by any one who knew the facts, and that was and prior to January 26, 1911, had contractall the trial court permitted. [4] 4. The measure of damages in cases of this character is stated as follows in 35 Cyc. 647: "Where the breach consists of the failure to deliver goods of the quality contracted for, the buyer is entitled to compensation for the injury suffered because of the defects, and generally the measure of damages is the difference between the value of the goods contracted for and the value of the goods delivered." ed for and had in his home or office a telephone instrument, furnished by defendant, and connected with his telephone system, when a dispute arose over the telephone between appellant and appellee about the service rendered, in which both parties became angry and used profane language, whereupon appellee removed appellant's telephone instrument, and, informing him that it was removed "for no other reason than the pro See, also, Wallace v. Knoxville Woolen fane language you used to-day over our line Mills, 117 Ky. 450, 78 S. W. 192. to the operator," refunded to him the unearned part of the fee appellant had paid in advance for the service. In this action appellant sought, by mandatory injunction, to compell appellee to furnish him telephone service, which relief was denied him by the chancellor. The court gave the following instructions: Instruction No. 1: "It is admitted by the pleadings and is the undisputed evidence that plaintiff and defendant entered into a contract for the sale of the automobile mentioned to you in the evidence, and the court now instructs you that if you shall believe from the evidence that under said contract the defendant, Riglesberger, agreed that the chassis, or running gear, of said It is shown in the proof that appellee, conautomobile should be a new Maxwell running ceded to be a public carrier, had adopted gear, and shall further believe from the evidence rules and regulations governing the use of that said chassis, or running gear, was not a telephones by subscribers, which were pubnew Maxwell running gear, then the law in this case is for the plaintiff and you will so find, lished in the directory furnished to the subbut unless you shall so believe from the evi- scribers, rule 18 being: "The use of profane dence then the law is for the defendant and you language is forbidden." Since the removal will so find." Instruction No. 2: "If you find for the plain- of his telephone, Dr. Bond has not applied in tiff you will find for him such sum in damages person for its reinstallation but had his atas you may believe from the evidence would be torney, Mr. Auxier, to make application equal to the difference in the reasonable market therefor, to whom appellee offered to restore value of said car, if it was to be equipped, under said contract, with a new Maxwell running gear, and its reasonable market value with the running gear that was placed thereunder, but you cannot find for the plaintiff exceeding the amount claimed in the petition, to wit, $1,050." This was undoubtedly the law of the case. Judgment affirmed. BOND v. STARKEY. (Court of Appeals of Kentucky. March 19, TELEGRAPHS AND TELEPHONES 31-REGU- A telephone company may make the furnishing of its service conditional upon an agreement by an applicant that he will not use obscene language over the phone, and will observe other reasonable rules and regulations that it may have adopted. Appeal from Circuit Court, Pike County. Action by O. K. Bond to compel N. Starkey, owner of the Eastern Kentucky Home Telephone Company, to install a telephone. From a judgment denying the relief demanded, the plaintiff appeals. Affirmed. Childers & Childers, of Pikeville, for appellant. J. J. Moore and J. F. Butler, both of Pikeville, for appellee. the service upon condition that appellant would sign the usual contract containing the following stipulation: due, or any other violation of the provisions "Fifth. Any failure to pay rent or tolls when said telephone, or the use of obscene and proand stipulations of this contract, or injury to fane language through said telephone, or listening to the conversation of other parties talking on said line, or interfering with parties talking on said line, shall give the company the right at its option to terminate this contract and remove the said telephone at once without notice." This proposition was declined, so the only question involved here is whether a public telephone company may adopt reasonable rules and regulations governing the use of its telephones by subscribers and make the service conditional upon agreement to observe such rules and regulations. That such a company may adopt and enforce reasonable rules and regulations for use of its telephones by patrons, among which is a rule prohibiting the use of profane language, is bush Telephone Co., 106 S. W. 825, 32 Ky. thoroughly established. McDaniel v. FauLaw Rep. 572; Williams v. Maysville Telephone Co., 82 S. W. 995, 119 Ky. 33; 37 Cyc. 1619; Jones on Telegraphs & Telephones, vol. 1, § 250. From which it necessarily follows that the company may make the furnishing of its CLARKE, J. N. Starkey owns and oper- service conditional upon agreement by an ates a public telephone system in Pike coun- applicant that he will observe such reasonty, Ky., under the name of Eastern Ken-able rules and regulations as it may have tucky Home Telephone Company, which is adopted. not incorporated. Appellant is a physician, Judgment affirmed. POSTAL TELEGRAPH-CABLE CO. v. MURRELL. (Court of Appeals of Kentucky. March 19, 1918.) 1. MASTER AND SERVANT 316(1)—INJURIES TO THIRD PERSONS SERVANT OR "INDE- A messenger for a telegraph company who furnished his own bicycle and uniform, and took his own routes at his own speed, and was paid two cents for each message delivered, was a servant, and not an independent contractor, where the company told him when and where to go, and the company was liable for negligent collision with a pedestrian. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Independent Contractor.] 2. APPEAL AND ERROR 1040(4)-HARMLESS ERROR-RULINGS OF COURT. It was not prejudicial error to sustain a demurrer to part of an answer, where the evidence bearing on such issue was admitted without objection, and would not have justified submission to the jury of such issue anyway. Appeal from Circuit Court, Jefferson County, Common Pleas Branch, First Division. Suit by Anna E. Murrell against the Postal Telegraph-Cable Company. Judgment for plaintiff, and defendant appeals. Affirmed. A. E. Richards, A. B. Bensinger, and Wm. W. Cook, all of Louisville, for appellant. Hubbard & Hubbard and James W. Garrison, all of Louisville, for appellee. CARROLL, J. The appellee, Mrs. Murrell, while crossing Fourth street at its intersection with Market street in the city of Louisville and at the place in the intersection set apart for foot passengers, was struck and knocked down by a messenger boy riding a bicycle, who at the time was in the employment of the Postal Telegraph-Cable Company. In a suit against the telegraph company to recover damages for the injury sustained, on the ground that the collision was caused by the negligence of the messenger boy, a servant of the company, there was a verdict and judgment in favor of Mrs. Murrell. gent and careless manner. Of course there [1] So that the question is presented, did this amended answer set out a state of facts showing that the relation of independent contractor and not that of master and servant existed, for if it did it was error to sustain a demurrer to the pleading. It will be observed that this pleading admits that the messenger boy was employed by the company to collect and deliver telegrams for it, On this appeal two grounds are relied on and states that he received for his services for reversal: First, that there was no evi- a commission for each telegram delivered dence of negligence; and, second, that the and collected; that he paid for his uniform messenger boy occupied the relation of inde- and furnished his bicycle. But it further pendent contractor, and not that of a serv-states that he was not subject to its direcant of the telegraph company, and therefore tion and control in the collection or delivery of it was not liable for his negligence, even telegrams. This averment, however, is necshould it be assumed that the collision and essarily inconsistent with the averment that resulting injury were caused by his negli- he was employed by it to collect and deliver gence. telegrams at a stipulated compensation, because he could not very well deliver a telegram without being directed by the company to whom and where to make the delivery, nor could he very well collect a telegram without being directed by the company where to go to get it. And so he must have been under the direction and control of the company in delivering and collecting messages. There is no complaint about the instructions, and the evidence was sufficient to sustain the contention of Mrs. Murrell that while in the act of crossing the street at the place set apart for foot passengers, and at a time when she was exercising ordinary care for her own safety, she was run into and knocked down by the messenger boy, who at the time was operating his bicycle in a negli For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes It is, however, a fair inference from the dent happened when he was on his way to pleading that the company did not undertake deliver a telegram. It will thus be seen that to regulate the speed at which the messenger the messenger boy was employed by the teleboy should travel or the particular course he should take in his journey; but the speed at which he traveled, or the route he took, is not material if in making the trip he was acting for it in the course of his employ ment. We are therefore of the opinion that the pleading, although skillfully drawn in an effort to make out a case of independent contractor without doing too much violence to the actual facts, failed to show that the relation of master and servant did not exist, and this being so, it was not error to sustain the demurrer. [2] It is also true that, generally speaking, the sufficiency of a pleading must be determined by an inspection of the pleading itself and without reference to the evidence. But admitting this to be the correct practice, it does not follow that because a pleading may set out facts stronger than the evidence justifies, it will be prejudicial error to sustain a demurrer to it when the evidence bearing on the issues presented by the rejected pleading is admitted without objection, and shows, as does the evidence in this case, that if the demurrer had been overruled the court would have been justified at the conclusion of the evidence in declining to submit to the jury the issue attempted to be made by the pleading. And so we think it not amiss to call attention to the evidence of Janes, the local manager for the telegraph company at the time the accident occurred. He testified, in substance, that on the day in question Langford was employed as a messenger boy by his company, and on that day delivered many messages for it; that he was paid so much for delivering messages and so much for calling for messages, and in no other way; that he owned the bicycle he was riding at the time of the accident, and kept it in repair; that he did not attempt to exercise any control over a messenger boy after he left the office to deliver or get a message; that the messenger boys were given messages and sent on errands when their services were needed; that when the boys went to lunch they were under the control of the telegraph company in that they were told when they might go and when to come back; that they were required to have a bicycle, but that the telegraph