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Ky.)

DANIEL V. DANIEL

5

ling soul that you have in you for this wicked forth in the bill of exceptions and certified corporation up there, how can you look this to by the court. This practice has always man in the face?"

been regarded as sufficient. Bannon y. LouDefendant objected to the foregoing state- isville Trust Co., Adm'r, 150 Ky. 405, 150 S. ments, and moved the court to exclude them w. 510; Southern Ry. in Kentucky v. Thackfrom the consideration of the jury. The ob-er's Adm'x, 156 Ky. 486, 161 S. W. 236. jections and motion were overruled. The

Judgment reversed, and cause remanded plaintiff's right to recover in this action de for a new trial consistent with this opinion. pended on the company's negligence and his want of contributory negligence. The amount of money which the corporation had

DANIEL et al. v. DANIEL,* and the number of accidents which had happened in its mine were matters about which

(Court of Appeals of Kentucky. Oct. 13,

1915.) no evidence was given, or could, with proprie

1. PLEADING Omw 66 - COMPLAINT — INDEFIty, have been given. Counsel, in going out

NITENESS. side of the record and bringing such matters

A complaint, alleging that

that defendant to the attention of the jury, could have had breached a contract with plaintiff by failing no purpose other than to inflame the minds to account for plaintiff's share of money deriv

ed from the sale of certain timber in accordand excite the passions of the jury. This is ance with the contract, is not indefinite because not a case of one act of impropriety followed it averred that the names of the purchasers by an admonition of the court to the jury were unknown to the plaintiff, since such names not to consider the statement. It is a case duty it is to disclose them.

must necessarily be known to defendant, whose where the limits of legitimate argument were [Ed. Note.-For other cases, see Pleading, transcended in a number of instances with- Dec. Dig. Om 66.] out rebuke or admonition from the court. 2. PLEADING 193, 367 - GROUNDS OF DESuch violations of the propriety of debate MURRER-INDEFINITENESS-MOTION TO MAKE have been condemned in a number of cases

SPECIFIC.

Where a petition states a cause of action, and reversals ordered. Kentucky Wagon Mfg. a general demurrer will not lie because of inCo. Duganics, 113 S. W. 128; L. & N. R. definiteness in some respects in the statement R. Co. v. Payne, 138 Ky, 275, 127 S. W. 993, of the facts; the remedy being by motion to Ann. Cas. 1912A, 1291 ; I. C. R. R. Co. v. cific, under Civ. Code Prac. § 134,

make the statements of the petition more speJolly, 119 Ky. 452, 84 S. W. 330, 27 Ky. Law

[Ed. Note.-For other cases, see Pleading, Rep. 118; McHenry Coal Co. v. Sneddon, 98 Cent. Dig, $$ 64, 425, 428-435, 437-443, 1173– Ky. 687, 34 S. W. 228, 17 Ky. Law Rep. 1261; 1193; Dec. Dig. Om 193, 367.) L. & N. R. R. Co. v. Crow, 107 S. W. 807, 32 3. TRIAL Cw139 – PEREMPTORY INSTRUCTION Ky. Law Rep. 1146; C., N, O. & T. P. Ry. Co.

-SUFFICIENCY OF EVIDENCE. v. Martin, 154 Ky. 349, 157 S. W. 710; Owens-struction directing a verdict for defendant if

It is not error to refuse a peremptory inboro Shovel & Tool Co. v. Moore, 154 Ky. there is any evidence to support the plaintiff's 431, 157 S. W. 1121; Knights of Maccabees cause of action. of the World v. Shields, 162 Ky. 392, 172 S.

