(273 S.W.) to the gate and asked Ben if he had any was in there and got his pistol. The first whisky. Ben told him, "No." and Colum- he heard was when Columbus said, "Ain't I bus just pulled his gun and shot him. Wit- got a right to go up and down the road any ness did not pay any attention to what Ben time I want to?" Columbus said, "Ain't none brought with him out of the house as he came of you fellows got any liquor?" and cursed. up behind him. When shot, Ben was standing When he said that he shot Ben. It was dark, about four feet from the gate and the pistol and he could not see what Ben was doing. from which the shots were fired was about Town Hall testified that two or three days two feet away. Before being shot, Ben did after the homicide he met Milburn Polly, and not attempt to hurt anybody. When he fell, Milburn told him that when Ben went into however, there was a gun lying in the walk. the house he stated that he would kill that Witness did not know whether he had had it Lum Craft, and also said in the same conin his hand or not. On cross-examination versation that Lum beat him to it. Accordwitness stated that Ben was out on the walking to Reuben Craft, deceased came out with when Columbus first fired and then went in- his pistol, holding it up in his hand, but he to the house and came out again. Before go- did not know what deceased was doing when ing into the house Ben said, "If you want to the shots were fired. shoot, I will just help you." The argument is that there is no contradiction in the evidence that the deceased after he first appeared on the scene made threatening remarks, went back into the house, secured his pistol, returned with it in his hand, and advanced towards appellant. This may be conceded, but the evidence is conflicting as to whether deceased attempted to raise his pistol or made any demonstration to shoot appellant just before he was shot. Indeed, there was substantial evidence that the deceased did not attempt to shoot ap Ellis Polly, who saw the difficulty, testified that when Ben came out some one shot up the grade and Columbus pulled his pistol and shot four or five times. Ben asked Columbus not to shoot around the house, but to go down the road or up the road. Columbus replied that he would do as he pleased. Ben then went into the house and got his pistol. Columbus asked Ben if he had any liquor, and Ben said, "No." What Ben was doing with the pistol at the time Columbus shot he could not tell. If Ben made any at-pellant, and that appellant after inquiring tempt to shoot, he did not see it. At the time Ben had the pistol, holding it against his hip. He had it up. He had the pistol that way until he got shot, but witness could not tell how it was pointed at the time. On the other hand, appellant testified that after Ben had told him to get on up the road or down it, one, he went into the house, got his gun and came out with the gun cocked. Appellant told him that he did not want any trouble, and Ben said, "You get on up the road or down it, one." Ben walked about three steps and came up with his gun, and as he did so appellant fired two shots and killed him. The deceased brought the gun up with both hands, with the gun pointing towards him, and he believed deceased was going to kill him. He and deceased had had a previous difficulty, but had become friendly. At the time of the tragedy John Polly was lying on the bed asleep, and Ellis Polly was not there. Prior to that time appellant had not done any of the shooting that had occurred. According to Martin Craft, after the shooting up the road, Ben said, "Wait until I go back into the house and get my gun and I'll help you boys shoot." Ben went into the house and returned with his pistol cocked. After some conversation Ben came up with his pistol, and Columbus fired two shots, and Ben fell. According to Broas Bentley, Ben came into the house while he if any of the boys had any liquor, immediately fired two shots. On this showing the question of self-defense was for the jury, and we are unable to say that the verdict is flagrantly against the evidence. [3] It appears that Reuben Craft, a witness for appellant, stated on cross-examination that to the best of his recollection appellant had a pistol in his hand before the deceased went into the house and got his pistol. Appellant was recalled, and stated that he did not have a pistol in his hand before the deceased came out of his house with his pistol. He then offered to prove the same thing by Martin Craft, but Craft's evidence was excluded. The point is made that under section 596, Civil Code, appellant had a right to contradict his witness Reuben Craft by other evidence, and that Martin Craft's evidence was improperly excluded. Perhaps the court should have permitted Martin Craft's statement to go to the jury, but in our opinion its exclusion was not prejudicial error. The real question in the case was whether appellant believed and had reasonable grounds to believe that he was then and there in danger of death or great bodily harm at the hands of the deceased, and whether or not he had his pistol in his hand before deceased went back into the house has but little bearing on this question. Judgment affirmed. OLIVER v. CLARK, Sheriff, et al. (Court of Appeals of Kentucky. June 9, 1925.) I Appeal and error 1008 (2)-Where law and facts are submitted to court, judgment treated as verdict of properly instructed jury. Where law and facts in ordinary action are by consent submitted to circuit court without jury, court's judgment is treated as verdict of properly instructed jury. 2. Evidence 597-Verdict must be supported by evidence, and cannot rest upon mere suspicion. Verdict of jury must be supported by evidence, and cannot rest upon mere suspicion. 