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ing a concrete pavement along her front

A parent who has not emancipated a child may recover for loss of services and medical care and attention on account of injuries received in the employment of a person employing the child with notice of the minority, but not where he had emancipated such child, or where the child was employed without notice of the minority.

JURIES-WEIGHT AND SUFFICIENCY.

while in defendant's employ, evidence held to
In a father's action for injuries to his son
show that the father consented that his son
might work for himself, and surrendered his
right to his control and services.
Child, Cent. Dig. §§ 86-99; Dec. Dig. § 7.*]
[Ed. Note.-For other cases, see Parent and
3. PARENT AND CHILD (§ 7*)—RIGHT OF Ac-

property line, which abuts on Main (or Fer- CHESAPEAKE & O. RY. CO. v. DE ATLEY. ry) street in Calhoun. Calhoun is a munici- | (Court of Appeals of Kentucky. Dec. 10, 1912.) pal corporation of the fifth class. On August 1. PARENT AND CHILD (§ 7*)—Right of Ac6, 1909, its council enacted an ordinance re- TION FOR INJURIES TO CHILD. quiring the construction of a brick or concrete sidewalk, of certain specifications, in front of the property of appellant and other citizens. One of the specifications was that, if the property owner failed or refused to construct such pavement, the city council would, after due notice, let the construction [Ed. Note.-For other cases, see Parent and thereof to the lowest bidder, and the cost Child, Cent. Dig. §§ 86-99; Dec. Dig. § 7.*] of the improvement would become a lien up-2. Parent and Child (§ 7*)—ACTION FOR INon the property. Appellant failed to construct the sidewalk, so the city proceeded to have the work done in accordance with the ordinance. Appellant objected to the city placing the walk in front of her property. It was located between her fence and the gutter, in a space which was from 8 to 10 feet wide, and extended the full length of her property. The pavement was 4 feet wide, and a space was left between it and the fence and the gutter. There was no destruction of the property in any manner, except where it was absolutely necessary to locate the walkway as stated. Before 1893 the public traveled along the place where the walk is now located, on slabs which tended the full length of the property; but it appears from the testimony, without contradiction, that in 1893 appellant's husband, who then owned the property, together with several other citizens of the town, made up a fund, purchased material, and constructed a plank sidewalk where the slabs were, and where the concrete pavement now is, and it remained there and was used as a walkway until the concrete walk was constructed.

TION FOR INJURIES TO CHILD.

A father, who voluntarily permits a grown son to work for himself in a neighboring county for more than a year without making any effort to control his conduct or employment, although he knows that he is employed, and can easily ascertain the character of his employment, and who permits the son to receive and spend his for injuries sustained by the son in such emown wages, cannot recover from the employer ex-ployment, since he has impliedly, if not expressly, emancipated the son.

Appellant brought this action in April, 1911, to recover the value of the land covered by the concrete walk. It appears to us that she waited too long, as her husband appears to have dedicated this strip of land for a walkway prior to 1893, and the public has continuously used it as such from that time to the present, with the knowledge and consent of the owners. But appellant claims that this use was merely permissive, and that the statute did not run. There was no testimony to the effect that the use was merely permissive, and the burden, after a lapse of 15 years, was upon her to show that fact. Butt v. Napier, 14 Bush, 46; Talbott v. Thorn, 91 Ky. 417, 16 S. W. 88, 13 Ky.

Law Rep. 401; Newcome v. Crews, 98 Ky. 339, 32 S. W. 947, 17 Ky. Law Rep. 899; Potts v. Clark, 62 S. W. 884, 23 Ky. Law Rep. 332; Bowen v. Cooper, 66 S. W. 601, 23 Ky. Law Rep. 2065; Clay v. Kennedy, 72 S. W. 815, 24 Ky. Law Rep. 2034; Magruder v. Potter, 77 S. W. 919, 25 Ky. Law Rep. 1336.

For these reasons, the judgment of the lower court is affirmed.

[Ed. Note.-For other cases, see Parent and

Child, Cent. Dig. §§ 86-99; Dec. Dig. § 7.*]
4. PARENT AND CHILD (8 7*)-RIGHT OF AC-

TION FOR WAGES OR PERSONAL SERVICES.

A stranger exercising reasonable care to ascertain the age of a person applying for employment whose appearance indicates that he is son's father for personal injuries sustained by over 21 years of age is not liable to such perthe son, although the son is, in fact, under 21 years of age when employed.

[Ed. Note.-For other cases, see Parent and Child, Cent. Dig. §§ 86-99; Dec. Dig. § 7.*1 5. PARENT AND CHILD (§ 7*)-RIGHT OF ACTION FOR INJURIES EMPLOYER'S KNOWLEDGE OF MINORITY.

Where a minor, when employed by a railroad company, misstates his age in his application by advice of the company's clerk, and. when subsequently employed in an entirely different department of the road, again misstates his age, in reliance on the advice previously given, the company is not charged with knowledge that he is a minor, so as to render it liable to his father for personal injuries.

[Ed. Note.-For other cases, see Parent and Child, Cent. Dig. §§ 86-99; Dec. Dig. § 7.*]

Appeal from Circuit Court, Mason County. Action by W. L. De Atley against the Chesapeake & Ohio Railway Company. Judg. ment for plaintiff, and defendant appeals. Reversed, with directions.

Worthington, Cochran & Browning, of Maysville, for appellant. Allan D. Cole, of Maysville, and Holmes & Ross, of Carlisle, for appellee.

CARROLL, J. John De Atley, a minor, was injured while working for the appellant,

[2] This being the law applicable to the case on this point as we understand it, we will now look into the evidence for the purpose of determining whether or not the appellee had emancipated his son before he accepted employment with appellant. The evidence shows that the son, John De Atley, was born in September, 1891, and lived with the appellee, his father, until December, 1909, when he left home and went to a relative of his father's in Bourbon county, Ky., to assist him in stripping tobacco. He remained in Bourbon county for about 10 days, and went from there to Covington, Ky., at which place another relative of his father's lived.

and this action was brought by the appel- son, made necessary by injuries received lee, his father, to recover from the appellant while so employed, as the right to recover damages for the loss of the services of his for this expense depends on the right to reson during the time he was unable to work cover for loss of service. In such a state of on account of the injuries, and reimburse- case the right of action to recover for lost ment for amounts he had paid out in furnish- time and medical expenses is in the son, not ing medical service and attention to him dur- the father. Rounds Bros. v. McDaniel, 133 ing the time he was suffering from the Ky. 669, 118 S. W. 956, 134 Am. St. Rep. 482, injuries. He averred that his son was em- 19 Ann. Cas. 326. ployed by appellant without his knowledge or consent, and received injuries while engaged for it in the performance of dangerous work. For answer the appellant, after traversing the averments of the petition, affirmatively pleaded that, when it employed John De Atley, it believed he was of age, and had no knowledge or information that he was under 21 years of age, and could not have obtained such information by the exercise of ordinary care. It further pleaded that the appellee knew that his son was working for it as an employé in its train service, and that he permitted him to continue in the service without objection. It further averred that appellee had emancipated his son and voluntarily relinquished all right to control While he was in Bourbon county his father his employment or to have the benefit of his testifies that he went to see him twice, but services, and, this being so, had no cause of did not succeed in finding him, and that he action upon the grounds stated. Upon a supposed he went away from home because trial before a jury a verdict was returned he wanted to work for himself. He further in favor of appellee for $500, and a reversal testifies that, after he went to Covington, his of the judgment on this verdict is asked mother received a letter or two from him, upon the single ground that the trial court which she answered, but that he did not should have directed a verdict in its favor. know his address in Covington, although he [1] If appellee had not emancipated his heard he was living there and was working son, and he was employed by appellant with- at a wholesale whisky house, and that he out the consent of appellee and with notice took no steps to find out where he was, as he of his minority and received injuries while expected he would get homesick and come in this employment, then appellee was enti- back. He also said he did not write to his tled to recover, not only for the loss of the brother-in-law who lived in Covington, alservice of his son while unable to work on though he suspected that his son was making account of injuries received, but also the mon- his home with him, or that he knew where ey necessarily expended by him in giving to his son was, and that he did not send his his son medical care and attention. McGarr son any money, nor did his son send him v. National & Providence Worsted Mills, 24 any. He was asked these questions: "Q. R. I. 447, 53 Atl. 320, 60 L. R. A. 122, 96 From the time your son left your home in Am. St. Rep. 749; Dennis v. Clark, 2 Cush. Bourbon county, in the fall of 1909, until he (Mass.) 347, 48 Am. Dec. 671; Meers v. Mc- was injured in January, 1911, you acquiesced Dowell, 110 Ky. 926, 62 S. W. 1013, 23 Ky. in his remaining away from home and at Law Rep. 461, 53 L. R. A. 789, 96 Am. St. work, and permitted him to do this without Rep. 475; Illinois Central Ry. Co. v. Henon, requiring any portion of his wages to be 68 S. W. 456, 24 Ky. Law Rep. 298; L. & sent to you? A. I never gave him any auN. R. R. v. Willis, 83 Ky. 57, 4 Am. St. Rep. thority to work for anybody. Q. But you 124. But if appellee had emancipated his permitted him to work away from home for son, or if appellant employed him without other people without requiring his wages to notice of his minority, he was not entitled to be sent to you? A. No, sir; he never worked compensation for loss of his services, or to away from home. Q. Did you think he was be reimbursed for amounts expended by him living without expense? A. I allowed the in care and attention to his son during the boy was trying to earn his wages. Q. You time he was suffering from the injuries re- knew he had to have money to live on away ceived. When the father loses by manumis- from home, didn't you? A. I suppose a man sion the right to control the services of his could not live without doing something. Q. son, who is old enough to work for himself You knew that six or eight months prior to and make his own living, he also loses the the time of his injury you had heard he was right to recover from the person in whose at work? A. I heard it rumored about the service his son was engaged the amount ex- house. Q. And that he was working in a