[Ed. Note. For other cases, see Trial, Cent. W. 696. In none of these cases was the lan- Dig: 88 332, 333, 338-341, 365; Dec. Dig. Cm

139.] guage more objectionable than that used by 4. JOINT ADVENTURES Om5SALES-ACTIONS counsel in the present case. Indeed, if a re ON CONTRACTS-INSTRUCTIONS. versal were not ordered in this case, it would In an action for an accounting of profits be difficult to find a case requiring a new tri- on the sale of timber which by agreement the al because of improper argument.

parties were to buy and sell, and, after pay

ment of advances to share the profits, it was not [7] But the point is made that the im- error to charge the jury that if they believed proper argument of counsel was not sustained from the evidence that there was an agreement by affidavits, as required by the Code. Sec- between the parties to buy timber for the pur

pose of resale, that timber was so bought, and tion 340, subsec. 2, Civil Code, authorizes a sold by defendants at a profit, that under the new trial for misconduct of the jury, of the contract plaintiff was to have half the profits prevailing party, or of his attorney, Section less the money advanced by defendants for the 343 provides in part as follows:

original purchase, their finding should be for

plaintiff for half the profits derived from any “The grounds mentioned in section 340, sub- timber sold not exceeding the demand in the sections 2, 3 and 7, must be sustained by affida- petition, but that if they believed that no timvits showing their truth; and may be contro- | ber so purchased was resold at a profit they verted by affidavits."

should find for defendants. In our opinion, this provision applies in

[Ed. Note. For other cases, see Joint Adventhose cases only where the misconduct of the tures, Cent. Dig, $ 7; Dec. Dig. Om5.] counsel does not take place in the presence

Appeal from Circuit Court, Perry County, of the court, or, taking place in his presence,

Action by C. B. Daniel against K. F. is the subject of dispute. It does not apply Daniel and another for breach of contract. to improper argument taking place in the From a judgment for plaintiff, defendants, court's presence about which there is no disappeal. Affirmed. pute and to the happening of which the court Wootton & Morgan, of Hazard, for appelcertifies in the bill of exceptions. In the lants. Jno. B. Eversole and W. C. Eversole, present case the improper argument is set both of Hazard, for appellee.

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

SETTLE, J. The appellee, C. B. Daniel, the averments of the petition are not sufby petition filed in the Perry circuit court, ficiently specific to authorize a recovery. sued to recover of the appellants, K. F. The contention is unsound. Considered as a Daniel and Elizabeth Daniel, $2,179.50 claim- whole, the petition, in meaning and effect ed as his half of alleged profits realized on rests appellee's right of recovery upon the a timber contract, it being alleged in the grounds: First. That he is entitled to judgpetition that in August, 1910, he made with ment against appellants for one-half the them the contract in question, whereby he profits that would have been realized from undertook to forthwith purchase for them the alleged sale by them of all the timber to certain standing timber on Willard and the Hamilton Realty Company, but for their Forked Mouth creeks, in Perry county, ap- fraud in inducing that company to rescind pellants agreeing to furnish the money to such sale in order to enable appellants to pay for the timber, and that they would sell avoid the payment to appellee of his half of the timber and, after repaying themselves the profits, which constituted a violation of the money they had furnished appellee to their contract with appellee and made them purchase it and deducting the cost attending liable to him for damages equaling in amount its sale, give and pay appellee one-half the half the profits of the sale to the Hamilton profits realized therefor; that pursuant to Realty Company. Second. That, if the court , such contract appellee purchased for appel- should find this ground of recovery untenlants, with the money advanced by them for able, the subsequent sales made of the timthat purpose, 5,386 trees in the months of ber by appellants to other parties at a profAugust, September, October, November, and it, in any event, entitled appellee to his half December, 1910, at a cost of $2,647, which of such profits. It is true the allegations of timber appellants at once contracted to the the petition as to the subsequent sales are Hamilton Realty Company at the price of indefinite, both as to the number and $7,034, by which sale, if appellants had per- amounts, respectively, of such sales. The mitted it to stand, they would have realized, averment, however, that the names of the after deducting the money they had ad- purchasers are unknown to appellee, threw vanced to pay for the timber and the cost of upon appellants, as the names must necestaking it up, a profit of $4,359, one half of sarily be known to them, the duty of diswhich, $2,179.50, appellee was entitled to and closing them; but as the petition was inwould have received; but that a controversy definite in failing to state that the number then arose between him and appellants over and amounts, respectively, of the subsequent a division of the profits, his half of which sales were unknown to appellee, appellants they refused to pay, and, in order to avoid should have entered a motion requiring the payment of which, appellants by a fraudu- petition to be made more specific in the lent collusion with the Hamilton Realty particulars mentioned. This they failed to Company induced the latter to rescind the do, hence they cannot complain that their contract of sale appellants had made with demurrer to the petition was overruled. A it. It was further alleged in the petition general demurrer will lie when the petition that, shortly after their rescission of the fails to state a cause of action but will not contract with the Hamilton Realty Com- lie where there is indefiniteness in some repany, appellants sold the timber in question spects in the statement of the facts confor as great a profit as would have been stituting the cause of action. In such case made out of the sale to that company, to the remedy is a motion to make the stateother persons to appellee unknown. The ments of the petition more specific. Civil prayer of the petition asked, in substance, Code, & 134. that appellants be made to account to appel [3] It is a further contention of appellants lee for his half of the profits realized from that the trial court erred in refusing the persuch sales, and that he be given judgment emptory instruction asked by them at the against them therefor to the amount of conclusion of the evidence. The refusal of $2,179.50. Appellants, by answer, traversed a peremptory instruction directing a verdict the averments of the petition, but by a sub- for the defendant is not error, if there is sequent paragraph admitted that they had any evidence to support the plaintiff's cause employed appellee to purchase for them a of action; hence in passing upon this conpart of the timber in controversy, and al- tention consideration of the evidence will be leged that for such services as he rendered necessary. In other words, it must be deunder this employment they had agreed to termined from the evidence: First, whethpay, and had paid, him at the rate of $1 per er appellee made with appellants the conday. The affirmative matter of the answer tract alleged in the petition; second, whethwas controverted of record, and upon the er profits were realized from sales of timissues thus formed the case went to trial, re- ber by the latter. sulting in a verdict in favor of appellee for While there is a contrariety of proof as to $600 damages. From the judgment entered this question, we think the weight of the eviupon that verdict, this appeal is prosecuted. dence is to the effect that the contract was

