For these reasons, the judgment of the Hough & Spradlin Company. Judgment for lower court is affirmed.

and because its rougher surface and end might by abrasion discharge some portion WOOD v. CUMBERLAND TELEPHONE & of the crumbled dynamite in the hole, was not safe; that, notwithstanding this fact, Clark was directed by his boss to use it, with

failing to properly insulate its wires con- | provide a lightning arrester, they conducted nected with and used in operating a desk into the building and caused the fire. telephone within the building and in failing to provide the telephone or wires with a lightning arrester; furthermore that the striking of the telephone wires by lightning, somewhere in the vicinity of the building, produced and carried into it an electric current of unusual force which started the fire, either by coming in contact with the goods stored therein, or overheating the wires within the building.

The building was in size 70 feet by 100 feet, constructed of brick with a roof of tin. Its interior was divided into three apartments connected by arched openings in the partition walls, and the buildings, as a whole, occupied as a general or department store. There was a single room built over the southwest corner of the store building, which appellant occupied as a sleeping room, and from this room a stairway led down into the store below. The telephone wires entered the main building at its north or rear end through the upper part of a window to the left of the door, and within the building extended along one of the partition walls, back of pine shelving, connecting with the telephone near a desk in the interior of the building.

As said in City of Louisville v. Bridwell, 150 Ky. 589, 150 S. W. 672, with respect to an accident resulting in an injury to the person of the plaintiff: "It seems to be well settled in law that, if the injury is the result of concurring causes, for one of which only the defendant is responsible, he must answer; or, where the injury is the combined result of negligence and accident, the negligent party must answer unless the injury would have happened if it had not been negligent." 1 Thompson, § 68; City of Louisville v. Hart's Adm'r, 143 Ky. 171, 136 S. W. 212, 35 L. R. A. (N. S.) 207; WhitmanMcNamara Tobacco Co. v. Warren, 66 S. W. 609, 23 Ky. Law Rep. 2120; City of Louisville v. Johnson, 69 S. W. 803, 24 Ky. Law Rep. 685; 29 Cyc. 498.

[2-4] Much of appellant's evidence conduced to prove that, as late as 9 o'clock on the night of the fire, the atmosphere was apparently charged with electricity, which manifested itself in frequent flashes of what is known as sheet lightning in various parts of the horizon. The evidence, however, falls short of showing that the electrical disturbances referred to could have imparted to the telephone wires an electric current of sufficient strength to have overheated them within the building or cause them to transmit the current into and ignite the building or its contents; indeed, no witness saw any display of electricity upon or about the wires, and appellant, who was in the store that night and did not retire until after 9 o'clock, gave no testimony that his telephone was affected in any way by the display of electricity on the outside.

The fire occurred about 1 o'clock in the morning, and was first discovered by appellant, who was awakened from sleep by the smoke which entered the bedroom over the store. He made his escape from the building by descending from its roof to that of a coal-house adjoining, thence to the ground. It is manifest from the bill of evidence appearing in the record that the telephone wires were uninsulated where they entered the building, and that they were neither It is true that appellant testified that some there, nor elsewhere, provided with a light-time during the night, and before the fire, ning arrester; indeed this is admitted by he was awakened by a "loud clap of thunappellee. The evidence shows that porcelain tubes should be used for insulating such wires where the building is entered by them, and that the safety of persons operating telephones requires the use of lightning arresters for grounding the electric currents during the prevalence of electrical or thunder storms.

der" and vivid flash of lightning; and the witness Latham, whose residence is a half mile distant from Belton, testified that, while standing in his door, he heard a loud "clap of thunder" and saw a great flash of lightning apparently in the direction of Belton. He was unwilling to say whether this was 25 minutes after 12 or 25 minutes before 1 [1] If it could be said that appellant's o'clock, although he at the time looked at right to recover damages, as claimed, de- his watch, but was confident that it was pended wholly upon whether appellee's fail- one or the other. It is insisted for appelure to insulate its telephone wires and pro-lant that the above evidence, together with vide a lightning arrester was negligence, the the fact that the fire was discovered about peremptory instruction should not have been 1 o'clock, was sufficient to make it reasongiven. But, as it was incumbent on him to ably certain that the telephone wires were further show that such negligence was the struck by lightning, which imparted to them proximate cause of the burning of his store- a current of electricity so powerful as to house and goods, it remains to be determin- cause them, in the absence of proper insued whether the evidence introduced in his lation, to pass it into the store and ignite it. behalf conduced to prove that the telephone We are unable to accept this conclusion. If wires were struck by lightning outside the the telephone pole from which wires run inbuilding, thereby creating upon them an ad- to the building, and which stood within 50 ditional electric current of unusual force feet of it, had shown any marks of a lightwhich, because of the negligent failure of ning stroke, or other poles in the vicinity

appearance of the wires had indicated such an electrical visitation, it would have given support to appellant's theory as to the origin of the fire; but, without such support, the theory rests wholly upon conjecture.

