It is well settled that a court of bankruptcy, two or more persons, may be sold in an action including the referee, has authority to direct brought by either of them, though either be a a sale of property by the trustee in bank-ed the estate is in possession and the property person of unsound mind or an infant, providruptcy free and clear of all liens and incum- cannot be divided without materially impairing brances, in which event the liens are trans- its value, where the petition neither alleged ferred to the proceeds according to their that the infant wards were in possession of the land nor that it could not be divided without priority. In re Worland (D. C.) 1 Am. Bankr. materially impairing its value, and the judg Rep. 450, 92 Fed. 893; McNair v. McIntyre, ment did not provide that a lien should be re113 Fed. 113, 51 C. C. A. 89; Brandenburg tained on the land until the guardian_should on Bankruptcy, § 1195. However, it is well execute the bond required by section 497. [Ed. Note. For other cases, see Infants, Cent. settled that a trustee should not be required Dig. §§ 82, 83, 97; Dec. Dig. § 37.*] to sell any portion of the estate, where the 3. INFANTS (§ 37*) SALE OF LANDS appraisers' return shows it to be so heavily CEEDINGS-POWER OF CHANCELLOR. incumbered with valid liens that nothing The chancellor is specially charged with the can be realized for the unsecured creditors. protection of infants and their real estate, and, having no inherent power to order a sale, he In re Cogley (D. C.) 107 Fed. 73, 5 Am. Bankr. should deny a sale, unless all of the provisions Rep. 731. It is further held that a sale free of the statute are carefully followed. of liens does not affect a lien in the nature of a tax assessment against the property, but in such a case the trustee should protect the purchaser by providing for the payment of the taxes. In re Keller (D. C.) 109 Fed. 131, 6 Am. Bankr. Rep. 351. - · PRO [Ed. Note.-For other cases, see Infants, Cent. Dig. §§ 82, 83, 97; Dec. Dig. § 37.*] Appeal from Circuit Court, Jefferson County, Chancery Branch, Second Division. Proceeding by W. J. Yager's guardian for the sale of land. From a judgment overruling exceptions by the purchaser, L. Melcher, to the sale, he appeals. Judgment reversed, with directions to sustain exceptions and set aside sale. E. L. McDonald, of Louisville, for appellant. George Cary Tabb and Ray Mann, both of Louisville, for appellee. TURNER, J. This is an action by the guardian of the two infant appellees, W. J. Yager and Houston Yager, for the sale of a house and lot, jointly owned by them in the city of Louisville, for the purposes of reinvestment of the proceeds. In the present case there was no sale free of tax liens. It is further shown that the trustee had on hand no assets, and acquired by virtue of the sale no assets, out of which he could pay the taxes. For failing to provide for the payment of the taxes under these circumstances, neither the court nor the trustee can be blamed. The property not being sold free of tax liens, the purchaser acquired it subject to the tax lien in question. If the trustee had any assets out of which to pay the taxes, the purchaser might require that this be done. Here the trustee could not pay the taxes unless the purchaser furnished the money. The purIt is apparent that the action was origchaser is therefore in no position to complain inally instituted under the provisions of subof the fact that the taxes were not paid by section 5 of section 489 of the Civil Code, the trustee. Whether the purchaser furnish-authorizing such procedure. But the bond ed the money to the trustee in the first instance, or is now required to pay the taxes, the result is the same. It does not appear that the city had notice of the bankruptcy proceeding, or that its claim for taxes was therein adjudicated; hence it is in no wise concluded by the bankruptcy proceeding. Judgment affirmed. MELCHER v. YAGER'S GUARDIAN. required under section 493 of the Code to be executed before such a sale is ordered, and expressly providing (subsection 3) that any sale or conveyance so made without the execution of such bond shall be void, was not complied with, and it is therefore perfectly clear, and is conceded, that the sale cannot be upheld under the provisions of that section. The appellant became the purchaser and filed exceptions to the sale upon the ground (Court of Appeals of