[1, 2] Appellants insist that the trial court substantially made as claimed by appellee. erred in overruling their general demurrer Appellee is a son of appellants, and it ap

Ky.)

EASTERN KENTUCKY HOME TELEPHONE CO. v. HATCHER

7

K. F. Daniel, who has had 30 years' experi- the Stacy land, 356 trees from the Baker ence in handling timber, was conducting his land, and a considerable number from the operations in that line in the name of his Caldwell land, costing in the aggregate $642.wife and coappellant, Elizabeth Daniel. Al-50, were sold by the appellants for $1,991, though the money used in the business was which, after repaying to appellants the monfurnished by him, sales of timber and deeds ey they had furnished in the purchase of the therefor were in every instance made to the timber, left a net profit of $1,348.50, to onewife.

half of which, $674.25, appellee was entitled Appellee testified not only that the con- under his contract with appellants; but the tract, as alleged in the petition, was made verdict of the jury only allowed him $600 between himself and the appellants, but, in of this sum. addition, that he purchased a large quantity It further appears from the evidence that of standing timber from one Tom Moore, by timber other than that last above mentioned, whom it had previously been purchased un- which had been purchased by appellee under der a number of contracts taken in the name the contract, was also sold by appellants for of D. Y. Coombs, appellants furnishing the a profit, none of which they were made to acmoney with which to pay for same; that count for by the jury; but, as appellee has from the sale of the timber thus purchased not taken a cross-appeal from the judgment, appellants were to retain from the proceeds we are not concerned with the loss of profits the money which they had furnished to pay he sustained upon the sale of that timber. for the timber and the cost attending its From our consideration of the evidence we sale, and the profits were to be divided are unable to say that the verdict of the equally between them and appellee. The jury did the appellants any injustice. evidence in behalf of appellee cannot be said

[4] Appellants' complaint of the instructo sustain the allegations of the petition as tions cannot be sustained. But two instructo the sale made by appellants of the timber tions were given, both of which are substanto the Hamilton Realty Company, but does tially free of error. They in substance adshow the making by the latter of other sales vised the jury that, if they believed from of the timber, the prices realized therefor, the evidence that appellee and appellants and the profits to be divided between the entered into an agreement with each other parties.

