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(273 S.W.)

had just lifted and placed in the wall fell | ly from the injury he received in the course upon him, and striking him a glancing blow of his employment, but no evidence whatever on the head, rolled down his right side and that it resulted solely therefrom, unless such leg; that it left no mark or bruise upon his an inference is reasonable from the mere body, but that immediately afterward he sequence of events and plaintiff's apparent notified Thornhill of the accident, left his good health theretofore. work, and went home; that he had a severe headache and "felt bad" continuously there after until the next morning about 7 o'clock, when he suffered a stroke of paralysis.

This certainly is some evidence of an injury to appellee, arising out of and in the course of his employment, and it is clear that neither of appellant's first two complaints can be sustained.

[4] In addition to the foregoing evidence, plaintiff stated that at the time of and previous to his injury he was an able-bodied man, in good health, capable of earning his living by manual labor, and that for nine months next before his injury he had worked for defendant in its mine at all times when the mine was operated; that he "never had any trouble at all" in doing his work, and had suffered no injury prior to the one of which he complains; that he was not aware of any pre-existing disease, and had not found it necessary to consult a physician in regard to his physical condition; and that since the accident he had been totally incapacitated.

He did not introduce any physician, or in any way attempt to prove that the stroke of paralysis resulted proximately or solely from the injury received in appellant's mine the day before, except by his own recital of the sequence of events, coupled with his statement that his health had been good prior thereto.

The appellant, by three physicians who qualified as experts, proved that the paralysis was due to apoplexy, which could not have resulted solely from the injury received in the mine, in view of the fact that there was no fracture of the skull and the paralysis did not develop until about 20 hours after the injury. They examined appellee after the paralysis, and found his blood pressure dangerously high, and that his arteries were hardened and very brittle. They stated that these conditions usually developed very slowly, and gave it as their opinion that same could not have been caused by the accident described by appellee, and that his stroke of apoplexy, occurring about 20 hours after the injury, was the result of his physical condition and natural causes rather than the accident, but they admitted that either the strain of lifting the rock into the wall, or its striking plaintiff as it fell therefrom, might have been a contributing cause of the stroke of apoplexy and the resultant paralysis, which admittedly renders plaintiff totally disabled.

Hence there was some evidence, at least, that plaintiff's disability resulted proximate

That such an inference is not reasonable in the face of uncontradicted expert opinion to the contrary seems to us apparent, since the question is necessarily one beyond the realm of common knowledge, and exclusively within the domain of expert opinion. We are therefore of the opinion that there was no evidence to support the board's finding of fact that appellee's total disability "was brought about entirely from an injury suffered by him in an accident that arose out of and in the course of his employment in the mines of the defendant, and not from a pre-existing disease."

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[5] It results, therefore, that the finding of the board that the disability was caused solely by the injury cannot be sustained. In such circumstances, it was the duty of the board to have apportioned the award. inson-Pettet Co. v. Workmen's Compensation Board, supra; Employers' Liability Assurance Corp. v. Gardner, 204 Ky. 216, 263 S. W. 743; B. F. Avery & Sons v. Carter, 205 Ky. 548, 266 S. W. 50.

[6] Appellant's final contention is that there is a fatal variance between appellee's application for compensation and his proof. This is based upon the fact that in his application, made out on form No. 11 prescribed by the board, he answered the question, "How did accident occur? Describe in detail," by stating, "Over exertion caused rush of blood to head, which produced partial apoplexy, which next day terminated in palsy of right side," without any reference to a rock having fallen upon him at the time, as detailed in his proof.

It is also true, however, that both the application and the proof refer to the same occurrence, and the mere fact that it was not described so accurately or fully in the application as in the evidence does not, in our judgment, constitute a variance, or afford any reason for disturbing the award.

[7] Although the application is the basis of the claim to be heard and tried out by the board, and therefore serves somewhat the same office in such a proceeding as does a petition in an action at law, its sufficiency is not to be determined by strict rules of pleading. Johnson et al. v. Hardy-Burlingham Mining Co., 205 Ky. 752, 266 S. W. 635.

Wherefore, for the reason indicated, the judgment of the circuit court affirming the award of the Compensation Board is reversed, and the cause is referred to the board, with directions to determine the extent to which appellee's injury and his pre-existing disease contributed to his disability, and apportion the award accordingly.