Kentucky. June 19, 1914.) that it was void because of the failure to exe cute such a bond; but the lower court, as we gather from the record and the briefs, was of opinion that the sale was a valid one, under the provisions of subsection 2 of section 490 of the Civil Code, which is as follows, to wit: "A vested estate in real property jointly owned by two or more persons may be sold by order of a court of equity, in an action brought by either of them, though the plaintiff or defendant be of unsound mind or an infant. * *If the estate be in possession and the property cannot be divided without materially impairing its value, or the value of the plaintiff's interest therein." The court overuled the exceptions and confirmed the sale, and, from that judgment, this appeal is prosecuted by the purchaser. After the sale, and before the exceptions were filed and acted upon, the guardian executed a bond under the provisions of section 497 of the Civil Code. [1, 2] The courts have no inherent power to order the sale of infant's real estate; such authority comes exclusively from the statutes; and in such proceedings the method pointed out by the statute must be followed. In this case there is no allegation in the petition either that the infant defendants are in possession of the land or that the same cannot be divided between them without materially impairing its value, and both of these allegations are necessary to authorize a sale under the provisions of subsection 2 of section 490, nor is there any evidence against these infants showing the indivisibility. Not only so, but the judgment of sale in this case does not provide that a lien is retained on the land ordered to be sold until the infants became of age, or until their guardian shall execute the required bond, as required by section 497. [3] The chancellor is specially charged with the protection of infants and their real estate, and, having no inherent power to or der a sale thereof, it is his particular duty to see that all the requirements of the statutes are followed. There has been in this case no substantial compliance with the provisions of the statute, and it is apparent that the sale is now attempted to be upheid under the provisions of a section of the Code which was not in mind when the petition was drawn or the proceedings had. The judgment is reversed, with directions to sustain the exceptions and set aside the sale. COMMONWEALTH, by BOSWORTH, Auditor, v. WASHINGTON LIFE INS. CO. eign life insurance company, admitted to do business in the state, and procuring contracts of insurance before and after June 15, 1906, the date of the taking effect of section 4226, is liable for the tax on premiums thereafter collected on policies procured prior to June 15, 1906, as well as after that date. [Ed. Note.-For other cases, see Taxation, Cent. Dig. § 207; Dec. Dig. § 113.*] 3. TAXATION (8_113*)-INSURANCE COMPANIES -TAXES ON PREMIUMS-STATUTES - VALIDITY. HANNAH, J. The commonwealth of Ken tucky, by H. M. Bosworth, its auditor of public accounts, instituted this action in the ton Life Insurance Company, alleging that Franklin circuit court against the Washingthe defendant company, under license and authority to do business in this state granted upon application to the insurance commis sioner, effected contracts of life insurance therein until the year 1908, when it voluntarily withdrew from the state; that it filed with the auditor of public accounts for deposit in the insurance department the statement required by law of the amount of premiums collected by it during the year 1908, and paid into the state treasury the tax thereon. It was further alleged that during the year 1909 defendant company or the Pittsburgh Life & Trust Company (which com (Court of Appeals of Kentucky. June 19, 1914.) 1. TAXATION (§ 168*)-LIFE INSURANCE COM-pany reinsured the business of defendant PANIES TAXES ON PREMIUMS COLLECTED WITHDRAWAL FROM STATE. A foreign life insurance company, having been admitted to do business in the state, and having effected contracts of insurance within the state, cannot, by its subsequent withdrawal from the state, escape liability for the tax on renewal premiums collected by it after withdrawal on contracts of insurance effected by it when doing business in the state. [Ed. Note.-For other cases, see Taxation, Cent. Dig. § 291; Dec. Dig. § 168.