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amount of the guarantor's liability did not discharge the guarantor unless made in discharge and termination of the guaranty and with notice to that effect.

[Ed. Note.-For other cases, see Guaranty, Cent. Dig. § 47; Dec. Dig. § 38.*]

3. CONTINUANCE (§ 47*)-APPLICATION-SUFFICIENCY OF EVIDENCE.

In an action on a guaranty in which defendant alleged payment, evidence, on an application for a continuance because of the absence of defendant's co-guarantor by whom it was claimed payment was made, held to show diligence justifying a continuance.

From this writing it will be seen that W. T. Murray and R. C. Ford, appellant, guaranteed to the extent of $3,500 the payment of all past-due accounts as well as sales thereafter, and agreed that the guaranty should continue in effect until notice of its discontinuance be given in writing. In the other case, notice of discontinuance was not necessarily in writing. In other respects the obligations in each case were the same, except the name of the company to whom the guaranty was To the given, and the limit of liability. House-Hasson Hardware Company it was stipulated that the liability should not exRe-ceed $3,500, and to the Jellico Grocery Company $3,000. On the 15th day of April, 1913, the appellees filed suits against Murray and Ford, as joint defendants, on the guaranty above referred to. At that time the total indebtedness of the coal company to appellee House-Hasson Hardware Company was $5,084.84, and to the Jellico Grocery Company $6,617.36. The claim against Murray and Ford was the limited liability, however, fixed in the writings, viz., $3,500 by the HouseHasson Hardware Company, and $3,000 by the Jellico Grocery Company. The petitions show that Murray and Ford were the chief stockholders and officers in the coal company, and that Murray was president. Murray had moved out of the state when the suit was filed, and was never brought before the court. On May 17th Ford filed his answer. At the same time he moved to make the petition more specific, and asked for an itemized statement showing all bills of merchandise purchased by the coal company going to make up the claim, together with all payments made thereon. The court granted this last request, and itemized statements of account were filed, and in each case they showed that from the time the guaranty was executed until the suit was instituted the coal company had made payments in excess of the guaranty. Ford's answer tacitly admitted the guaranty, but denied ahy liability on account of it. He also denied that he was an officer or director of the company at the times mentioned, and in the second paragraph he pleaded payment in the following terms:

"Defendant further says that he and his codefendant. W. T. Murray, have paid plaintiff out of their personal funds on account of the indebtedness set forth in its petition the sum of three thousand ($3,000) dollars and defendant pleads the same in full satisfaction and discharge of the written instruments sued upon by plaintiff."

[Ed. Note.-For other cases, see Continuance, Cent. Dig. § 141; Dec. Dig. § 47.*]

Appeal from Circuit Court, Bell County. Actions by the House-Hasson Hardware Company and Jellico Grocery Company, respectively, against R. C. Ford. From judgments for plaintiffs, defendant appeals.

versed.

dred dollars) and we do also waive notice of purchase and maturity of bills. Sagamore Coal Company, by W. T. Murray, President. W. T. Murray, Surety. R. C. Ford, Surety."

T. G. Anderson, of Middlesboro, for appellant. Patterson & Ingram, of Pineville, W. E. Cabell, of Middlesboro, and Tye & Siler, of Williamsburg, for appellees.

NUNN, J. As we view this record, the chief question is whether the trial court erred in refusing the continuance requested by defendant Ford. The same question is involved in both appeals, and they are therefore considered together.

The Sagamore Coal Company was operating a mine in Bell county, and appellant, Ford, and W. T. Murray were large stock holders, and evidently very much interested in its success. In connection with the coal mine, the company operated a commissary, or a store stocked with general merchandise. In 1911 the company' was slow, and getting behind in payment of its debts, and owed more than $2,000 to each of the appellees. On the 23d day of March, 1911, in order to secure for the coal company an extension of time, and a further line of credit, the coal company, with appellant and Murray as sureties, executed to each of the appellees similar writings. One is as follows:

"For and in consideration of the sum of one dollar to the subscribers in hand paid by the House-Hasson Hardware Company, the receipt whereof is acknowledged, and for the further consideration that said House-Hasson Hardware Company, Incorporated, have sold and delivered or shall sell and deliver unto Sagamore Coal Company, goods, wares and merchandise on credit, we do hereby jointly and severally guarantee the payment to the said House-Hasson Hardware Company, Inc., for all goods, wares and merchandise as sold and delivered and for interest on all said accounts or sales, at the rate of 6 per cent. per annum after maturity.

