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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 and Phrases, First and Second Series, Vice

[Ed. Note.-For other definitions, see Words Ky. 647, 167 S. W. 910; Coleman v. Cole- Principal.] man, 142 Ky. 36, 133 S. W. 1003. Other

5. MASTER AND SERVANT Om 205(5) ASSURcourts have held that similar statutes em- ANCE OF SAFETY-ASSUMPTION OF RISK. power the wife to maintain an action in her It is not necessary that a master shall asown name against her husband for assault sure, a servant in terms that a place is safe,

but it is sufficient, if, under the circumstances, and imprisonment. Brown V. Brown, 88 the acts and words are in effect an assurance Conn. 42, 89 Atl. 889, 52 L. R. A. (N. S.) 185, of safety. Ann. Cas. 1915D, 70; Fiedler v. Fiedler, 42 6. MASTER AND SERVANT 288(1) — ASSUROkl. 124, 140 Pac. 1022, 52 L. R. A. (N. S.)

ANCE OF SAFETY-QUESTION FOR JURY.

Whether words, “All right, so long" of 189. However, we do not have to go that timber man whose duty it was to prop, a coal far in this case, since the question here pre- mine, were an assurance of safety, held, under sented is regulated by section 2121, Ken- the evidence, a question for the jury. tucky Statutes, providing in part as follows: 7 MASTER AND SERVANT Cw205(5)—PLACES

OF WORK-ASSURANCE OF SAFETY-ASSUMP“A divorce from bed and board shall operate

TION OF RISK. 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.”

8. MASTER AND SERVANT Cw288(1) – Assur

ANCE OF SAFETY — ASSUMPTION OF RISK — It will thus be seen that divorce a mensa QUESTION FOR JURY. et thoro has the same effect upon the per- prudence in relying on assurance of propman

Whether a miner was exercising ordinary sonal rights and legal capacities of the par- that a place was safe held, under the evidence, ties as a divorce a vinculo, except as indica question for the jury. cated in the statutes. And since a divorce 9. MASTER AND SERVANT Omw118(5) - SAFE of the latter character terminates the mar

PLACES TO WORK—MINES. riage relation, and removes any common- just completed propping a place in a mine and

Where coal company's vice principal had law disability arising out of the coverture of no coal was being dug, the company was charged one spouse to sue the other (R. C. L. 302, with the duty of using ordinary care to make it p. 486), it necessarily follows that a wife, reasonably safe for a miner shoveling coal into

cars. who has secured a divorce a mensa et thoro, 10. NEW TRIAL mm 66VERDICT CONTRARY TO may sue her husband for a tort thereafter INSTRUCTION-INCONSISTENT INSTRUCTIONS. committed. It results that the demurrer A verdict contrary to one instruction will

not be ground for a new trial, where there are should have been overruled.

other instructions authorizing the verdict, and Judgment reversed, and cause remanded it cannot be said that the verdict is contrary to for proceedings consistent with this opin- the instructions as a whole. ion.

Appeal from Circuit Court, Pike County.

Action by C. F. Kirk, as administrator of (180 Ky. 691)

Wendell Holmes, deceased, against the BorBORDERLAND COAL CO. V. KIRK. derland Coal Company. Judgment for plain; (Court of Appeals of Kentucky. May 24, 1918.) tiff, and defendant appeals. Affirmed. 1. MASTER AND SERVANT Om 118(5)—MINES

J. J. Moore, of Pikeville, James P. Woods, PROPS-STATUTES.

of Roanoke, Va., and Samuel D. Stokes, of Ky. St. & 2726, subd. 5, providing that every Williamson, W. Va., for appellant. A. J. workman in need of props, cap pieces, and Kirk, of Paintsville, and Cline & Steele, of timbers shall notify the mine foreman, applies only to those workmen charged with the duty Pikeville, for appellee. of propping, and not to every miner. 2. MASTER AND SERVANT Om 135 MINES

CLAY, C. C. F. Kirk, as administrator of PROPS_CUSTOM.

Wendell Holmes, deceased, brought this suit The custom of a mine may be proved to against the Borderland Coal Company, to reshow upon whom the duty of propping a mine cover damages for his death. From a verdevolved, as required by Ky. St. $ 2726, subd. 5, but such custom does not change the statu- dict and judgment in his favor for $3,000, tory requirement.

the coal company appeals. 3. MASTER AND SERVANT Om118(5)-MINERS At the time of his death decedent was 26 -PROPPING_CUSTOM.

years of age, and he and Peter Lewis were Even if a company's rules imposed upon engaged in drawing pillars for the coal comevery miner the duty of doing his own propping, such rules could be waived, under Ky. St. $pany.