to buy timber for the purpose of a resale, The appellant K. F. Daniel in testifying and did buy timber for that purpose in Percontradicted appellee as to the character and ry county, Ky., the deeds to which were terms of the contract, but admitted enough made to the appellant Elizabeth 'Daniel, that to show that he had employed him to pur-such timber or a portion thereof was afterchase some of the timber in question and wards sold by appellants at a profit, and that agreed to pay him for his services one-half under the agreement between the parties they the profits realized thereon. Indeed, a letter were, after repaying the latter the money written by him to appellee, which appears they advanced to purchase the timber, to in the record, contains these statements:

divide the profits equally, that is, one-half "When I told you you could have a interest in this timber, I didn't mean that you should to appellee and one-half to appellants, their have a interest in all the timber that I could finding should be for the appellee, in a sum buy. I meant to give you a share of the tim- equal to one-half of the profits derived from ber which was taken up and branded with the the resale of the timber, or any part thereletter K, after Betsy Daniel got all of her pur- of, not to exceed the amount claimed in the chase money back.”

The above statements corroborate the ap- petition; but, upon the other hand, if they pellee that there was a contract between him believed from the evidence that no timber and appellants, whereby they were to buy purchased under the contract was resold at some timber, sell it, and divide the profits, a profit, then the finding should be for the after repaying to the appellants the amount appellants. furnished in the purchase of the timber. It

The record discloses no prejudicial error is patent, however, from the evidence, that, in the admission or rejection of evidence. when the timber was sold, profits were larg.

Judgment affirmed. er than was anticipated by the parties to the contract, which, according to the testimony of appellee, so excited the avarice of the ap

EASTERN KENTUCKY HOME TELEpellant K. F. Daniel, as to lead to his refus

PHONE CO. et al. v. HATCHing a division with appellee of the profits at

ER et al. all. The evidence introduced by appellee, (Court of Appeals of Kentucky. Oct. 13, 1915.) while not sufficient to sustain the averments

1. TELEGRAPHS AND TELEPHONES On 7 of the petition as to the entire amount of

GRANT OF FRANCHISE-VALIDITY. profits claimed to have been realized for the

Under Const. § 164, providing that frantimber purchased by him and sold by appel-chises may be granted by municipalities only lants under the contract, does fairly estab-after due advertisement and to the highest and

best bidder, and Ky. St. § 3636, providing that lish the following facts: That 449 trees pur- no franchise shall be granted by an ordinance chased by appellee under the contract from passed on the day of its introduction nor with

one.

in five days thereafter, a franchise granted by an iron guy rod between the pole and the an ordinance introduced and passed on April store, and about six feet from the pole, and 2, 1906, was void, and was not validated by an from this iron guy rod it ran a guy wire ordinance introduced and passed on May 7, 1906, confirming the transfer of the franchise to the pole for the purpose of bracing it. As of April 2d, by the grantee of the council to an the distance from the Hatcher property line assignee, and also granting the franchise to to the curb of the street is about twelve feet, the assignee; such two ordinances not being legally equivalent to a single ordinance passed the iron guy rod, being placed about midway in conformity with the act.

of that distance, forms an obstruction to the [Ed. Note. For other cases, see Telegraphs outer six feet. The inner six feet of this and Telephones, Cent, Dig. $ 5; Dec. Dig. En front is now occupied by a brick sidewalk; 7.]

but, since the property owners upon the ad2. MUNICIPAL CORPORATIONS O 680, 681 GRANT OF FRANCHISE STATUTE-CONSTRUC

joining square have located their sidewalks TION.

along the curb line, the Hatchers purposed The purpose of Ky. St. § 3636, regulating to construct a new sidewalk along the curb the granting of a franchise by municipalities, line in front of their property, in order that being to protect the public interests, its provisions must be carried out according to their un- the sidewalks in the neighborhood might be mistakable terms.

uniformly located along the curb line. From [Ed. Note.-For other cases, see Municipal what has been above stated, however, it is Corporations, Cent. Dig. $$ 1459–1466; Dec. apparent that the telegraph pole and the guy Dig. Om 680, 681.]

