and Phrases, First and Second Series, Vice [Ed. Note.-For other definitions, see Words Principal.] 5. MASTER AND SERVANT 205(5) ASSUR- sue and be sued as a single woman, the wife | cipal" whose assurance of safety is in effect the may sue her husband on a contract. Greenup assurance of the company. v. United States Fidelity & Guaranty Co., 159 Ky. 647, 167 S. W. 910; Coleman v. Coleman, 142 Ky. 36, 133 S. W. 1003. Other courts have held that similar statutes empower the wife to maintain an action in her own name against her husband for assault and imprisonment. Brown v. Brown, 88 Conn. 42, 89 Atl. 889, 52 L. R. A. (N. S.) 185, Ann. Cas. 1915D, 70; Fiedler v. Fiedler, 42 Okl. 124, 140 Pac. 1022, 52 L. R. A. (N. S.) 189. However, we do not have to go that far in this case, since the question here presented is regulated by section 2121, Kentucky Statutes, providing in part as follows: "A divorce from bed and board shall operate as to property thereafter acquired, and upon Where master assures a servant that a place the personal rights and legal capacities of the is safe, he can continue his work without asparties, as a divorce from the bonds of matri-suming the risk, unless the danger is so obvious mony, except that neither shall marry again that a person of ordinary prudence in his situduring the life of the other, and except that it ation would have refused to do so. shall not bar curtesy, dower, or distributive right." It will thus be seen that divorce a mensa et thoro has the same effect upon the personal rights and legal capacities of the parties as a divorce a vinculo, except as indicated in the statutes. And since a divorce of the latter character terminates the marriage relation, and removes any commonlaw disability arising out of the coverture of one spouse to sue the other (R. C. L. § 302, p. 486), it necessarily follows that a wife, who has secured a divorce a mensa et thoro, may sue her husband for a tort thereafter committed. It results that the demurrer should have been overruled. Judgment reversed, and cause remanded for proceedings consistent with this opin ion. (180 Ky. 691) BORDERLAND COAL CO. v. KIRK. (Court of Appeals of Kentucky. May 24, 1918.) 1. MASTER AND SERVANT 118(5)-MINESPROPS-STATUTES. Ky. St. § 2726, subd. 5, providing that every workman in need of props, cap pieces, and timbers shall notify the mine foreman, applies only to those workmen charged with the duty of propping, and not to every miner. 2. MASTER AND SERVANT PROPS-CUSTOM. 135 - MINES The custom of a mine may be proved to show upon whom the duty of propping a mine devolved, as required by Ky. St. § 2726, subd. 5, but such custom does not change the statutory requirement. 3. MASTER AND SERVANT 118(5)-MINERS -PROPPING-CUSTOM. Even if a company's rules imposed upon every miner the duty of doing his own propping, such rules could be waived, under Ky. St. 2726, subd. 5, relating to propping, by appointment of special employés for the work. 4. MASTER AND SERVANT 190(14)-MINERS -PROPPING"VICE PRINCIPAL"- ASSUR ANCE. A timber man to whom a ocal company has delegated the duty of propping is a "vice prin 6. MASTER AND SERVANT 288(1) ASSUR- 8. MASTER AND SERVANT 288(1) — ASSURANCE OF SAFETY-ASSUMPTION OF RISKQUESTION FOR JURY. prudence in relying on assurance of propman Whether a miner was exercising ordinary that a place was safe held, under the evidence, a question for the jury. 9. MASTER AND SERVANT 118(5) SAFE PLACES TO WORK-MINES. Where coal company's vice principal had just completed propping a place in a mine and no coal was being dug, the company was charged with the duty of using ordinary care to make it reasonably safe for a miner shoveling coal into 10. NEW TRIAL 66-VERDICT CONTRARY TO INSTRUCTION-INCONSISTENT INSTRUCTIONS. cars. A verdict contrary to one instruction will not be ground for a new trial, where there are other instructions authorizing the verdict, and it cannot be said that the verdict is contrary to the instructions as a whole. Appeal from Circuit Court, Pike County. Action by C. F. Kirk, as administrator of Wendell Holmes, deceased, against the Borderland Coal Company. Judgment for plaintiff, and defendant appeals. Affirmed. J. J. Moore, of Pikeville, James P. Woods, of Roanoke, Va., and Samuel D. Stokes, of Williamson, W. Va., for appellant. A. J. Kirk, of Paintsville, and Cline & Steele, of Pikeville, for appellee. CLAY, C. C. F. Kirk, as administrator of Wendell Holmes, deceased, brought this suit against the Borderland Coal Company, to recover damages for his death. From a verdict and judgment in his favor for $3,000, the coal company appeals. At the time of his death decedent was 26 years of age, and he and Peter Lewis were engaged in drawing pillars for the coal company. He and Lewis were "buddies," and were at work on the same pillar. At that time the company had a regular timberman by the name of John Lock, whose duty it was to prop and secure the roof where deceOn the morndent and Lewis were working. ing of the day of the accident, Lewis request ed the assistant mine foreman to send the timber man to prop the place where he and decedent were at work. Lock, the timber man, came about 11 o'clock and asked if any timbers were needed. At that time Lewis and decedent were eating their dinner. Lewis then went with Lock and showed him