company had no control over how fast they rode, or what they did on the way; that it was concerned only in the fact that they delivered the messages promptly. graph company to deliver and receive messages for it, and when the accident happened was on his way to deliver a message under the terms of his employment. He was told when and where to go, and when to return, was paid on a commission basis for his services, and owned the bicycle that he rode. The manner of his payment, however, was immaterial. It makes no difference whether he was paid by the day or week or month, or so much for each message he carried. Nor does the circumstance that he owned and rode his own bicycle in performing this service for the telegraph company affect the question. He was under the control of the telegraph company in the sense that it directed him when to go, and when to return, and what to do. He had no discretion of his own to exercise, except that he might select the route to be traveled in attending to the business committed to his care, but whatever route he selected, or whatever means of conveyance he adopted, his employer controlled his movements to the extent that it derived certain results therefrom, and the accomplishment of these results consisted in doing what his employer told him to do. Williams v. National Cash Register Co., 157 Ky. 836, 164 S. W. 112; Employers' Indemnity Co. of Phila. v. Kelly Coal Co., 156 Ky. 74, 160 S. W. 914, 49 L. R. A. (N. S.) 850. Upon the whole case we are satisfied that no error prejudicial to the substantial rights of the telegraph company was committed by the trial court, and therefore the judgment is affirmed. Langford said he was working for the telegraph company at the time in question, and had delivered a telegram just before the accident, and was on his way from the place where the telegram had been delivered to another place where he had instructions to deliver another telegram; and so the acci-reconstruction. City's acceptance of Laws 1889-90, c. 1559, authorizing issuance of bonds to build road, and its building road thereunder, did not obligate it perpetually to maintain such way, but it could widen the street, pave it, and assess the cost against abutting land, as construction and not Appeal from Circuit Court, Kenton County. I should be kept by it in proper condition and Injunction by R. B. Carran against the City repair in like manner as other streets and of Ludlow, wherein Elizabeth McCoy inter- roads in said municipality. She further vened. From decree dismissing both peti- pleaded that it would be a violation of the tions, plaintiff and intervener appeal sepa-act for the city of Ludlow to refuse to keep rately. Affirmed. the street in repair as required by the act, See, also, 174 Ky. 529, 192 S. W. 526; 175 and again to construct the street, and imKy. 454, 194 S. W. 344. posed the cost thereof on the abutting propMyers & Howard, of Covington, for appel-erty owners, when it was contemplated by lant. Joel H. Ward, of Covington, for ap- the act that no further cost incident to said pellee. highway should ever be borne by the abutting property owners. She concluded her amended petition with a prayer that the city be required to maintain the highway in proper repair and condition for public travel. A demurrer was sustained to the petition of Carran, and also to Mrs. McCoy's petition as amended, and the petitions were dismissed. Carran and Mrs. McCoy prosecuted separate appeals. CLAY, C. In the year 1890 the Legislature passed an act (Laws 1889-90, c. 1559) authorizing the cities of Covington, West Covington, and Ludlow to lay out and construct at their joint expenses a road connecting the three cities with each other. Each city was to appoint one of these commissioners to supervise the construction of the road, Upon Carran's motion, his appeal was dockand each was authorized to issue and sell its bonds for that purpose to the amount of $8,-eted, advanced, and submitted on January 000. It was also provided that upon the 10, 1917, and the judgment affirmed on March completion of the highway so much thereof 9th. Carran v. City of Ludlow, 174 Ky. 529, as lay within the respective municipalities 192 S. W. 526. By a clerical mistake, howshould revert to them respectively and be kept by them in repair and proper condition as other streets of said city are required to be kept. The act also provided á penalty for their failure to keep the highway in repair. Pursuant to this act, a highway 20 feet in width was constructed. In the month of May, 1916, the city of Ludlow enacted an ordinance providing for the improvement of Ludlow highway to a width of 50 feet by constructing same with a granite, bitulithic, or brick surface. The ordinance directed that the cost of construc tion should be assessed against the owners of the abutting property as provided by section 3572, Kentucky Statutes. R. B. Carran, an abutting property owner, brought suit to enjoin the city from proceeding under the ordinance on the ground that the improvement provided by the ordinance was reconstruction and not original construetion. Elizabeth McCoy, who is also the owner of a lot abutting on the highway, filed her intervening petition, alleging that the proposed improvement was reconstruction, the cost of which should be borne by the city, and not by the abutting property owners, and also charging that the city of Ludlow induced Carran to bring the suit for the purpose of having the ordinance declared valid without any real hearing on the merits of the controversy. Subsequently she amended her petition and alleged in substance that the commissioners appointed to supervise the construction of the highway were authorized "to receive donations of land and money for right of way and for constructing said highway"; that her ancestors and predecessors in title and others did give their property for right of way purposes, and were