3. Trial 367—Judgment must be rendered upon the record. Judgment, in case tried without jury, must be rendered upon the record, and not in the light of facts known to the court outside of the record. 4. Intoxicating liquors 251-Evidence held not to show automobile, claimed by plaintiff, did not belong to her. was Evidence held not to show that automobile, seized by officer, under Acts 1922, c. 33, §§ 12, 13, and claimed by plaintiff, whose son driving it when seized, did not belong to her. 5. Intoxicating liquors 255-Sale of car seized held unauthorized until owner of car is brought before court. Sale of a car seized, because it contained whisky, is not authorized by Acts 1922, c. 33, §§ 12, 13, until the owner of the car is brought before court. 6. Intoxicating liquors 255-Automobile, knowingly permitted by owner to be used for unlawful transportation of intoxicating liq. uor, may be sold. Automobile, knowingly permitted by owner to be used by another for unlawful transportation of intoxicating liquor, may be sold, under Acts 1922, c. 33, § 13. of the car by Polly Oliver, it being admitted that, if the automobile belonged to her, she court gave judgment in favor of the defendwas entitled to the relief prayed. The circuit ants. The plaintiff appeals. The proof showed that the defendants came in possession of the automobile in this way: The defendants were officers of Boyd county. They had information that a delivery of moonshine whisky was to be made at a certain point in the county on the following night. They went to the place and about 8 o'clock Kelly Oliver, the son of appellant, drove up in this car with 47 gallons of whisky in it. They seized the whisky and the car under section 2554a, subsecs. 12 and 13 (Acts 1922, c. 33, §§ 12, 13). The next morning Mrs. Oliver brought this suit against them to recover the car. The proof for her on the trial showed that her son Kelly about a year before owned a Chevrolet car, which he wanted to sell for $600. He owed her $600 and she gave up to him the notes she had against him for the car. He turned over the car to her; the license was then made out in her name, and it was run in her name from that time for about 8 or 10 months, when she concluded to trade it for an Overland. Her husband and Kelly made the trade for her, but she furnished the money which paid for the difference between the two cars. The bill of sale was made in her name and the license was taken out in her name for this car as had been done in the case of the Chevrolet. The car was kept at the home and used by the family. The old lady could not run the car herself. Her son Kelly operated it when she rode in it. She testified that the car was there about dark on the evening in question; that the next morning it was missing and that it was taken from her home without her knowledge or consent. The fact that she bought the Chevrolet car from her son is proved by her and by a neighbor, who was present at the transaction and saw the notes delivered. Appeal from Circuit Court, Boyd County. Suit by Polly Oliver against H. D. Clark, Sheriff, and others. Judgment for defendants, and plaintiff appeals. Reversed and re-ing; that he and his mother and father all manded for new trial. B. S. Wilson, of Ashland, for appellant. John F. Coldiron, of Catlettsburg, for appellees. The commonwealth showed that the reputation of Kelly Oliver was bad for moonshin lived in the same house. Being asked where she got the money to buy the car she said that she sold butter, eggs, and the like and worked some on the farm. Kelly Oliver did not testify on the trial. The questions put to the other witnesses by the defendants sought to show that Kelly used this car in his moonshining business, and to prevent its being confiscated had put it in his mother's name, but there was no direct evidence of this. HOBSON, C. Appellant, Polly Oliver, brought this action against appellees alleging that she was the owner of one Overland touring car licensed under the registration number of 177788, of the value of $500. She prayed judgment for the car and damages for its [1-4] It is well settled that where the law detention. Answers were filed controverting and facts in an ordinary action are by conthe allegations of the petition. and the case sent submitted to the circuit court without a coming on for trial it was submitted on the jury, the judgment of the