where to set three timbers. One of the designated places was under that portion of the roof from which the slate afterwards fell. Lewis then returned to the entry, and he and decedent continued to eat their dinner. After Lock finished his work he said, "All right; so long," meaning that everything was all right. About an hour and a half or two hours later, Lewis and decedent returned to work. Cars were then placed, and Lewis and decedent, who were about 15 feet apart, began to load. Instead of setting three timbers, Lock had set only one. The work in which they were engaged was dangerous, and slate was liable to fall unless the roof was properly propped. When they returned to the work, Holmes took a pick and sounded the roof, and said that it was all right. A few minutes later the slate fell and killed decedent. The slate would not have fallen if a timber had been set at that place. The company introduced a book of rules which, its manager testified, had been approved by the state mine inspector and printed and properly posted throughout the mine. One of these rules provided that each miner should take down the dangerous slate and do his own propping and timbering. It further provided that props, caps, and other timbers could be procured by placing an order therefor with the mine foreman or his assistant at least 24 hours in advance of the time they were needed, and giving the number, sizes, and lengths required. The same rule called attention to and quoted the following provision in subsection 5 of section 2726, Kentucky Statutes: "Every workman in need of props, cap pieces and timbers shall notify the mine foreman, or an assistant mine foreman, or any other person delegated by the mine foreman, of the fact at least one day in advance, giving the number, size, and length of props, cap pieces and timbers required. In case of emergency, the timber may be ordered immediately upon discovery of danger. If for any reason the necessary timbers cannot be supplied when required, the workman shall vacate the place until the timber needed is supplied." The company's manager was subsequently recalled by plaintiff, and testified that Lock was employed as a timber man and that it was his duty to set timbers wherever he thought they were necessary to be set to preserve the lives of the men and the property of the company. He further testified that it was Lock's duty, when directed by the assistant mine foreman, to set posts at pillar work such as decedent was employed in, and this had been the custom of the mine ever since it began operations. [1-3] It is first insisted that both the statute and the company's rules imposed on the decedent the duty of requesting props at least one day in advance, and of doing his own propping, and that the statutory duty could not be changed by custom. Hence it is argued that the company's demurrer to the petition and its motion for a peremptory should have been sustained because there was neither pleading nor proof that the decedent complied with the statute. We have ruled that where the duty of propping devolves upon the miner, he must request props in the manner pointed out by the statute, and that the statutory requirement could not be changed by custom of the mine so as to impose upon the mine owner a liability for failure to furnish props, when the statute itself was not complied with. Palmer's Adm'r v. Empire Coal Co., 162 Ky. 130, 172 S. W. 97; Stearns Coal & Lumber Co. v. Crabtree's Adm'r, 168 Ky. 8, 181 S. W. 615; Sneed & McGuire v. Legere, 168 Ky. 3, 181 S. W. 617. In construing the former statute we also held that the statute did not in terms impose either upon the mine owner or miner himself the duty of propping, and that whether the duty was imposed upon the one or the other could be shown by the agreement of the parties or the custom of the mine. We further held that the rules of the mine were not conclusive evidence of the terms of the contract of employment or the custom of the mine, for they might be waived. Old Diamond Coal Co. v. Denney, 160 Ky. 554, 169 S. W. 1016; Eagle Coal Co. v. Patrick's Adm'r, 161 Ky. 333, 170 S. W. 960. that: The present statute merely provides and timbers shall notify the mine foreman or "Every workman in need of props, cap pieces, an assistant mine foreman, or any other person delegated by the mine foreman, of the fact at least one day in advance, giving the number, size, and length of props, cap pieces, and timbers required," etc. Subsection 5, § 2726, Kentucky Statutes. Fairly construed, the statute applies only to those workmen charged with the duty of propping, and does not in terms impose upon every miner the duty of complying with the statute. That being true, the custom of the mine may be proved for the purpose of showing upon whom the duty of propping devolves, and the effect is not to change the statutory requirement by custom. Even if the company's rules imposed upon every miner the duty of doing his own propping, the uncontradicted evidence shows that these rules had been waived, and that it was the custom of the mine, ever since it began operations, to have a timber man whose duty it was to do the propping at such places as decedent and Lewis were required to work. We therefore conclude that the trial court did not err in overruling the demurrer to the