According to the testimony of appellant, the first discovery of the fire was made by him. When first seen by him, the flames were coming out from the cornice and immediately under the eaves of the building in numerous places, and the tin roof was rising and falling from the heated air beneath. Moreover, after he got to the door at the front of the building, where he could see the entire inside, including the central part where the telephone was kept, he could see no light of any kind. From these facts it might well be argued that the fire began in the ceiling and worked its way downward to the contents of the store, and that if the lightning, which accompanied the thunder heard by appellant and Latham, did any execution at all, it struck the store building instead of the telephone lines, and thereby ignited and destroyed it.

gence, and this he has failed to do. The case comes clearly within the rule announced in Louisville Gas Co. v. Kaufman & Straus, 105 Ky. 131, 48 S. W. 434, 20 Ky. Law Rep. 1069; Hughes v. Railroad Co., 91 Ky. 526, 16 S. W. 275, 13 Ky. Law Rep. 72; Wintuska's Adm'r v. L. & N. R. R. Co., 20 S. W. 819, 14 Ky. Law Rep. 579; and numerous other cases, including the very recent case of McDonald's Adm'r v. Louisville Car Wheel & R. S. Co., 149 Ky. 801, 149 S. W. 1142. In Louisville Gas Co. v. Kaufman & Straus, supra, the rule in question is thus stated: "When the question is one of negligence or no negligence, it is well-settled law that, where the evidence is equally consistent with either view-the existence or nonexistence of negligence-the court should not submit the case to the jury, for the party affirming the negligence has failed to prove it." Wherefore the judgment is affirmed.

HATTERICH v. BRUCE.

(Court of Appeals of Kentucky. Dec. 4, 1912.) 1. PARTITION (§ 12*)-JOINT ESTATES OF INFANTS-DOWER RIGHTS-"VESTED ESTATE."

Where infants jointly own land, subject to the unassigned dower of their mother in a third of it, and all live on it, there is a "vestsession, within Civ. Code Prac. § 490, subsec. ed estate" therein, jointly owned and in pos

authorizing such an estate to be sold in an action by either owner, though one be an infant, if the property be indivisible, so that the sale is properly allowed if the action is brought by the guardian of the infants, the widow consenting to take the present value of her dower, though she join as plaintiff.

In considering the evidence, we have not overlooked the fact that the top of the window, where the telephone wires entered the building, was one of the places, and perhaps the first place, through which the flames were seen by the witness Tipton to proceed; but it should be borne in mind that this win-2, dow, according to the evidence, was the only one of the building lowered at the top, and it had been kept so from the time the telephone wires were run into the building. Being the only opening to the burning building, it afforded the only outlet for the escape of the heat and flames, and both would naturally follow the draft it produced. We do not mean to express the opinion that the fire resulted from the lightning striking the building, but only to say that the evidence furnishes as much proof of its having occurred in that way as that it was caused by the transmission of an electric current into the building over the telephone wires, which had been imparted to them by lightning. Neither theory is supported by any satisfactory evidence, therefore neither is tenable.

So many fires are of mysterious origin that it may safely be said half of them cannot be accounted for. What may have caused the burning of appellant's storehouse cannot be reasonably ascertained from the evidence upon which he relies in this case. It is simply another mysterious fire originating from an unknown and unexplained cause; and it will not meet the ends of justice to permit a jury to enter the field of speculation or conjecture in order to arrive at a verdict which is to determine the legal rights of litigants. Appellee is not required to account for the fire. On the contrary, the burden is upon the appellant to show that it is in some way chargeable to its negli

[Ed. Note. For other cases, see Partition, Cent. Dig. §§ 38-51; Dec. Dig. § 12.*

For other definitions, see Words and Phrases, vol. 8, pp. 7302-7303.] 2. GUARDIAN AND WARD (§ 92*)-SALE FOR PARTITION-BOND OF GUARDIAN.

The bond required by Civ. Code Prac. 8 493, to be executed to infants by their guardian before a sale is ordered, need not be given in an action for sale for partition under section 490, subsec. 2; they being protected by section 497, providing that in such action the share of an infant shall not be paid by the purchaser, but shall remain a lien on the land till he comes of age, or his guardian execute bond as required by section 493.

[Ed. Note.-For other cases, see Guardian and Ward, Cent. Dig. §§ 358-362; Dec. Dig. § 92.*]

Appeal from Circuit Court, Harrison County.

Action by Mary Bruce, guardian, for sale for partition. From the judgment overruling exceptions to the report of sale, Henry Hatterich, the purchaser, appeals. Affirmed.

Cason & Cox, of Cynthiana, for appellant. Chester M. Jewett, of Cynthiana, for appellee.

