantial evidence is equally as sufficient as di- ligently operated as to set fire to appellee's rect evidence would be when the circumstantial barn was sufficient to permit the plaintiff evidence connects the sparks from the passing to show that the fire was caused by sparks train with the fire. It would be an exceedingly from appellant's engine. It was not necesdifficult, and in many cases an impossible thing,

for the owner of property destroyed by fire to sary for the pleader to allege that the engine show by direct and positive evidence that the was defective in any particular respect, if its fire was started by sparks from a passing en- operation constituted negligence. Southern gine. In the nighttime live sparks falling from engines are very discernible, but in the daytime Ry. v. Hanna, 21 Ky. Law Rep. 850, 53 S. W. live sparks, although of sufficient heat to set fire 1; Southern Ry. v. McGeoughey, 31 Ky. Law to dry material, cannot well be seen by the nak- Rep. 291, 102 S. W. 270. ed eye as they come from the smokestack of the engine, and yet in many cases, including this court erred in not requiring the jury to obey [4] 4. Finally, it is contended that the one, circumstantial evidence leaves little room for doubt as to the origin of the fire. Several instruction No. 8, given by the court upon witnesses, who were in or about the house at its own motion, which required the jury to all times during the morning of the fire and pre- say in their verdict whether the fire was ceding it, testified very clearly and directly and without contradiction that there was no fire in started from a spark from the engine of the or about the house from which the fire that Chesapeake Company, or from one of the apdestroyed it could have been started. Accept- pellant's engines. The defendants did not ing as true the statements of these witnesses, as file pleadings against each other, or request the jury had a right to do, and as we may well assume they did, it is apparent that the fire the jury to fix the responsibility as between must have originated from some outside source, them. On the contrary, they elected to make and under the evidence there was only one their fight jointly; and, as the appellant source from which it could have started, and owned the track over which the Chesapeake that was this passing engine." Company operated its trains, the appellant See, also, Southern Ry. v. Hanna, 21 Ky. was liable to the appellee for the negligence Law Rep. 850, 53 S. W. 1, C., N. O. & T. of either defendant. Under these circumP. R. R. Co. v. Falconer, 30 Ky. Law Rep. stances, we fail to see how the jury's fail152, 97 S. W. 727, Southern Ry. v. Mc-ure to obey the instruction by saying which Geoughey, 31 Ky. Law Rep. 291, 102 S. W. defendant set fire to the barn, even though 270, C. & O. R. Co. v. Preston, 143 Ky. 189, it were possible for it to do so, could preju136 S. W. 203, and C. & O. Ry. Co. v. Snyd- dice the appellant. er, 164 Ky. 433, 175 S. W. 640, holding that circumstantial evidence of this character is

We find no error, either substantial or otherwise, in the record.

IMPERIAL JELLICO COAL CO. v. NEFF. (Court of Appeals of Kentucky. Nov. 16, 1915.) 1. LIMITATION OF ACTIONS 121-RUNNING OF STATUTE--FILING OF PETITION.

Company at the time he received the injury of which he complained; that there never was such a corporation as the Imperial Coal Company, and the affiant was not an officer or agent of the Imperial Coal CompanyUnder Civ. Code Prac. § 134, declaring that "that John Morgan was, on the 18th day of Authe court may, at any time and on such terms as gust, 1913, and is now, the president of the may be proper, permit a pleading to be amend- Imperial Jellico Coal Company, and W. B. amend-ust, ed by adding or striking out the name of a Wyatt was on said date and is now the vice party, or by correcting a mistake in the name president of the Imperial Jellico Coal Company, of a party, a petition, in an action against a and J. C. Hoskins was and is now the secrecorporation, which improperly named the cor- tary treasurer and general manager of the Imporation, may be corrected by amendment, and such amendment will relate back to and become kins then resided in Whitley county, Ky., and perial Jellico Coal Company; that J. C. Hospart of the original petition, where the original that John Morgan and W. B. Wyatt then reservice had been on the corporation's duly con- sided and do now reside in Whitley county, Ky." stituted agent and service of summons on such petition will stop the running of limitations, notwithstanding a corporation can have but one Lame and must be sued by such name. [Ed. Note. For other cases, see Limitation of Actions, Cent. Dig. §§ 537-540; Dec. Dig. 121.]

