[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3938-3943; Dec. Dig. 1003.] 3. APPEAL AND ERROR 1041-HARMLESS ERROR-AMENDMENT OF PLEADING. Plaintiff sued defendant, alleging an agreement under which he was to purchase and ship tobacco for defendant and was to receive, in addition to a commission for his personal services in buying and receiving the tobacco, compensation for certain additional labors, and repayment of his expenses for cooperage, drayage, etc. The petition further alleged that under this arrangement he bought and shipped 518,000 pounds of tobacco. An amended petition filed after the jury had been impaneled alleged that he purchased and shipped 518,875 pounds, that the cost of making hogsheads in which to ship the tobacco amounted to $81.25 and that the drayage amounted to $65. Held that, as this did not set up any new cause of action or any new claim, but simply made more definite some of the allegations of the petition with regard to the items of indebtedness for which recovery was sought, defendant was not prejudiced by its filing. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4106-4109; Dec. Dig. 4. PLEADING 236- AMENDMENT-DISCRE 1041.] TION OF COURT. and cause same to be shipped to appellant at Paducah, and for these services the appellant was to pay him 35 cents on each 100 pounds of tobacco so purchased and shipped to the appellant, and thereafter, about the last of December, he and appellant made another contract, by which they annulled the former one, and by this last contract it was agreed that he was to purchase tobacco for the appellant, as stated above, and receive it at Kuttawa, where it was to be placed in a warehouse furnished by him, and that he should there class and prize the tobacco into light-weight hogsheads, which he should cause to be shipped by the railroad to appellant at Paducah, and in consideration of these services the appellant was to pay him 35 cents for each 100 pounds of tobacco for his personal services in buying and receiving the tobacco, and, in addition to that, the appellant agreed to pay him such a sum, by way of commissions, as would reasonably compensate him for the additional labors required of him under the new contract, and as would fully repay him the actual expenses that he would necessarily be put to for wages paid to laborers, cooperage, and drayage, and that the sum of 25 cents per each 100 pounds for the tobacco bought and handled by him for the appellant would be a reasonable sum for the additional labors and expenses incurred by him under the contract; that he bought and shipped to appellant under this arrangement 518,000 pounds of tobacco. The appellant, by answer, denied the mak ing of the contract as alleged by appellee, about the 10th day of December, but alleged 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. §§ 601, 605; Dec. Dig. 236.] Appeal from Circuit Court, Lyon County Action by D. W. Whaley against the Hodge Tobacco Company. Judgment for plaintiff, and defendant appeals. Affirmed. . Wheeler & Hughes, of Paducah, for appellant. Utley & Utley, of Eddyville, for appellee. tract, by which the appellee agreed to buy and that, in consideration of appellee's servand ship tobacco as the agent for appellant, ices in so doing, it agreed to pay him 35 cents per 100 pounds for all the tobacco that he would buy and ship to it, and, in addition to that, would pay one-half of the cost of drayage required in moving the tobacco from the 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 of the evidence, unless the verdict is clearly and palpably against the weight of the evidence. Bell v. Keach, 80 Ky. 42; L. & N. R. R. Co. v. Graves, 78 Ky. 74; McClain v. Esham, 17 B. Mon. 146; Thomson v. Thomson, 93 Ky. 435, 20 S. W. 373, 14 Ky. Law Rep. 513; and many others. It cannot be said that the verdict was contrary to the evidence in the case, or that it is not supported by the weight of the evidence. Thereafter, when the case came on for trial, and after the jury had been impaneled, the appellee offered an amended petition, to the filing of which the appellant objected, when the court overruled its objection and permitted it to be filed, to which appellant excepted. By this amended petition the appeilee alleged that, under the contract as set out in the petition, he purchased and shipped to the appellant 518,875 pounds of tobacco, 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, 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, affirmative allegations in the amended petition were agreed to be taken as controverted upon the record. The trial resulted in a verdict by the jury in favor of appellee for the sum of $865.80, and a judgment was rendered accordingly. The appellant, having filed grounds for a new trial, entered a motion to set aside the verdict and judgment and grant it a new trial, which being overruled by the court, it appeals to this court. The reasons insisted upon for the reversal of the judgment are: First, that the verdict of the jury is not sustained by the evidence, and shows on its face to be contrary to the evidence; second, the court erred in permitting the appellee to file the amended petition. that he had paid and