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tion, not only that he intended to deliver it,, of the title, and that she would not get a but did deliver it to her, and that she ac- good title to the property. cepted it. The circumstances referred to Many cases are to be found dealing with are that, while the legal title was in him, his facts nearly similar to those in the instant wife's money had paid, or helped to pay, for case, but in all of them there are some points the property; their only child had recently of dissimilarity, which have resulted in susdied childless; and the relationship of hus- taining or denying both the presumption band and wife, together with the interest and proof of delivery and acceptance, varying conveyed, places the case almost, if not quite, according to the peculiar facts of each within the same class as a beneficial deed case. And even in a given case, it is freto an infant, in which the grantor is consider- quently difficult to satisfactorily interpret ed the agent of the grantee for the purpose of the proven facts with reference to delivery accepting such a conveyance, and the mere and acceptance, as is exemplified in the subsequent possession of the grantor is of illustrative case of Butts v. Richards, 152 no weight as evidence against his presumed Wis. 318, 140 N. W. 1, Ann. Cas. 19140, 851, delivery. Morrison v. Fletcher, 119 Ky. 485, also reported, with an extensive note review84 S. W. 548, 27 Ky. Law Rep. 124; 8 R. c. ing the authorities upon the question here L. p. 1010. This presumption is strengthened involved, in 44 L. R. A. (N. S.) 528. In that rather than weakened by the recordation case, upon facts somewhat similar to the by the grantor more than six years after its facts here, but not nearly so persuasive of

delivery and acceptance, the execution and after the death of the grantee, because the presumption arising from the that the possession of the grantor at his

nearly evenly divided, the majority holding execution and recordation is not of a delivery death was presumptive of nondelivery, and at the time of recording, but at the date of that there was no proof of delivery and acthe deed. Shoptaw v. Ridgeway, supra; ceptance, while three members of the court Ford v. Gregory's Heirs, 10 B. Mon. 175; took the opposite view on both the presump. Hughes v. Easten, 4 J. J. Marsh, 572, 20 Am. tion to be indulged and the effect of the Dec. 230. This presumption is, of course, re

proof,

It was said in the majority opinion, buttable, but, in the absence of proor to the which statement clearly distinguishes that contrary, is sufficient to establish both de

case as viewed by the majority of the court livery and acceptance, or, stated otherwise, from this: to overcome such a presumption, those who

“The inherent weakness in the case for appelclaim the invalidity of such a deed must lant is that there is nothing in the testimony establish by clear and satisfactory s roof tending to show that Butts ever uttered a word that the deed was not, in fact, delivered or

or performed an act which evinced an inten

tion on his part to vest the title to his property accepted. 8 R. C. L. p. 1004.

in his wife prior to his death, except to make [5] Xo fact is in proof that is not entirely a deed, which he carefully locked up in his consistent with a delivery and acceptance strong box, the key of which he carried about upon the date of the deed. Upon the other did his pocketbook," especially against his wife.

his person. He guarded it as carefully as he hand, there is some proof at least of actual

In addition to this distinguishing feature delivery and acceptance. Stone, while his

in the evidence, we are inclined to agree with wife was alive, told several persons that she owned the property, and after her death the minority opinion rather than that of the stated under oath that the property belonged ing from the facts of execution, recordation,

majority, upon the legal presumption aristo her, and that he owned only a life estate and possession thereafter by the grantor, as her surviving husband. The fact that where the parties are husband and wife, and the deed was preserved during the five years especially where the wife dies first and her that the grantee lived on the property after effects fall naturally into the hands of the its execution, and that the tin box in which

surviving husband. it was kept was frequently in her possession

Considering the many authorities we have and under her control, and that the grantor, examined, and especially the Shoptaw and upon one occasion, said to her that she had Bunnell Cases from this court, we are of the papers evidencing her possession of plen- opinion that the uncontradicted facts here ty to live on, seem to us to indicate quite raise a legal presumption both of delivery conclusively that he had delivered the deed and acceptance upon the date the deed was to her and she had accepted it. The fact that executed, which is sustained by all of the grantor, after the death of the grantee, the proof and contradicted by no proof whatconveyed the property to another and after ever; and we find nothing in the cases the deed to his wife had been recorded by cited by appellees (viz. Bell v. Farmers' Bank him executed a will about three hours before of Kentucky, 11 Bush, 34, 21 Am. Rep. he committed suicide in no degree affected 205; Alexander v. De Kermel, 81 Ky. 345 ; what he had done during his wife's lifetime, Colyer v. Hyden, 94 Ky. 180, 21 s. W. 868, and, besides, the attempted conveyance to 15 Ky. Law Rep. 101 ; and Justice v. Peters, Nola Whiteside was repudiated by her al- 168 Ky. 583, 182 S. W. 611), which militates most immediately, and, no doubt, because in any way against this conclusion, because she, the widow of the deceased son of grantor the intention to deliver was accompanied by and his first wife, knew the true condition both words and acts of the grantor, showing

that he had parted with the power and con Action by J. H. Johnson and others against trol over the deed for the benefit of the F. Y. Boggess and another. Judgment disgrantee. This is shown by the acts of the missing the petition, and plaintiffs appeal. grantor in recording the deed, by his words Affirmed. in stating that the property was his wife's, See, also, 158 Ky. 118, 165 S. W. 413. and that he had only a surviving husband's

C. A. Denny, of Greenville, for appellants. interest therein, and by words and acts of Doyle Willis, of Greenville, for appellees. both grantor and grantee in reference to the tin box in which they kept their valuable

CLARKE, J. The appellants, who were papers, and which evidently held this deed, plaintiffs below, claiming to be the owners, as it was the most valuable paper, if not the and in possession, of two small adjoining only one, they possessed.

tracts of land, about 19 acres in all, filed this [6] Appellees insist the proof of the tes action to recover of appellee, F. Y. Boggess, timony given by the grantor in another pro- damages in the sum of $600 for alleged tresceeding between different parties is incom

passes, including the accidental destruction petent as held by the trial court, and we are by fire of the dwelling house thereon; it referred to Rucker v. Hamilton, 3 Dana, 36, being alleged in the petition, however, that but it was not attempted to use the evidence Alma Boggess, the wife of F. Y. Boggess, had taken in another case upon this trial. Plain

a dower interest in the land, and she was tiff simply proved an admission against inter- made a defendant because she declined to est made by the grantor, under whom de- join as plaintiff. The defendants, in sepafendants are claiming as heirs or devisee, rate answers, denied plaintiffs' ownership or and this was competent whether made in tes- possession, as well as the trespasses alleged, tifying under oath or not.

and, in addition, pleaded that in a former For the reasons indicated, the judgment is action in the Muhlenberg circuit court in reversed, and cause remanded for a judgment which the plaintiffs and defendants were the in favor of the plaintiff, quieting her title same as in this action the land herein into the property involved.

volved was ordered sold to partition same among the heirs of Alonzo Johnson, the for

mer husband of defendant Alma Boggess, JOHNSON et al. v. BOGGESS et al.

and that in that action she asserted home(Court of Appeals of Kentucky. March 5,

stead, but was adjudged dower in the land, 1918.)

and ordered paid to her its value of the 1. APPEAL AND ERROR Om 300—PRESERVATION proceeds of the sale; that since that judg

OF GBOUNDS-MOTION FOR NEW TRIAL-DE- ment and at all times complained of in this LAY-EXTENT OF REVIEW.

action she was in the possession of the land Where motion for new trial was not made until five days after verdict and judgment, Court in the exercise of her right of dower adjudgof Appeals cannot consider the evidence, and ed to her therein; that plaintiffs became the the only question is whether the pleadings au- purchasers of the land at the sale held purthorize the judgment in view of Civ. Code Prac. suant to that judgment, but, before sale was § 312, requiring application for new trial within three days after verdict except in certain confirmed, and while she was in possession

of the land in the exercise of her right of 2. PLEADING O345(2)—JUDGMENT ON PLEAD-dower therein, the house was destroyed by

fire accidentally and from a cause unknown In an action against an alleged trespasser and his wife, for loss of a building by fire, where to the defendants, and for which neither was it was alleged in the petition that the wife was in any way responsible. By amended anmade a defendant because she refused to join swers defendants alleged the house was inas plaintiff, and defendants pleaded that at the time of the fire she, in the exercise of her dower sured; that plaintiff's collected $125 from right, and not the husband, was in possession, the insurance company in full settlement of a judgment for plaintiffs against the husband the loss, and assigned and transferred to the on the pleadings was not authorized.