He and Lewis were "buddies," and 2726, subd. 5, relating to propping, by appoint- | were at work on the same pillar. At that ment of special employés for the work.

time the company had a regular timberman 4. MASTER AND SERVANT 190(14)-MINERS by the name of John Lock, whose duty it PROPPING — “VICE PRINCIPAL" - ASSUR

was to prop and secure the roof where deceANCE.

On the mornA timber man to whom a ocal company has dent and Lewis were working. delegated the duty of propping is a "vice prin- ing of the day of the accident, Lewis request

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ed the assistant mine foreman to send the the decedent the duty of requesting props timber man to prop the place where he and at least one day in advance, and of doing his decedent were at work. Lock, the timber own propping, and that the statutory duty man, came about 11 o'clock and asked if any could not be changed by custom. Hence it timbers were needed. At that time Lewis is argued that the company's demurrer to the and decedent were eating their dinner. Lew-petition and its motion for a peremptory is then went with Lock and showed him should have been sustained because there where to set three timbers. One of the des- was neither pleading nor proof that the deceignated places was under that portion of the dent complied with the statute. We have roof from which the slate afterwards fell. ruled that where the duty of propping deLewis then returned to the entry, and he and volves upon the miner, he must request props decedent continued to eat their dinner. Aft- in the manner pointed out by the statute, er Lock finished his work he said, “All right; and that the statutory requirement could so long," meaning that everything was all not be changed by custom of the mine so as right. About an hour and a half or two to impose upon the mine owner a liability hours later, Lewis and decedent returned to for failure to furnish props, when the statute work. Cars were then placed, and Lewis and

itself was not complied with. Palmer's decedent, who were about 15 feet apart, be- Adm’r v. Empire Coal Co., 162 Ky. 130, 172 gan to load. Instead of setting three tim-S. W. 97; Stearns Coal & Lumber Co. v. bers, Lock had set only one. The work in Crabtree's Adm'r, 168 Ky. 8, 181 S. W. 615; which they were engaged was dangerous, Sneed & McGuire v. Legere, 168 Ky. 3, 181 and slate was liable to fall unless the roof S. W. 617. In construing the former statwas properly propped. When they returned to the work, Holmes took a pick and sound- ute we also held that the statute did not in ed the roof, and said that it was all right. terms impose either upon the mine owner A few minutes later the slate fell and killed or miner himself the duty of propping, and decedent. The .slate would not have fallen that whether the duty was imposed upon if a timber had been set at that place.

the one or the other could be shown by the The company introduced a book of rules agreement of the parties or the custom of which, its manager testified, had been ap- the mine. We further held that the rules of proved by the state mine inspector and print- the mine were not conclusive evidence of ed and properly posted throughout the mine. the terms of the contract of employment One of these rules provided that each miner or the custom of the mine, for they might should take down the dangerous slate and be waived. Old Diamond Coal Co. v. Denney, do his own propping and timbering. It fur- 160 Ky. 554, 169 S. W. 1016; Eagle Coal Co. ther provided that props, caps, and other v. Patrick's Adm'r, . 161 Ky. 333, 170 S. W. timbers could be procured by placing an or

960. The present statute merely provides der therefor with the mine foreman or his that: assistant at least 24 hours in advance of the and timbers shall notify the mine foreman or

"Every workman in need of props, cap pieces, time they were needed, and giving the num

an assistant mine foreman, or any other person ber, sizes, and lengths required. The same delegated by the mine foreman, of the fact at rule called attention to and quoted the fol- least one day in advance, giving the number, lowing provision in subsection 5 of section size, and length of props, cap pieces, and tim

bers required," etc. Subsection 5, § 2726, Ken2726, Kentucky Statutes :

tucky Statutes. “Every workman in need of props, cap pieces and timbers shall notify the mine foreman, or