court will be treatlaw and facts to the circuit court without a ed as the verdict of a properly instructed jury on the single question of the ownership jury; but the verdict of a jury must be sup (273 S.W.) Affirmed. Faulkner, Stanfill & Faulkner, of Hazard, for appellant. Napier & Helm, of Hazard, for appellees. ported by the evidence, it cannot rest upon Compensation Board, the employer appeals. mere suspicion. There is no evidence in the record contradicting the testimony for the plaintiff. There is no testimony that she did 、not have the money to pay for the car, and no facts are proved showing that Kelly Oliver really owned the car, or that the car was put in the mother's name for the fraudulent purpose of defeating his liabilities. The judgment may have been induced by facts known to the court outside of the record, but judgment must be rendered here upon the record and this does not warrant the judgment. [5, 6] The judgment is not rendered under subsection 12 of section 2554a (Acts 1922, c. 33), but under subsection 13, which warrants a judgment for the sale of the car in a proceeding like this, although there has been no conviction. But if Polly Oliver does not own the car, and it is ordered sold as the property of Kelly Oliver, he should be brought before the court, for if she does not own the car the owner of the car will not be before the court, and no sale should be ordered until the owner of the car is brought before the court. If Polly Oliver owned the car and knowingly or intentionally permitted the use of it for the purpose of the unlawful transportation of intoxicating liquors by Kelly Oliver, the car may be sold under subsection 13 as her property, under proper allegations and proof. Judgment reversed, and cause remanded for new trial and further proceedings consistent herewith. 2. Master and servant 405 (6)—Finding of disability of compensation claimant sustained. Finding of fact of Workmen's Compensation Board that compensation claimant, suffering from ankylosed condition of ankle and foot as result of injury, was totally disabled, for a specified period and disabled to extent of 50 per cent. for an added period held supported by credible evidence. SANDIDGE, C. Appellee Gilbert Clemens was awarded compensation by the Workmen's Compensation Board at the rate of $15 a week for total disability from January 12, 1922, to March 11, 1923, and thereafter at the rate of $6 a week for 50 per cent. impairment until further order of the Board. Appellant, Blue Grass Coal Corporation, appealed from the award so made to the Perry circuit court. The judgment of that court confirmed the award made, and this appeal has been prosecuted. It is conceded that appellee was employed by appellant; that they both were operating under the provisions of the Kentucky Workmen's Compensation Act, and that appellee was injured "by accident arising out of and in the course of his employment." Ky. St. § 4880. The sole ground upon which appellant seeks to reverse the award made by the Compensation Board is that it is not supported by any evidence, in that upon the hearing no evidence was introduced for appellee tending to establish that he was totally disabled for the period of time he was compensated as totally disabled, or that he was disabled to the extent of 50 per cent. during the time he was compensated as being 50 per cent. disabled, as found by the award. [1] In Employers' Liability Assurance CorDoration et al. v. Gardner et al., 204 Ky. 216, 263 S. W. 743, the rule was thus written: "Unless there is an entire absence of sub Andrews stantial and credible evidence to support the [2] The uncontradicted evidence discloses that, while working for appellant and on or about January 12, 1922, appellee, while loading coal, was injured by a fall of slate from the roof of the mine. One of the bones of one of his ankles was fractured, causing the chief injury. A temporary dressing was first applied. The following day the ankle was bandaged in splints, and some 8 or 10 days Appeal from Circuit Court, Perry County. later a plaster of Paris bandage was applied. Proceeding under the Workmen's Compen- It remained for some 30 days, and then was sation Act (Ky. St. §§ 4880-4987), by Gilbert removed and replaced. Appellee was treatClemens, employee, opposed by the Hazard ed by the physicians employed by appellant Blue Grass Coal Corporation, employer. | during this time, and was subsequently sent From a judgment of the circuit court con- to Lexington, Ky., and treated there for a firming the award made by the Workmen's while. At the time of the hearing before the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes tax rates or indebtedness, under Const. § 157, or limit of municipal indebtedness under sec tion 158. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, TaxTaxation.] 