COLLIER v. COMMONWEALTH. (Court of Appeals of Kentucky. June 12, 1925.)

evidence, if true, showed appellant could not have been at the still but little, if any, longer than he and Sturgill stated. So while the evidence that appellant was actually engaged or interested in the operation of the 238(1)—Question of still was wholly circumstantial and not con

1. Intoxicating liquors defendant's guilt held for jury.

In prosecution for manufacturing intoxicating liquor, question of defendant's guilt held for jury.

2. Intoxicating liquors 236 (19)-Verdict of guilty of manufacturing held not flagrantly against the evidence.

In prosecution for manufacturing intoxicating liquor, verdict of guilty held not flagrantly against the evidence.

3. Criminal law 938(1)-Refusal to grant new trial for newly discovered evidence held not erroneous.

clusive, his guilt or innocence was clearly a question for the jury upon all of the evidence, and we cannot say that their verdict of guilt is flagrantly against the evidence simply because they accepted as true a reasonable inference from the admitted circumstances, rather than the explanation thereof offered by appellant and Sturgill, even though their explanation was not unreasonable and was partially corroborated by other and seemingly disinterested witnesses.

[3] Complaint is also made of the refusal to grant a new trial for newly discovered In liquor prosecution, refusal to grant new evidence, but this is clearly without merit, trial for newly discovered evidence held not er- since there was, not only no showing of dilroneous, where there was no showing of dili-igence, but the alleged newly discovered evigence, and alleged newly discovered evidence was cumulative and not calculated to change result on another trial.

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CLARKE, J. [1, 2] Appellant complains of his conviction of illegally manufacturing intoxicating liquor. His first contention is that the verdict is flagrantly against the evidence. He and one Sturgill were arrested at a moonshine still, that was in operation when same was raided by officers, and appellant's reputation in that respect is shown, without contradiction, to be bad. He was captured and arrested before he became aware of the presence of the officers, and, while they did not see him engaged in any act connected with the still's operation, they state he tried to jerk loose when arrested, and that the third member of the party, Martin Whitson, ran and made good his escape before they could reach him.

The still was located in a hollow, and about equidistant from the homes of appellant and Whitson. Appellant proved by himself and Sturgill that only Whitson, who is a fugitive from justice, was interested or engaged in operating the still; that appellant had been there only a few minutes, and came simply to deliver a message to Whitson from his father. Their testimony as to the time appellant had been at the still was corroborated by two other witnesses, whose

dence was cumulative merely, and not of a character calculated to change the result upon another trial. Judgment affirmed.

VANMETER et al. v. COMMONWEALTH. (Court of Appeals of Kentucky. June 9, 1925.) 1. Indictment and information 71-Particular circumstances in indictment must show that offense committed.

The particular circumstances in an indictment must show that an offense has been com

mitted.

2. Criminal law 304 (20)-Not judicially noticed that a particular kind of beer intoxicating.

Though courts will judicially notice that is not applicable to a particular kind of beer, ordinary common beer is intoxicating, such rule which may or may not be intoxicating.

3. Intoxicating liquors 216-Indictment for possessing still beer, failing to allege that it was intoxicating, held bad on demurrer.

Indictment for possession of intoxicating liquor, charging that defendants "did unlawfully have and keep in their possession spirituous, vinous, and malt liquors, to wit, still beer" without alleging that the still beer was intoxicating, held insufficient in view of Cr. Code Prac. §§ 122, 124, rendering indictment bad on demurrer.

Appeal from Circuit Court, Edmonson County.

Wilbert Vanmeter and another were con

victed of possessing intoxicating liquors, and they appeal. Reversed and remanded, with directions to sustain demurrer to indictment.

Milton Clark,' of Brownsville, for appellants.

(273 S.W.)

Frank E. Daugherty, Atty. Gen., and Chas. toxicating, that rule does not apply to a parF. Creal, Asst: Atty. Gen., for the Common- ticular kind of beer, which may or may not wealth. be intoxicating.

CLAY, J. Appellants, Wilbert Vanmeter and Tom Vanmeter, were convicted of possessing intoxicating liquor, and their punishment fixed at a fine of $300 each and imprisonment for 60 days.

