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and cause same to be shipped to appellant at HODGE TOBACCO CO. v. WHALEY. Paducah, and for these services the appel(Court of Appeals of Kentucky. Nov. 19, 1915.) lant was to pay him 35 cents on each 100 1. TRIAL Cw143–PROVINCE OF JURY-CON- pounds of tobacco so purchased and shipped FLICTING EVIDENCE.

to the appellant, and thereafter, about the It is the province of the jury to determine last of December, he and appellant made anthe facts, where the evidence is conflicting.

other contract, by which they annulled the [Ed. Note. For other cases, see Trial, Cent. former one, and by this last contract it was Dig. $$ 342, 343; Dec. Dig. 143.]

agreed that he was to purchase tobacco for 2. APPEAL AND ERROR Om 1003 – REVIEW

the appellant, as stated above, and receive it QUESTIONS OF FACT.

A verdict of a jury will not be set aside at Kuttawa, where it was to be placed in a because it is not supported by the evidence or warehouse furnished by him, and that he not sustained by a sufficiency of the evidence, should there class and prize the tobacco into unless it is clearly and palpably against the light-weight hogsheads, which · he should weight of the evidence.

[Ed. Note.-For other cases, see Appeal and cause to be shipped by the railroad to appelError, Cent. Dig. $8 3938-3943; Dec. Dig. Om lant at Paducah, and in consideration of 1003.)

these services the appellant was to pay him 3. APPEAL AND ERROR Om 1041-HARMLESS 35 cents for each 100 pounds of tobacco for ERROR—AMENDMENT OF PLEADING. Plaintiff sued defendant, alleging an agree

his personal services in buying and receiving ment under which he was to purchase and ship the tobacco, and, in addition to that, the aptobacco for defendant and was to receive, in pellant agreed to pay him such a sum, by addition to a commission for his personal serv- way of commissions, as would reasonably ices in buying and receiving the tobacco, compensation for certain additional labors, and recompensate him for the additional labors repayment of his expenses for cooperage, drayage, quired of him under the new contract, and etc. The petition further alleged that under as would fully repay him the actual expenses this arrangement he bought and shipped 518,000 that he would necessarily be put to for waafter the jury had been impaneled alleged that ges paid to laborers, cooperage, and drayage, he purchased and shipped 518,875 pounds, that and that the sum of 25 cents per each 100 the cost of making hogsheads in which to ship pounds for the tobacco bought and handled drayage amounted to $65. Held that, as this by him for the appellant would be a reasondid not set up any new cause of action or any able sum for the additional labors and exnew claim, but simply made more definite some penses incurred by him under the contract; of the allegations of the petition with regard to that he bought and shipped to appellant unwas sought, defendant was not prejudiced by its der this arrangement 518,000 pounds of tofiling.

bacco. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. SS 4106-4109; Dec. Dig. Om ing of the contract as alleged by appellee,

The appellant, by answer, denied the mak1041.] 4. PLEADING Eww236 - AMENDMENT-DISCRE- about the 10th day of December, but alleged

TION OF COURT.

that it did make a contract, in which it Permission to file an amended pleading is agreed to buy tobacco from appellee at cera matter in the sound discretion of the court, tain prices, and was not to pay him any comwhich it may exercise in furtherance of jus- mission for his services, but that about the tice, upon proper terms.

[Ed. Note.-For other cases, see Pleading, last of December they entered into a conCent. Dig. 88 601, 605; Dec. Dig. Om 236.] tract, by which the appellee agreed to buy

, Appeal from Circuit Court, Lyon County, and ship tobacco as the agent for appellant,

. Action by D. W. Whaley against the and that, in consideration of appellee's serv

ices in so doing, it agreed to pay him 35 cents Hodge Tobacco Company. Judgment for

per 100 pounds for all the tobacco that he plaintiff, and defendant appeals. Affirmed.

would buy and ship to it, and, in addition to . Wheeler & Hughes, of Paducah, for appel- that, would pay one-half of the cost of draylant. Utley & Utley, of Eddyville, for ap- age required in moving the tobacco from the pellee.