3. Municipal corporations 918(1)—Submission of question of bond issue for street improvement held not required where improvement at exclusive cost of abutting owners. Ky. St. §§ 3643-1 to 3643-12, do not require that when street improvements are ordered at exclusive cost of abutting property owners under 10-year bond plan, question of bond issue must be submitted to voters of city, even if cost of work exceeds amount of legal annual levy or constitutional limit of indebtedness. Workmen's Compensation Board, appellee not to be considered in determining municipal was still walking on crutches, and testified that, due to the stiffness of his ankle joint and the pain he suffered when attempting to walk unsupported, he was able to walk only by using crutches. Appellee was examined in the presence of the member of the Workmen's Compensation Board who heard this case by two or three physicians, and the ankylosed condition of the ankle and pedal digits was fully demonstrated to the Board by that examination. A physician and surgeon introduced as a witness for appellee testified that he had examined him that day, described the ankylosed condition of his ankle and foot, and testified that for purposes of farm labor, in his judgment, appellee's injuries impaired him 25 per cent., and that his injuries as relating to the work in which he was employed when injured (coal loading in a coal mine) impaired him 50 per cent. Some two or three physicians and surgeons testified for appellant as to having examined appellee, and they placed the impairment of his ability to labor at 15 per cent. However, they all conceded the ankylosed condition of his ankle and foot as the result of the injury, but expressed the opinion that that condition would improve with use, but all agreed that it would never be restored to its former condition. In that state of case it cannot be held that there was no credible evidence to support the finding of fact by the Compensation Board. The question, of course, is subject to review and such change at the hands of the Workmen's Compensation Board as changed conditions may war Ky. St. §§ 4356t5, 4356t8, providing that cost of constructing state highways is to be borne by state and federal government, did not repeal existing statutes, authorizing cities and towns to construct and maintain their streets, and until funds become available, and state road department undertakes construction, cities and towns may construct and reconstruct their streets under any plans provided by their charters. 2. Municipal corporations 864(4)—Special assessments not "taxes" within constitutional provisions as to municipal tax rate and limit of indebtedness. Special assessments for street improvements are not taxes within meaning of and are 4. Municipal corporations 414(1)—City con structing entire system of streets under one plan may thereafter reconstruct them under another authorized plan. Where city of fifth class, pursuant to Ky. St. §§ 3643-1 to 3643-12, constructed entire system of its streets and highways at exclusive cost of city, held that, after lapse of 10 years, streets having worn out, city may reconstruct streets at cost of abutting owners. 5. Municipal corporations struction of part of street under unauthorized plan cannot affect validity of improvement ordinance proceeding under statutory plan. 288(1)-Con That city of fifth class constructed a portion of one street under a plan not authorized by Ky. St. §§ 3643-1 to 3643-12, cannot affect validity of ordinance proceeding under one of statutory plans, providing for street improvements at expense of abutting property owners. 6. Municipal corporations ~413(2)—Abutting property owners cannot complain because improvement ordinance provides for constructing street intersections at city's expense. Abutting property owners, attacking validity of a street improvement ordinance, cannot complain that, by the ordinance, city has agreed to pay for street intersections, since if city council may not legally so provide, then cost of street intersections necessarily would be charged to abutting property owners. Appeal from Circuit Court, Muhlenberg County. Suit by J. E. Shaver and others against. L. E. Rice, Mayor of the City of Greenville, and others. Judgment dismissing petition, and plaintiffs appeal. Affirmed. Belcher & Belcher, of Greenville, for appellants. T. E. Sparks and Wilkins & Sparks, all of Greenville, for appellees. SANDIDGE, C. The appellants (and there are 49 of them) were plaintiffs below. A general demurrer was sustained to their peti (273 S.W.) tion as amended, and they declined to plead I shall be maintained entirely by the state, but further. They prosecute this appeal from nothing herein shall prevent any county, muthe judgment thereupon entered dismissing the petition. It appears that in 1924 the city council of the city of Greenville, Ky., enacted an ordinance providing for the construction of certain of its streets at the expense of the abutting property owners under the 10-year bond plan of sections 3643-1 to 3643-12, Carroll's Kentucky Statutes 1922. Pursuant to the ordinance, a contract was let, and the streets have been constructed. This action was instituted by appellants, all of whom own lots abutting upon the streets so improved, to enjoin appellees, the mayor and council and the