THE

SOUTHWESTERN REPORTER

VOLUME

HOBSON, C. J. Lee Hamblin was in the service of the Interstate Coal Company as striker in the blacksmith shop, or assistant In an action for death by the breaking of of the blacksmith, Will Trosper. The coma platform board, claimed not to have been nailed, evidence that witnesses examined the plat-pany maintained a coal tipple from which form the day after the accident and saw the coal was dropped into a shaker, by means heads of nails which looked fresh, as if recently of which the fine coal was separated from driven to hold the boards, and that some days thereafter the platform was made more secure by additional planks, was not admissible; evidence of repairs made after an accident not being admissible to prove that the place was not in good condition before the accident.

4. MASTER ANd Servant (§ 270*)-INJURIES-thick and 10 or 12 inches wide, 12 feet long. ADMISSION OF EVIDENCE-NEGLIGENCE.

•For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

hands assigned to him, after dark went up-ed. While it is true that Hamblin would on the platform and took out the bolts not have been hurt if he had not thrown the which fastened the shaft. He then directed shaft off, it is also true that throwing the Hamblin and a man named Dawson, who shaft off would not have caused any trouble was one of the men assigned to assist him, if the plank had been securely fastened to take the shaft out. Hamblin and Daw- Trosper, under whom he was working, had son got the shaft out on the platform; Tros-done the work in the same way on a previous per being on the opposite side of the shaker occasion; and Trosper, who was in charge from them and a few feet away. When of the work, made no objection to his sugHamblin and Dawson had the shaft on the gestion that they should throw the shaft off. platform, Hamblin said to Dawson that he It cannot be said, therefore, that he was actwould throw it off. Dawson said: "No; it ing outside of the scope of his duty, and the might break it." Hamblin said "No;" that circuit court properly refused the peremptory was the way that he and Trosper had done instruction asked by the defendant. before. Trosper, who was in hearing, said nothing, and Dawson then said, "Wait until I get in the clear." He then got to one side, and as soon as he did this Hamblin pushed the shaft off the platform; one end of it being already on the edge, or over the edge. When Hamblin threw the shaft off, the center plank of the platform fell through it, and Hamblin, who was standing on this plank, fell through with it; he and the plank both falling into a coal car that was setting under the platform. He struck on his head, and was killed. This suit was brought by his personal representative to recover for his death, on the ground that the company was negligent in failing to furnish him a reasonably safe place to work; that the planks in the platform were not nailed; and that the structure was a dangerous one for the purpose for which it was intended. The proof introduced on the trial conduced strongly to show that Hamblin's fall was due to the plank on which he was standing slipping until the end opposite to the place where the shaft was thrown off had slipped off the girder, and that this plank was not fastened or secured in any way. There was proof for the defendant that there was a collar on the shaft, also some other attachments, and that there was a scar on the end of the plank, indicating that the shaft as it fell, struck the plank, and so caused it to fall. There was also proof for the defendant that the planks constituting the floor of the platform were securely nailed with large nails six inches long. The jury found for the plaintiff in the sum of $6,000. The court entered judgment on the verdict, and the defendant appeals.

[1] It is insisted for the defendant that the court should have instructed the jury peremptorily to find for it, because the evidence does not definitely show how Hamblin came to fall, and shows that he voluntarily threw the shaft off, and but for this would not have been killed. The men were working in the dark, with no light except miner's lamps in their caps; but each could see the other's light. Both Trosper and Dawson saw Hamblin fall; and his position in the car, as well as the hole in the platform, and the plank which also fell in the car,

[2] The witness Will Trosper was asked to tell the jury whether the plank that fell was nailed, and answered that he did not know. He was then asked to give his best judgment about it, and said he did not know whether it was nailed or not. The attorney insisted that he wanted his best judgment as to whether the boards were nailed, and he then answered: "My judgment is they were not nailed. I don't know." He was then asked to tell the jury, from his knowledge of the boards and the handling of the shaft, whether, if the board had been nailed, it would have been pulled off its support, and said he didn't know; it might, or it might not. The attorney then said that he did not ask for his knowledge, but for his opinion on the subject, and he said it would depend on the nails; that the board would not have been jerked off if it had been nailed with large nails. There was a similar course of interrogation with three other witnesses. None of this evidence should have been admitted. The jury could judge of the matter just as well as the witnesses. None of them were experts on the subject of the strength of timbers or nails, and, in fact, the matter asked about was not a subject for expert testimony. An expert might testify as to the strength of certain nails or the strength of certain timbers, and all the witnesses might testify to every fact they knew; but the conclusion to be drawn from the facts was for the jury and not for the witnesses.