of age.

We think the evidence shows very plainly that the father consented that his son might work for himself, and that he surrendered his right to the control and services of his son. The boy was old enough and large enough to make his own living, and although he worked for more than a year within a hundred miles of his father, who all this time knew where he was, he made no effort to reclaim his services, nor did he do anything indicating that he desired to exert any further paternal control over him.

Q. You never went to Covington to ascertain | of age, and the evidence shows that his aphis whereabouts? A. I never went for the pearance indicated that he was over 21 years reason I had bought a little place, and didn't have the money to spend running around hunting the boy. Q. Did you know the name of the whisky house? A. No, sir. Q. Did you ever try to find out? A. No, sir. Q. Did you write to your son in Covington, or to your brother-in-law in Covington, to ascertain where he was, or for whom he was working? A. No, sir; I did not. Q. Did you undertake to ascertain just exactly where he was and just exactly what he was doing, in order that you might write him to get a portion of his wages to assist you? A. I did not. Q. Guy Bell told you he was in Covington and was not coming home Christmas? A. He did not think he was. He was thinking of going on the railroad. Q. When you heard that he was going on the railroad, why didn't you go and see him? A. I just said it looked like times were pretty hard, and as I was in debt and didn't have the money to spend. Q. But you had notice that your son intended to go to work on the railroad? A. I heard he was thinking of going on the railroad, and I said to Guy: 'You tell him it is against my will to go to work on any railroad, and to come home.""

John De Atley, the son, says that, when he left home, he went to his uncle's in Bourbon county, and remained there about two weeks, and went from there to his uncle's in Covington, and after being there three or four weeks got employment as a laborer with the appellant company, and worked for it about three months, and then got employment in a whisky house in Covington, and worked there about six months, when he again went back to work for the railroad company as a brakeman, and continued in this employment until he was injured in January, 1911. He further testifies that, when he first obtained employment from the appellant company, he was sent to a clerk to make out a written application, and, when he told the clerk that he was born in 1891, the clerk told him that his minority would prevent him from getting employment, and suggested to him that he say in his application that he was born in 1889, and this he did. He also testified that when he was employed the second time as a brakeman, by another and different department, he filled out his own application, giving the date of his birth as 1889, doing this because he had been told by the clerk to give this date if he ever afterwards applied for employment. He says that, when he was employed the second time, he was not asked his age and did not tell it, although he himself made out the written application in which his age was given as over 21. When the son left home, he was between 18 and 19 years of age, and, when he was employed the second time by the appellant company, in De

