ÆäÀÌÁö À̹ÌÁö
PDF
ePub

instruction upon this subject which the court rejected, but gave one in the usual form, and in addition supported it by other instructions, fully presenting the defense of the company. The instruction offered by appellant upon contributory negligence is said to be concrete, but, after carefully examining it and comparing it with the one given by the court, we are inclined to the view that the trial court did not err in refusing the instruction offered by appellant and in giving instruction No. 3 to the jury. That part of instruction B offered by appellant, and which it urges was the proper instruction upon contributory negligence, is as follows:

especially in view of the fact it was not, ever, is urged to the instruction on conpleaded. The petition alleges that plaintiff tributory negligence. Appellant offered an was severely burned about his face and eyes, "his eyes have been permanently injured, to his damage in all in the sum of $3,000." It was necessary, in order for the plaintiff to recover, to show the nature of his injuries, and if he was burned in the eyes this was an element of damage which he was entitled to present to the jury. We cannot assent to the claim of appellant that this evidence was incompetent, but we incline to the opinion that plaintiff below had a right to show, not only his injuries and especially that to his eyes, but to show also that such injury interfered with his work, and that he had been able to use his eyes for work requiring accurate view. This was not error, and the defendant was not prejudiced thereby. The facts of this case do not bring it within the rule stated in Stearns Coal & Lumber Co. V. Williams, 171 Ky. 46, 186 S. W. 931. This question, however, was not submitted to the jury.

[2] It is next complained that an optician was permitted to testify with reference to abnormalities of the eye, whereas it is insisted that only an oculist is qualified to give such evidence. We cannot concur in this contention. The witness makes it clear he is an optician and not an oculist; explains the difference between the two professions, at the same time giving the jury an idea of his training, education, and experience as an oculist. With this before the jury the trial court allowed the witness to give evidence as an expert. One may give testimony as an expert if it appear that he has had an opportunity to study and acquire skill in the particular matter about which he is called to give evidence, and that he has done so. It is said that one possessing knowledge not acquired by ordinary persons with regard to a particular subject or department of human activity may be called and allowed to testify as an expert upon that subject. Ford v. Providence Coal Company, 124 Ky. 525, 99 S. W. 609, 30 Ky. Law Rep. 698; Buchanan v. Buckler, 8 Ky. Law Rep. 617. Where one has practiced as an optician for a long number of years and before entering upon the practice studied the subject in a reputable school and has, since entering the practice, taken special courses on the subject in schools in different parts of the country, he possesses that character of training and knowledge of his calling which qualifies him to give evidence upon abnormalities of the eye as an expert; and it was not error of the trial court to admit evidence of this character.

"The court instructs the jury that if they believe from the evidence that the plaintiff, Fluharity, by his own negligence contributed to such and that but for his negligence it would not extent as to produce the injuries complained of, have happened, then he is not entitled to recover in this case, unless," etc.

subject of contributory negligence is as folThe instruction given by the court on the

lows:

lieve from the evidence that plaintiff on the oc"The court instructs the jury that if they becasion in controversy was negligent, and that his negligence contributed to his injuries to such an extent that but for which he would not have been injured, the law is for the defendant, and the jury will so find."

The instruction given by the court is the regular stereotyped contributory negligence instruction, and is as concrete in form as that offered by appellant.

[4] Appellant was not entitled to a peremptory instruction in its favor at the conclusion of plaintiff's evidence. The plaintiff was at work cleaning out a container at evening, and he was working by moonlight; a large volume of gas created by water coming in contact with the carbide in the container was emanating from the tube, filling the air for some distance around the place where appellee was at work. Appellant's foreman, Bolton, who had been on the job for quite a while, and who had knowledge of the explosive nature of such gases, walked up behind appellee with a lighted lantern in his hands while appellee was at work. When the light came within the radius of the gas an explosion occurred, the most terrific part of which was in the tube, and was forced into the face and eyes and over the hands of appellee. The evidence tending to show that appellee, Fluharity, was guilty of contributory negligence was properly submitted to the jury, and there was no necessity what[3] We have thoroughly examined the in- ever of a more concrete instruction upon structions given by the trial court to the jury, that subject than the one given by the court. and are persuaded that they fairly present No error to the prejudice of appellant apthe law of the case. Special objection, how-pearing in the record, judgment is affirmed.