[3] The plaintiff was allowed to prove by several witnesses that when they returned to the platform to finish the work after taking Hamblin away a servant of the company was upon the platform nailing the planks down. He was also allowed to prove by other witnesses that they examined the platform the next day and saw the heads of nails which looked fresh, and had but recently been driven in to hold the floor of the platform. There was other proof showing that some days later additional planks were put on, and the platform made more secure. All of this evidence should have been omitted. The rule is that repairs made after an accident may not be shown to prove that the thing was not in a good condition before the accident. L. & N. R. R. Co. v. Morton, 121

fifth instruction, the court will tell the jury that it was incumbent on Hamblin to use ordinary care for his own safety; and if he put on the floor of the platform a strain which, in the exercise of ordinary care, he should not have put on it, and but for this would not have been injured, they should find for the defendant.

Judgment reversed, and cause remanded for a new trial.

L. & N. R. R. Co. v. Stewart, 131 Ky. 665, 115 | 125 Ky. 355, 101 S. W. 394, 30 Ky. Law Rep. S. W. 775; Black Diamond Coal Co. v. Price, 1304. We do not find anything in the evi108 S. W. 345, 33 Ky. Law Rep. 334. The dence warranting the third or the sixth incircuit court charged the jury that they structions given on the motion of the defendshould consider this evidence only for the ant, and on another trial both of these inpurpose of proving the condition of the plat-structions will be omitted. In lieu of the form at the time of Hamblin's injury; and it is insisted that the fact that nailing was done there just after the injury is evidence that the planks were not properly secured be fore. We cannot see the force of the distinction. Such a distinction, if maintained, would allow such evidence in all cases. One plank had fallen off the platform; it was natural that when this plank was placed back in position it should be nailed down; and, as an accident had occurred, it was not unnatural that the man who did the nailing would nail other planks for safety's sake. The question in the case is, Was the plank securely nailed before Hamblin fell? To allow proof that the defendant made it secure after he fell, as tending to show that it was not safe before, would be to place the defendant in the position that it could not make repairs on its property without this being taken as an admission that its want of repair had caused the accident, and would have a tendency to deter the making of repairs after an accident had happened, though in fact needed.

[4] The plaintiff proved by one witness that he was working on this platform about a week before the accident, and while working there had occasion to move one of the planks of the platform (he could not state definitely which one); and that this plank was not nailed, but loose. This evidence was properly admitted, because the platform was a whole, and the fact that one of the planks was loose was a circumstance tending to show that the planks were not securely nail

ed. This proof, taken in connection with the other facts shown on the trial, was sufficient to warrant the conclusion that the planks had not been nailed, as testified to by a witness for the defendant, but had simply been laid on the platform loose.

STEWART et al. v. GARDNER et al. (Court of Appeals of Kentucky. Feb. 7, 1913.) 1. EVIDENCE (§ 441*)-PAROL EVIDENCE-VARYING PROMISSORY NOTES. Parol evidence that notes containing an unconditional promise to pay the money therein specified were executed under an agreement that they were not to be binding is inadmissible, in the absence of proof of fraud or mistake inducing the execution of the notes.

[Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 1718, 1723-1763, 1765-1845, 2030-2047; Dec. Dig. § 441.*]

2. VENDOR AND PURCHASER (§ 18*)-OPTION CONTRACTS-RIGHTS OF PARTIES.

tion contract to purchase cease on his failure to The rights of a purchaser under a mere opexercise the option within the time, and on the terms prescribed, and he has no enforceable contract against the vendor.

[Ed. Note.-For other cases, see Vendor and Purchaser, Cent. Dig. § 23; Dec. Dig. § 18.*] Appeal from Circuit Court, Warren County.

Action by B. F. Gardner and others against W. C. Stewart and others. From a judgment of dismissal, defendants appeal. Affirmed.

Bradburn & Basham, of Bowling Green, for appellants. Grider & Harlin, of Bowling Green, for appellees.

CLAY, C. W. C. Stewart, J. G. Stewart, [5, 6] There was sufficient evidence to take Aaron Miller, and J. E. Condra were the the case to the jury, but for the errors we owners of and were conducting a stone quarhave named in the admission of evidence, the ry in Warren county, Ky., under the firm judgment must be reversed. On another name of Slim Island Stone Company. Each trial, in instruction 1, in lieu of the words, of these parties owned a one-fourth interest "it was the duty of the defendant, the Inter- in the partnership business. On September state Coal Company, to furnish to the deceas- 17, 1910, W. C. Stewart, Aaron Miller, and ed, Lee Hamblin, a reasonably safe place," J. G. Stewart gave to one C. H. Felton an etc., the court will tell the jury that it was option on the property, which consisted of the duty of the defendant to use ordinary 45 acres of land and certain derricks, encare to furnish to the deceased, Lee Hamblin, gines, and other machinery. Under this opa platform to work on that was reasonably tion Felton was given the right to purchase safe under such strains as might be reason- the property at any time within 30 days at ably anticipated in the uses for which it was the price of $17,000, $9,000 of which was to intended. The master is not an insurer of be paid in cash and the remainder in equal the safety of his premises. He is only re-installments of 6 and 12 months from Sepquired to use ordinary care to make them tember 16, 1910. The contract provided that, reasonably safe for the uses for which they should said Felton fail or refuse to pay the are intended. Big Hill Coal Co. v. Abney, cash payment provided for and to execute

signed by Condra: "The above invoices are given to B. F. Gardner as collateral security on money loaned to Slim Island Stone Company for pay rolls."