petition, or the motion for a peremptory, because of the alleged failure of the decedent to comply with the statute and rules of the company. [4-8] Another error relied on is the sub and the court did not err in submitting this issue to the jury. Proctor Coal Co. v. Price's Adm'r, 172 Ky. 627, 189 S. W. 923. [10] It is further insisted that the verdict of the jury is contrary to instruction No. 5, and, that being true, a new trial should be granted whether that instruction be right or wrong. We had occasion to consider a similar question in the recent case of Borderland Coal Co. v. Miller, 179 Ky. 769, 201 S. W. 299, where the court said: "But when there is a series of instructions, as there was here, presenting different theories of all of the instructions together. They are no the case, it is the duty of the jury to consider more bound by what is said in one than they are by what is said in another; and, when so read and considered, the instruction in question did not have the peremptory effect claimed for it by counsel." mission to the jury of the issue of assurance of safety. It is first contended that the timber man, who was an inferior employé, was not authorized to bind the company by an assurance of safety. In reply to this contention it is sufficient to say that in the recent case of Carter Coal Co. v. Hill, 166 Ky. 213, 179 S. W. 2, we ruled that a timber man, to whom a coal company had delegated the duty of propping, was vice principal, and that his assurance of safety was in effect an assurance by the company. But it is further contended that the language used by the timber man did not amount to an assurance of safety. It is not necessary that the master or his representative shall assure the servant in terms that the place is safe. It is sufficient, if, under the circumstances, the acts and words of the master, or his repA series of instructions was also given in resentative, are in effect an assurance of this case. While instruction No. 5 authorsafety. Interstate Coal Co. v. Garrard, 163 ized a finding for defendant, other instrucKy. 235, 173 S. W. 767. Here the timber tions authorized a finding for plaintiff. A man had been requested by Lewis and di- verdict contrary to one instruction will not rected by the assistant mine foreman to prop be ground for a new trial, where there are the roof where decedent was at work. In In other instructions authorizing the verdict, response thereto he went to the working and it cannot be said that the verdict is conplace for that purpose. Upon leaving the working place, he said, "All right; so long."trary to the instructions considered as a There was evidence that the words, "All right," meant, in mining parlance, that everything was all right. Considering the circumstances under which the language was employed, we think it was a question for the jury whether it amounted to an assurance (Court of Appeals of Kentucky. May 21, 1918.) of safety. And if an assurance of safety was given, the decedent had the right to continue his work without assuming the risk, unless the danger was so obvious that a person of ordinary prudence in his situation would have refused to do so, and this, too, was also a question for the jury. Stearns Coal & Lumber Co. v. Calhoun, 166 Ky. 607, 179 S. W. 590. whole. Judgment affirmed. HOWELL v. CHANEY. 1. REFERENCE 34 OBJECTIONS. (180 Ky. 646) timony before a master and made no objection REFERENCE. On appeal it is immaterial whether a report of a master is regularly made, since it is only advisory, the only question being whether the judgment entered thereon is sustained by the evidence. 3. GIFTS 47(3)-CONFIDENTIAL RELATIONS and physically infirm parent residing with her [9] The point is also made that the court erred in authorizing a recovery if the defendant failed to use ordinary care to furnish the decedent a reasonably safe place for work. The basis for this contention is that the safeplace doctrine was not applicable because decedent himself was creating the danger during the progress of the work. It must be borne in mind that under the facts of this case, the duty of propping devolved upon the company and not upon decedent. Nor is it a case where the decedent was actually engaged in removing the coal at the time of the accident and the company had no opportunity to prop. As a matter of fact, the coal had been removed some time before, and in the mean time the company's timber man had been sent to do the propping and had had plenty of time to do so. Under these cir- Appeal from Circuit Court, Taylor County. cumstances the company was charged with Suit by Joe M. Young, in his own right the duty of using ordinary care to make and as administrator of the estate of A. J. decedent's working place reasonably safe, Young, deceased, and Mary E. Howell against Evidence held to fully sustain finding of chancellor that a gift by an old and physically ble, and that parent donor was mentally cominfirm parent was voluntarily given and equitapetent. 