Fairly construed, the statute applies only an assistant mine foreman, or any other person to those workmen charged with the duty of delegated by the mine foreman, of the fact at propping, and does not in terms impose upon least one day in advance, giving the number, size, and length of props, cap pieces and tim- every miner the duty of complying with the bers required. In case of emergency, the tim- statute. That being true, the custom of the ber may be ordered immediately upon discovery mine may be proved for the purpose of showof danger. If for any reason the necessary tim- ing upon whom the duty of propping devolvbers cannot be supplied when required, the workman shall vacate the place until the timber es, and the effect is not to change the statneeded is supplied.”

utory requirement by custom. Even if the The company's manager was subsequently company's rules imposed upon every miner recalled by plaintiff, and testified that Lock the duty of doing his own propping, the unwas employed as a timber man and that it contradicted evidence shows that these rules was his duty to set timbers wherever he had been waived, and that it was the custom thought they were necessary to be set to pre- of the mine, ever since it began operations, serve the lives of the men and the property to have a timber man whose duty it was to do of the company. He further testified that it the propping at such places as decedent and was Lock's duty, when directed by the assist Lewis were required to work. We therefore ant mine foreman, to set posts at pillar conclude that the trial court did not err in work such as decedent was employed in, and overruling the demurrer to the petition, or this had been the custom of the mine ever the motion for a peremptory, because of since it began operations.

the alleged failure of the decedent to comply [1-3] It is first insisted that both the with the statute and rules of the company. statute and the company's rules imposed on [4-8] Another error relied on is the sub

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mission to the jury of the issue of assurance and the court did not err in submitting this · of safety. It is first contended that the issue to the jury. Proctor Coal Co. v. Price's timber man, who was an inferior employé, Adm'r, 172 Ky. 627, 189 S. W. 923. was not authorized to bind the company by [10] It is further insisted that the verdict an assurance of safety. In reply to this con- of the jury is contrary to instruction No. 5, tention it is sufficient to say that in the and, that being true, a new trial should be recent case of Carter Coal Co. v. Hill, 166 granted whether that instruction be right Ky. 213, 179 S. W. 2, we ruled that a timber or wrong. We had occasion to consider a man, to whom a coal company had delegated similar question in the recent case of Borthe duty of propping, was vice principal, derland Coal Co. v. Miller, 179 Ky. 769, 201 and that his assurance of safety was in ef. S. W. 299, where the court said: fect an assurance by the company. But it is "But when there is a series of instructions, as further contended that the language used by the case, it is the duty of the jury to consider

there was here, presenting different theories of the timber man did not amount to an as- all of the instructions together. They are no surance of safety. It is not necessary that more bound by what is said in one than they are the master or his representative shall assure by what is said in another; and, when so read the servant in terms that the place is safe, and considered, the instruction in question did

. not It is sufficient, if, under the circumstances, by counsel.' the acts and words of the master, or his rep- A 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 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

Upon leaving the trary to the instructions considered as a working place, he said, “All right; so long." whole. There was evidence that the words, “All

Judgment affirmed. right," meant, in mining parlance, that everything was all right. Considering the circumstances under which the language was em

(180 Ky. 646) ployed, we think it was a question for the

HOWELL v. CHANEY. 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 1. REFERENCE 34-OBJECTIONS. continue his work without assuming the timony before a master and made no objection

A party, who agreed to the taking of tesrisk, unless the danger was so obvious that until a report was made adverse to him, cana person of ordinary prudence in his situa- not complain that there had been no order of tion would have refused to do so, and this, 12. APPEAL AND ERROR Om 1014 – IRREGULAR

reference. too, was also a question for the jury. Stearns

REFERENCE. Coal & Lumber Co. v. Calhoun, 166 Ky. 607, On appeal it is immaterial whether a re179 S. W. 590.

port of a master is regularly made, since it is [9] The point is also made that the court only advisory, the only question being whether

is by erred in authorizing a recovery if the defend the evidence. ant failed to use ordinary care to furnish the 3. GIFTS Cw47(3)—CONFIDENTIAL RELATIONS decedent a reasonably safe place for work. -BURDEN OF PROOF. The basis for this contention is that the safe- and physically infirm parent residing with her

The burden is on a child, to whom an old place doctrine was not applicable because has made a gift, to prove that the transaction decedent himself was creating the danger dur- was freely and voluntarily made and void of ing the progress of the work. It must be any vice rendering it inequitable or unfair.