warehouse in Kuttawa to the depot, and

would furnish the materials necessary out of HURT, J. This was an action in the Lyon which to make the hogsheads, and appellee circuit court by the appellee, D. W. Whaley, was to receive the tobacco in a warehouse against the appellant, Hodge Tobacco Com- provided by him, class and prize the same, pany, in which he sought to recover from it and put it upon cars at Kuttawa, consigned in his petition the sum of $1,500. He alleged to the appellant, and that it had paid him that about the 10th day of December, 1913, all that it owed him under said contract, and he and the appellant entered into a contract, denied the making of the contract as alleged by which it was agreed that he would pur- by the appellee in his petition. By way of chase tobacco for appellant in Lyon county, counterclaim it pleaded that the appellee had Ky., and surrounding counties, and would converted to his own use $834.50 of tobacco, receive the tobacco for it at Kuttawa, at which he had bought for it, and for which which point he would superintend the load- it had paid, and asked a judgment against ing of the tobacco into cars from the wagons, him for $834.50. The affirmative allegations in the answer, counterclaim, and set-off were | set aside because it is not supported by the controverted by reply.

evidence or is not sustained by a sufficiency Thereafter, when the case came on for of the evidence, unless the verdict is clearly trial, and after the jury had been impaneled, and palpably against the weight of the evithe appellee offered an amended petition, to dence. Bell v. Keach, 80 Ky. 42; L. & N. the filing of which the appellant objected, R. R. Co. v. Graves, 78 Ky. 74; McClain v. when the court overruled its objection and Esham, 17 B. Mon. 146; Thomson v. Thompermitted it to be filed, to which appellant son, 93 Ky. 435, 20 S. W. 373, 14 Ky. Law excepted. By this amended petition the ap- Rep. 513; and many others. It cannot be peilee alleged that, under the contract as set said that the verdict was contrary to the out in the petition, he purchased and ship- evidence in the case, or that it is not supped to the appellant 518,875 pounds of to- ported by the weight of the evidence. bacco, and that appellant owed him by way [3, 4] Nothing prejudicial to the appellant of compensation for the services which he arose from the filing of the amended petiwas to perform under the contract, over and tion. It did not set up any new cause of above those agreed to be performed, for the action, or any new claim, but simply made sum of 35 cents per 100 pounds, the sum of more definite some of the allegations of the $1,297.18, and that the cost of making the petition with regard to the items of indebtedhogsheads was 25 cents per hogshead, and ness for which recovery was sought. The that he had caused to be made and shipped petition alleged that the number of pounds to the appellant 325 hogsheads, which of tobacco which had been purchased and amounted to $81.25, and that the drayage in shipped to appellant under the contract was removing the tobacco from the warehouse to 518,000 pounds, and the amendment corrects the depot amounted to $65, and prayed for this, and alleges that it was 518,875 pounds. a recovery against appellant of $1,443, in- The petition sought a recovery for the draystead of $1,500, as alleged in the original pe- age and cooperage which appellee claimed tition. By agreement of parties, affirmatives that he had paid and was entitled to recover allegations in the amended petition were under the contract, and the amendment statagreed to be taken as controverted upon the ed the amount of the drayage and cooperage record.

and the number of hogsheads built and the The trial resulted in a verdict by the jury cost to him of having them built. The perin favor of appellee for the sum of $865.80, mission to file an amended pleading is a and a judgment was rendered accordingly. matter in the sound discretion of the court, The appellant, having filed grounds for a which it may exercise in furtherance of jusnew trial, entered a motion to set aside the tice, upon proper terms. verdict and judgment and grant it a new In the case of Mattingly v. Bank of Comtrial, which being overruled by the court, it merce of Owensboro, 53 S. W. 1043, 21 Ky appeals to this court.