Company how much Gardner and Smallhouse had paid out individually. Defendants also filed an answer and counterclaim against Gardner and a cross-petition against Felton, Smallhouse, and the Barren River Stone Company, asking damages in the sum of $10,000 for their failure to take and pay for the property under their contract. On final hearing the chancellor gave judgment for plaintiff, and dismissed the counterclaim and cross-petition of the defendants. The defendants appeal.

notes for the deferred payments, then his, Stone Company were also turned over to rights under the contract should cease, un- Gardner, with the following indorsement less the time for acceptance should be extended by mutual agreement. There was a further provision in the contract to the effect that, should the sale be executed and completed, the said Felton or his company was [1] B. F. Gardner brought this action to to assume control of the business and enrecover on these notes. The defendants joy its profits and assume its losses from pleaded, in substance, that Gardner and September 16, 1910. For his interest J. E. Smallhouse agreed to furnish the money repCondra was to take $5,000 worth of stock resented by the notes in consideration of the in the new company. Felton succeeded in extension of the option, and that the notes interesting B. F. Gardner and E. G. Small- were executed merely as memoranda to be house in the enterprise, and a corporation | used by Gardner and Smallhouse for the purknown as the Barren River Stone Company pose of showing the Barren River Stone. was organized with a view of exercising the option held by Felton. On October 17, 1910, the option was extended for a period of 30 days. The extension agreement indorsed on the option is as follows: "By the mutual agreement of all parties to the above option, we the undersigned hereby extend the above option for a period of thirty days from its expiration (Oct. 16, 1910), upon the same terms and conditions contained therein, with the exception however, that for the deferred payments of $8,000.00 mentioned in above original option, we agree to accept $8,000.00 in first mortgage bonds, as cash, of an issue of $30,000.00 that may be placed upon the above mentioned property by the said C. H. Felton, his successors or assigns. Witness our hands, this 17th day of October, 1910." On November 3d W. C. Stewart, J. G. Stewart, Aaron Miller, J. E. Condra, and their wives executed a deed to C. H. Felton. This deed was left in escrow with the Potter & Matlock Trust Company, to be delivered on completion of the trade. On November 10th Felton executed a deed for the same property to the Barren River Stone Company. This deed was also left with the bank to be delivered when the deal was consummated. On November 15, 1910, the Barren River Stone Company executed a mortgage to the Potter & Matlock Trust Company, trustee, to secure an issue of bonds amounting to $30,000. When the parties assembled to consummate the trade, B. F. Gardner, who was to take a certain amount of the bonds, had some misunderstanding with Mr. Potter, of the trust company, in regard to the money, and the deal fell through. Subsequently 'the Slim Island Stone Company sold the property to one Tygreet. The Slim Island Stone Company was without means to meet its pay rolls, and on October 17th it, through its manager, W. C. Stewart, executed to B. F. Gardner a note for $477.35, payable 30 days from date. On November 10th the same company executed to Edward Smallhouse a note for $477.35, payable 30 days from date. Each of these notes was also signed by W. C. Stewart, Aaron Miller, and J. G. Stewart. The note payable to Smallhouse was indorsed by him and delivered to B. F. Gard

In addition to the facts above set out, the two Stewarts, Miller, and Condra all swear that the Slim Island Stone Company had no money to meet its pay rolls or to continue its business. They acquainted Gardner and Smallhouse with this fact. Gardner and Smallhouse were interested in the Barren River Stone Company, which desired to exercise the option given to Felton. In order to obtain an extension of the option, they agreed to furnish the Slim Island Stone Company the amount represented by the notes for the purpose of meeting its pay rolls. The notes were simply executed as vouchers to be used by Gardner and Smallhouse in their settlement with the Barren River Stone Company for the purpose of showing the amounts paid out by them individually. There is also some evidence to the effect that, by direction of the representatives of the Barren River Stone Company, a hotel was built on the property by Condra, and that Condra from the time of the execution of the notes carried on the business on behalf of the Barren River Stone Company. Gardner and Smallhouse testify that there was no agreement to the effect that the money was to be furnished in consideration of an extension of the option. While they were anxious for the option to be extended, and were therefore desirous of accommodating the defendants, they simply loaned the money to the defendants. They deny that they directed Condra to erect a hotel, but say that Condra constructed the hotel on his own initiative, after consulting with them as to the propriety of doing so. At the time the notes were executed, checks for $475 were drawn in favor of the Slim Island Stone Company. In this way

Island Stone Company indorsed the checks, ¡ understanding that they were not to be bindreceived the proceeds, and applied the pro- ing. ceeds to the payment of its pay rolls. Before they would accept the notes, one of the signers had to take one of them several miles in the country to get the signatures of another signer. Before application was made to Gardner and Smallhouse to make the loan, application had been made to the bank, which would not take the notes unless there was included in the amount the amount of an overdraft theretofore advanced by the bank. After the bank declined to take the notes, Smallhouse and Gardner agreed to lend defendants the money. It not being agreeable to Smallhouse to furnish his half, he indorsed one of the notes to Gardner, who furnished all of the money. The Barren River Stone Company never took charge of the property at all. The check given November 1st was cashed by the Slim Island Stone Company, and used by it two weeks after it is claimed by defendants that the property was turned over to the Barren River Stone Company.

In the recent case of Farmers' Bank of Wickliffe v. Wickliffe, 131 Ky. 787, 116 S. W. 249, Wickliffe, who was surety on certain notes, defended on the ground that he signed them with the agreement and understanding that he was not to be bound. In holding that this defense was not tenable, the court said: "On this evidence the question is: Can the evidence offered by the defendant be received to contradict the written instruments themselves? He pleaded that the writings did not conform to the real contract by reason of fraud or mistake; but there is an entire absence of any evidence of fraud or mistake. He was not deceived as to the purport of the writings. He understood perfectly what he was signing. There was no misrepresentation made by Burton except the promise that he would not be held liable upon the writing. He knew that this part of the engagement was not in writing, and to have put it in the writing would have been to have nullified it. The bank could take a mortgage, but, if it could not, Wickliffe, a stockholder, would be charged with notice that the cashier had no authority to evade the law, and he would not be allowed thus to throw a loss on the other stockholders. In Wright v. Remington, 41 N. J. Law, 48, 32 Am. Rep. 184, the defense was that Mrs. Remington had signed the note upon a rep

We deem it unnecessary to go into the evidence at great length. Though the defendants swear most positively to facts tend ing to establish their defense, Smallhouse and Gardner are equally positive in their statements that the money was loaned, and not furnished to defendants in consideration of the extension of the option. The very fact that interest was deducted from resentation by the plaintiff that the signing the notes in advance, and checks made for the difference, tends to show that a loan was made. The notes themselves are evidence of the loan. The accounts deposited as collateral security are additional evidence of the loan. While it is claimed that these accounts were furnished to Gardner, and that the indorsement thereon was made by Condra without authority, yet, even if that be true, the indorsement tends to show what Condra's construction of the agreement was prior to the defense herein raised. Furthermore, the written extension of the option, though making some changes in the terms of the original option, simply shows that the option was extended "by mutual agreement of all parties," and is silent as to any other consideration. If the money was furnished as a consideration for the extension of the option, why was this fact not referred to in the extension agreement? If the notes were not to be binding, but were simply to be used as vouchers, why were they executed, when mere receipts would have answered every purpose? If the notes were to be used as mere vouchers, why the necessity for securing them by accounts against the Slim Island Stone Company? If the defendants were not to be bound, why go to the trouble of going several miles into the country to secure the signature of one of the signers? Reduced to its final analysis, the defense is that the defendants executed the

of it by her was a mere matter of form, and that she would not be held liable on it. In the disposition of this defense, the court said: "There is no rule better settled than that evidence of contemporaneous parol declarations is inadmissible to vary the terms of a written contract. In the enforcement of this rule there is often a strong tendency to disregard its effect, induced by a feeling of the inequity of holding a party to the strict performance of an agreement into which he has entered, upon an assurance that it would not be enforced according to its terms. This feeling has led courts sometimes to recognize the parol declaration upon the ground that it amounted to an equitable estoppel.' Notes to Duchess of Kingston's Case, 3 Smith's Lead. Cas. 729. But the rule of evidence that when the contract is reduced to writing it is the only evidence of the contract excludes any evidence of the parol declarations. The rule is recognized as a wholesome doctrine by which men are enabled to place their agreements in a shape undisputable by the uncertainty of oral testimony. The weight of authority is overwhelmingly in favor of holding in the language of the American editors of the Duchess of Kingston Case: That 'a person who is so ill advised as to execute a written contract in reliance upon an assurance that it shall not be literally enforced must submit to the loss if he is deceived, and cannot