was entitled to recover under the contract, and the amendment stated the amount of the drayage and cooperage and the number of hogsheads built and the cost to him of having them built. The permission to file an amended pleading is a matter in the sound discretion of the court, which it may exercise in furtherance of justice, upon proper terms. In the case of Mattingly v. Bank of Commerce of Owensboro, 53 S. W. 1043, 21 Ky Law Rep. 1029, the court said: "The power of the trial court to allow amendments of pleadings in furtherance of justice is, under the Code, very broad. It is a judicial but being a matter peculiarly within the disdiscretion, and not to be exercised arbitrarily; cretion of the trial court, on appeal his ruling will never be reversed, unless there has been an abuse of discretion by which injustice has been done." This principle has been upheld in repeated decisions of this court. Title Guaranty Co. v. Com., 141 Ky. 570, 133 S. W. 577; Vaught [1, 2] The evidence given by the appellee and that of witnesses offered by him tended to sustain the claim made by him, and to disprove the counterclaim of the appellant, while the testimony of the witnesses offered v. Hogue, 107 S. W. 757, 32 Ky. Law by the appellant tended to sustain its counterclaim and to disprove the claim of appellee. There was conflicting evidence given and heard upon each necessary averment of the petition and amended petition and upon the necessary averments of the counterclaim. The instructions of the court submitted to the jury for its decision each of the issues of the case. There was sufficient evidence to support the verdict, if the jury believed the appellee and his witnesses. It was the province of the jury to determine the facts in the case, where the evidence is conflicting, and a verdict of the jury will not be Rep. 1061; Staton v. Byron, 105 S. W. 928, 32 Ky. Law Rep. 246; Continental Casualty Co. v. Semple, 112 S. W. 1123. The reason stated in the amendment for its having been offered at that time was the mistake of appellee's attorney in drafting the petition. The appellant does not indicate any way in which it did or could have suffered injustice by the filing of the amendment, and there is no apparent way in which it could have suffered such, and the order permitting it to be filed was not prejudicial to its substantial rights. The judgment is therefore affirmed. 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 57- MUTUAL COMPANIES- the 14th day of February, the application INSURING NONMEMBERS. was marked, "Rejected," and the agent noThere could be no valid contract of insur-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 stroyed by fire. This is an action on an oral was emphasized and clearly expressed in the by-laws of a company. [Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 71-75; Dec. Dig. 57.] 2. INSURANCE 55- MUTUAL COMPANIESINSURING NONMEMBERS. Where the by-laws of an assessment or co-operative fire insurance company provided that any person living in B. county and owning property therein, who should sign an application and be granted a policy in the company, should become a member thereof, a person did not become a member by signing an application for insurance without any action on the part of the insurance company, and there could be no valid agreement between him and the company's agent that the insurance should be in force from the date of the application, as Ky. St. § 702, providing that every person insured in such a corporation who shall sign an application for insurance, as required by the certificate of incorporation or the by-laws, shall thereby become a member, does not make a person a member upon the mere signing of an application, but means that either the articles of incorporation or the by-laws shall prescribe how the applicant for insurance may become a member. [Ed. Note. For other cases, see Insurance, Cent. Dig. §§ 67-69; Dec. Dig. 55.] 3. INSURANCE 131 VALIDITY OF ORAL CONTRACTS OF INSURANCE. A valid and enforceable oral contract of insurance may be made between insured and the company, or between him and its authorized agent. [Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 203-209; Dec. Dig. 131.] Appeal from Circuit Court, Bracken County. Action by A. L. Murray against the Bracken County Insurance Company. From a judgment for plaintiff, defendant appeals. Reversed, with directions. contract of insurance entered into between appellee and the agent, the allegation being that the agent contracted with appellee that his property was insured by the company from the date of the application if it should be accepted, and, if not, until he was given notice of the rejection. Upon a trial in the circuit court appellee recovered a verdict and judgment for $1,200, the amount specified in the application, and the company has appealed. [1] Co-operative or assessment insurance companies from their very nature are organized for the purpose of insuring only the property of their members, and it is apparent from the reading of our statute on the subject that it so contemplates; and this purpose of appellant company is emphasized and clearly expressed in its by-laws. [2] The only question we