PULASKI STAVE CO. et al. v. SALE et al. (Court of Appeals of Kentucky. March 5, 1918.)

1. BOUNDARIES 40(1)-QUESTION FOR JURY -CONFLICTING EVIDENCE.

Direction of verdict is properly refused, the evidence being conflicting on the issue of which of two objects was the dividing ridge between named hollows, called for by a deed as part of a boundary. 2. EVIDENCE

SION.

155(1)-CONSENT TO ADMIS

Defendants having availed of permission to introduce evidence of what deceased told them only on the condition that plaintiffs would be given the same privilege, may not complain of such evidence thereafter introduced by plaintiffs.

3. TRIAL 251(3)—INSTRUCTIONS CONFORMITY TO ISSUE.

The issue for submission to the jury being which of two objects was the dividing ridge called for by a deed, requested instructions submitting construction of the deed were properly refused.

Appeal from Circuit Court, Lee County.

Action by C. W. Sale and another against the Pulaski Stave Company and others. Judgment for plaintiffs, and defendants appeal. Affirmed.

See, also, 117 S. W. 404.

J. K. Roberts and G. W. Gourley, both of Beattyville, for appellants. Sutton & Hurst, of Beattyville, for appellees.

CLARKE, J. This action was begun January 1, 1907, by appellees to recover damages for trespasses alleged to have been committed upon a tract of land referred to as "Maupin Hollow," in Lee county, which they claimed to own. The defendants, now appellants, admitted the removal of the timber, the alleged trespasses, but denied that plaintiffs owned the land, asserting title in themselves, and contested the amount of damages claimed. Upon the first trial, defendants recovered judgment upon a directed verdict in their behalf. That judgment was reversed by this court in an opinion reported in 117 S. W. 404, in which the issues are clearly stated and illustrated by a plat of the premises, and the cause was remanded for a submission to a jury of the simple question of fact as to the proper location of the fourth line in plaintiffs' deed, described therein, "thence (from the head of Wolfe's Hollow) with the divide of the ridge between Cave and Wolfe Hollows to Big Sinking," and shown upon the map incorporated in that opinion as the line from the figure 4 to 11, and thence to either 12 or 13.

from the land between lines 11 to 12 and 11 to 13, called in the record "Maupin Hollow." Upon the last trial, under instructions which clearly presented the issue, the jury found that the line 11 to 13 on the map was the true location of the disputed part of the fourth line in plaintiffs' deed, and assessed the damages against defendants for the removal of the timber within Maupin Hollow at $2,000. Upon that verdict, judgment was entered, from which defendants have appealed.

The errors assigned as grounds for re versal are that the court erred in overruling their motion for a peremptory instruction, in the admission of incompetent evidence, and in the instructions given and refused.

[1] 1. The evidence introduced by the plaintiffs is to the effect that the line 11 to 13 on the map is a smooth, unbroken ridge, and is the dividing ridge between Wolfe and Cave Hollows; that the line 11 to 12 on the map, while having many of the characteristics of a ridge, is broken in places by faults or sinks, and is not the dividing ridge between Wolfe and Cave Hollows. The testi'mony introduced in behalf of the defendants is to the effect that the line 11 to 12 is the

dividing ridge between Wolfe and Cave Hollows, although intersected by several faults or sinks, and is not as smooth and as continuous as the ridge represented by the line 11 to 13. There is also proof on behalf of both parties as to which of these two ridges is the higher, and as to which had been regarded as the true dividing ridge between Wolfe and Cave Hollows, and as to whether or not Maupin Hollow was a part of Cave Hollow, or an independent hollow. It is therefore apparent that, upon the question of the true location of the line in dispute, directed by the former opinion of this court to be submitted to a jury, the evidence was very conflicting, and the trial court did not err in refusing defendants' request for a directed verdict.