SETTLE, J. This is an appeal, prosecuted by the purchaser of real estate at a decretal sale, from a judgment overruling his exceptions to the report of sale and con

firming the report. The real estate consists | lenwider v. Johnson, etc., 145 Ky. 19, 139 of a house and lot situated in the city of S. W. 1096; Liederkranz Society v. Beck, 71 Cynthiana. The price bid therefor by appel- Ky. (8 Bush) 597; Lee v. James, 81 Ky. 446. lant was $1,100, which exceeded its appraised value by $300. It was jointly owned in fee by the four infant children of William Wallace Bruce named in the record, subject to the dower of their mother, Rose C. Bruce, therein.

It appears that in Fullenwider v. Johnson, etc., supra, the parties interested in the land were the widow and her infant child; the widow being the plaintiff and the infant the defendant in the action. The infant owned the fee, subject to the widow's dower; that [1] William Wallace Bruce died intestate is, a life estate in an undivided one-third of November 8, 1906, a resident of Boyle coun- the land. This status, it is said in the opinty, Ky., survived by his widow and four in- ion, did not constitute a joint ownership in fant children. The widow was appointed and the proper meaning of the Code; and that duly qualified as statutory guardian of the "to constitute a joint ownership the shares four infant children, and she in her own of the owners must generally extend to the right, and as such guardian, and the chil- whole estate, and be such as that neither of dren in their own right, brought suit, under the joint owners would have an interest in section 490, Civil Code, to obtain a decree the proceeds set apart to the joint owner." for the sale of the house and lot in Cynthiana This conclusion is explained in the opinion, and a division of the proceeds among them, after differentiating the case from that of according to their respective interests. It Atherton v. Warren, 120 Ky. 151, 85 S. W. is conceded that the parties in interest were 1100, 27 Ky. Law Rep. 632, as follows: "Here all properly before the court, and that the the whole estate is owned by one, subject to proceedings leading to the decree and sale a life estate in one-third, and the life tenant were in all respects regular. is asking that the property be sold for a distribution of the proceeds; and in the proceeds going to the life tenant the remainderman has an interest, as upon the death of the life tenant her share would go to him, unless the value of the life estate could be paid over to the life tenant. In view of these facts, it cannot be held that the joint ownership is of such a character as to authorize a sale of the property upon the petition of the life tenant."

Confirmation of the sale was resisted by the purchaser, upon the ground that the circuit court was without jurisdiction to adjudge a sale of the property; it being claimed that the estate was not a vested one, in possession and jointly owned, within the meaning of section 490, subsec. 2, Civil Code. The section of the Code, supra, provides: "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: (1) If the share of each one be worth less than $100.00. (2) 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 depositions appearing in the record show, beyond doubt, the indivisibility of the property; that the house thereon is in a bad state of decay and of little value; that it would require from $800 to $1,000 to repair the property; and that only by its sale could loss to the joint owners be prevented.

Since the death of William Wallace Bruce, dower in this property has not been assigned the widow; but she and the children have been all the while in possession and control thereof, having together received and used the rents in the ratio of their respective interests. As the jurisdiction to sell the lands of infants is purely statutory, it necessarily follows that in an action brought for that purpose the statute must be substantially pursued. We have repeatedly held that the circuit court is without jurisdiction, under section 490, Civil Code, to order a sale of indivisible real property in an action brought by the widow against an infant, who owns the

In Malone v. Conn, etc., and Aims, etc., v. Conn, 95 Ky. 93, 23 S. W. 677, the tenant by the curtesy brought suit against the remaindermen for a sale of the land, under section 490, Code, upon the ground of its indivisibility, but the sale adjudged by the lower court was held invalid, upon the ground that, the possession being wholly with the estate for life (i. e., the life tenant), there was no joint ownership or possession, in the meaning of section 490, Code; therefore its provision did not apply. The doctrine announced in Malone v. Conn and Aims, etc., v. Conn, supra, was applied in Berry v. Lewis, 118 Ky. 652, 82 S. W. 252, 26 Ky. Law Rep. 530, Id., 118 Ky. 652, 84 S. W. 526, 27 Ky. Law Rep. 109, Liter v. Fishback, 75 S. W. 232, 25 Ky. Law Rep. 260, and Swearengen v. Abbott, etc., 99 Ky. 271, 35 S. W. 925, 18 Ky. Law Rep. 184, in none of which cases was there a joint ownership or possession of the property sought to be sold, in the meaning of the statute.

In Atherton v. Warren, 120 Ky. 151, 85 S. W. 1100, 27 Ky. Law Rep. 632, it was held that a sale of indivisible real estate would be permitted, under section 490, Code, where, as in that case, one owned the fee in his share, and the other share was owned by a life tenant and remainderman; or, to be more precise as to the interests of the par