4. GIFTS 49(2)-CAPACITY OF DONOR-Eviborne in mind that under the facts of this

DENCE. case, the duty of propping devolved upon Evidence held to fully sustain finding of the company and not upon decedent. Nor is chancellor that a gift by an old and physically it a case where the decedent was actually ble, and that parent donor was mentally com

infirm parent was voluntarily given and equitaengaged in removing the coal at the time of petent. the accident and the company had no oppor- 5. GIFTS 48—MENTAL CAPACITY-PROOF. tunity to prop. As a matter of fact, the coal

Where evidence as to mental incapacity of

a donor is so conflicting that a satisfactory rehad been removed some time before, and in sult cannot be reached, resort will be had to the mean time the company's timber man the transaction itself, which, if just and rahad been sent to do the propping and had had tional will be allowed to stand, otherwise not. 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

Rebecca F. Chaney and others. Judgmenting complied with his request by continuing to for named defendant, and the last-named care for him and to furnish him a home the

rest of his life, your commissioner is clearly of plaintiff appeals. Affirmed.

the opinion that A. J. Young had mental caH. W. Rives, of Lebanon, for appellant. pacity sufficient to dispose of his property at W. M. Jackson, of Campbellsville, for appel- and that it is not only a valid, but a just, gift.

the time he made the gift to Rebecca Chaney, lee.

The master recommended that Mrs. Chaney CLARKE, J. On July 6, 1914, A. J. Young, be adjudged the money and property in conat the age of 92 years and 7 months, died troversy received from her father as a gift. a resident of Taylor county, at the home of Plaintiffs filed exceptions to this report of his daughter, Rebecca F. Chaney, with whom the master, not only as to his findings and he had resided for about 25 years. On No-recommendations, but also as to his right to vember 2, 1914, the will of A. J. Young, bear- make any report at all. The court overruled ing date of May 22, 1905, was probated, and the exceptions to this report, except as to his son John R. Young, named therein as ex- one item, a note of $141, which was adjudgecutor, declining to qualify, another son, ed to belong to Mrs. Howell, and gave judgJoe M. Young, was appointed administrator ment to Mrs. Chaney for the money she with the will annexed. Thereafter, this claimed her father had given to her, amountsuit was filed by Joe M. Young, as adminis- ing to $999.37, after crediting her with a $550 trator and in his own right, and Mary E. check it is admitted her father gave to her Howell, a daughter of decedent, against Re- on July 27, 1911, for the purpose of equalbecca F. Chaney, John R. Young, and W. L. izing her at that time with the rest of the Young, the other children of decedent, for a children, except Mrs. Howell. From this settlement of his estate, and asking that Re-judgment Mrs. Howell has appealed, insistbecca F. Chaney be required to report and ac- ing that the judgment is palpably against count for about $1,700 worth of personal prop- the preponderance of the evidence as to the erty that belonged to the decedent, which, it mental capacity of A. J. Young at the time was alleged, she held and refused to turn over of the claimed gift, and that, the cause to the administrator. Mrs. Chaney answered, never having been referred to the master, denying that decedent had any property at he was without authority to make a report, the time of his death, and alleging that he and the judgment based thereon ought to be had, prior to his death, given to her all of

reversed. his personal property in consideration of

[1, 2] A sufficient answer to this latter obwhat she had theretofore done for him and jection is that the plaintiffs agreed to the the further consideration that she would con- taking of proof before the master as though tinue to board and care for him as long as there had been an order of reference to him he lived and pay his funeral expenses. for that purpose, and made no objection until Plaintiffs denied the gift, and pleaded that after it was discovered that his report was decedent, at the time of the gift, was not adverse to them. But, aside from this, it is of sufficient mental capacity to make, or to immaterial what the master reported, or understand the effect of, a gift or contract. whether his report was regularly made, since The record contains no order of reference to it was only advisory; and the only question the master commissioner, but after the is about which we need concern ourselves is sues had been completed the parties, by whether the judgment is sustained by the agreement, took a large volume of evidence 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 ca- the confidential relationship existing bepacity of A. J. Young, summarized same as tween the donor, who was old and physicalfollows:

ly infirm, the burden was upon the donee to “After hearing all the witnesses testify and prove that the transaction was freely and carefully considering all the testimony bearing voluntarily made and void of any vice renon the question of the competency of said A. J. Young's mind to make said gift to his daugh- dering it inequitable or unfair. Davidson ter, Rebecca Chaney, at the time it was made, v. Davidson, 180 Ky. 190, 202 S. W. 493, and and the express agreement made between the authorities cited therein. There is no evidonor and donee at the time it was made, the donor, A. J. Young, saying: 'Here, Becky, is dence whatever to indicate that the gift was every dollar I have got, and I give it to you. not made freely and voluntarily, as the witYou have taken care of me a long time; Inesses for Mrs. Chaney stated it was made; have lived with you 20-odd years, and I want while, upon the question of his mental cayou to have everything I have got. I want you