[2] 2. Defendants raise the question as to the competency of evidence admitted and excluded with reference to statements made about Maupin Hollow by Robert Riddle, who at one time owned a half interest in the land now owned by defendants, and claimed by them to include Maupin Hollow, and who, at the time of the trial, was dead. While plaintiff Sale was testifying in his own behalf, he was asked this question: "Tell the jury whether or not Judge Riddle understood, at the time this deed was made to you in 1901, The only question left open by that opinion that this Maupin Hollow land was embraced was whether the line from 11 to 12, or the in that purchase of yours and in that deed?" line 11 to 13, was the ridge between Wolfe The defendants objected, and their objection and Cave Hollows, and, if 11 to 13 was was sustained, to which plaintiffs excepted, found to be the true location of the line in and plaintiff's made no further attempt to indispute, to determine the amount of damages troduce such evidence. When Mr. J. C. Parto be awarded to plaintiffs, resulting from ker, one of the defendants, was testifying for the removal of the timber by defendants the defendants, he was asked on direct exFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

[3] The instructions offered by defendants were properly refused, because they submitted to the jury the construction of the language of the deed to the defendants, a question with which they had nothing to do. rather than the question of the proper location of the line in dispute.

For reasons indicated, the judgment is affirmed.

PARROTT v. CROSBY et al.

(Court of Appeals of Kentucky. March 8, 1918.)

amination: "What did he [Judge Riddle] and Cave Hollows; and this was but a comPlaintiffs pliance with the mandate of this court in the tell you about Maupin Hollow?" objected, and the court said: "If it is com- former opinion in this case, and was, of petent for one, it is competent for the other. course, not error. I sustain objection to it." Later on in the examination of this same witness, defendants asked him, with reference to whether or not Maupin Hollow was included in a deed to defendants: "What did Judge Riddle say?" Plaintiffs objected, and their objection was sustained, when counsel for defendants said: "Well, we want to avow there." The court then said: "I will say right now that, if both sides are willing that the statements that Judge Riddle made to them shall go in, let Mr. Sale come back." Counsel for defendants: "I don't think we are exactly willing." The court: "The court is of opinion that any statement that Judge Riddle made to Mr. Sale or to Mr. Parker would be competent as evidence, the record showing that Judge Riddle is now dead, and was at one time the owner of a tract of land-owned a half interest now in the same tract of land in question." Defendants were then permitted, over the objection and exception of plaintiffs, to introduce in evidence the statements made by Judge Riddle to the defendant Parker, with reference to the disputed question whether Maupin Hollow was, or not, included in the deed to plaintiffs or in that to defendants. Plaintiffs were disputed to recall plaintiff Sale, and he, over the objection and exception of defendants, related what Judge Riddle had told him with reference to Maupin Hollow.

It will be seen that the court first refused to permit plaintiffs, upon the objection of defendants, to prove any statements made by Judge Riddle with reference to the land in dispute, and the defendants afterwards offered and were permitted to introduce the same evidence, over the objection of plaintiffs, only upon the condition that plaintiffs would be given the same privilege; and defendants, having taken advantage of this ruling in their behalf, will not thereafter be heard to complain of the exercise of the same privilege by plaintiffs. The court, upon their objection, held that such evidence was incompetent and rejected it, when offered by plaintiffs, and thereafter, when it was introduced by defendants, changed his ruling upon the question of the admissibility of such evidence and permitted them to introduce it upon condition only that the same privilege would be extended to plaintiffs. We need not, therefore, decide whether the evidence was competent, because, whether competent or not, it was put into the record by defendants themselves.