"This guaranty shall extend to all sales of goods, wares and merchandise made by the House-Hasson Hardware Company, Inc., to the said Sagamore Coal Company, and shall continue in effect until notice of its discontinuance as to further liability therein is given by the subscribers in writing to the said House-Hasson Hardware Company, Inc., but the liability of the subscribers under this guaranty shall not exceed the sum of $3,500 (three thousand five hun

On June 17th the court overruled demurrer to this second paragraph of defendant's answer, and the cause was set for trial on July 1st. On the trial date Ford was not ready because of absence of codefendant, Murray, and filed affidavit and motion for

39

es.

continuance. The court passed the motion | got overheated and am not well enough to make and set the case down for July 12th. On this trip; couldn't do it under any circumstancthat day Ford renewed his motion for continuance with affidavit, and to which plaintiff filed a counter affidavit. The court refused a continuance. The case proceeded to trial, Ford waiving intervention of a jury, and, on the 14th, judgments were entered against him for the amounts claimed in the petitions.

[1, 2] There is serious question as to the sufficiency of Ford's plea of payment and satisfaction of the written guaranty, but the lower court ruled that the facts stated were sufficient to constitute a defense. Whether we concur in that ruling is not of so much importance now. Manifestly the liability against Ford and Murray continued until it was satisfied by payment, and appellees had notice that Ford and Murray would not further serve as guarantors. The answer is susceptible of two constructions. It avers satisfaction by payment of the indebtedness set forth in the petition. Whether this refers to the debt of the coal company, or Ford's obligation as guarantor, is not clear. If it referred to the coal company's indebted ness and a payment thereon of the amount stated the answer was insufficient. As

a

we construe the writing, it was a continuing obligation, and its main purpose was to procure a line of credit for the coal company

More than a mere payment on the company's

account to appellees was required. The payment must have been in discharge and termination of the guaranty obligation and with notice to that effect. The court should have required an answer of Ford in more definite terms, or else sustained demurrer.

When the case was set over from July 1st to July 12th, Ford got into communication with Murray by telephone, and Murray informed him that in order to testify intelligently it would be necessary for him to investigate the books and accounts of the company, and that. because of his continued illness he would be unable to do that, or to testify by deposition, or attend the court at the time the case was set for trial. Murray also said he would send certificate of his attending physician showing his illness, and that, as Murray was also a lawyer, he relied upon him to have the certificate conform to legal requirements. On July 11th, one day before the trial, Ford received the following medical certificate:

"I have just written the judge and told him that it was absolutely impossible for me to be there. I was in Cincinnati the first of the week,

"I, Dr. K. D. Davis, of Chattanooga, Tenn., do certify that I am the family physician of W. T. Murray of this city. Mr. Murray has been indisposed since June 28, 1913, from being badly overheated. He is in no condition for business, should not be exposed to any kind of worry or excitement. I have directed that he avoid

the heat, all business, excitement and worry. K. D. Davis, M. D."

it is insisted that because the certificate is not sworn to it is not sufficient. Appellee also files a counter affidavit from which it is made to appear that Murray was not ill, and, in support of the contention, filed a letter signed by a legal firm at Chattanooga dated July 9th in which they say that Murray was at that time in the city, and was then in his office, which was in the same building wherein these lawyers had their office, and that they had just been to see Murray in his office, and from their observation and the manner of his conversation they were satis