*] 2. TAXATION (§ 113*)-LIFE INSURANCE COмPANIES TAXES ON PREMIUMS COLLECTED WITHDRAWAL FROM STATE. Under Ky. St. 1909, § 4226, imposing a tax on premiums collected by life insurance companies, originally enacted as a part of the revenue law of 1902, and virtually in the same form as a part of the revenue law of 1892, carried into Ky. St. 1899, as section 4227, a for Company) collected premiums upon the policies which had been written by defendant company when it was effecting contracts of insurance in the state, amounting to at least $49,000; that defendant company had failed and refused to file the statement thereof as required by law, and to pay the 2 per cent. tax thereon. Plaintiff prayed that defendant company be required to answer and disclose the exact amount of the premiums so received by it or the Pittsburgh Life & Trust Company during the year 1909 upon policies of insurance effected by defendant company when it was effecting insurance within the state, or that, upon failure of defendant company so to do, it might have judgment against defendant in the sum of $980, being 2 per cent. on $49,000, the alleged total of the premiums so received. Defendant company filed a demurrer and an answer to the petition, and, the cause being submitted upon plaintiff's demurrer to each paragraph of the answer, the court overruled the said demurrer, and sustained defendant's demurrer to the petition. Plaintiff declining to plead further, the petition was dismissed, and, of that ruling, plaintiff complains upon this appeal. RUST et al. v. CARPENTER. Where the vendors of land brought suit upon a note given for the purchase price, in which the payee of the note joined as party plaintiff, and pending the appeal one of the vendors died, and the payee was substituted as his adminisance due because of a deficiency in the quantrator, a judgment for the purchaser for baltity of the land should be rendered against the payee only in his capacity as administrator. [Ed. Note.-For other cases, see Executors and Administrátors, Cent. Dig. §§ 1884-1908; Dec. Dig. § 453.*] On petition for rehearing. Former opinion modified, and petition for rehearing over, ruled. For former opinion, see 158 Ky. 672, 166 [1] It is proper to say that the judgment appealed from was rendered by the circuit court prior to the decision by this court of the case of the Commonwealth v. Provident Savings Life Assurance Society, 155 Ky. 197, 159 S. W. 698. In that case it was held that a foreign life insurance company, having been admitted to do business in this state, and having here effected contracts of insur- S. W. 180. ance, cannot, by its subsequent withdrawal from the state, escape liability for the tax upon renewal premiums collected by it after such withdrawal, upon contracts of insurance effected by it when it was effecting insurance of that case, the demurrer to the petition should have been overruled, and, as the first paragraph of the answer was a mere denial of defendant company's duty to file the statement and pay the tax sought to be recovered, the demurrer to that paragraph of the answer should likewise have been sustained. contracts in the state. Upon the authority SETTLE, J. So much of the opinion herein (158 Ky. 672, 166 S. W. 180) as directs that, upon the return of the cause to the cirfavor against appellants for $115.55 is modicuit court, judgment be entered in appellee's fied to the extent of directing that such judgment as to the appellant Will Rust go against him as administrator of the estate of Jake Rust, deceased, execution thereon to be levied of the assets of the estate in his hands un administered. In other respects the petition for rehearing is overruled. HEINE. [2] 2. By the second paragraph of the answer, defendant company alleged that of the sum collected by it as premiums during 1909, OHIO VALLEY COAL & MINING CO. v. or rather by the Pittsburgh Life & Trust Company, only $586.15 was premiums upon insurance contracts effected by it in Kentucky after June 15, 1906, and that the act under which the recovery herein is sought 1. MASTER AND SERVANT (§ 288*)-INJURY TO became effective on June 15, 1906, and that the plaintiff had no right to recover any tax upon the premiums collected upon policies effected by defendant company prior to June 15, 1906. The demurrer should have been sustained to this paragraph of the answer also. Section 4226, Kentucky Statutes, under which the recovery herein is sought, in its present form was