3. The only question, except the extent of the damage, about which no question is made, submitted to the jury, was whether the line from 11 to 12, or the line from 11 to 13, was the dividing ridge between Wolfe

1. WILLS 486 CONSTRUCTION
EVIDENCE.

PAROL

The general rule is that a will is to be construed from the language used, and that parol or extrinsic evidence is inadmissible to add to, vary, or contradict its terms. 2. WILLS

EVIDENCE.

487(1)-INTENTION-EXTRINSIC

Where the testator's intention is expressed in plain and unambiguous language, parol and extrinsic evidence is inadmissible to show an intention different from that expressed in the will.

3. WILLS 488-DOUBTFUL LANGUAGE-EXTRINSIC EVIDENCE.

Where the language is doubtful or ambiguous, parol or extrinsic evidence is sometimes admissible to give application to the words of a will, but not to change the import of a devise. AMBIGUITY EXTRINSIC 4. WILLS 488 EVIDENCE. Parol evidence may be admitted for the purpose of showing and explaining a latent ambiguity in the will, but not ordinarily for the purpose of explaining a patent ambiguity apparent on the face of the will. - CONSTRUCTION 5. WILLS 519 ARY CLAUSE "BETWEEN.' Under residuary clause providing, "The rest of my estate I wish divided between my nieces Fanny Mary Ella to receive five hundred dollars," and a named nephew $500 in trust, the two nieces first named took the residuary estate.

- RESIDU

[blocks in formation]

Long v. Duvall, 6 B. Mon. 219; McCauley v.
Buckner, 87 Ky. 191, 8 S. W. 196, 10 Ky.
Law Rep. 99; Chenault v. Chenault, 88 Ky.
83, 11 S. W. 424; Mudd v. Mullican, 12 S.
W. 263, 385, 11 Ky. Law Rep. 417; Tuttle v.
Berryman, 94 Ky. 553, 23 S. W. 345, 15 Ky.
Law Rep. 294; McBrayer v. McBrayer, 95
Ky. 475, 26 S. W. 183, 16 Ky. Law Rep. 18;
Gray's Adm'r v. Pash, 66 S. W. 1026, 24 Ky.
Law Rep. 965; 40 Cyc. 1427.

special devises, including $2,500 to his sister- | different from that expressed in the will. in-law, Betty D. Gaines, who had lived with him and cared for him for many years; $500 in trust for Betty D. Gaines for life, with remainder to a charitable institution; $200 to Calien Crosby; $200 to his namesake Richard George Harrington; $200 to his namesake Richard Haynes; $100 to Richard George Houseworth Pendleton; $100 to his cousin Mary Young Shoemaker; $100 to his cousin Haynes; $100 to his friend Chaplin; and $100 to Lindsey Nunn. After making these special devises the will provided that: "The rest of my estate I wish divided between my nieces Fanny Harrington Mary Crosby Ella Parrott to receive five hundred dollars W. L. Graves my nephew to receive five hundred dollars in trust and in no event is it to be liable for any debts he may have now or may contract."

The question is: Who takes the residuary estate, the three nieces, or only Fanny Harrington and Mary Crosby? Although this is a suit in equity to construe the will, much proof has been taken tending to show that Capt. George was mentally and physically quite infirm at the time he wrote his will and perhaps incapable of making a will.

Among other things, it is shown that on November 24, 1915, about 15 months after he wrote his will, Capt. George was declared incompetent to manage his business, pursuant to an inquest, and that a committee was appointed and took charge of his business affairs and managed them until his death.

[3, 4] But where the language is doubtful or ambiguous, parol or extrinsic evidence is sometimes admissible to give application to the words of a will, but not to change the import of a devise. Mitchell v. Walker, 17 B. Mon. 61. Thus, when it is necessary, in order to enable the court to ascertain the intention of the testator, parol evidence may be admitted for the purpose of showing and explaining a latent ambiguity in the will, but not ordinarily for the purpose of explaining a patent ambiguity, apparent on the face of the instrument. 40 Cyc. 1429; Smith V. Smith, 72 S. W. 766, 24 Ky. Law Rep.