Law Rep. 1029, the court said: The reasons insisted upon for the reversal "The power of the trial court to allow amendof the judgment are: First, that the verdict ments of pleadings in furtherance of justice is, of the jury is not sustained by the evidence, under the Code, very broad. It is a judicial and shows on its face to be contrary to the but being a matter peculiarly within the dis

discretion, and not to be exercised arbitrarily; evidence; second, the court erred in permit- cretion of the trial court, on appeal his ruling ting the appellee to file the amended peti- will never be reversed, unless there has been tion.

an abuse of discretion by which injustice has

been done." [1, 2] The evidence given by the appellee and that of witnesses offered by him tended This principle has been upheld in repeated to sustain the claim made by him, and to dis- decisions of this court. Title Guaranty Co. prove the counterclaim of the appellant, v. Com., 141 Ky. 570, 133 S. W. 577; Vaught while the testimony of the witnesses offered v. Hogue, 107 S. W. 757, 32 Ky. Law by the appellant tended to sustain its coun- | Rep. 1061; Staton v. Byron, 105 S. W. 928, terclaim and to disprove the claim of appel- 32 Ky. Law Rep. 246; Continental Casuallee. There was conflicting evidence given ty Co. v. Semple, 112 S. W. 1123. The reaand heard upon each necessary averment of son stated in the amendment for its having the petition and amended petition and up- i been offered at that time was the mistake on the necessary averments of the counter- of appellee's attorney in drafting the peticlaim. The instructions of the court submit- tion. The appellant does not indicate any ted to the jury for its decision each of the way in which it did or could have suffered issues of the case. There was sufficient eri- injustice by the filing of the amendment, and dence to support the verdict, if the jury be- there is no apparent way in which it could lieved the appellee and his witnesses. It was have suffered such, and the order permitting the province of the jury to determine the it to be filed was not prejudicial to its subfacts in the case, where the evidence is con- stantial rights. flicting, and a verdict of the jury will not be The judgment is therefore affirmed.

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company which appellant had already insurBRACKEN COUNTY INS. Co. v. MURRAY. ed for $2,500. The agent immediately an(Court of Appeals of Kentucky. Nov. 19, 1915.) | swered, stating that it was, whereupon, on 1. INSURANCE Om57 — MUTUAL COMPANIES, the 14th day of February, the application INSURING NONMEMBERS. There could be no valid contract of insur-was marked, “Rejected,” and the agent no

tified. But notwithstanding this notice to ance between a co-operative or assessment insurance company and a person not a member of the agent, he failed to notify appellee of the the company, as such companies are organized rejection until after the 24th day of Febfor the purpose of insuring only the property ruary, upon which day the building was deof their members, especially where this purpose was emphasized and clearly expressed in the stroyed by fire. This is an action on an oral by-laws of a company.

contract of insurance entered into between [Ed. Note. For other cases, see Insurance, appellee and the agent, the allegation being Cent, Dig. $$ 71-75; Dec. Dig. Om 57.]

that the agent contracted with appellee that 2. INSURANCE 55 - MUTUAL COMPANIES— his property was insured by the company INSURING NON MEMBERS. Where the by-laws of an assessment or

from the date of the application if it should co-operative fire insurance company provided be accepted, and, if not, until he was given that any person living in B. county and owning notice of the rejection. Upon a trial in the property therein, who should sign an application circuit court appellee recovered a verdict and and be granted a policy in the company, should judgment for $1,200, the amount specified in become a member thereof, a person did not become a member by signing an application for the application, and the company has apinsurance without any action on the part of pealed. the insurance company, and there could be no

[1] Co-operative or assessment insurance valid agreement between him and the company's agent that the insurance should be in companies from their very nature are organforce from the date of the application, as Ky. ized for the purpose of insuring only the St. 702, providing that every person insured property of their members, and it is apparent in such a corporation who shall sign an ap- from the reading of our statute on the subplication for insurance, as required by the certificate of incorporation or the by-laws, shall ject that it so contemplates; and this purthereby become a member, does not make a per- pose of appellant company is emphasized and son a member upon the mere signing of an ap- clearly expressed in its by-laws. plication, but means that either the articles

[2] The only question we deem it necessary of incorporation or the by-laws shall prescribe how the applicant for insurance may become a to consider is whether the appellee, by his member.

own voluntary act in signing the application [Ed. Note.-For other cases, see Insurance, for insurance, became a member of appellant Cent. Dig. 88 67-69; Dec. Dig. 55.]

company, without any action whatever upon 3. INSURANCE Om 131 – VALIDITY OF ORAL its part; for unless he was a member, no CONTRACTS OF INSURANCE.