originally enacted as a part of the Revenue Law of 1902, and it appears in virtually the same form as a part of the Revenue Law of November 11, 1892 (Acts 1891-93, c. 103, art. 11, § 6), being later carried into Kentucky Statutes 1899 as section 4227. [3] 3. As to paragraphs 3, 4, 5, and 6 of the answer, which are directed to the denial of the constitutionality of sections 4226 and 4230a, Kentucky Statutes, these matters were concluded by the case of the Commonwealth v. Provident Savings Life Assurance Society, supra. The demurrer to these paragraphs of the answer should also have been sustained. Judgment reversed. (Court of Appeals of Kentucky. June 19, 1914.) SERVANT ASSUMPTION OF RISK-KNOWL- A servant who knew of the defective condition of the tipple and appliances for unloading coal cars, and that the brakes had been oiled, was not, as a matter of law, charged with notice that because of such conditions an ascending car would probably jump the track and injure him, since a servant does not ordinarily assume the risk of injury from the master's negligence, unless the danger is known to him, or is obvious to a person of ordinary intelligence. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1068-1088; Dec. Dig. § 288.*1 2. JUDGMENT (§ 251*)-CONFORMITY TO PLEADING AND PROOF-NEGLIGENCE AND GROSS NEGLIGENCE. Under a petition merely charging negligence in general terms, in that plaintiff was injured by the negligence of his master or of the master's servants or agents superior in auhe can recover for the gross negligence of the thority to himself, in running a car over him, superior servants in operating the car, but the general allegation of negligence is not sufficient to authorize a recovery for the master's failure ably safe place to work, or reasonably safe to use ordinary care to furnish him a reasonappliances, which latter rule applies both where the appliances, the defective condition of which was the proximate cause of the injury, were used by other servants, and where they were used by plaintiff himself. [Ed. Note.-For other cases, see Judgment, Cent. Dig. § 437; Dec. Dig. § 251.*] 3. APPEAL AND ERROR (§ 233*)-OBJECTION BELOW-SUFFICIENCY. Where the petition in a servant's action for injury did not rely on unsafe appliances, and defendant moved to require plaintiff to make his petition more specific, asked the exclusion of all evidence on the question of unsafe appliances, and excepted to all the instructions, including one as to unsafe appliances, defendant could not be said to have waived its right to rely on the error of the court in authorizing a recovery for injury from unsafe appliances. [Ed. Note. For other cases, see Appeal and Error, Dec. Dig. § 233;* Trial, Cent. Dig. § 192.] 4. MASTER AND SERVANT (§ 274*)-INJURY TO SERVANT-EVIDENCE-CONTRIBUTORY NEGLI GENCE. In a servant's action for injury, evidence as to the use of unsafe appliances is competent on the question of contributory negligence. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 939-949; Dec. Dig. § 274.*] 5. MASTER AND SERVANT (§ 177*)-INJURY TO SERVANT FELLOW SERVANT'S NEGLIGENCE -LIABILITY OF MASTER. In a servant's action for injuries not resulting in death he can recover only for gross negligence, not for ordinary negligence, on the part of the other servants superior in authority to himself. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 307, 352, 353; Dec. Dig. § 177.*] Appeal from Circuit Court, Union County. Action by Chris Heine against the Ohio Valley Coal & Mining Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded. Morton & Morton and Drury & Drury, all of Morganfield, for appellant. P. H. Winston, of Sturgis, and Allen & Miller, of Morganfield, for appellee. CLAY, C. In this action for damages for personal injury, plaintiff, Chris Heine, recovered a verdict and judgment for $1,200 against defendant, Ohio Valley Coal & Mining Company. Defendant appeals. On the bank of the Ohio river the defendant has a tipple and a drum and other appliances for unloading its coal cars. The drum is 12 feet long, 3 feet in diameter, and 141⁄2 feet from the ground. Around the drum is wound a five-eighths inch steel wire rope, with a hook in each end. There are two tracks leading from the tipple to the river. The knuckle is at the top of the river bank, and the distance from that point to the river varies with the stage of the water. The incline is quite steep; there