company “any and all right and cause of 3. JUDGMENT 740 CONCLUSIVENESS

action which they or either of them had or ESTOPPEL BY INCONSISTENT CLAIM FOB

may have had" against defendants for the That a wife in a former suit asserted home- loss. By replies plaintiffs traversed the allestead rather than dower rights would in no way gations of the answers and amended anaffect or defeat dower, awarded by the judg-swers that defendants were in possession of ment in such suit. 4. DOWER Cw56(3)–POSSESSION BEFORE AS- the land in the exercise of the dower right SIGNMENT.

of Mrs. Boggess therein, or that the $425 inWhere the widow and her present husband surance collected was in full of the loss suswere in possession of the house when a judg- tained, or that they had assigned or transment was rendered giving the widow her dower, it must be presumed that possession was in the ferred to the insurance company their right exercise of the dower right, since by Ky. St. 8 or cause of action therefor, and alleged that 2138, the doweress is entitled to possession of the defendant had elected to take homestead the mansion house until dower is assigned.

and had thereafter, upon her marriage to Appeal from Circuit Court, Muhlenberg F. Y. Boggess, abandoned her homestead, County.

and that her return thereafter with defendFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

cases.

INGS.

FEITURE.

ant F. Y. Boggess to the land was not in was in possession, and her right to the posthe exercise of her dower interest therein, session was not questioned by appellants, exbut was an attempt to avoid a forfeiture of cept as a proof of her claim to homestead, her homestead.

it must be presumed her possession was in The affirmative allegations of the replies the exercise of the dower right conceded her were traversed of record, and the case went | by appellants and adjudged by the court, to trial before a jury. At the completion of since by section 2138, Kentucky Statutes, plaintiffs' evidence a directed verdict was re- the doweress is entitled to possession of the turned for defendants, and plaintiffs are ap- mansion house, yard, garden, etc., until dowpealing from the judgment entered thereon er is assigned, or, as said in Cass v. Smith, dismissing the petition.

4 Ky. Law Rep. 990, "until the sale of the [1] 1. The motion for a new trial was not property, and by this is meant a completed made until five days after the verdict was or perfected sale, and not a mere preferred returned and judgment entered thereon; bid for the property subject to be rejected hence we cannot consider the evidence, and or confirmed by the court.” See, also, City the only question before us is: Do the plead- of Henderson v. Ashby, 179 Ky. 507, 200 S. ings authorize the judgment? Civil Code, 8 W. 931. 312, and cases cited in notes thereto.

It therefore results that the pleadings do 2. It is insisted, however, for appellants not show that either F. Y. Boggess or his that upon the pleadings, although they as wife was a trespasser, and that plaintiffs sumed the burden of proof without objec- were not entitled to a judgment on the pleadtion, they were entitled to recover nominal | ings. damages, at least, for the loss of the dwelling Judgment affirmed. house by fire. This upon the theory that it is admitted by defendants the house was destroyed by fire while in their possession, and that it is shown by the pleadings that

LOUISVILLE & N. R. CO. V. STEELE. they were at the time not entitled to the

(Court of Appeals of Kentucky. March 5, possession, and were therefore trespassers

1918.) and liable as insurers. But we cannot agree 1. RAILROADS em 276(4)—INJURIES TO TRESwith the contention that the pleadings show PASSERS-LIABILITY-CHILDREN. defendants were trespassers, upon which the Though it was the habitual practice of whole argument for appellants rests.