he was in good physical condition, and that there was no legitimate reason why he would be unable to give his deposition. Assuming that a counter affidavit was permissible, this letter was not in the form of an affidavit, and it is subject to the same criticism as the medical certificate. It may be that Murray was feigning illness, and that the certificate of the Chattanooga physician was untrue, and it was for that reason he did not verify it; but, under the circumstances disclosed in Ford's affidavit, we would not feel waranted in making that presumption. Murray was Ford's codefendant; he was president of the bankrupt coal corporation, and attended to its business in every detail. Ford says the payments were made by Mur ray in satisfaction of the indebtedness, and that Murray will so swear. Appellee admits that payments were made in excess of the guaranty. It is evident that Ford believed they were made in satisfaction and termina tion of the guaranty, and that he could establish that fact with Murray's testimony In view of the heavy obligation imposed upon this accommodation surety, and the diligence disclosed in the affidavit to secure the

[3] But in view of the ruling on the sufficiency of the plea, there was no occasion for Ford to amend it with more definite allega-fied tions in this regard, and the question resolves itself down to whether, under the circumstances disclosed in the affidavit, there was not an abuse of discretion in refusing a continuance so that Ford might be given an opportunity to procure the personal attendance, or deposition of his codefendant, Murray, to establish the facts alleged in defense. It appears from the affidavit that, as soon as his answer was held to be a valid plea, viz., May 17th, he undertook to locate Murray for the purpose of procuring his attendance or taking his deposition, and details the method pursued. On June 26th, he received a letter from Murray dated Chattanooga, Tenn., June 24th, giving absence from home as the reason for his failure to make earlier reply, and expressing a willingness to give his deposition, but stated that his engagements were such that he could not possibly attend the trial. On further insistence from Ford that he attend in person, Murray wrote on June 28th, among other things, the following:

attendance of the absent witness and codefendant, we are of opinion that the case should go back for a new trial on the issues suggested herein.

carcasses. On the contrary, for several years, as a result of the negligence of defendant, the pond and land immediately surrounding it emitted very foul and offensive

CUMBERLAND R. CO. v. BAYS et ux. (Court of Appeals of Kentucky. June 19, 1914.) NUISANCE (§ 50*) — ACTION FOR DAMAGES AMOUNT OF RECOVERY.

The judgment in each case is therefore re- odors. The evidence for the defendant was versed. to the effect that there were but few instances where any dead animals were buried at all, and, when buried, they were buried so deep that it was impossible for any odors to escape. It was also shown that the odors were those peculiar to stagnant water, and that these odors were not due to any negligence on the part of defendant.

In an action against a railroad company for damages from foul and offensive odors causWe find no prejudicial error in the aded by its negligence in burying the carcasses of mission of evidence. The chief error relied dead animals in and near a pond on its right of on is that the verdict is excessive. There is way and extending into plaintiff's premises, where there was evidence that several animals substantial evidence to the effect that sevwere buried within a few feet of plaintiff's res-eral animals were buried in or near the edge idence, that this condition extended over several of the pond, and within a few feet from the years, and that the odors arising therefrom residence of plaintiffs. This condition exwere not only foul and offensive but lasted for several weeks at a time, a verdict for $1,000 tended over a period of several years, and was not so disproportionate to the injury re- the odors arising therefrom were not only ceived as to appear at first blush the result of foul and offensive, but lasted for several prejudice and passion, and hence would not be weeks at a time. What would fairly compensate one for the diminution in the value of the use of his property under such circumstances is peculiarly a question for the jury. While the verdict is large, we cannot say it is so disproportionate to the injury received as to strike us at first blush as being the result of prejudice and passion. That being true, the verdict will not be reversed on the ground that it is excessive. Judgment affirmed.

reversed as excessive.

[Ed. Note.-For other cases, see Nuisance, Cent. Dig. §§ 118-127; Dec. Dig. § 50.*]

Appeal from Circuit Court, Knox County. Action by C. H. Bays and wife against the Cumberland Railroad Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

Black, Black & Owens, of Barbourville, for appellant. J. D. Tuggle, of Barbourville, for appellees.

(Court of Appeals of Kentucky. June 19, 1914.) MASTER AND SERVANT (§ 276*)-DEATH OF SERVANT-NEGLIGENCE-PROXIMATE CAUSE.