1964.

The rule is stated as follows in 40 Cyc. 1431:

and doubtful or contains a latent ambiguity, ex"Where the language of a will is uncertain trinsic evidence may be admitted, for the purpose of explaining the will, the situation of the testator, and the facts and circumstances surrounding him at the time of the execution of the will, such as evidence as to the fact that the will was written by the testator himself and that he was not a professional man, or as to the con

ward and his relations to the persons affected by acter of his property, or as to his feelings tothe will, or as to the condition of his beneficiaries. Such evidence, however, is not admissible where the language of the will is plain and existing subsequent to the making of the will unambiguous; nor is evidence of circumstances admissible for the purpose of showing the testator's intention."

On the other hand, his sister-in-law, Miss Gaines, testified that the inquest and the ap-dition of his family and the amount and charpointment of the committee was necessary by reason of Capt. George's eyesight having berome so greatly impaired that he was unable to sign checks or attend to any business. In this connection it was further shown that Mrs. Crosby is a widow with three married children, and lived immediately across the street from Capt. George; that Mrs. Harrington is a widow with three grown children; that Mrs. Parrott is a married woman with an adopted child who was married; that W. L. Graves, the nephew, is insolvent and an unsuccessful business man; that the testator was a successful farmer and business man of more than an average education, well-read and progressive; and that he wrote his own will.

Appellees object to this testimony, contending that parol testimony is inadmissible for the purpose intended.

See, also, Henry v. Henry, 81 Ky. 342; McClelland v. McClelland, 132 Ky. 284, 116 S. W. 730; Reuling v. Reuling, 137 Ky. 637, 126 S. W. 151.

But there is here no question of identity either as to a devise or a devisee, and all the residuary devisees are of the same kinship to the testator. And we do not think that the slight ambiguity in the meaning of the residuary clause can be affected one way or the other by the extrinsic evidence offered. We must therefore rely upon the language of the will in order to ascertain the testator's intention.

[1, 2] The general rule is that a will is to be construed from the written language of Mrs. Parrott contends that the residuary the instrument, and parol or extrinsic evi- clause above quoted should be construed as dence is not admissible to add to, vary, or dividing the residuary estate equally among contradict its terms. Stephen v. Walker, 8 the three nieces, Fanny Harrington, Mary B. Mon. 600; Mitchell v. Walker, 17 B. Mon. Crosby, and Ella Parrott. The circuit court, 61; Allan v. Vanmeter, 1 Metc. 264; Jack-however, divided the residuary estate equalson v. Payne, 2 Metc. 567. Where the testa- ly between Mrs. Harrington and Mrs. Crostor's intention is expressed in plain and un- by, after giving Ella Parrott $500 and W. L. ambiguous language, parol and extrinsic evi- Graves, the nephew, a similar sum. Mrs. dence is inadmissible to show an intention Parrott alone appeals.

erally applicable only to two objects; but it may be and commonly is used of more than two where they are spoken of distributively, or so that they can be thought of as divided into two parts or categories, or with reference to the action or being of each individually as compared with that of any other or [of] all the others. When more than two objects are spoken of collectively or individually, among is the proper word.""

Although the will as well as the residu- | The Century Dictionary says: 'Between is litary clause above quoted is almost wholly without punctuation or capital letters to show the beginning of sentences, we have little doubt that the testator meant that Ella Parrott was to have $500; that W. L. Graves, his nephew, was to have $500 in trust; and that the rest of his estate was to be divided between his two nieces Fanny Harrington and Mary Crosby.

The language clearly shows that W. L. Graves is to take only $500, and excludes the idea that he is to participate in the residuary estate. And the fact that his name and the name of Mrs. Parrott stand in precisely the same relative positions as to legacies of $500 shows that she took the same interest as Graves.

If the qualifying clause "to receive five hundred dollars" refers equally to Fanny Harrington, Mary Crosby, and Ella Parrott, there is no one named to take the residuary estate, and that portion of the clause is ineffectual. In order, therefore, to give effect to both portions of the clause, the $500 phrase must be read so as to refer only to Ella Parrott, and the residuary phrase so as to refer to "my nieces" Fanny Harrington and Mary Crosby.

Although old and somewhat feeble when he wrote his will, Capt. George was, as heretofore stated, a man of strong character, well educated, and well informed about business affairs and the current topics of the day. It is to be presumed, therefore, that he intended the words he used should be given their usual and correct meaning, unless a contrary intention appears. Webster's Unabridged Dictionary defines "between" as: "Belonging in common to two; shared by both; belonging to or participated in by two, and involving reciprocal action or affecting their mutual relation; 'between' etymologically indicates only two."

While "between" may sometimes mean "among," it will be construed as having been accurately used unless there be something in the instrument to show it was used in a different sense. McIntire v. McIntire, 192 U. S. 116, 24 Sup. Ct. 196, 48 L. Ed. 369; Van Houten v. Hall, 73 N. J. Eq. 384, 67 Atl. 1052. In Records v. Fields, 155 Mo. 323, 55 S. W. 1021, where the will provided that "the balance of my property and money I want equally divided between the heirs of William Fields and James Fields, deceased," it was held that the property should be equally divided between the heirs of James Fields and the heirs of William Fields, the court saying:

See, also, Ihrie's Estate, 162 Pa. 369, 29 Atl. 750; Stoutenburgh v. Moore, 37 N. J. Eq. 68.

[5] We think, therefore, it is reasonably apparent that by the language used the testator meant to give Mrs. Parrott $500 and a similar sum in trust to Wm. L. Graves, his nephew, and that the rest of his estate should be divided between his nieces Fanny Harrington and Mary Crosby. Judgment affirmed.

[blocks in formation]

Where a steel company without charge, and for the accommodation of the family and relatives of a deceased employé, arranged to have one of its engines and a flat car, used exclusively the family, and relatives to and from a cemin its business, carry the remains, members of etery, plaintiff, who without invitation or request got on the car and made the return trip, could not recover for injuries sustained while getting off the car, although defendant's servant did not assist her in safely reaching the ground, plaintiff being at most an invitee, or licensee, to whom defendant owed no duty except ordinary care not to injure.

Appeal from Circuit Court, Harlan County. Suit by Delania Laxton against the Wisconsin Steel Company. Directed verdict for defendant, and plaintiff appeals. Affirmed. Hall & Jones, of Harlan, for appellant. Sampson & Sampson, of Middlesboro, for appellee.

CARROLL, J. In this personal injury suit brought by the appellant, Mrs. Laxton, against the Wisconsin Steel Company, the trial court, at the conclusion of the evidence for the plaintiff, directed a verdict for the defendant.

The facts appearing in the record are these: The defendant, in connection with its coal mining operations, owned some engines and flat cars that were used exclusively by it in the conduct of its business. It was not engaged as a common carrier of freight or "Unquestionably it [the word] conveys the passengers. In April, 1916, two of its emthought of two parts, a distribution with reference to two parts, one part to heirs of James, ployés were killed in an accident that ocand the other part to heirs of William. Not curred in one of its mines, and on the folonly is this the natural and ordinary meaning lowing day the deceased person's were buried of the words 'equally divided between the heirs in a cemetery about a mile distant from Benof William Fields and the heirs of James

Fields,' but this is also the true etymological ham, where the defendant's plant was locatsignification of the word 'between.' ed. For the accommodation of the family

*

« ÀÌÀü°è¼Ó »