5. GIFTS 48-MENTAL CAPACITY-PROOF. Where evidence as to mental incapacity of a donor is so conflicting that a satisfactory result cannot be reached, resort will be had to the transaction itself, which, if just and rational will be allowed to stand, otherwise not. Rebecca F. Chaney and others. for named defendant, and the plaintiff appeals. Affirmed. Judgmenting complied with his request by continuing to last-named care for him and to furnish him a home the rest of his life, your commissioner is clearly of the opinion that A. J. Young had mental capacity sufficient to dispose of his property at and that it is not only a valid, but a just, gift." the time he made the gift to Rebecca Chaney, H. W. Rives, of Lebanon, for appellant. W. M. Jackson, of Campbellsville, for appel lee. The master recommended that Mrs. Chaney be adjudged the money and property in controversy received from her father as a gift. Plaintiffs filed exceptions to this report of the master, not only as to his findings and recommendations, but also as to his right to make any report at all. The court overruled the exceptions to this report, except as to one item, a note of $141, which was adjudged to belong to Mrs. Howell, and gave judgment to Mrs. Chaney for the money she claimed her father had given to her, amounting to $999.37, after crediting her with a $550 check it is admitted her father gave to her on July 27, 1911, for the purpose of equalizing her at that time with the rest of the children, except Mrs. Howell. From this judgment Mrs. Howell has appealed, insisting that the judgment is palpably against the preponderance of the evidence as to the mental capacity of A. J. Young at the time of the claimed gift, and that, the cause never having been referred to the master, he was without authority to make a report, and the judgment based thereon ought to be reversed. CLARKE, J. On July 6, 1914, A. J. Young, at the age of 92 years and 7 months, died a resident of Taylor county, at the home of his daughter, Rebecca F. Chaney, with whom he had resided for about 25 years. On November 2, 1914, the will of A. J. Young, bearing date of May 22, 1905, was probated, and his son John R. Young, named therein as executor, declining to qualify, another son, Joe M. Young, was appointed administrator with the will annexed. Thereafter, this suit was filed by Joe M. Young, as administrator and in his own right, and Mary E. Howell, a daughter of decedent, against Rebecca F. Chaney, John R. Young, and W. L. Young, the other children of decedent, for a settlement of his estate, and asking that Rebecca F. Chaney be required to report and account for about $1,700 worth of personal property that belonged to the decedent, which, it was alleged, she held and refused to turn over to the administrator. Mrs. Chaney answered, denying that decedent had any property at the time of his death, and alleging that he had, prior to his death, given to her all of his personal property in consideration of what she had theretofore done for him and the further consideration that she would continue to board and care for him as long as he lived and pay his funeral expenses. Plaintiffs denied the gift, and pleaded that decedent, at the time of the gift, was not of sufficient mental capacity to make, or to understand the effect of, a gift or contract. The record contains no order of reference to the master commissioner, but after the issues had been completed the parties, by agreement, took a large volume of evidence by deposition before the master, and at the [3, 4] Mrs. Chaney proved that the gift or term of court next before the one at which contract with her father was made in Authe judgment was entered the master was gust or September, 1911, by three witnesses, directed "to conclude his taking of deposi- her son, daughter-in-law, and a niece who tions and file his report in this case at said had no interest in the matter in any way, term of court." At the next term of the and is related in the same way to all of the court the master commissioner did file his re-parties to this action. There is no denial or port, which, after reciting the evidence in contradiction of this evidence, but, owing to detail upon the question of the mental capacity of A. J. Young, summarized same as follows: "After hearing all the witnesses testify and carefully considering all the testimony bearing on the question of the competency of said A. J. Young's mind to make said gift to his daughter, Rebecca Chaney, at the time it was made, and the express agreement made between the donor and donee at the time it was made, the donor, A. J. Young, saying: 'Here, Becky, is every dollar I have got, and I give it to you. You have taken care of me a long time; I have lived with you 20-odd years, and I want you to have everything I have got. I want you take care of me and pay all of my expenses' -thus recognizing his obligation, and she hav [1, 2] A sufficient answer to this latter objection is that the plaintiffs agreed to the taking of proof before the master as though there had been an order of reference to him for that purpose, and made no objection until after it was discovered that his report was adverse to them. But, aside from this, it is immaterial what the master reported, or whether his report was regularly made, since it was only advisory; and the only question about which we need concern ourselves is whether the judgment is sustained by the evidence. the confidential relationship existing between the donor, who was old and physically infirm, the burden was upon the donee to prove that the transaction was freely and voluntarily made and void of any vice rendering