[3] This course of conduct on the part of the father amounted to an implied, if not an express, emancipation of his son. A father who voluntarily permits his grown son to work for himself in a neighboring county, and who knows where his son is employed, or at least knows that he is employed, can easily ascertain the character of his employment, and who permits him to remain away from home more than a year without making any effort to control his conduct or his employment, and the son receives and spends his own wages, in short, acts in all respects as if he had reached his majority, the father cannot, when the son receives some injury, assert claim of parental authority, and recover from the employer of the son compensation. L. & N. R. R. Co. v. Davis, 105 S. W. 455, 32 Ky. Law Rep. 306; Mauck v. Southern Ry. Co., 148 Ky. 122, 146 S. W. 28; Rounds Bros. v. McDaniel, 133 Ky. 669, 118 S. W. 956, 134 Am. St. Rep. 482, 19 Ann. Cas. 326.

[4] There is another reason why the appellee should not recover in this case. When the son was employed in December, 1910, as a brakeman, in which employment he received the injuries that are the basis of the recovery sought in this action, his appearance indicated that he was 21 years of age, and a written application, made out by himself, gave his age as over 21. Under this state of facts, the appellant is not liable to the father upon the ground that it employed his minor son. In actions like this the father is not entitled to recover unless the employer of his son knows, or in the exercise of reasonable prudence and care could know, that the son was an infant. A stranger who exercises reasonable care to ascertain the age of a person making application for employment, and whose appearance indicates that he is over 21 years of age, cannot be made liable in an action by the father, either for the services of his son or for care and attention given to him while suffering from injuries received in the course of the employment, although the son may in fact have been under 21 years of age when he was employed. Gulf, Colorado & Santa Fé R. Co. v. Redeker, 67 Tex. 190, 2 S. W. 527, 60 Am.

68 S. W. 456, 24 Ky. Law Rep. 298; Hen- [ 3. TRIAL (§ 62*)-RECEPTION OF EVIDENCEdrickson v. Louisville & Nashville R. R. Co., REBUTTAL. 137 Ky. 562, 126 S. W. 117, 30 L. R. A. (N. S.)

311.

[5] The attempt, however, is made to overcome this principle by the testimony of the son that, when he was first employed, the clerk who took his application advised him to give 1889 as the date of his birth, also telling him that if he was afterwards employed and required to state his age to give 1889 as the date of his birth, although the clerk knew that he was born in 1891. As suming that in giving the date of his birth incorrectly in the written statement made by him when he was first employed by the appellant company in January, 1910, he was induced to do so by the advice of the clerk, this did not excuse him from the consequences of giving an incorrect date when he was employed the second time, nor did the adIvice of the clerk charge the company with notice that when he was employed the second time he was in fact a minor. His employment the second time was in an entirely different department of the road from the one in which he worked under his first employment, and there is no suggestion in the record that any person connected with the railroad company at the time of the second employment had any knowledge or information of the misstatement made in his first application, or of the advice given to him by the clerk who took it.

The motion for a peremptory instruction should have been sustained. The judgment is reversed, with directions for a new trial in conformity with this opinion.

ETNA LIFE INS. CO. et al. v. RUSTIN. (Court of Appeals of Kentucky. Dec. 10, 1912.)

1. TRIAL (8 25*)-RIGHT TO OPEN AND CLOSE. In an action on an insurance policy, where defendants denied the allegations of the petition, and also pleaded that insured either killed himself or procured another to kill him, a motion for leave to make the concluding argument was properly overruled, since under the pleadings, if no evidence had been given on either side, plaintiff would have been defeated.