In an action for death of a railroad switch

CLAY, C. This is the second appeal of this case. The opinion on the former appeal may be found in 153 Ky. 159, 154 S. W. 929. On the first trial there was a judgment for plaintiffs in the sum of $900. That judgment was reversed because the trial court gave an instruction authorizing a recovery of puni-man by falling beneath the wheels of a train tive damages. In remanding the case this as he was endeavoring to board it, evidence held court further held that plaintiffs' right of insufficient to warrant a finding that his fall was recovery should not be confined to such inju- caused by a ridge of dirt and cinders dug from the track and alleged to have been negligently ry as they suffered within one year. next pre-piled alongside thereof. ceding the filing of the petition, but that they could recover damages for all injuries occurring at any time within five years from the time the action was brought. The opinion also sets out the instructions to be given on another trial. On the second trial plaintiffs recovered a verdict and judgment for $1,000. The railroad company appeals.

The action is one to recover damages for foul and offensive odors caused by the negligence of the railroad company in burying the carcasses of dead animals in and near a pond lying on defendant's right of way and extending into the premises of plaintiffs. The evidence of plaintiffs tends to support the allegations of the petition. They show that several dead animals were buried either in or near the edge of the pond, and that they were not buried at a sufficient depth to prevent foul odors arising from their decaying

TURNER, J. Frank Weidekamp was the foreman of a switching crew in the East Louisville yards of appellee on April 29, 1911, and, while so engaged on that day with his

WEIDEKAMP'S ADM'X v. LOUISVILLE &
N. R. CO.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 950-952, 954, 959, 970, 976; Dec. Dig. § 276.*]

Appeal from Circuit Court, Jefferson County, Common Pleas Branch, Second Division.

Action by Frank Weidekamp's Administratrix against the Louisville & Nashville Railroad Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Benjamin F. Gardner and Edwards, Ogden & Peak, all of Louisville, for appellant. Chas. H. Moorman, T. K. Helm, and Benjamin D. Warfield, all of Louisville, for appellee.

crew in taking from said yards to other
yards in the city of Louisville a train of cir-
cus cars, was run over and killed. This is
an action by his personal representative al-
leging that he came to his death by reason of
the negligence of the appellee, and asking
damages therefor. Upon the first trial a
verdict for $8,000 was returned against ap-
pellee, but the court, upon motion, set that
verdict aside and granted a new trial.
the last trial, at the conclusion of the plain-
tiff's testimony, the court gave a peremptory
instruction to find for the defendant, and,
from a judgment entered under that direc-
tion, this appeal is prosecuted.

On

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The evidence as to how the accident happened was substantially the same upon both trials, except that upon the second trial Rucker, who had been introduced by the defendant upon the first trial, did not testify, and Birg, a negro, who did not testify at the first trial, testified at the last.

said that the ridge was the cause of the accident, and this, of course, involves an examination of the evidence on that question.

There were only four witnesses introduced upon either trial who saw the accident or any part of it, viz., Rucker, Kessler, Birg, and Harpring, and only the latter three testified upon the last trial.

Harpring states that he was superintending the unloading of coal at a distillery a short distance away, and was on lower ground than the place where Weidekamp was killed; that there were some cattle on a side track between where he was and the place of the accident, but, by reason of being on lower ground, he saw Weidekamp while the cars were running over him by looking under the cattle cars. In speaking of the accident to Weidekamp, he says:

In our view of the case it is unnecessary to determine whether the existence of the ridge of dirt and cinders along the side of the track was negligence, and it therefore only remains to be determined whether there

cident?

"Q. Did anything happen to him on the 29th day of April, while you were up there? A. Yes, sir; he got killed. Q. Did you see the acjury what part of it you saw, if any? A. I A. No, not all of it. Q. Just tell the saw the last several cars passing over his body as he was lying on the track. Q. On what rail of the track was his body when it was being run over? A. On the south. Q. Did you see him fall? A. No, sir."

J. H. Kessler states that he was 40 or 50

yards from Weidekamp when the accident happened, and describes it in this way:

The only negligence relied upon as causing the accident is that on the morning before the accident a crew of trackmen of appellee, in repairing the tracks at the point where the accident occurred, had taken from under the ties a lot of cinders and soft dirt and piled it along the track for a distance of 60 or 75 feet in a ridge from a foot to a foot and a half high, and that the decedent in attempting to board his train, while it was in motion, had in some way stumbled over or had been impeded by this ridge of dirt and cinders, and that it was the cause of the accident.

"Q. I will get you to tell the jury just what happened, in your own way, just what you saw, to the best of your recollection. A. All I can say, Weidekamp tried to get on and must have slipped or missed the footstep, and fell down beabout that, whether he missed his footstep? tween them. Q. Will you please state positively A. No, not particular, because that was done so quick, you know, you couldn't tell whether he missed his footstep or slipped. Q. You don't hand slipped, or whether his feet slipped from know about that? You don't know whether his the stirrup? A. No, sir. The Court: Which side of the car did he try to get on? The Witness: The north side, between the north-bound the train at the time he tried to get on, on the main and the south-bound main. Q. Where was north-bound main? A. On the south-bound main. Q. The south-bound main is the north But it is the contention of the appellee: main, the train goes to Cincinnati on that? track, isn't it? The Court: The north-bound (1) That it was not only its right, but its The Witness: Yes, sir. The Court: And the duty, to keep its tracks in repair, as well south-bound main brings the trains into Louisfor the protection of its employés as for the ville and on south? The Witness: Yes, sir. proper handling of the traffic, and that there-Q On which side of the train was he, on the right-hand side or the left-hand side, going to fore, even if the ridge of dirt was piled along Cincinnati? A. Going to Cincinnati? Q. Yes? the side of the track, it was merely a neces- A. He would be on the right-hand side; the sary incident to the maintenance and opera- train was coming this way. Q. He was on the right-hand side of the train looking towards Cintion of the railroad, and was not therefore in cinnati, no matter how the train was going? any event negligence; and (2) that even if it A. Yes, sir. Q. Which side of the track were was negligence for this ridge of dirt and you on? A. The same side as Mr. Weidekamp. cinders to be where it was, giving the fullest effect to the whole evidence, it is neither shown directly nor by any fair inference that the ridge of dirt and cinders was the cause of the accident.

Were you over next to the Elk Run Distillery or over on Mellwood? A. Next to the distillery. Q. That is the side he was on when he was killed? A. Yes, sir. Q. Did you see him make more than one attempt to get on that train? A. I think he made two, but never lost his handhold, is the way it looked to me."

And again on cross-examination:

"Q. Now, you say it looked to you as if he made two attempts to get on, and missed the first one, and then tried the second time? A. Yes, sir. Q. But held his hand hold all the

The colored witness, Birg, says:

"A. I was coming from the Elk Run Distillery with my team at the time he fell. I saw him when he fell. Q. How did you come from the Elk Run Distillery? A. Well, the Elk Run set south of where we were hauling coal there. South of the track our cars was on, and I had to come from south, coming north, and then turned east, back of the watchman's shanty, to come along the line of track where our cars were at, going east. Q. When you turned to go east, were there any cars between you and the main track? A. No, sir; there wasn't no cars between me and the main track at all. Q.

That is when you turned east? A. When I turned east; no, sir. Q. In which direction, then, did you drive in order to get to the coal cars, east or west? A. East. Q. You say you saw Mr. Weidekamp when he fell? A. Yes, sir. Q. How far away from him were you? A. About 20 or 25 yards, as near as I can come at it. Q. In which direction were you looking? A. I was looking at the show train, looking north. Q. Looking at the circus train? A. Yes, sir. Q. And driving east? A. Yes, sir. Q. I will get you to tell the jury just what you saw? A. All right, sir; I saw Mr. Weidekamp when he aimed to catch his train and stumble, and he fell head foremost between the cars, and his feet was lying south and his head was lying north. Q. What did he stumble-what made him stumble, if you know? A. I don't know; loose dirt there; but I don't know whether he stumbled in that, or how he got caught; he stumbled in some way. Q. Was there any loose dirt there? A. Yes, sir; loose dirt there. Q. At the place where he attempted to get on the cars? A. Yes, sir. Q. Who put that loose dirt there, if you know? A. The crew of section hands working there all morning; I guess they put it there."