. take care of me and pay all of my expenses' pacity at that time, a great many witnesses -thus recognizing his obligation, and she hav- testified, and their testimony is conflicting,

although we think the clear preponderance "In an action to set aside a gift on the ground of the evidence is upon the side of his being of the mental incapacity of the donor, if the mentally capable at the time the gift was evidence as to capacity is so conflicting that a

satisfactory result cannot be reached by that made. The only physician who testified test, resort must be had to the transaction itwas the attending physician of the decedent, self, and it will be upheld if rational and just, and he stated that decedent's mind was alior overturned if irrational or unjust." right during the fall of 1911 and until in We are convinced the judgment of the April, 1912, when he had a severe spell of chancellor is not against, but is fully sussickness, during which he was, at times, outtained by, the evidence, and it is affirmed. of his mind, and after which all of the witnesses agree his mind was seriously im

(180 Ky. 607) paired.

COMMONWEALTH v. KENTUCKY HEATIn addition to the opinion evidence as to

ING CO. the condition of his mind at the time of the Court of Appeals of Kentucky. May 21, 1918.) gift in August or September, 1911, is the Court of Appeals of Kentucky. May 21, 1918.)

OMITTED PROPproven fact that his children, other than 1. TAXATION Om 36214 (1)

ERTY-ASSESSMENT. Mrs. Howell, recognized his capacity to make

When a corporation fails to report any a partial settlement of his affairs with them item or species of property of any kind or charat a meeting at Salome on July 27, 1911, and acter owned by it that it is called on to report no question is made by anybody to this suit to the assessing board, and the value thereof,

such failure is an omission, and not an underof the validity of his acts upon that date. valuation, allowing assessment at suit of revWhile Mrs. Howell was not at that meeting, enue agent or sheriff under the statute. she accepted from him thereafter as ad- 2. TAXATION Cum 36244 (5)-OMITTED PROPER

TY vancements several sums of money aggre

SUIT FOR ASSESSMENT BURDEN OF

PROOF. gating $225, with which she acknowledges The burden of proof as to omission from she should be charged. So while the mental corporation's report is on the commonwealth in capacity of the decedent was recognized on suit by revenue officer to have property of a

corporation assessed as omitted; and, this beJuly 27, 1911, by all of the parties except ing sustained, the corporation has the burden of Mrs. Howell, and she had business transac- showing the property was considered, on outtions with him after that date, yet she is side information, in the assessment. now claiming that, at the time of his gift, 3. TAXATION E36274 (6)—OMITTED PROPERTY in less than two months thereafter, he did

-SUIT TO ASSESS_DISPOSITION BY COURT.

The omission being found in suit to assess not have the mental capacity to understand property omitted from report of corporation, what he was doing, although it is shown the court should, from the report made by the rather conclusively that the condition of his corporation and other competent evidence, demind did not change materially, if at all. termine the proper increase, if any, on account mind did not change materially, if at all, of the omission, of the assessment made by the from the time of the Salome meeting until board, and certify it in accordance with the his illness in April, 1912.

statute. There is yet another fact proven which

Appeal from Circuit Court, Jefferson Countends strongly to support the gift, if such it ty, Chancery Branch, First Division. ought to be called rather than a contract,

On petition for rehearing. Sustained, and and that is that Mrs. Chaney fully complied opinion modified. with the conditions attached to the gift that For former report, see 176 Ky. 35, 195 S. she would board and care for the donor as W. 459. long as he lived, in the same satisfactory manner that she had already performed

A. Scott Bullitt and M. J. Holt, both of these services for more than 20 years, and H. Hazelrigg and J. P. Hobson, both of Frank

Louisville, M. M. Logan, Atty. Gen., and J. that she would defray his funeral experises

, when he died.

Mat O'DoherIt is thoroughly established fort, for the Commonwealth. that, 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.

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