[Ed. Note. For other cases, see Trial, Cent. Dig. 88 44-75; Dec. Dig. § 25.*]

2. INSURANCE (§ 665*)-ACTIONS ON POLICIES - SUFFICIENCY OF EVIDENCE - CAUSE DEATH.

OF

In an action on an accident insurance policy in which defendants pleaded that insured either killed himself or procured another to kill him, evidence that he was found on his porch shot in the abdomen, and said that a man had shot him, made a prima facie case for plaintiff.

The trial court has a discretion in per

mitting the introduction of evidence in rebuttal.
Dig. §§ 148-150; Dec. Dig. § 62.*]
[Ed. Note.-For other cases, see Trial, Cent.
4. INSURANCE (§ 669*)—ACTIONS ON POLICIES

-INSTRUCTIONS.

In an action on policies insuring a person against death resulting directly and independeffected solely through external, violent, and ently of all other causes from bodily injuries accidental means, where there was evidence that he was found shot, and said a man had shot him, and evidence tending to show that he either shot himself or procured some one to shoot him, instructions that if the wound causing his death was inflicted accidentally, eianother without his consent or procurement, ther by himself or another, or intentionally by the law was in his favor, but if he committed suicide, sane or insane, or if the wound was insent or procurement the law was for defendflicted intentionally by another with his conants, and the jury should so find-properly submitted the case as made by the evidence.

[Ed. Note. For other cases, see Insurance, Cent. Dig. 88 1556, 1771-1784; Dec. Dig. § 669.*]

5. INSURANCE (§ 665*)-ACTIONS ON POLICIES SUFFICIENCY OF EVIDENCE- CAUSE OF

DEATH.

ment of a specified sum upon the death of inA policy of insurance provided for paysured through external, violent, and accidental to pay contained no qualification or exception means, and in the clause containing the promise or reference to a subsequent part of the policy providing that in case of death from injuries person, except assault committed for the purintentionally inflicted upon insured by another pose of burglary or robbery, only one-tenth of the principal sum should be paid. The evidence in an action thereon tended to show that by some unknown man, but showed nothing insured was shot on the porch of his residence else tending to show an assault for robbery or burglary. Held, that the rule that if on one state of facts plaintiff may recover, and on another not, and the evidence tends no more strongly to prove the first state of facts than the second, no recovery can be had, did not apply because the burden was on defendant to allege and prove the facts limiting its liability.

[Ed. Note.-For other cases, see Insurance, Cent. Dig. 88 1555, 1707-1728; Dec. Dig. & 665.*]

6. INSURANCE (§ 629*)-ACTION ON POLICY-
NECESSITY OF NEGATIVING EXCEPTIONS.

containing a promise to pay without any refer-
Where a policy contains a general clause
ence to
clause containing limitations on the liability
a subsequent separate and distinct
under the policy, a party relying on the gen-
eral clause may plead it without noticing the
exception.

[Ed. Note. For other cases, see Insurance,
1586, 1592, 1598; Dec. Dig. § 629.*]
Cent. Dig. §§ 1575, 1576, 1579, 1580, 1584-

7. APPEAL AND ERROR (§ 1003*)-REVIEWSUFFICIENCY OF EVIDENCE TO SUPPORT VER

DICT.

unsupported by the evidence only when it is A verdict will be disturbed on appeal as palpably against the evidence, and not in every case where the appellate court would on the evidence reach a different conclusion.

[Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 1555, 1707-1728; Dec. Dig. Error, Cent. Dig. §§ 3938-3943; Dec. Dig. § [Ed. Note.-For other cases, see Appeal and 665.*] 1003.*]

Appeal from Circuit Court, Jefferson Coun- | trial court has a discretion in this matter ty, Common Pleas Branch, First Division. and we do not see that it was abused. Action by Grace H. Rustin against the Etna Life Insurance Company and others. Judgment for plaintiff, and defendants appeal. Affirmed.

Marion W. Ripy and Bennett H. Young, both of Louisville, for appellant Casualty Co. Fred Forcht, Jr., of Louisville, and Edwin A. Jones, of New York City, for appellant Fidelity & Casualty Co. Trabue, Doolan & Cox, of Louisville, and William BroSmith and R. C. Dickenson, both of Hartford, Conn., for appellant Travelers' Ins. Co. Kohn, Bingham, Sloss & Spindle, of Louisville, for appellant Etna Life Ins. Co. T. J. Ma

honey, of Omaha, Neb., and Wm. Marshall Bullitt and Bruce & Bullitt, all of Louisville, for appellee.