2. DAMAGES 131-PERSONAL INJURIESMEASURE.

An award of $2,000 in favor of an employé of a coal company who was shocked by an electric wire carrying 250 volts is excessive, where he was able to return to work on the day of the accident and the next two days on which the mine was operated; medical testimony as to a subsequent illness being that it was caused by rheumatism and malaria.

[Ed. Note. For other cases, see Damages, Cent. Dig. §§ 357-367, 370; Dec. Dig.

131. Appeal from Circuit Court, Whitley County. Action by Charles Neff against the Imperial Jellico Coal Company. From a judgment for plaintiff, defendant appeals. Reversed

and remanded.

Tye, Siler & Gatliff, of Williamsburg, for appellant. S. H. Kash, of Corbin, B. B. Golden, of Barbourville, Stephens & Steely, of Williamsburg, and W. R. Lay, of Barbourville, for appellee.

CARROLL, J. On July 31, 1913, the appellee, Neff, brought this suit in the Whitley circuit court against the Imperial Coal Company, to recover damages for personal injuries alleged to have been sustained by him on September 6, 1912, on account of the negligence and carelessness of the coal company. Summons on this petition was issued against the Imperial Coal Company, and on August 18, 1913, the sheriff made this return on the

summons:

"Executed on the Imperial Jellico Coal Company, August 18, 1913, by giving a copy of same to R. F. Perkins, bookkeeper of said company."

Thereafter, on September 21st, the court quashed the return on the summons, and a few days afterwards the plaintiff filed an amended petition, in which it was averred

that:

"By oversight and inadvertence on the part of his attorneys the full and correct name of the defendant was not stated in the petition; that the true defendant and the real and correct name of the defendant was the Imperial Jellico Coal Company, and that is the company and defendant whose acts, negligence and carelessness caused the injuries set forth in the petition, and is and was the defendant that he directed to be sued and intended to have sued herein, and his petition herein merely omitted the word Jellico' from the name and style of said com

pany."

And he asked that the petition be corrected and the case proceed as if the correct name of the defendant had been set forth in the petition. On the same day a summons was issued against the Imperial Jellico Coal Company and executed on December 6, 1913, on "Fred Perkins, bookkeeper of the company." After this an answer was filed by the Imperial Jellico Coal Company, in which, after controverting the allegations of the original petition, and pleading assumed risk and contributory negligence, in a separate paragraph it pleaded and relied on the one-year statute of limitation, averring that the amended petition making it a party was not filed until more than one year after the cause of action accrued. To the paragraph pleading the statute of limitation, a demurrer was sustained. Thereupon the case went to trial, with the result that there was a verdict and judgment in favor of the appellee against the Imperial Jellico Coal Company for $2,000, and on this appeal a reversal of that judgment is sought.

[1] The first ground relied on for reversal is that the action against the Imperial JelliOn September 7, 1913, the Imperial Jellico co Coal Company was not commenced until Coal Company entered its appearance for the the amended petition was filed on November purpose only of quashing the return on the 25, 1913, more than one year after the cause summons, and in support of this motion filled of action set up in the petition accrued, and the affidavit of R. F. Perkins, stating that at a time when the action was barred by the the Imperial Jellico Coal Company was a cor- statute, and therefore the plea of limitaporation created by the laws of Kentucky, tion, to which a demurrer was sustained, preand that the summons against the Imperial sented a complete defense to the cause of Coal Company was executed on R. F. Perkins action. It will be observed that the sumas the bookkeeper of the Imperial Jellico mons on the amended petition against the Coal Company; that Neff was working for Imperial Jellico Coal Company was executed and an employé of the Imperial Jellico Coal on "Fred Perkins, bookkeeper," and in view