deem it necessary to consider is whether the appellee, by his own voluntary act in signing the application for insurance, became a member of appellant company, without any action whatever upon its part; for unless he was a member, no valid contract of insurance, oral or written, could have been made between him and the agent. After diligent search we have been unable to find any direct authority upon this question, but it seems that a statement of the proposition furnishes its own answer. Clearly it was the purpose of the statute to authorize the organization of such companies only for the purpose of insuring the property of its members, and giving such members, through the medium of the corporation, the authority to enter into mutual contracts of insurance with other members; that is to say, that each member who is admitted is at one and the same time both insurer and 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 of an agent of appellant, an application for insurance on a building he owned. The application was promptly forwarded by the agent to the office of the company, and it thereafter wrote and inquired of him if the building sought to be insured was not the same building in which was located a stock of goods belonging to a certain mercantile Allan D. Cole, of Maysville, and W. A. Byron, of Brooksville, for appellant. M. Hargett, of Augusta, and G. F. Boughner, of Covington, for appellee. pelled to accept unsatisfactory and undesirable risks, at a great disadvantage in their quest for business. The last sentence in section 702 of the Kentucky Statute, providing for the organization of such companies, says: "Every person insured in such a corporation, who shall sign an application for insurance, as required by the certificate of incorporation, or the by-laws of the corporation, shall thereby | pany and one of its members, but is whether become a member thereof" appellee ever became a member so as that he might have made such an enforceable contract. The case of Fidelity & Casualty Co. v. Ballard & Ballard Co., 105 Ky. 253, 48 S. W. 1074, 20 Ky. Law Rep. 1169, is in no wise in conflict with the views we have expressed. In the first place, the opinion does not disclose whether or not the company in that case was an assessment or co-operative company, and in the next place, if it had, it is shown in the opinion that the assured at the time had another policy with the company, and was therefore a member of it. -and it is argued for appellee from this that the mere signing of an application for insurance made the appellee a member of the company, so as that a verbal contract between him and the agent became enforceable as against the company. But such is not the meaning of those words. While the sentence is awkardly constructed and inaptly, expressed, its true and correct meaning is that either the articles of incorporation or the by-laws of the company shall prescribe how the applicant for insurance may become a member. The construction contended for by appellee would authorize any person, howThe 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 ascorporation 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 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 corporation, taken in connection with the statute, is conclusive of the question. That by-law pro sons. vides: "Any person living in Bracken county and cwning property in same who shall sign an application and be granted a policy in this company shall become a member thereof." pany. While, as stated, we have found no direct authority upon the exact proposition here presented, the general rule seems to be that one does not become a member of a mutual fire insurance company until he receives his policy. Russell v. Detroit Fire Ins. Co., 80 Mich. 407, 45 N. W. 356; Eilenberger v. Pro Ins. Co. v. Cooper, 50 Pa. 340; Cumberland Valley Mutual Protection Co. v. Schell, 29 Pa. 37; Farmers' Mutual Ins. Co. v. Mylin (Pa.) 15 Atl. 710. There is no claim that the agent in this case had authority from the corporation to admit members, and it is therefore unnecessary to determine whether such power might be granted. From this by-law and the statute authorizing it, it cannot be doubted that the condi-tective Fire Ins. Co., 89 Pa. 464; Columbia tion precedent to becoming a member is, not only that the application shall be signed, but that the policy shall be granted. These assessment companies by the act of granting a policy of insurance to one thereby make him a member of the corporation, and we are unwilling to hold that these small assessment companies may be placed at the mercy of the larger corporations because of their inability to protect themselves from undesirable membership. Under the evidence appellee never became a member of appellant company, and consequently there could have been no valid contract of insurance entered into between him and the company or its agent. The court should have directed a verdict for appellant as asked by it. [3] It is well settled that a valid and enforceable oral contract of insurance may be made, either between the company and the assured, or between its authorized agent and 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. COMMONWEALTH v. BRAND. (Court of Appeals of Kentucky. Nov. 17, 1915.) 1. CRIMINAL LAW 1026-APPEAL-APPEALS BY ACCUSED-CROSS-APPEAL ON COMMONWEALTH'S APPEAL. Defendant in a criminal case under Cr. Code Prac. §§ 335, 337, has an appeal from the final judgment, but he cannot appeal before judgment of conviction and afterwards also, nor can he prosecute a cross-appeal upon appeal by the commonwealth in such cases as it is allowed an appeal. been certified by the county court clerk to the DENCE. 38-PROSECUTION-EVI In a prosecution of a sheriff for embezzling a franchise tax collected by him from a corporation, the pleadings, in a suit by defendant's sureties on his official bonds against him seeking to recover sums which they were required to were inadmissible in evidence as irrelevant. [Ed. Note. For other cases, see Embezzlement, Cent. Dig. §§ 61, 65, 66; Dec. Dig. 38.] [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 2615-2618; Dec. Dig. pay on account of his defalcations in office, 1026.] 2. CRIMINAL LAW 1024-APPEAL-APPEAL BY COMMONWEALTH. The commonwealth can appeal in criminal cases under Cr. Code Prac. § 337, only from decisions of the court adverse to it. [Ed. Note.-For other cases, see Criminal Law Cent. Dig. §§ 2599-2614; Dec. Dig. 1024.] 3. CRIMINAL LAW 371-EVIDENCE-INTENT-OTHER CRIMINAL ACTS. In a prosecution for embezzlement, where defendant relies upon the absence of intent fraudulently to convert, or claims that his act was the result of oversight, accident, or mistake, evidence of other acts of embezzlement is admissible to show guilty knowledge. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 830-832; Dec. Dig. 371.] 9. EMBEZZLEMENT DENCE-DEMAND. 38-PROSECUTION-EVI In a prosecution for embezzlement, the prosecution may prove that a demand has been rade by the proper person for the payment by defendant of the money he is accused of embezzling, as his refusal or failure to make payment of the demand is evidence of a fraudulent conversion. [Ed. Note.-For other cases, see Embezzle- 10. EMBEZZLEMENT 39 PROSECUTION In a prosecution of a sheriff for embezzlement of a franchise tax, where, as it had the right to do, the prosecution proved demand by the county before the indictment for payment of the tax, the defendant to rebut the inference of guilt arising from his failure to pay over the tax in response to the demand could show that when he learned at that time he had not accounted for the tax he was financially unable to do so. 4. EMBEZZLEMENT 38-EVIDENCE-INTENT. In a prosecution of a sheriff for embezzling a county tax collected by him, evidence of the clerk of the county court during defendant's term of office that the latter had failed to report to the court the collections made by him of the public moneys as required by Ky. St. § 4147, was admissible, since his failure to do so was a fact tending to show his purpose of fraudulent concealment and conversion of the countynent, Cent. Dig. § 62; Dec. Dig. 39.] funds. [Ed. Note. For other_cases, see Embezzle EVIDENCE. [Ed. Note.-For other cases, see Embezzle- 11. EMBEZZLEMENT 39 ment, Cent. Dig. §§ 61, 65, 66; Dec. Dig. 38.] 5. CRIMINAL LAW 673 INSTRUCTION PURPOSE OF ADMISSION OF EVIDENCE. Where, in the prosecution of a sheriff for embezzling a tax he had collected, the testimony of the clerk of the county court during the sheriff's term of office that he had failed to report tax collections is admitted, the court should admonish the jury that the evidence should be considered only as evidence tending to show intent. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 1597, 1872-1876; Dec. Dig. 673.] 6. EMBEZZLEMENT 38 EVIDENCE. [Ed. Note.-For other cases, see Embezzle- 7. CRIMINAL LAW 448-EVIDENCE-OPINION. In a prosecution of a sheriff for embezzlement of a franchise tax collected by him from a corporation, testimony of the former county attorney that after investigation he had arrived at the conclusion that the tax had never In a prosecution against a sheriff for embezzling a franchise tax, collected by him, where the sheriff claims that he had no memory of receiving the tax, and that there was an absence of guilty knowledge, evidence that at the time of the tax's receipt defendant suffered greatly from his nervous condition and was unable to look after the affairs of his office was admissi ble. [Ed. Note. For other cases, see Embezzlement, Cent. Dig. § 62; Dec. Dig. 39.] 12. EMBEZZLEMENT TERIALITY. 38-EVIDENCE-IMMA Evidence that defendant had made an arrangement with his deputy to take a former sheriff's books and collect the taxes yet unpaid to the latter, and that such deputy had never accounted to defendant, who had been unable to recover his books, was inadmissible as irrelevant. [Ed. Note.-For other cases, see Embezzlement, Cent. Dig. §§ 61, 65, 66; Dec. Dig. 38.] 13. EMBEZZLEMENT 9- EMBEZZLEMENT OF TAX-NECESSITY FOR CERTIFICATION. Before a sheriff can be prosecuted for having embezzled as such franchise taxes due the county from a corporation, the money arising from the collection of the franchise tax must necessarily have been legally in the sheriff's possession and custody as the custodian of the county funds, and therefore that the tax had |