[4] 4. The court by its instructions clearly submitted to the jury the issue. By the first instruction he told the jury as follows: "If the jury believe from the evidence that the wound which caused the death of Fredther by himself or by another, or that it was erick Rustin was inflicted accidentally, eithe consent or procurement of Frederick inflicted intentionally by another without Rustin, then the law is for the plaintiff.” "But if the jury believe from the evidence

The second instruction is in these words:

that Frederick Rustin committed suicide, sane or insane, or that the wound which

caused his death was inflicted intentionally of Frederick Rustin, then the law is for each by another with the consent or procurement

of the four defendants named in the foregoing instruction and the jury should so find."

HOBSON, C. J. These suits were brought by Grace H. Rustin against appellants to These instructions aptly submitted to the recover on certain policies issued by them jury the case as made by the evidence as to on the life of her husband, Dr. Frederick the first three appellants. The policy issued Rustin of Omaha, Neb. The policies insur-by the Travelers' Insurance Company is as ed against death "resulting directly and in- follows: dependently of all other causes from bodily injuries effected solely through external, violent and accidental means." The defendants denied the allegations of the petition, and pleaded, in substance, that Dr. Rustin either killed himself or procured another to kill him. There was a trial before a jury which resulted in a judgment in favor of the plaintiff. The defendants appeal.

"The Travelers' Insurance Company of Hartford, Connecticut, in consideration of the warranties hereinafter set forth, and of twenty-five dollars, does hereby insure Frederick Rustin of Omaha, county of Douglas, state of Nebraska, under classification preferred (being a physician by occupation) for the term of twelve months from September 13th, 1904, against bodily injuries effected through external, violent and accidental

Each

[1] 1. It is urged that the appellants had the burden and were entitled to the conclud-means, as specified in the schedule below. ing argument, but they did not assert this at the opening of the trial, and nothing was said about it until the evidence had all been introduced, and the court had given the jury his instructions. The defendants then asked to be allowed to make the concluding argument. The motion was properly overruled. Under the pleadings, if no evidence had been given on either side, the plaintiff would have been defeated. Civil Code, § 526.

The principal sum of this policy in the first
year is $5,000.00, with 5% increase annually
for ten years amounts to $7,500.00.
consecutive full year's renewal of this policy
shall add 5 per cent. to the principal sum
of the first year until such additions shall
amount to 50 per cent., and thenceforth so
long as this policy is maintained in force the
insurance shall be for the original sums plus
the accumulations theretofore granted.
"Schedule of Indemnities.
schedule.]

[Here follows

"Weekly Indemnity. [Here follows provisions as to weekly indemnity.]"

[2] 2. The court did not err in refusing to instruct the jury peremptorily to find for the defendants at the conclusion of the plain- "In event of death the principal sum intiff's evidence. If the evidence for the plain-sured shall be paid to Grace H. Rustin [the tiff was true, a prima facie case was made beneficiary] if surviving, otherwise to the out for her. Hutchcraft v. Travelers' Ins. executors, administrators, or assigns of the Co., 87 Ky. 300, 8 S. W. 570, 10 Ky. Law insured. Rep. 260, 12 Am. St. Rep. 484; Campbell v. Fidelity & Casualty Co., 109 Ky. 661, 60 S. W. 492, 22 Ky. Law Rep. 1295. Her proof showed that her husband was found on the porch of his residence shot in the abdomen, and that he said when found that a man had shot him. It is not presumed on these facts that he procured a man to shoot him, or that he had done anything wrong which brought on the shooting.

[3] 3. There was no substantial error in

The policy then contains under the head of double payments and special payments provisions on these subjects. These are followed by other clauses on the second page of the policy limiting the liability of the company in certain contingencies. One of these clauses is as follows: "In the event of death, loss of limb or sight, or disability caused by gas, vapor or poison, or by injuries inten

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