The first ground on which a reversal is asked is that the indictment was insufficient. The indictment is as follows:

"The grand jury of the county of Edmonson, in the name and by the authority of the commonwealth of Kentucky, accuse Wilbert Vanmeter and Tom Vanmeter of the offense of unlawfully having in possession spirituous, malt, and intoxicating liquors, committed as follows, to wit: The said Vanmeter and Vanmeter heretofore, to wit, on the day A. D. 192-, and before the finding of this indictment in the county aforesaid, did unlawfully, have and keep in their possession spirituous, vinous, and malt liquors, to wit: Still beer for other than medicinal, mechanical, scientific, or sacramental purposes in the commonwealth of Kentucky. Done as aforesaid within the year last past, and against the peace and dignity of the commonwealth of Kentucky."

Under our Code, the indictment must be direct and certain as regards (1) the party charged; (2) the offense charged; (3) the county in which the offense was committed; (4) the particular circumstances of the offense charged, if they be necessary to constitute a complete offense. Section 124, Criminal Code. It is also essential that an indictment contain a statement of the acts constituting the offense in ordinary and concise language, and in such manner as to enable a person of common understanding to know what is intended, and with such degree of certainty as to enable the court to pronounce judgment on conviction according to the right of the case. Section 122, Criminal Code.

[1, 2] Our statute is directed against the possession of intoxicating liquor. While the indictment accuses appellants of possessing intoxicating liquor, yet, when it comes to describe the particular circumstances of the offense, it merely charges that they "did unlawfully have and keep in their possession spirituous, vinous, and malt liquors, to wit, still beer," without any allegation that the still beer was intoxicating. It has never been held in any case that certainty in stating the offense charged in an indictment will dispense with the necessary and required certainty in stating the particular circumstances of the offense charged. On the contrary, it is necessary that the particular cir

cumstances in the indictment show that an offense has been committed. Elliott v. Commonwealth, 194 Ky. 576, 240 S. W. 61. While the courts will take judicial knowledge of the fact that ordinary, common beer, is in

[3] That being true, the descriptive part of the indictment should have alleged that the still beer was intoxicating, and the omission of this allegation rendered the indictment bad on demurrer. In view of this conclusion, we refrain from passing on the other questions presented.

Judgment reversed, and cause remanded with directions to sustain the demurrer to the indictment.

SPILLMAN et al. v. WHEELER et al. (Court of Appeals of Kentucky. June 9, 1925.) Vendor and purchaser 334 (7) — Purchaser entitled to recover for acreage deficiency of more than 10 per cent.

Where deed described tract by metes and bounds and as containing 2994 acres, but excluded described tracts of 50 and 100 acres, purchaser held entitled to recover for shortage amounting to over 10 per cent., without any allegation of fraud, or reformation of deed.

Appeal from Circuit Court,
County.

Trimble

Action by J. L. Wheeler and another against Elmer Spillman and others. Judgment for plaintiffs, and defendants appeal.

Affirmed.

Edwards, Ogden & Peak, of Louisville, and Eugene Tandy, of Bedford, for appellants.

H. B. Kinsolving, Jr., of Bedford, Turner

& Turner, of Newcastle, and Kingsolving, Rives, Smith & Black, of Bedford, for appellees.

SAMPSON, J. Appellants Elmer Spillman et al. were the owners in 1918 of the old J. W. Bell farm in Trimble county. It contained 2994 acres, according to the title papers, but J. W. Bell in his life time sold off two tracts, leaving a boundary of approximately 1494 acres, as they believed. They sold this balance to J. L. Wheeler and Edgar M. Wheeler, for $17,075. The boundary in the deed gave the metes and bounds, concluding "thence to the beginning," containing 2994 acres and 37 poles. But from the above-described tract of land there are to be excluded the two following parcels of land:

"Tract 1. A tract sold by J. W. Bell and his wife to Dora L. B. Hunter, March 5, 1920, and thus described: Bounded on the north by the waters of Patton's creek, on the east by the lands of Robert Satterwhite, on the south by the lands of James Dailey, and on the west by the lands of Henry Jones, containing 50 acres, be the same more or less, recorded in Book 37, page 439.