wire will effectually obstruct a sidewalk, if Appeal from Circuit Court, Pike County. built along the curbstone; and this is the

Action by James Hatcher and others against principal complaint in this action. the Eastern Kentucky Home Telephone Com Two propositions were presented upon the pany and another for an injunction, which argument: (1) That the ordinance under was granted. On motion by defendant in which the defendant is operating is invalid; Supreme Court to dissolve. Motion denied. and (2) if it is valid, the use the company has

J. J. Moore, of Pikeville, for appellants. made of the sidewalk is an unreasonable Stratton & Stephenson, of Pikeville, and J. P. Hobson & Son, of Frankfort, for appellees. that the franchise under which the telephone

[1] Taking up the first question it appears MILLER, C. J. James, John H., and Rich- company is operated was bought by John F. ard Hatcher, as plaintiffs, brought this ac- Butler from the city of Pikeville under an tion against the Eastern Kentucky Home ordinance passed April 2, 1906, and the rights Telephone Company (hereinafter called the thereby acquired were subsequently assigncompany for brevity) and N. Starkey, the sole ed by Butler to Starkey, the present owner owner of said company, for a mandatory in- and operator of the telephone company.

Section 3636 of the Kentucky Statutes projunction requiring them to remove a guy pole

vides as follows: and a guy wire running therefrom to a tele

"No ordinance, and no resolution, granting phone pole planted on the main street of Pike

any franchise for any purpose, shall be passed ville, a city of the fifth class, and in front of by the city council on the day of its introducplaintiffs' store, so as to greatly narrow the tion, nor within five days thereafter, nor at any sidewalk and interfere with its proposed im- other than a regular meeting,” etc. provement to the curb line of the street.

This section was passed pursuant to secThe circuit judge granted the injunction, and tion 164 of the Constitution, which provides: required the company to remove the tele

"No county, city, town, taxing district or graph pole, the guy pole, and the guy wire, other municipality shall be authorized or perfor the double reason that the planting of mitted to grant any franchise or privilege, or the pole and iron guy rod in front of the en-term exceeding twenty years, Before granting

make any contract in reference thereto, for a trance of the Hatcher building was an unrea- such franchise or privilege for a term of years, sonable interference with the use of their such municipality shall first, after due adverproperty, and the ordinance under which the tisementreceive bids therefor publicly, and

award the same to the highest and best bidder; telephone company operated was invalid. but it shall have the right to reject any or all The company has applied to me for a dissolu- bids. This section shall not apply to a trunk tion of the injunction; and, on account of railway.” the importance of the questions involved, all The ordinance creating the franchise unthe judges of the court heard the argument, der which the telephone company is operatand concur in the conclusions reached.

ing was introduced into the city council of The essential facts bearing upon this con- Pikeville on the 2d day of April, 1906, and troversy are, briefly, as follows: The plain- was passed by the council on the same day. tiffs own two lots facing on Front street and Acting under this ordinance, the court's comextending back to the Big Sandy river, upon missioner sold the franchise therein granted which there is a business house. In making

In making to Butler, who thereafter assigned his bid certain changes in connection with the re-to the Eastern Kentucky Home Telephone moval of its exchange from Front street to a company. Subsequently, on May 7, 1906, the building on Grace avenue, the company set a city council of Pikeville passed an ordinance telegraph pole near the curb of the street in approving and confirming the sale of the front of the Hatcher store. It also placed franchise by the commissioner to Butler;

Ky.)