A valid and enforceable oral contract of in- valid contract of insurance, oral or written, surance may be made between insured and the could have been made between him and the company, or between him and its authorized agent. After diligent search we have been agent.

unable to find any direct authority upon this [Ed. Note.-For other cases, see Insurance, question, but it seems that a statement of Cent. Dig. $$ 203-209; Dec. Dig. Om131.]

the proposition furnishes its own answer. Appeal from Circuit Court, Bracken Clearly it was the purpose of the statute to County.

authorize the organization of such companies Action by A. L. Murray against the Brack- only for the purpose of insuring the property en County Insurance Company. From a

a of its members, and giving such members, judgment for plaintiff, defendant appeals. through the medium of the corporation, the Reversed, with directions.

authority to enter into mutual contracts of Allan D. Cole, of Maysville, and W. A. insurance with other members; that is to Byron, of Brooksville, for appellant. M. Har- say, that each member who is admitted is gett, of Augusta, and G. F. Boughner, of Cov- at one and the same time both insurer and ington, for appellee.

insured. To say that one may become by his

own act a member of such a company, whethTURNER, J. Appellant is an assessment er it be agreeable to the organization or conor co-operative fire insurance company or- trary to its wishes, would be to compel the ganized under subdivision 5, c. 32, Ky. St., other members of the company to accept inand is authorized to do business in Bracken surance risks which they might not be willcounty. Appellee is a resident of and prop- ing to accept, and would place such assesserty owner in that county, and on the 10th ment companies, who would thus be comday of February, 1914, signed, in the presence pelled to accept unsatisfactory and undesirof an agent of appellant, an application for able risks, at a great disadvantage in their insurance on a building he owned. The ap- quest for business. plication was promptly forwarded by the The last sentence in section 702 of the agent to the office of the company, and it Kentucky Statute, providing for the organizathereafter wrote and inquired of him if the tion of such companies, says: building sought to be insured was not the

"Every person insured in such a corporation, same building in which was located a stock who shall sign an application for insurance, as of goods belonging to a certain mercantile required by the certificate of incorporation, or

the by-laws of the corporation, shall thereby spany and one of its members, but is whether become a member thereof"

appellee ever became a member so as that -and it is argued for appellee from this he might have made such an enforceable that the mere signing of an application for contract. insurance made the appellee a member of the The case of Fidelity & Casualty Co. v. Balcompany, so as that a verbal contract be- lard & Ballard Co., 105 Ky. 253, 48 S. W. tween him and the agent became enforceable 1074, 20 Ky. Law Rep. 1169, is in no wise in as against the company. But such is not the conflict with the views we have expressed. meaning of those words. While the sentence in the first place, the opinion does not disis awkardly constructed and inaptly, ex- close whether or not the company in that case pressed, its true and correct meaning is that was an assessment or co-operative company, either the articles of incorporation or the and in the next place, if it had, it is shown by-laws of the company shall prescribe how in the opinion that the assured at the time the applicant for insurance may become a had another policy with the company, and member. The construction contended for by was therefore a member of it. appellee would authorize any person, how

The case of Kentucky Growers Ins. Co. v. ever undesirable, to make himself a member, Logan, 149 Ky. 453, 149 S. W. 922, was where although the constituted authorities of the one who was already a member of an as

a corporation might not be willing to accept sessment company entered into an agreehim as such. It is not difficult to see what ment with the agent of the company under would be the end of an insurance corpora- which he took additional insurance on the tion which had no power to protect itself

property. The property was destroyed, and against issuing policies to undesirable per- ! the assessment company defended upon the sons.