"Second Tract. Beginning at a sugar tree corner in J. W. Bell and Pete Klineline's line;

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

thence north to Patton's creek, to a red oak tree in the edge of the creek; thence up the creek with the meanders thereof to Wright's line; thence with Wright's line, a northerly course to Pete Klineline corner in Wright's line; thence with Klineline's line a westerly course to the place of beginning, containing 100 acres more or less, conveyed by J. W. Bell and wife to Robert Satterwhite by deed dated March 21, 1900, and recorded in Book 31, at page 500, Oldham county court clerk's office."

Appellees the Wheelers conveyed the land to another, who was at the time of the prep aration of this case the owner thereof. After he purchased it, he caused the tract to be surveyed, and found, after excluding the two boundaries described above, that there was only 117 acres left in the tract. Thereupon the Wheelers brought this action against Mr. Spillman and the other Bell heirs to recover something more than $1,500 on account of deficit in acreage.

were settled in Harrison v. Talbot, 2 Dana, 258, Chief Justice Robertson writing for this court, and that the petition in this case seeks to recover alone upon alleged mutual mistake and verbal representations as to the quantity of the land, and does not seek a reformation of the contract; nor does it allege that the verbal representations were falsely and fraudulently made for the purpose of deceiving appellees. Therefore the demurrer to the petition should have been sustained. It is true that the principles laid down in the case of Harrison v. Talbot, supra, have been frequently recognized and followed by this court in cases involving deficiencies in acreage of lands, but we do not think the facts of this case bring it within the principles there announced. Neither are the rules stated in Beckley v. Gilmore, 192 Ky. 744, 234 S. W. 459, applicable to this case, but it is governed by the rules adhered to in Wilson v. Morris, 192 Ky. 469, 233 S. W. 1049. The facts in the latter case are so like the ones of this case that they cannot be distinguished. A parcel of land had been sold from the boundary in the WilsonMorris Case before the disputed boundary was conveyed, just as in this case. The shortage in acreage was discovered after a resale had been made and the lands surveyed. The facts in that respect are also similar to the ones now before us. The shortage in acreage was shown in much the same way it is proven in this case, and we held that the

Appellants traversed the material averments of the petition, especially with respect to the shortage of acreage. Further pleading, they averred the tract of land which they conveyed to appellees came to them by inheritance and contained 299 acres, but that their ancestor, J. W. Bell, who owned the land for a number of years, sold off two tracts described in the deed, the number of acres contained in each of them not definitely known; that the appellees had lived in the neighborhood of the farm for many years and were well acquainted with its bound-grantors were liable to the grantees for the aries; and that they bought the tract as a boundary and not by the acre. Issue being joined, the parties took proof. The Wheelers testified that appellants, through themselves and their agents, represented to them that the tract contained 1494 acres and that they purchased the tract believing it contained that number of acres and paid the consideration upon that basis. The substance of the evidence for the appellants is that the sale was by the boundary, and not by the acre, and that no reference was made to the acreage of the tract except as mere description. The chancellor found that there was a shortage in acreage and adjudged the Wheelers recover of Mr. Spillman et al. the sum of $1,440, with interest from November 15, 1922, and their cost. From that judgment, this appeal is prosecuted.

In brief for appellants, it is said that the fundamental principles involved in this case

deficiency. No reformation of the writing
was asked or required. None was sought in
this case. The deed set forth the facts. Ac-
cording to that instrument, the tract contain-
ed 2994 acres. If the deficiency had been
less than 10 per cent. of the 1494 acres rep-
resented as conveyed, appellees would have
been without remedy; but the deficiency was
more than that, and an action in their favor
will lie to recover for the deficiency. In the
Beckley-Gilmore Case the deed did not re-
cite the number of acres and it was neces-
sary to have reformation of the contract be-
fore the plaintiffs could recover.
here, for the facts are shown in the deed.
No reformation was necessary. The cases
are clearly distinguishable.

Not so

The decree of the chancellor is fully supported by the evidence, and we find no reason to disturb it.

Judgment affirmed.

CLARK v. HALE.

(273 S.W.)