city, from issuing and selling the bonds, and from making any apportionment or assessment against them or any of them. They attacked the validity of the ordinance, and challenged the right of the city and its mayor and council to require them to pay their proportionate part of the cost of the street improvement for the several reasons hereinafter discussed. The petition sets forth that the streets to be improved under the ordinance in question constitute that part of project No. 10 of the primary system of state highways provided for by section 4356t5, Carroll's Kentucky Statutes 1922, that passes through and lies within the corporate limits of the city of Greenville, Ky. The petition pleaded the provisions of the closing literary paragraph of the section, supra, and the provisions of section 4356t8, of the Statutes, and, under them, challenged the right of the city of Greenville, through its board of council and mayor, to compel the owners of property abutting upon such of its streets as are a part of project No. 10 of the primary system of state highways to pay the cost of constructing those streets. It is contended for appellants that the enaction of the two sections of the statutes above in effect and by implication repealed all statutory authority of cities and towns to construct, at the expense of abutting property owners, any of their streets that became a part of the primary system of state highways; and that now streets within cities and towns which are a part of that system may be constructed only as provided for in the two sections of the statute above. Section 4356t5, after providing for and declaring the various 63 projects that constitute the system of state highways, further declares: "All state and federal moneys used in the construction and maintenance of roads in the state, except as otherwise provided in this act, shall be used in the construction and maintenance of the roads herein designated until the entire system is fully completed. The cost of construction of this entire system of state highways shall be borne entirely by the state, or by the state and federal government, where the roads are built in co-operation, and they 273 S.W.-4 nicipality, association, firm or individual from making a donation to the state in aid of the construction or maintenance of any of the said right to accept any donation on the terms and roads of the state, and the state shall have the conditions prescribed by the state highway commission. The construction and maintenance of this system of primary roads shall be under the direction, supervision and control of said commission and they shall do all things necessary in the construction of said roads as herein required." Section 4356t8 reads: "When any primary road herein designated must pass through a city or town, the state highway commission is hereby empowered to enter into a contract with such city or town for the construction of such road if the road through the city or town is to be different from the road constructed outside of the city or town, but if the road is the same the cost thereof shall be paid as is the cost of other roads designated herein. In the event it is necessary to construct a road or street at a greater cost than is paid for construction of a like lineal mileage outside of the city or town, such city or town must pay the additional cost of construction, and the details shall be agreed upon between such city or town and said state highway commission." Appellants insist that, since by those sections of the statutes it is provided that the cost of constructing the entire system of state highways shall be borne by the state, or by the state and federal government, and since a plan is provided whereby, within the limits of a city or town, if the city desires a higher type, more expensive, or wider highway than that contemplated by the primary system, the state highway commission may contract with the city or town so that each may bear its proportionate part of the cost of the construction, no other plan or system of building streets in cities or towns that by the statute above were made part of the primary system of state highways may be followed than that so provided for; and that cities and towns are now powerless to construct and reconstruct such streets at the expense of abutting property owners. [1] The court is unable to sustain appellants' contention on this question. Certainly, the statutes quoted above have conferred upon the state highway department the power and authority, in constructing the primary system of state highways, to construct that portion of it lying within cities and towns. The primary system of state highways, as originally created and as added to by succeeding Legislatures, is an exceedingly large undertaking, and many years will elapse before, from the revenues that may be devoted to it, under the constitutional and statutory limitations, fettering the road department, it can be completed. If appellants' contention should be upheld, a city would be powerless to improve any of its streets which consti |