being a drop of one foot in three. Each of the cars used in carrying coal weighs about 21⁄2 tons. They carry about six tons of coal. One end of the steel wire rope is attached to a loaded car, and the other to an empty car on the other track. As the loaded car descends, the empty car ascends. When the empty car reaches the knuckle and gets on level track, its speed is relaxed, and, the loaded car having come to a stop at the end of the incline, there is a slack in the tension of the cable, thus enabling one of defendant's employés to detach the hook from the empty car. The accident to plaintiff happened on June 7, 1912. Plaintiff had no regular work, but was what is known as a "rouster"; that is, he did whatever work he was told to do. On the day of the accident he was directed to detach the hook from the empty cars. For that purpose he was standing about 20 feet from the knuckle. In that position he could not see the ascending car. When the car which injured him reached the knuckle, it was going very rapidly, and jumped the track. He endeavored to get out of the way, but failed to do so. The car ran over him and broke both legs and otherwise injured him. There was some evidence tending to show that the appliances were defective, or at least were not properly adjusted for the purposes for which they were being used, and also that the car itself was negligently operated on the occasion of the injury. The evidence for plaintiff is also supplemented by that of defendant's foreman, McCoy, who says that the car was going too fast at the time of the accident. This was due to the fact that he put oil on the brake. [1] (1) While there is proof to the effect that plaintiff knew of the defective condition of the appliances, if they were defective, and of the further fact that brakes had been oiled, yet these facts alone are not sufficient to justify the conclusion that he assumed the risk of injury. The servant does not ordinarily assume the risk of injury growing out of the master's negligence, unless the danger is known to him, or is obvious to a person of ordinary prudence. In this case we cannot say as a matter of law that he was charged with notice of the fact that the car would probably jump the track and injure him because of the defective appliances, or because the brakes had been oiled. It, therefore, follows that the peremptory instruction asked by the defendant was properly refused. [2] (2) Plaintiff's petition merely charges that plaintiff was injured by the negligence of defendant, its agents and servants superior in authority to plaintiff, in 'running the car over plaintiff. In other words, the petition charges negligence in general terms. These allegations were sufficient. Chiles v. Drake, 2 Metc. 146, 74 Am. Dec. 406; W. A. Gaines & Co. v. Johnson, 133 Ky. 507, 105 S. W. 381, 32 Ky. Law Rep. 58; L. & N. R. R. Co. v. Stewart's Adm'x, 156 Ky. 554, 161 S. W. 557. Under these allegations plaintiff could recover for the gross negligence of defendant's servants superior in authority to him in operating the car. On the other hand, it is well settled that general allegations of negligence are not sufficient to authorize a recovery for a failure on the part of the master to use ordinary care to furnish the servant a reasonably safe place to work, or reasonably safe appliances. L. & N. R. R. Co. v. Irby, 141 Ky. 145, 132 S. W. 393; Monroe v. Standard Mfg. Co., 141 Ky. 549, 133 S. W. 214. Where a recovery is sought on these grounds, they should be pleaded. Plaintiff, while recognizing this rule, insists that it applies only to a case where the appliances are those with which the injured servant himself works. The rule, however, is not subject to such an exception. Certainly the master's duty is the same whether the defective appliances are used by the injured employé or by another employé, if, as a matter of fact, the defective condition of the appliances is the proximate cause of the employé's injuries. That being true, there is no reasonable ground for any distinction. Too many distinctions lead to confusion and uncertainty in the law, and it is better that this natural tendency should be checked rather than encouraged, especially in those cases where there is no substantial ground for the distinction sought to be made. [3, 4] Plaintiff contends that, notwithstanding the fact that the petition did not rely on unsafe appliances, evidence on this question was