The statute quoted provides that the ground that Logan, being a member of its insuring of the applicants in the manner company, should be charged with notice of required by the certificate of incorporation or its by-laws and of the fact that the agent by the by-laws of the corporation shall en- had no authority to agree to the additional title one to become a member; and, if we insurance, and the court held that the achad any doubt of the foregoing interpretation tion of the agent was binding upon the comof the statute, a by-law of appellant corpora

pany. tion, taken in connection with the statute, is

While, as stated, we have found no direct conclusive of the question. That by-law pro-authority upon the exact proposition here vides:

“Any person living in Bracken county and presented, the general rule seems to be that cwning property in same who shall sign an ap- one does not become a member of a mutual plication and be granted a policy in this com- fire insurance company until he receives his pany shall become a member thereof."

policy. Russell v. Detroit Fire Ins. Co., 80 From this by-law and the statute author. Mich. 407, 45 N. W. 356; Eilenberger v. Proizing it, it cannot be doubted that the condi- tective Fire Ins. Co., 89 Pa. 464; Columbia tion precedent to becoming a member is, not Ins. Co. v. Cooper, 50 Pa. 340; Cumberland only that the application shall be signed, Valley Mutual Protection Co. v. Schell, 29 but that the policy shall be granted. These Pa. 37; Farmers' Mutual Ins. Co. v. Mylin assessment companies by the act of granting (Pa.) 15 Atl. 710. There is no claim that a policy of insurance to one thereby make the agent in this case had authority from him a member of the corporation, and we are the corporation to admit members, and it is unwilling to hold that these small assessment therefore unnecessary to determine whether companies may be placed at the mercy of such power might be granted. the larger corporations because of their in- Under the evidence appellee never became ability to protect themselves from undesir- a member of appellant company, and conseable membership.

quently there could have been no valid con[3] It is well settled that a valid and en-tract of insurance entered into between him forceable oral contract of insurance may be and the company or its agent. The court made, either between the company and the should have directed a verdict for appellant assured, or between its authorized agent and as asked by it. the assured; but the question here is not The judgment is reversed, with directions whether there may be a valid oral contract to grant appellant a new trial and for furof insurance between this assessment com- ther proceedings consistent herewith.

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been certified by the county court clerk to the COMMONWEALTH v. BRAND.

defendant for collection, so that as attorney for

the county he had sued defendant for failure (Court of Appeals of Kentucky. Nov. 17, 1915.) to perform his duty and not to recover the 1. CRIMINAL LAW Ow1026-APPEAL-APPEALS amount of the tax, was inadmissible as opinion.

Om BY ACCUSED CROSS-APPEAL ON COMMON- [Ed. Note. For other cases, see Criminal WEALTH'S APPEAL.

Law, Cent. Dig. $$ 1035–1039, 1041-1043, 1045, Defendant in a criminal case under Cr. 1048-1051; Dec. Dig. 448.] Code Prac. $$ 335, 337, has an appeal from 8. EMBEZZLEMENT E38_PROSECUTION—EVIthe final judgment, but he cannot appeal before

DENCE. judgment of conviction and afterwards also,

In a prosecution of a sheriff for embezzling nor can be prosecute a cross-appeal upon ap- a franchise tax collected by him from a corpeal by the commonwealth in such cases as it poration, the pleadings, in a suit by defendant's is allowed an appeal.

sureties on his official bonds against him seeking [Ed. Note.-For other cases, see Criminal to recover sums which they were required to Law, Cent. Dig. $$ 2615–2618; Dec. Dig. Om pay on account of his defalcations in office, 1026.]

were inadmissible in evidence as irrelevant. 2. CRIMINAL LAW Om 1024APPEAL-APPEAL [Ed. Note.-For other cases, see EmbezzleBY COMMONWEALTH.

ment, Cent. Dig. $$ 61, 65, 66; Dec. Dig. Om The commonwealth can appeal in criminal | 38.] cases under Cr. Code Prac. § 337, only from 9. EMBEZZLEMENT 38—PROSECUTION-Evidecisions of the court adverse to it.

DENCE-DEMAND. [Ed. Note.-For other cases, see Criminal In a prosecution for embezzlement, the Law Cent. Dig. $8 2599–2614; Dec. Dig. Om prosecution may prove that a demand has been 1024.]

r.ade by the proper person for the payment by 3. CRIMINAL LAW 371 - EVIDENCE-IN-defendant of the money he is accused of embez

Om
TENT-OTHER CRIMINAL ACTS.

zling, as his refusal or failure to make payIn a prosecution for embezzlement, where ment of the demand is evidence of a fraududefendant relies upon the absence of intent lent conversion. fraudulently to convert, or claims that his act [Ed. Note.-For other cases, see Embezzlewas the result of oversight, accident, or mis-ment, Cent. Dig. 88 61, 65, 66; Dec. Dig. Own take, evidence of other acts of embezzlement is 38.] admissible to show guilty knowledge.