induced to do so by section 10 of the act providing that upon the completion of the highway that portion of it within the limits of the city of Ludlow ever, the opinion was treated as applying to both appeals, and an order was inadvertently entered affirming both judgments. Subsequently Mrs. McCoy moved the court to set aside the judgment affirming as to her, and to reinstate the case upon the docket. This motion was sustained, the court saying: "Although the principal question presented on this appeal was decided in the Carran Case, the appellant has the right to have her case tried before it is decided." On the appeal of Carran, it was held that as the abutting property owners had never been compelled to bear the burden of constructing the street, the improvement contemplated by the ordinance was original construction, and the cost thereof could be assessed against the abutting property owners. [1] The mere fact that Carran's suit was brought at the instance of the city and the city agreed to bear the cost of the litigation did not have the effect of making the case a moot case. Carran owned property abutting on the proposed improvement, and would necessarily have to bear his proportion of the cost. Being thus vitally interested in the improvement, he had a right to question the validity of the city's action. He did this by seeking to enjoin the city from proceeding under the ordinance. There can be no doubt, therefore, that there was a real controversy between the parties, and the opinion of this court cannot be disregarded on the ground that it was delivered in a moot case. 1 C. J. p. 974. [2] The only difference between the Carran case and Mrs. McCoy's case is that it is claimed that Mrs. McCoy's ancestors and predecessors in title donated a portion of their property for the purpose of constructing the Ludlow highway. We do not regard this circumstance as material. The test is, was the abutting property ever assessed for the cost of improving the street? If it was, the improvement was reconstruction, If not, it was original construction. The mere fact that her ancestors through whom she claims title furnished a portion of the right of way for the highway was in no sense the equivalent of the assessment of the cost of construction upon the abutting property. [3] Nor do we find any merit in the contention that because of the acceptance of land from Mrs. McCoy's ancestors or other landholders for right of way purposes and of the obligation imposed by the act of 1890 to keep the street in repair and proper condition as other streets of the city the city was forever deprived of the power of improving the street at the cost of the abutting property owners. Its obligation to repair applied merely to the particular highway as constructed by the commissioners under the act of 1890, and continued only so long as that highway existed. The power of determining whether the old highway should be continued and repaired or a new street should be constructed was vested in the city alone. When it elected, as it had the right to do under its charter, to construct an entirely new highway of different material, its obligation to repair the old highway then ceased, and an abutting property owner who has never been required to bear the burden of improving the highway cannot complain of the exercise of this power by the city, although her predecessor in title may have donated land on which the highway was constructed in the mistaken belief that under the act of 1890 the abutting property would never be required to bear any of the expense of a subsequent improvement of the high way. For the above reasons and the reasons set out in the case of Carran v. City of Ludlow, supra, we conclude that the chancellor did not err in sustaining the demurrer to appellant's petition as amended. Judgment affirmed. MATNEY et al. v. EDMONDS. (Court of Appeals of Kentucky. March 15, 1918.) 1. APPEAL AND ERROR 146-APPEAL BY FILING STATEMENT-SEPARATE JUDGMENTS. A single appeal from separate judgments in favor of different parties cannot be prosecuted by making the statement required by Civ. Code Prac. § 739. 2. APPEAL AND ERROR 335 - APPEAL BY FILING STATEMENT-APPELLEE. Where several parties who have recovered separate judgments are jointly named as appellees in one statement of appeal under Civ. Code Prac. § 739, and only one tax on an appeal is paid, there is but one appeal, and the party first named as appellee is the only appellee. The controversy between Matney and the Ironton Lumber Company is entirely separate and distinct from the controversy between Matney and Edmonds, and they resulted in separate judgments. If Matney and Bevins desire to review the judgment which passed upon the controversy between them and the Ironton Lumber Company for $3,447.50, as is contemplated by the present motion, they should proceed by a separate appeal against the Ironton Lumber Company. The Code does not contemplate a single appeal from separate judgments in favor of different parties, as the tendered statement proposes. [2] An appeal is prosecuted by making the statement required by section 739 of the Code, and paying the tax thereon. Where several parties who have recovered separate judgments are jointly named as appellees in one statement of appeal, and one tax is paid, as here, there is only one appeal, and the party first named as an appellee is the only appellee. It is not claimed that there was a Separate appeal against the Ironton Lumber Company, or that a tax has been paid upon any such appeal. So the motion, if permissible, would not accomplish the purpose intended by it. However, as this judgment was entered on June 7, 1916, appellants still have ample time to prosecute an appeal against the Ironton Lumber Company, if they desire to do so; and that may be done upon this record. Petition and motion overruled. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |