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hundred dollars and a pension of $17 a month to provide for the comforts of life in his remaining years, obtained a divorce, the denial of ali

mony was proper.

[Ed. Note.-For other cases, see Divorce,
Cent. Dig. §§ 670-672, 703; Dec. Dig.
238.]

2. DIVORCE 249-PROPERTY
HUSBAND.

RIGHTS OF

A husband, who had no property when he married and moved upon a farm in which his wife had a one-fifth interest, and which her brothers and sister allowed them to occupy without rent for 30 years, and who failed to support his wife and educate his children, and whose wife had the custody of two infant children, even if he furnished $500 paid for a conveyance of a two-fifth interest therein to his wife, was not entitled to a restoration of such interest; and, where the use of the farm, having a rental value of from $150 to $200 a year, exceeded anything he had paid for or any improvements made upon another piece of property, he was properly denied any title therein.

[Ed. Note.-For other cases, see Divorce, Cent. Dig. §§ 701-705, 707, 709, 712; Dec. Dig. 249.]

3. DIVORCE 249-RESTORATION OF PROPERTY-FRAUDULENT CONVEYANCE TO WIFE. land to his wife so that it could not be subject A husband, who requested a conveyance of to his debts, on obtaining a divorce, could not obtain a restoration thereof under Civ. Code Prac. § 425, authorizing reconveyance of property acquired during marriage; and the fact that his debts were thereafter paid, and that the conveyance did not defraud his creditors, was immaterial, since the fraudulent intention defeated his right to restoration.

variously estimated by the witnesses to be
from $800 to $2,000, and the court below
found them, as a matter of fact, to be of the
value of $900. The proof shows that appel-
lees are both very weak, illiterate, and ig-
norant persons. They had made efforts to
buy other land for a home, but had failed,
and believed that appellant could exercise
the option, and take the lands from them, by
paying the price of $5 per acre, which was
largely less than it was worth. The appel-
lant was a prominent man, a justice of the
peace, and a shrewd man. He came with
surveyors on the 3d day of November and
proceeded to commence to survey the lands,
but it is evident from the proof that the sur-
vey could not have been completed before
the expiration of the option by lapse of time.
Appellees say that appellant, on the 1st of
November, informed them that he had bought
the option, and was going to exercise it by
taking the land, but at the same time pro-
posed to take the timber and leave the land
for appellees. Appellant cannot remember
which first proposed the timber deal. It is
proven by a neighbor that before the deed
for the timber was executed the appellees
were seeking advice of him in regard to the
sale of the timber to appellant, and stated
that appellant had offered them $150 for it,
and another witness testified to having heard
appellant making propositions to appellees
for the sale of the timber to him. The facts
are susceptible of the construction that ap-249.]
pellant was merely making a show of survey-
ing the land as a leverage upon appellees to
get their consent to a hard bargain by which
he would get the timber, and it had the effect
sought for. The only real consideration
for the execution of the deed to appellant was
$150. There is no doubt that the sole rea-
son which actuated appellees to make the
deed was the belief that the option upon
their lands was still enforceable, and to keep
from giving up their lands under the option
at a sacrifice was really the chief and moving
consideration for the execution of the deed.
Without discussing or setting out all the
facts and circumstances in evidence which go
to support the judgment below, suffice it to
say the evidence tends strongly to support the
opinion of the chancellor. He was acquaint-
ed with the parties and witnesses, and had
better opportunity to know the weight to be
attached to their statements than we have;
and, it appearing that his judgment did sub-
stantial justice between the parties, it will

not be disturbed.

The judgment is affirmed.

BEAN v. BEAN.

(Court of Appeals of Kentucky. May 21, 1915.)
1. DIVORCE 238-ALIMONY-DENIAL.
Where a husband, who was past 70 and
had only personal property valued at a few

Cent. Dig. §§ 701-705, 707, 709, 712; Dec. Dig. [Ed. Note. For other cases, see Divorce,

Appeal from Circuit Court, Ohio County. Action for divorce by Annie Bean against C. D. Bean, with counterclaim by defendant. Decree granting a divorce on the counterclaim, denying any alimony to plaintiff and adjudging defendant entitled to certain interests in land, and plaintiff appeals, and Reversed defendant takes a cross-appeal. on original appeal and affirmed on cross-appeal.

Ernest Woodward and M. L. Heavrin, both of Hartford, for appellant. Barnes & Smith, of Hartford, for appellee.

TURNER, J. Appellant and appellee were married in 1881, the wife at the time being 18 years of age and the husband a middleaged man of about 40. He had been previously married and had two children by that marriage. This is an action for divorce and alimony by the wife, the ground for divorce being five years' separation without cohabitation. The husband filed an answer and counterclaim denying the wife's grounds for divorce, and himself asserted as grounds for divorce abandonment for more than one year, and in addition thereto asserting that during the marriage relation he had bought and paid for a three-fifths interest in a farm, which had been conveyed to his wife, and a house and lot in Beaver Dam, which had al

of land, the husband has continuously up to this time had possession and control of the whole farm, and has paid not a dollar of rent to anybody, and the evidence is that the Beaver Dam house and lot was chiefly paid for by the proceeds of some timber which came from this farm. In 1883 one of the wife's brothers conveyed to her his one-fifth undivided interest in the farm for the recited consideration of love and affection, although the pleadings seem to admit that he received a consideration of $250. In 1889 the two other brothers conveyed their undivided twofifths interest in the farm to her for the consideration of $500. It is the contention of the husband that he paid out of his own means this $750 to the three brothers, while it is contended by the wife that the payments therefor were made from the proceeds of the land; and in addition thereto she pleads that at the time of these conveyances to her he was largely in debt and caused the same to be made to her for the purpose of defrauding his creditors and to evade the payment of his debts. The evidence is that at the time of the conveyances by the three brothers to their sister their several interests in this farm were worth considerably more than the consideration which they received, and they testify that the consideration was only intended to be nominal, and that it was in truth and fact in the nature of a gift to their sister to aid her in rearing and supporting her children. The evidence shows that the rental value of the land during the 30 odd years that appellee has occupied it was from $150 to $200 per year. The chancellor below entered a judgment granting the appellee the divorce on his counterclaim, declining to adjudge appellant any alimony, adjudged appellee to be the owner of the two-fifths interest in the land conveyed appellant by the two brothers in 1889, and refusing to grant him any relief as to the other one-fifth interest therein conveyed to her in 1883, or any interest in the Beaver Dam property. From so much of that judgment as adjudges him the two-fifths interest in the farm and as fails to adjudge her alimony, this appeal is prosecuted, and the appellee prosecutes a cross-appeal from so much of the judgment as denies to him the one-fifth interest conveyed to his wife in 1883, or any interest in the house and lot at Beaver Dam.

so been conveyed to her, and which property and wife moved upon this tract of 357 acres she had received by reason of the marriage relation between them, and asked that the court restore the same to him; he also alleged that he had placed valuable and lasting improvements to the extent of several hundred dollars upon her property. In the reply it was denied that the three-fifths undivided interest in the farm had been paid for by him, or that the house and lot in Beaver Dam had been paid for by him, or that he had placed any valuable improvements upon her land. The evidence disclosed at the time of their marriage the husband had no property whatsoever, except some little personal property of small value, and that at the time he was considerably in debt and involved in litigation. The wife, however, had a one-fifth undivided interest in a farm of about 357 acres, which she and her three brothers and a sister had inherited from their father. In the spring of 1882 she and her husband moved upon this farm, and through the generosity of her brothers and sister no rent was charged them therefor. Seven children were born to them, three of whom at the time this suit was instituted were less than 21 years of age. In 1897, the parties being anxious to give their children better educational advantages than might be had in the neighborhood, a house and lot at Beaver Dam was purchased, and the mother and children moved there, while the father remained upon the farm. However, about 1899 they went back to the farm and lived there almost a year, when the wife and children again went to Beaver Dam to live, where they have ever since resided except for a temporary residence at Bowling Green to enable the children to receive additional educational advantages. During the first few years of their residence at Beaver Dam, which was only a few miles from the farm, the husband and father visited them some several times a year, and contributed to their support to some extent from the products of the farm. He kept a bank account at Beaver Dam, and directed the cashier to honor his wife's checks. Gradually, however, in some way which is not explained in the record, the parties seemed to grow apart, and there was an unaccountable estrangement between the father and his wife and children, although he continued, up to within about a year before this action was instituted, to furnish them with provisions and in some measure contribute to their support. But two of appellant's brothers and her sister very generously aided her to the extent of thousands of dollars during these years in contributing to the support of herself and children and the education of the latter. It is apparent from the record but for this assistance the children could not have received the educational advantages which they have received, and their support during those years would have been meager.

[1] So much of the record as bears upon the grounds for divorce will not be considered by this court on appeal, except in so far as it sheds light upon the property rights of the parties; and as the appellee is now an old man past 70 years of age, and the record shows that he has only a few hundred dollars of personal property and a pension of $17 per month to insure him the comforts of life in his few remaining years, the question of alimony need not further be considered.

V. SALYER.

(Court of Appeals of Kentucky. May 18, 1915.) 1. MASTER AND SERVANT 286-INJURY TO SERVANT-LIABILITY-QUESTION FOR JURY.

ed upon this farm, and it is perfectly ap- appeal, with directions to enter a judgment parent that, inasmuch as he has at all times conforming to the views herein expressed; since lived on it, he could have accumulated in all other respects the judgment is afnothing which did not come from the farm firmed. itself combined with his own efforts. It was his legal and moral duty to support his wife and children and to educate the latter, and CENTRAL KENTUCKY NATURAL GAS CO. even with the free use of this farm he has not discharged that duty. But even if it had been shown that he had paid the $500 for the two-fifths interest conveyed to his wife in 1889, it would be inequitable to restore it to him when the record discloses that his wife still has the custody of at least two of his infant children whom she must rear and support, when it is his duty to do so. Not only so, but the record discloses that in 1893, after he claims to have been out of debt, he joined his wife in a conveyance of her four-fifths interest in the land to her

brother, and that it was thereafter reconvey ed by the brother to appellant, according to the terms of a previous agreement. The wife in the meantime had been adjudged a feme sole, and it is apparent this was all done with his assent, for the purpose of confirming her title.

The evidence satisfactorily shows that the value of the use of this farm during all of

these years has been much greater than appellee's combined claims growing out of improvements and anything he may have paid on the consideration of the Beaver Dam property, and the chancellor properly declined to allow either item. Nall v. Miller, 95 Ky. 448, 25 S. W. 1106, 15 Ky. Law Rep. 862; Carpenter v. Hazelrigg. 103 Ky. 538, 45 S. W. 666, 20 Ky. Law Rep. 231.

[3] The evidence shows that, at the time of the conveyance in 1883 by appellant's brother of a one-fifth interest in the farm, appellee was heavily in debt, and requested that the conveyance he made to his wife so that it might not be subjected to the payment of his debts, and he is not therefore entitled, under the provisions of section 425 of the Civil Code, to a restoration of this property, which he caused to be conveyed to his wife for the purpose of defrauding his creditors. The fact that his debts were thereafter paid, and that the conveyance to the wife did not have the effect to defraud his creditors, does not change the rule of law that one who fraudulently conveys his property to another with the intention of defrauding his creditors cannot recover it; it is the fraudulent intention upon his part and the moral turpitude involved which places him in position where the chancellor will deny him relief. Coleman v. Coleman, 147 Ky. 383, 144 S. W. 1, 39 L. R. A. (N. S.) 193.

In an action for injury to an employé while held sufficient to go to the jury on the issue of assisting in moving a joint of pipe, evidence the employer's liability for failure to employ a sufficient number of men.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 1001, 1006, 1008, 10101015, 1017-1033, 1036-1042, 1044, 1046-1050; Dec. Dig. 286.]

2. TRIAL 133 IMPROPER ARGUMENT OF
COUNSEL-INSTRUCTIONS.

suing a corporation, that he had heard that some
Improper argument of counsel for plaintiff,
corporations had black lists, and that, when
their employés did not suit them, they got rid
of them, put their names on the list, and sent
it to other corporations, was not harmful, where
the court admonished the jury to disregard it.
[Ed. Note.-For other cases, see Trial, Cent.
Dig. § 316; Dec. Dig.

133.1

3. DAMAGES 216 — INJURY TO SERVANT EVIDENCE-INSTRUCTIONS.

--

ployé, there was evidence that the employe's
Where, in an action for injuries to an em-
right arm was paralyzed, and his nervous system
in general impaired, and the court charged the
jury to award damages only for injuries suffer-
ed and to be suffered by reason of the injuries,
the refusal to charge that though the jury be-
lieved that the employer was negligent, and
that its negligence caused an injury to the em-
ployé's arm, yet if they believed that the paral-
ysis, if any, resulted by reason of inherited
paralysis or inherited tendency toward paraly-
sis they should find for the employé damages for
the injury to his arm only, exclusive of the
paralysis, was not prejudicial to the employer.
[Ed. Note. For other cases, see Damages,
Cent. Dig. $$ 548-555; Dec. Dig. 216.]
4. DAMAGES 132 - PERSONAL INJURIES
EXCESSIVE DAMAGES.

to a strong, robust man 43 years of age, result-
A verdict for $5,000 for personal injuries
ing in the paralysis of his right arm and general
impairment of his nervous system, will not be
disturbed as excessive.

[Ed. Note.--For other cases, see Damages, Cent. Dig. §§ 372-385, 396; Dec. Dig. 132.]

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Hazelrigg & Hazelrigg, of Frankfort, J. K. Wells, of Paintsville, and W. B. White, of Mt. Sterling, for appellant. Vaughan & Howes, of Paintsville, and J. P. Hobson & Son, of Frankfort, for appellee.

The judgment seems to be proper in all respects, except in so far as it directs appellant to convey to appellee the two-fifths in- HANNAH, J. The Central Kentucky Natterest in the tract of land; and for that rea- ural Gas Company appeals from a judgment son the judgment is reversed on the original for $5,000 rendered against it, in favor of

Lum Salyer, in the Johnson circuit court, as damages for injuries received by the plaintiff while in the service of the gas company. [1] 1. Appellant's first contention is that the trial court erred in denying its motion for a directed verdict.

It appears from the evidence that the gas company was engaged in laying a line of pipe for the transportation of natural gas through Johnson county; and that it had a force of men digging a trench for the pipe, laying the pipe therein and connecting it, and then refilling the trench. This gas line was being constructed approximately in a straight line, so that, when mountains were encountered, the line was required to be laid right up the mountain side.

At the time Salyer was injured, they were engaged in laying a line of pipe up a steep grade and across a ravine. The pipe used was ten inches in diameter; and at times it was necessary to bend a joint in order to conform it to the contour of the ground. The joints averaged about 20 feet in length. A certain joint of this pipe, which had theretofore been bent for the purpose of making it fit the trench where it crossed the ravine, had been placed in the trench by the men whose duty it was to so place it. The bend in this joint was about 6 feet from one end and 12 to 14 from the other end, and the men who had placed it in the trench got it "wrong end foremost"; that is, the bend in the pipe was in the wrong place, to conform to the contour of the ravine. This rendered it necessary that the joint of pipe be taken out of the trench, and turned end for end. After the joint of pipe had been removed from the trench, the foreman, Shutler, called appellee, Salyer, from his work of filling the trench behind the pipelaying crew and directed him to assist in turning the joint end for end.

Salyer testified that he went to where the joint of pipe was to be turned; that one Pickens, who was in charge of the pipelaying, told him to run both of his arms under the pipe; that he did so, and then Pickens reached under with both of his own hands and grasped Salyer's wrists; that they then proceeded to lift and carry the pipe around; that when this was completed, and the weight released from his arm, his right arm was numb; that keen, tingling pains were running through it. And it was shown that subsequently a case of paralysis agitans, commonly known as "shaking palsy," developed in that arm. It was further shown that plaintiff was on the lower side, and that, in turning the joint, he was compelled to walk backward, in doing which he stumbled over a stump, which served to throw considerable of the weight of the pipe upon him temporarily.

The evidence was sharply in conflict as to the weight of the joint of pipe in question;

pounds. The same may be said of the evidence as to the number of men actually engaged in turning the pipe, as well as concerning the manner in which this result was effected. Some of the witnesses for the defendant stated that the joint of pipe was turned by using the bend as a base for leverage, and depressing one end, thus raising the other end, and swinging the pipe around as on a pivot, and that, if plaintiff was there at all, they did not see him.

Plaintiff introduced some proof to the effect that the usual method of doing this work was to use instruments, known as calipers, to carry the pipe, requiring 12 men to the joint; but this evidence seems to have had reference more pertinently to the original carriage and placing of pipe in the trench than to the process of changing a joint end for end. Plaintiff did not state definitely just how many men were engaged in assisting to carry the joint of pipe. He said there were eight or ten, but could name only five other than himself when questioned further.

While there is no direct proof that an insufficient number of men were used in turning the pipe, this court has held that such proof is not essential.

In C., N. O. & T. P. Ry. v. Black, 157 Ky. 149, 162 S. W. 800, where appellee was injured in assisting another brakeman in carrying a barrel of paint, the court said:

"It is true he introduced no evidence by any witness to the effect that two men could not safely carry such a barrel on such ground; but the nature of the ground and the nature of the package were both fully shown to the jury by the evidence and the jury were practical men, and as qualified to determine when such a barrel could safely be carried by two men as any of the witnesses who were introduced on the trial.”

There was sufficient evidence to authorize the submission of the case to the jury; and the trial court properly denied defendant's motion for a directed verdict.

[2] 2. It is further contended by appellant that plaintiff's attorney was guilty of improper argument to the jury.

In speaking of the defendant's employés who testified for it, plaintiff's counsel said:

"I have heard some corporations have black lists, and, when they (its employés) do not do to names on the list, and send it on to other comsuit the company, they get rid of them, put their panies."

This was improper, but the court admonished the jury to disregard it; and we will not say that it was prejudicial. Kentucky Bridge Co. v. Nuttall, 96 S. W. 1131, 29 Ky. Law Rep. 1167.

[3] 3. Appellant also complains of the failure of the trial court to give an instruction offered by it. This instruction was to the effect that even though the jury should believe from the evidence that defendant was negligent, and that its negligence caused an injury to plaintiff's arm, yet if they should further believe from the evidence that the paralysis, if any, resulted by reason of in

- Issu

ward paralysis, the jury should find for 4. COUNTIES 183-IMPROVEMENTS
plaintiff damages for the injury to his arm ANCE OF BONDS-VALIDITY.
only, exclusive of the paralysis. However, in
an instruction given the court told the jury
to award damages only for injuries suffered
and to be suffered by reason of said injury;
and we will not assume that the jury found
for the plaintiff believing that the paralysis
was not the result of the injury sustained in
carrying the pipe. L. & N. v. Kemp's Adm'r,
149 Ky. 344, 149 S. W. 835.

to the issuance of bonds to build public roads,
The provision of the act of 1914, relative
exempting such bonds from taxation, does not
affect the validity of the bonds.

[4] 4. Appellant also insists that the verdict was excessive. Plaintiff was 43 years of age, and at the time of the injury was a strong, robust man. The evidence shows that his right arm has been destroyed and his nervous system in general impaired; and, though the verdict of $5,000 is large, we will not say, under the rule of law authorizing a reversal on the ground of excessive damages, that it ought to be set aside. Affirmed.

ALBRIGHT v. BALLARD, Judge. (Court of Appeals of Kentucky. May 19, 1915.) 1. COUNTIES 178 - IMPROVEMENTS -ISSUANCE OF BONDS SUBMISSION TO POPULAR VOTE.

Under Const. Amend. § 157a, providing that the credit of the commonwealth may be loaned to any county for public road purposes, and that any county may incur a debt in an amount not in excess of 5 per centum of the value of the taxable property therein for public road purposes, provided such additional indebtedness is submitted to the voters at a special election in such manner as may be provided by law, and Laws 1914, c. 80, § 21, carrying such amendment into effect, and providing that, before the bonds authorized thereby shall be issued, the county court, upon the petition of freeholders, shall make an order directing an election to be held on a day named in the petition not earlier than 60 days after the application is filed, the issuance of such bonds may be submitted to the voters at an election held on a day other than a regular election day.

[Ed. Note.-For other cases, see Counties, Cent. Dig. §§ 269-273; Dec. Dig. 178.] 2. COUNTIES 178-IMPROVEMENTS — IssuANCE OF BONDS-SUBMISSION TO POPULAR VOTE.

Under the act of 1914, relative to the issuance of bonds for building public roads, it is not necessary that a petition for an election on the proposition of issuing bonds shall lie over from one term of the county court to another term before the court can call the election, and an election was not invalid because called on the same day on which the petition was filed.

[Ed. Note.-For other cases, see Counties, Cent. Dig. §§ 275-281, 283, 284; Dec. Dig. 183.]

Appeal from Circuit Court, Rockcastle County.

Action by E. S. Albright against G. M. Ballard, Judge. From a judgment dismissing the petition, plaintiff appeals. Affirmed.

Bethurum & Lewis, J. W. Brown, J. A. Owens, C. C. Williams, and W. H. Krueger,

all of Mt. Vernon, for appellant. E. R. Gen

try, of Mt. Vernon, for appellee.

MILLER, C. J. Pursuant to an order made on January 25, 1915, by the Rockcastle county court, an election was held in Rockcastle county on March 27, 1915, for the purpose of taking the sense of the legal voters of the county upon a proposition to issue bonds of the par value of $100,000, for the purpose of building roads and bridges. The petition to the county court was regular in every respect, and was signed by more freeholders of Rockcastle county. than the required number of legal voters and At the election, 2,230 votes were cast in favor of the bond issue, and 472 votes against it.

On April 6, 1915, this action was filed by the appellant Albright, who sued for himself and for the benefit of the other taxpayers of Rockcastle county, seeking to enjoin the fiscal court from issuing or selling said bonds, or any part thereof, upon the ground that they were invalid, for the following reasons: (1) The election was held on March 27, 1915, which was a day other than a regular election day; (2) the election was called after but on the same day on which the petition was filed; (3) the voters were not given an opportunity, in using the ballots furnished them in the election, to pass upon the length of time the bonds were to run, or the rate of interest they were to bear; and (4) the proposed bonds were exempted from taxation by the terms of the act of 1914.

The circuit court sustained a general demurrer to the petition, and the plaintiff failing to amend his petition, it was dismissed. He appeals.

[Ed. Note.-For other cases, see Counties, The identical four questions here raised Cent. Dig. §§ 269-273; Dec. Dig. 178.] were presented and decided adversely to the 3. COUNTIES 178-IMPROVEMENTS ISSU-appellant's contention in the late case of ANCE OF BONDS-SUBMISSION TO POPULAR Walsh, etc., v. Asher, Judge, decided March VOTE. 5, 1915, and reported in 163 Ky. 377, 173 S. Under the act of 1914, relative to the isW. 808. suance of bonds for the purpose of building pubThat case involved the validity of lic roads, the voters at an election on the propo- bonds of the par value of $250,000, which sition to issue such bonds need not be given an were voted by the taxpayers of Bell county, opportunity to pass upon the length of time the for road and bridge purposes, pursuant to bonds shall run or the rate of interest they are the act of 1914; and the same objections were raised in that case as are presented in

to bear.

[Ed. Note.-For other cases, see Counties, Cent. Dig. §§ 269-273; Dec. Dig. 178.]

this case.

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