PROSECUTION [Ed. Note.- For other cases, see Criminal 10. EMBEZZLEMENT E39 Law, Cent. Dig. 88 830-832; Dec. Dig. Om

EVIDENCE. 371.]

In a prosecution of a sheriff for embezzle

ment of a franchise tax, where, as it had the 4. EMBEZZLEMENT 38—EVIDENCE–INTENT. right to do, the prosecution proved demand by

In a prosecution of a sheriff for embez- the county before the indictment for payment zling a county tax collected by him, evidence of of the tax, the defendant to rebut the inference the clerk of the county court during defendant's of guilt arising from his failure to pay over term of office that the latter had failed to report the tax in response to the demand could show to the court the collections made by him of that when he learned at that time he had not the public moneys as required by Ky. St. & accounted for the tax he was financially unable 4147, was admissible, since his failure to do so to do so. was a fact tending to show his purpose of fraudulent concealment and conversion of the county nent, Cent. Dig. § 62; Dec. Dig. Omw39.]

[Ed. Note.-For other cases, see Embezzlefunds.

[Ed. Note.-For other cases, see Embezzle 11. EMBEZZLEMENT 39 PROSECUTIONment, Cent. Dig. $$ 61, 65, 66; Dec. Dig. Om EVIDENCE, 38.]

In a prosecution against a sheriff for em5. CRIMINAL LAW Om673 - INSTRUCTION

bezzling a franchise tax, collected by him, where

the sheriff claims that he had no memory of PURPOSE OF ADMISSION OF EVIDENCE.

Where, in the prosecution of a sheriff for receiving the tax, and that there was an absence embezzling a tax he had collected, the testi- of guilty knowledge, evidence that at the time mony of the clerk of the county court during of the tax's receipt defendant suffered greatly the sheriff's term of office that he had failed from his nervous condition and was unable to to report tax collections is admitted, the court look after the affairs of his office was admissishould admonish the jury that the evidence ble. should be considered only as evidence tending

[Ed. Note.-For other cases, see Embezzleto show intent.

ment, Cent. Dig. § 62; Dec. Dig. Omw 39.] [Ed. Note.-For other cases, see Criminal 12. EMBEZZLEMENT Cm 38 - EVIDENCE-IMMALaw, Cent. Dig. 88 1597, 1872-1876; Dec. Dig.

TERIALITY. -673.]

Evidence that defendant had made an ar6. EMBEZZLEMENT Omn 38-EVIDENCE.

rangement with his deputy to take a former In a prosecution of a sheriff for embezzle- sheriff's books and collect the taxes yet unpaid ment, testimony as to the receipt given the to the latter, and that such deputy had never sheriff by his deputy, as to the handwriting accounted to defendant, who had been unable of the receipt, the person who had given it, and to recover his books, was inadmissible as irthe cause of ill feeling between the deputy and relevant. the defendant growing out of the receipt, was [Ed. Note.-For other cases, see Embezzle inadmissible.

ment, Cent. Dig. $$ 61, 65, 66; Dec. Dig. On [Ed. Note. For other cases, see Embezzle 38.] ment, Cent. Dig. 88 61, 65, 66; Dec. Dig. Om 13. EMBEZZLEMENT O9 - EMBEZZLEMENT OF

38.]

Tax-NECESSITY FOR CERTIFICATION. 7. CRIMINAL LAW Om 148-EVIDENCE-OPIN- Before a sheriff can be prosecuted for havION.

ing embezzled as such franchise taxes due the In a prosecution of a sheriff for embezzle-county from a corporation, the money arising ment of a franchise tax collected by him from from the collection of the franchise tax must a corporation, testimony of the former county necessarily have been legally in the sheriff's attorney that after investigation he had ar-possession and custody as the custodian of the rived at the conclusion that the tax had never county funds, and therefore that the tax had

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