heard without objection, and the case submitted to the jury, and therefore defendant cannot complain of the admission of the evidence or the instruction based on it. Lexington & Eastern R. Co. v. Fields, 152 Ky. 19, 153 S. W. 43. That rule, however, has no application to the facts of this case. Here the defendant first made a motion to require the plaintiff to make his petition more specific. This motion was overruled. The evidence complained of was then heard. Under the rule announced in L. & N. R. R. Co. v. Irby, supra, this evidence was competent on the question of contributory negligence. Furthermore, defendant, at the conclusion of the evidence, asked the court to exclude all the evidence bearing on the question of unsafe appliances. This motion was overruled. The defendant then objected and excepted to all the instructions given by the court. Under these circumstances, defendant did all that it reasonably could to save the question, and it cannot be said that it waived its right to rely on the error of the court in authorizing a recovery for unsafe appliances, when that ground was not relied on in the petition. ton's Adm'x v. Frankfort & Versailles Traction Co., 139 Ky. 57, 129 S. W. 322. Judgment reversed, and cause remanded for proceedings consistent with this opinion. HARVEY v. ILLINOIS CENT. R. CO. (Court of Appeals of Kentucky. June 16, 1914.) 1. RAILROADS (§ 350*)-CROSSING ACCIDENTS -ACTIONS-QUESTIONS FOR JURY. In an action for personal injuries sustained at a railroad crossing, evidence held to make a question for the jury as to whether the railroad employés in cutting a train in two for the purpose of leaving the road open for travel left the cars so that they obstructed a portion of the highway, and whether this resulted in injury to plaintiff. [Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ 1152-1192; Dec. Dig. § 350.*] 2. RAILROADS (§ 246*) OPERATION STRUCTING HIGHWAY. OB Under Ky. St. § 768, subsec. 5, providing public highway for more than five minutes at that a railroad company shall not obstruct any one time, if a train which has blocked a crossing for five minutes is not ready to move, the crossing must be cleared by cutting the train in two, or by some other method. [Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ 758-760; Dec. Dig. § 246.*] 3. RAILROADS (§ 301*). OPERATION HIGHWAY CROSSING-RIGHTS OF COMPANY AND PUBLIC. the railroad company and the public must each Where a railroad crosses a public highway, exercise the right to use the crossing in such a manner as to subject the other to as little inconvenience and trouble as is practicable under the circumstances. [Ed. Note.-For other cases, see Railroads, Cent. Dig. § 956; Dec. Dig. § 301.*] 4. RAILROADS (§ 301*) - OPERATION - HIGHWAY CROSSING · RIGHTS OF COMPANY AND PUBLIC. railroad trains have the right of way over other vehicles Under ordinary circumstances at highway crossings. [Ed. Note. For other cases, see Railroads, Cent. Dig. § 956; Dec. Dig. § 301.*] 5. RAILROADS ($ 305*)-OPERATION - HIGHWAY CROSSING-RIGHTS OF COMPANY AND PUBLIC. Where a railroad crosses a public highway, the railroad company has no more authority than other persons to place obstructions likely to frighten horses upon or near the public road, unless necessary in the use, repair, or construction of the road. [Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 968-971; Dec. Dig. § 305.*] 6. RAILROADS (§ 246*) OPERATION OB STRUCTING HIGHWAY. When, under Ky. St. § 768, subsec. 5, a railroad company is under the duty of clearing a highway crossing, it must do so in such a manner that the entire right of way shall be open [5] (3) The court also erred in authorizing for travel, and it is not sufficient to merely open a space between the cars of a train over a recovery for the ordinary negligence of de- the part of the road most traveled, or to open fendant's agents superior in authority to a space wide enough to permit vehicles to pass. plaintiff. Death not having resulted, he [Ed. Note.-For_other_cases, see Railroads, could only recover for gross negligence on Cent. Dig. §§ 758-760; Dec. Dig. § 246.*] their part. C. & O. Ry. Co. v. Laney, 154 Ky. 7. RAILROADS (§ 332*)-CROSSING ACCIDENTS -LIABILITY-CONTRIBUTORY NEGLIGENCE. 39, 156 S. W. 875; Union Iron Works Co. v. Where a freight train standing at a highBowling, 153 Ky. 683, 156 S. W. 124; Mil-way crossing was cut to leave the road open |