boys, including plaintiff, a boy about 8 years

old, to jump on and ride on moving trains with[2, 3] Appellants sued only the husband, F. out permission, the railroad company, would not Y. Boggess, it being alleged in the petition be liable if one of them got hurt while so tresthat the wife was made a defendant because passing, unless his place of danger on the train she refused to join as a plaintiff, and it jury to him by the exercise of ordinary care;

was actually discovered in time to prevent inis pleaded by him and his wife that at the but where they were habitually permitted by time of the fire she, in the exercise of her the conductor to jump on and ride on such dower right, and not the husband, was in trains, the company voluntarily assumed the

duty of anticipating that they would do what possession; so that upon this question alone he had permitted, and the further duty of exproof would have been necessary to author- ercising ordinary care to protect them from inize a judgment for plaintiffs against the

jury. husband, against whom alone they asked 2. Railroads www282(4)—INJURIES TO Tres

PASSERS-ADMISSIBILITY OF EVIDENCE. judgment; but, more than this, Mrs. Boggess In an action for injuries to a boy 8 years had been adjudged a dower interest in the old, sustained in alighting from a coal train land in an action between the same parties on which he had been taking a ride, evidence

as to the habitual and continued custom of by the judgment of the Muhlenberg circuit boys to ride on such train, and jump on and off court, affirmed by the opinion of this court in of the train and of the long-continued practice Boggess v. Johnson, 158 Ky. 418, 165 S. W. of the conductor in permitting them to do so 113, which both she and her husband plead

was competent. ed, and that she in that suit asserted home. 3. RAILROADS Ow27342--INJURIES TO TRES

PASSERS-LIABILITY CHILDREN. stead rather than dower can in no way af

A railroad company is no more bound to fect or defeat the dower therein awarded keep its tracks, cars, and premises safe for her. Appellants are bound by that judg- children than to keep them safe for adults, unment, as they were parties to that action, less by its course of conduct it has established

a status for children that imposes upon it more and not only then conceded her right to dow- care than it would owe to adults or to children er, but in their petition in this action make except for such course of conduct. the same concession; yet their whole argu- 4. RAILROADS Omm 278(4)—INJURIES TO TRESment here is based upon the contention that

PASSERS-CONTRIBUTORY NEGLIGENCE. her attempt to claim homestead was an elec

Ky. St. § 805, making it an offense for any

person except passengers and employés to get tion which defeated her right to dower, ig- on a moving train, did not prevent a recovery noring completely the fact that these ques- for injuries sustained by a boy 8 years old tions are res judicata.

who got on the steps of a train on which boys

were accustomed to take rides while it was [4] As Mrs. Boggess, with her present standing, and was injured in attempting to husband when that judgment was rendered, Jalight after it had started.

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

5. RAILROADS Om 282(10)-INJURIES TO TRES- | under the wheels and both of his feet cut off. PASSERS-QUESTIONS FOR JURY.

In this suit by his next friend to recover In an action for injuries sustained by a boy 8 years old in alighting from a train on which damages for the injuries so sustained, there he had been stcaling a ride, where the evidence was a verdict and judgment in his favor for was in sharp dispute as to whether the boy $10,000, and on this appeal a reversal is was in such a position when the conductor asked on several grounds, to which attention signaled for the train to start that he could not have avoided seeing the boy, this was a will be called. question for the jury.

At the time the injuries complained of 6. RAILROADS w276(3)-INJURIES TO TRES- occurred, and for 2 or 3 years before, the PASSERS--LIABILITY-CHILDREN. If a boy 8 years old stealing a ride on a

railroad company operated daily between train was an ordinary trespasser, the only duty Corbin and Page, Ky., a coal train, in charge the conductor owed him was to exercise ordinary of Conductor Wilder, which took empty coal care to prevent injury, to him after his peril cars each day from Corbin to coal mines in was actually discovered by the conductor ; but if the conductor saw him hanging on the step the vicinity of Page, and brought back from of a car before and at the time he signaled the the mines to Corbin cars loaded with coal. train to start, it was his duty not to start the In making these trips the train usually stop. train until the boy had been removed from the place of danger.

ped or ran at a slow rate of speed through 7. RAILROADS Cm 282(10)-INJURIES TO TRES- a village called Grays, having a population PASSERS-QUESTIONS FOR JURY.

of probably 500, consisting mostly of miners; Whether a boy 8 years old stealing a ride on a coal train on which other boys were ac- and it was here that Noble Steele lived with customed to take rides was guilty of contribu- his parents. It appears that there were at tory negligence in jumping from the train while and about Grays quite a large number of in motion was a question for the jury, though he testified that he knew it was dangerous to boys between 6 and 15 years of age who were get on or off of a moving train, and had been apparently permitted by their parents to run warned many times not to do so, as well as at large, and these boys, or a great many of whipped for doing it, as mere boyish knowledge, them, were in the habit of getting on, riding that it is dangerous to do things, does not necessarily imply an appreciation or understanding on, and jumping off this train, in charge of of the necessity of not doing those things. Conductor Wilder, every day as it went 8. RAILROADS 281(2)—INJURIES TO TRES- through Grays, and this practice had conPASSERS-LIABILITY-CHILDREN.

A railroad company was responsible for the tinued for 2 years or more before Noble was acts of its conductor in inviting, permitting, or injured. encouraging boys to get on or ride on his train, On the trial there was evidence for the though the company's rules prohibited him from permitting any person to ride on his train plaintiff by five or six persons who lived at without a pass or permit.

and near Grays that it was a very commou 9. RAILROADS Ow282(4)—INJURIES TO TRES- thing to see from 10 to 20 boys between 6 PASSERS-ADMISSIBILITY OF EVIDENCE.

and 15 years old riding at the same time on In an action for injuries sustained by a boy 8 years old in alighting from a train on which this coal train in charge of Wilder. Some he and other boys were accustomed to take rides, of the boys, according to the witnesses, would evidence that his father had requested the con ride on the engine, at other times, in the ductor not to permit him to get on or ride on the train, or go about it, was competent to caboose, and again by getting on the steps or show notice to the conductor of the boy's hab- stirrups of the coal cars, or on the trucks. its, and that his practice of trying to ride on These witnesses further said that many the train was against his parents' wishes. 10. RAILROADS C282(15)-INJURIES TO Tres- times these boys were not only permitted by PASSERS-INSTRUCTIONS.

Wilder and other members of the crew to In such action, instructions as to the du- jump on the train and ride, but were enties of the trainmen if they saw the boy in a ticed and encouraged by them to do so, ana position of danger, or if numbers of boys with the conductor's permission and acquiescence ha- daily got on the train in the presence of bitually and constantly rode on the train and Wilder without any objection on his part, to contributory negligence, held not

er

and that this practice on the part of the boys

and Wilder had habitually continued for 2 Appeal from Circuit Court, Knox County.

years or more. Action by Noble Steele, by his next friend,

There was further evidence by Noble to against the Louisville & Nashville Railroad the effect that on the occasion of his injury Company. From a judgment for plaintiff, he got on a step of a coal car five cars from defendant appeals. Affirmed.

the caboose before the train started, and after Benjamin D. Warfield, of Louisville, and he had climbed on the step he saw Conductor Black & Owens, of Barbourville, for appel- / Wilder come out on the step of the caboose lant. J. M. Robsion, of Barbourville, for and signal the engineer to start the train, appellee.

He said that at the time, and before the con

ductor gave the signal to start, each was in CARROLL, J. Noble Steele, a boy 8 years plain view of the other, and he was looking old, while attempting to let go of or alight at Wilder, and Wilder was looking at him; from the steps of a moving coal car on which that after the train started and was beginhe was riding, or which he had hold of while ning to run rather fast, he attempted to get running by the side of the car, was thrown Joff, and his feet got under the wheels; that

as roneous.

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

before this he had ridden many times on Wild-, very prejudicial to the rights of the railroad er's train; that sometimes Wilder would see company if incompetent. Whether this evihim and sometimes he would not, but that he dence was admissible or not depends on the had never said anything to him about not get- question whether the railroad company was ting on the train; but sometimes Wilder would under any duty, under the facts and circumask him to ride, and at other times he would stances disclosed in the evidence for the get on without being asked. He also testi- plaintiff, to anticipate the presence of boys fied that he knew it was dangerous to go on and about this coal train in charge of about or get on moving trains, as he was Wilder as it went through Grays, and to exliable to get under the wheels and be killed ercise ordinary care to prevent injury to or crippled; that he had often been warned them. If it was under such duty, then the by his father and other men about Grays evidence was competent for the purpose of not to do so, and had been whipped by his bringing home to the company notice of the father for jumping on trains, but that he had custom of the boys and the necessity that been doing this for about 2 years before he accordingly existed to look out for their was hurt.

presence on and about the cars, and to exerThe father of Noble testified that he had cise ordinary care to avoid injury to them. warned him not to go about trains, and had But if it was under no duty to anticipate whipped him for doing so, and shortly before their presence, then it was under no duty to the accident to Noble had talked to Conduc- take care not to injure them until after they tor Wilder about him, and told him to keep had been put in peril, and this peril was acNoble away from the train, but that Wilder tually discovered. said to let him have his fun; that it would In determining whether the company was make a good railroad man out of him some under a duty to anticipate the presence of day.

these boys on and about the cars and conFor the railroad company Conductor Wil- sequently under a duty to take care not to der testified that he had never played or injure them, the evidence conducing to show joked with Noble or any of the boys, or in- that the boys followed this practice in the vited, encouraged, or permitted any of them presence of and at least by the tacit permisto ride on his train, nor had Noble or any sion of Conductor Wilder, and without obof the boys ever gotten on the train in his jection on his part, should not be lost presence without objection and protest on sight of. his part; that he had done everything that It is a material and controlling factor in was possible for him to do to keep the boys the case to be considered in connection with off the train; that he did not see Noble the well-known attractiveness of engines, hanging on the step of the coal car when he cars, and railroad trains for boys, and the gave the signal to start the train, nor did great danger attending their efforts to go he know that he was on or about the train; upon or about them when running or when that he had no authority from the company liable to be moved; and when so considered to permit any person to get on the train or we think there can be no doubt that the ride without a pass, and that he had never company was under a duty to anticipate the done so, as it was against the rules of the presence of boys on and about the cars at company to allow it. The other members of Grays, and to exercise ordinary care not to the crew, while admitting that a number of harm them; and this under the principle boys about Grays were in the habit of daily frequently announced by this and other jumping on and off the coal train, denied courts, that owners of dangerous premises, that they had ever permitted or encouraged machinery, or appliances that are attractive them to ride, or that they had ridden in and accessible to children, who habitually their presence without objection. They said permit children to play about them, are rethat whenever they saw the boys on, or try- quired to take notice of their habits, and to ing to get on, the train they made them get exercise care to prevent injury to them. It off or go away, but that sometimes, on ac- follows from this that there should be apcount of the length of the train and the plied to railroad companies the same dedifficulty in getting over it quickly, it was gree of care in respect to looking out for not possible to keep the boys off the train. children who habitually go about and upon

[1] All of the evidence on behalf of the their trains in the presence of and with the plaintiff as to the habitual custom, extend-consent of the servants in charge, or at least ing over a period of 2 or 3 years, of numbers without objection on their part, that is reof small boys jumping on, riding on, and quired to be exercised by other persons in getting off, this coal train in charge of Con-charge of dangerous places, machinery, or ductor Wilder, and as to the habitual prac- appliances that are attractive to children. tice Wilder, the conductor, and the other What this degree of care is has been anmembers of the train crew for this length nounced by this court in an unbroken line of of time, in permitting small boys to get on decisions setting forth that the owner of and ride on the train, and tacitly if not ac- easily accessible, attractive, and dangerous tively inviting, encouraging, and permitting places, appliances, or machinery, who knowthem to do so, was objected to by counselingly permits children of tender years to for the railroad company, and clearly it was play about them, must anticipate their pres

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