And again on cross-examination:

"Q. The first time you saw him was when he grabbed at his train? A. Yes, sir. Q. Did he ever get hold of his train? A. I wasn't close enough to see whether he touched it or not; I was close enough to see him fall. Q. Can you say whether or not he got his hand on the handhold? A. No, sir; I can't do that; I wasn't close enough to tell that. Q. You don't know whether he ever touched it or not? A. No, sir. Q. You say he fell? A. Yes, sir. Q. Did you see him stumble? A. I seen him when he fell,

and he must have stumbled and fell. (The court directs the witness not to tell what Mr. Weidekamp must have done, but to tell what he [the witness] saw.) Q. Do you know whether he stumbled or not? A. I don't know whether he stumbled; I know he fell. Q. You don't know what caused him to fall? A. No, sir. Q. You simply saw him fall? A. Yes, sir; I simply saw him fall. Q. You don't know whether he caught hold of the handle or not? A. No, sir. Q. You were not watching his feet; you were just watching him as a whole? A. I just happened to see him when he fell. Q. You don't know whether his foot hit anything or not, do you? A. No, sir."

In addition to this evidence, there were conflicting statements as to whether or not the ridge of dirt and cinders extended along the track at the point where Weidekamp attempted to board the moving train; but assuming that it was there, and that it was negligence for it to be here, still the remaining question is whether the evidence shows that the ridge of dirt and cinders had any

connection with the accident or was the cause of it.

The evidence of Harpring sheds no light whatever upon the cause of the accident; he only saw the decedent after he was under the train and the cars were running over him, and does not claim to have seen him fall.

The effect of Kessler's statement, who was about 150 feet distant, is that "he must have slipped or missed the footstep," and further expressly states that he does not know which it was. There is nothing in his testimony which directly or by any fair inference may be said to show that the ridge of dirt and cinders had any connection whatever with the accident.

It is true the negro, Birg, who was 60 or 75 feet distant at the time, says that Weidekamp stumbled in some way, but he does not know whether he stumbled on the ridge of dirt; but upon cross-examination he admitted that he did not know whether he had stumbled or not, and did not know what caused him to fall, and did not know whether his feet had hit anything or not.

Giving to this evidence its fullest effect, and taking every fair inference that may be deduced from it, it cannot be said to show either that the ridge of dirt was the proximate cause of Weidekamp's death, or that it shows with any degree of certainty what was the cause of his death.

The accident happened at about 1 o'clock in the day, and the evidence is that it was then raining, and it is just as fair to say that he slipped because of the slippery conditions brought about by the rain as that he stumbled over the ridge of loose dirt. From this evidence it is necessarily speculative as to whether the ridge of dirt was the cause of the accident, or whether the slippery condition of the ground was the cause

of it.

Neither courts nor juries are authorized to indulge in speculation or guesswork as to the cause of accidents; there must be some tangible evidence from which it may be fairly said what brought about the accident. It has long been the rule in this state that no recovery can be had in such cases where the evidence is so unsatisfactory as to require surmise or speculation as to how the injury occurred, and that there will be no presumption of negligence. Hughes v. Cincinnati Ry. Co., 91 Ky. 526, 16 S. W. 275, 13 Ky. Law Rep. 72; Stuart v. N., C. & St. L. Ry. Co., 146 Ky. 127, 142 S. W. 232; Osborne's Adm'r v. C., N. O. & T. P. Ry. Co., 158 Ky. 176, 164 S. W. 818, and many other

cases.

We are of opinion that the court properly granted the new trial, and properly gave the peremptory instruction upon the second trial; and the judgment is therefore affirmed.

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