EASTERN KENTUCKY HOME TELEPHONE CO. V. HATCHER

9

and, after reciting the assignment by Butler, thereupon unanimously passed the ordinance to the company, the ordinance of May 7th which had theretofore been introduced on further provided as follows:

August 16th creating the franchise. While “Now, in pursuance to said transfer from the ordinance accepting the bid of the pursaid J. F, Butler to the Eastern Kentucky chaser of the franchise was passed on SepHome Telephone Co., be and it is hereby grant-tember 30, the same day it was introduced, ed the right, privilege, authority, and franchise to erect, operate and maintain lines of tele- the initial ordinance creating the franchise phone and telegraph including the necessary was introduced on August 16th, and was poles, fixtures and electrical conductors upon, adopted at the regular meeting held on Sepalong and over the public roads, streets and highways of the city of Pikeville,' for a period tember 3, 1894. It will thus be seen that the of twenty years, as the business of the purchas- initial ordinance in the Hickman Case had er, successors and assigns may, from time to laid over more than the necessary five days time, require.

from its introduction into the city council, The second clause of the ordinance above as is required by section 3636 of the statutes, quoted, as well as the succeeding five clauses

supra. thereof, which relate to the details of the

In the case at bar, however, the ordinance construction of the telephone system, the creating the franchise was introduced into charges it shall be authorized to make, etc., the city council on April 2, 1906, and was are but repetitions and copies of similar passed and approved at the same meeting. clauses in the original ordinance of April 2, It did not lie over for five days after its 1906. But this ordinance of May 7, 1906, introduction, as required by the statute was also passed by the city council on the supra, or for any period of time. same day of its introduction into that body.

The ordinance of May 7, 1906, accepting It is contended by counsel for the plaintiffs the bid of Butler, evidently attempted to that the original ordinance of April 2, 1906, cure the defect connected with the passage is void, because it violated section 3636 of of the ordinance of April 2, 1906, by attemptthe Kentucky Statutes, supra, in that it was ing to regrant a franchise to the purchaser passed by the city council on the same day substantially identical in terms with the of its introduction, and did not lie over five franchise theretofore granted by the ordidays thereafter, as is required by the statute. nance of April 2, 1906; but this curative The company attempts to avoid this criti- ordinance of May 7, 1906, is subject to the cism of the ordinance of April 2d by relying same criticism as to its passage that is made upon the ordinance of May 7, 1906, above against the ordinance of April 2, 1906. They referred to, which passed the council on that cannot be treated as one ordinance introday, and granted the franchise to appellant duced on April 2d and finally passed on May pursuant to the ordinance theretofore intro- 7th, because they are two separate and disduced on April 2d; and in support of this tinct ordinances, and, although they have contention the company relies upon Cumber- several provisions which are substantially land Telephone & Telegraph Co. v. Hickman, alike, they are not identical and do not pur129 Ky. 220, 111 S. W. 311, 33 Ky. Law Rep.

port to be the same ordinance. 730. In other words, the company would treat the two ordinances as 'one ordinance strict accordance with the terms of the stat

In the Hickman Case the court held, in which was introduced into the city council on April 2, 1906, and passed by that body on must lie over five days after its introduction

ute, that the ordinance creating the franchise May 7, 1906.

We do not, however, understand that the into the city council. It also held that the case of Cumberland Telephone & Telegraph ordinance or resolution accepting the bid and Co. v. Hickman, above relied on, justifies formally granting a franchise to the purchasthis procedure. In that case certain promot- er could be passed at the same meeting at ers asked that they be permitted to install which it was introduced into the council; in a public telephone exchange within the mu- other words, the court there held that, while nicipality. Their proposition was submitted the statute required the ordinance creating to an extra session of the council held on the franchise to lie over five days after its August 16, 1894, for the purpose of consider- introduction into the council before it was ing the proposition. The council determined finally passed, the statute nevertheless perto grant the franchise and directed its clerk mits the ordinance accepting the bid of the to advertise a public sale of the franchise purchaser and formally granting the franon September 3, 1891, which was the date chise to him to be passed at the session of of the next regular meeting of the council. its introduction. Furthermore, at the meeting on August 16th But all this is quite different from the there was introduced an ordinance setting method followed in the case at bar, since the forth the terms of the telephone franchise initial ordinance of April 2, 1906, creating to be granted, and this ordinance was laid the franchise did not lie over five days, and over until the next meeting, to be held on consequently was passed in violation of the September 3d. The sale was made as adver- express terms of the statute, which are mantised, and, the bid having been reported ta datory. East Tenn. Tel. Co. v. Anderson the council for its action on September 3, County Tel. Co., 57 S. W. 457, 22 Ky. Law

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