(Court of Appeals of Kentucky. June 9, 1925.) I. Executors and administrators 206(1) — What kind of services rendered by relatives In time of sickness does not obligate recipient to pay therefor, stated.

Sporadic visits to near relatives in time of sickness, accompanied by attentions prompted by affection or such attentions as should be so prompted, are not services raising an obligation of payment upon the part of the recipient. 2. Executors and administrators 206 (2)— Niece rendering extraordinary services to aunt held entitled to recover as on implied contract to pay.

Niece, rendering extraordinary services to aunt over period of five years and with expectation of compensation therefor, held entitled to recover as on implied contract to pay, despite family relation.

3. Executors and administrators 451 (2) In suit by niece for services rendered to aunt, based on implied contract, defendant's motion for peremptory Instruction held properly refused.

In suit by niece against estate, for services rendered to deceased aunt for a period of five years. based on implied contract to pay therefor. defendant's motion for peremptory instruction held properly refused.

4. Executors and administrators

221 (5)—

Evidence held to sustain recovery against estate for services rendered by niece, under Implied contract to pay therefor.

Evidence held to sustain recovery against estate for services rendered to deceased by plaintiff, her niece, under implied contract to pay therefor.

5. Executors and administrators 205(2)Recovery of $500 against estate for services rendered to deceased held not excessive.

Recovery of $500 against estate for extraordinary services rendered to decedent by her niece during the last five years of deceased's illness held not so excessive as to show passion or prejudice.

6. Evidence 487-Witnesses held properly allowed to give opinion as to value of services rendered by plaintiff to deceased.

In suit against estate for services rendered to deceased during her illness, permitting witnesses, after detailing facts from their knowledge, to give their opinion as to the value of the services rendered, held not error.

as to anything that occurred in the presence of plaintiff; but, there being no avowal as to what his testimony would be, defendant cannot be held to have been prejudiced by sustaining an objection to his competency.

8. Evidence 471 (25)-Testimony, that other heirs performed as many services as plaintiff, held properly rejected as conclusion.

Testimony, if otherwise competent, that other heirs performed as many services for deceased as did plaintiff, held properly rejected, as stating a mere conclusion.

Appeal from Circuit Court, Hopkins County.

Action by Sarah C. Hale against Dennie M. Clark, as administrator of Sarah Qualls, deceased. Judgment for plaintiff, and defendant appeals. Affirmed.

Cox & Grayot, of Madisonville, for appellant.

Charles G. Franklin and H. S. F. Bailey, both of Madisonville, for appellee.

MCCANDLESS, J. In this action Sarah C. Hale recovered the sum of $500 against the estate of her deceased aunt, Sarah Qualls, as compensation for services rendered for the latter in her lifetime under an implied contract, and the personal representative appeals.

The petition did not state the relationship of the parties, and it is admitted that a demurrer thereto was properly overruled; but it is earnestly insisted that a peremptory instruction for the defendant should have been given, and that the verdict is excessive.

The facts are: Mrs. Sarah Qualls was an aged widow lady living alone in the town of Dawson Springs. She owned her residence, had $700 or $800 deposited in bank, and drew a pension of $50 per month. She had been afflicted several years with phthisic and at intervals suffered intensely for days at a time. Her only near relatives were three nieces, all of whom were married and had homes of their own. She seems to have been estranged from two of these, but was quite intimate with the third, Sarah Hale, who together with her husband lived on a farm 11 miles from Dawson Springs.

Plaintiff's evidence is to the effect that Sarah visited her aunt regularly and remained with and nursed her when she was ill, doing the housework, including sweeping 7. Appeal and error 205-Witnesses cooking, washing, and bringing in the coal, 53(5), 159(9)-In suit to recover for services and otherwise giving the old lady such atrendered to deceased, witness for estate comtention as her sickness required. This atpetent as to some matters, but no prejudice tention continued during the five years imshown by sustaining objection to competency. mediately preceding her aunt's death. On In suit by niece against estate to recover one occasion when she had to return home, for services rendered to deceased, a husband of another niece, who did not testify, would have she procured a neighbor to stay with her been competent to testify as to all matters not aunt until she returned. It is further shown involving conversations or transactions with de- that on another occasion in winter she ceased, and as to the latter could have testified walked from her home to her aunt's resiFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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