it inequitable or unfair. Davidson v. Davidson, 180 Ky. 190, 202 S. W. 493, and authorities cited therein. There is no evidence whatever to indicate that the gift was not made freely and voluntarily, as the witnesses for Mrs. Chaney stated it was made; while, upon the question of his mental capacity at that time, a great many witnesses testified, and their testimony is conflicting, although we think the clear preponderance of the evidence is upon the side of his being mentally capable at the time the gift was made. The only physician who testified was the attending physician of the decedent, and he stated that decedent's mind was all right during the fall of 1911 and until in April, 1912, when he had a severe spell of sickness, during which he was, at times, out of his mind, and after which all of the witnesses agree his mind was seriously impaired. In addition to the opinion evidence as to the condition of his mind at the time of the gift in August or September, 1911, is the proven fact that his children, other than Mrs. Howell, recognized his capacity to make a partial settlement of his affairs with them at a meeting at Salome on July 27, 1911, and no question is made by anybody to this suit of the validity of his acts upon that date. While Mrs. Howell was not at that meeting, she accepted from him thereafter as advancements several sums of money aggregating $225, with which she acknowledges she should be charged. So while the mental capacity of the decedent was recognized on July 27, 1911, by all of the parties except Mrs. Howell, and she had business transactions with him after that date, yet she is now claiming that, at the time of his gift, in less than two months thereafter, he did not have the mental capacity to understand what he was doing, although it is shown rather conclusively that the condition of his mind did not change materially, if at all, from the time of the Salome meeting until his illness in April, 1912. When a corporation fails to report any item or species of property of any kind or character owned by it that it is called on to report to the assessing board, and the value thereof, such failure is an omission, and not an undervaluation, allowing assessment at suit of revenue agent or sheriff under the statute. 2. TAXATION 3624 (5)—OMITTED PROPERTY SUIT FOR ASSESSMENT — BURDEN OF PROOF. The burden of proof as to omission from corporation's report is on the commonwealth in suit by revenue officer to have property of a ing sustained, the corporation has the burden of corporation assessed as omitted; and, this beshowing the property was considered, on outside information, in the assessment. 3. TAXATION 3624 (6)—OMITTED PROPERTY -SUIT TO ASSESS-DISPOSITION BY COURT. The omission being found in suit to assess property omitted from report of corporation, the court should, from the report made by the corporation and other competent evidence, deof the omission, of the assessment made by the termine the proper increase, if any, on account board, and certify it in accordance with the statute. Appeal from Circuit Court, Jefferson County, Chancery Branch, First Division. On petition for rehearing. Sustained, and opinion modified. For former report, see 176 Ky. 35, 195 S. W. 459. A. Scott Bullitt and M. J. Holt, both of H. Hazelrigg and J. P. Hobson, both of FrankLouisville, M. M. Logan, Atty. Gen., and J. There is yet another fact proven which tends strongly to support the gift, if such it ought to be called rather than a contract, and that is that Mrs. Chaney fully complied with the conditions attached to the gift that she would board and care for the donor as long as he lived, in the same satisfactory manner that she had already performed these services for more than 20 years, and that she would defray his funeral expenses when he died. It is thoroughly established fort, for the Commonwealth. Mat O'Doherthat, after his illness in 1912, the decedent ty, of Louisville, Ky., for appellee. was almost helpless and a great care, and that from then until his death in July, 1914, this case, reported in 176 Ky. 35, 195 S. W. CARROLL, J. [1] On a reconsideration of Mrs. Chaney not only boarded and nursed 459, the court has reached the conclusion him most attentively and almost without that, when a corporation fails to report any assistance from his other children, perform- item or species of property of any kind or ing for him such services as a baby requires, character owned by it that it is called on to and that can or will be rendered only by one report to the assessing board and the value actuated by affection and a high sense of thereof the failure to report such item or duty, but it is also proven that she earned species of property and the value thereof is every cent she got; and the gift was there- an omission and not an undervaluation of fore not inequitable or unjust, but it would its property by the corporation, and therebe extremely inequitable and unjust to de-fore the item or species of property, which prive her of this measure of recompense for the corporation failed or refused to report, her long, difficult, and loyal service. may be assessed at the suit of a revenue [5] As was said in Carrington's Ex'r v. agent, or the sheriff, in the manner providFogg, 7 Ky. Law Rep. 596: ed in the Statutes, and so much of the opin |