require the deposition to be taken upon interrogatories." As only three days notice to take these depositions was required, the appellant had no right to demand that they be taken upon interrogatories. [2, 3] Complaint is also made of the action of the trial court in admitting evidence by appellee that it was not practicable to stand on the ground to perform his duties in braking the cars, and also evidence that there was no railing on the platform, and that it was dangerous to send a train of 15 cars in one trip with only two men. It was entirely competent to admit evidence that it was not practicable for appellee to stand on the ground as one of the contentions of appellant was that appellee should have been on the ground in place of riding on the cars at the time he was injured; and the evidence that it was not practicable to perform his duties standing on the ground was admissible to show the reason why he remained on the car. No recovery was sought on the ground that the platform was defective, or because of the failure to have railings around it, and the evidence of the condition of the platform in this respect was only introduced for the purpose of showing that the plaintiff could not by the exercise of care have escaped injury. When the evidence as to the condition of the platform was offered and objected to, the trial judge admonished the jury that they should not consider it in determining the liability of the defendant, but merely upon the question as to whether the plaintiff could have gotten off the car by the exercise of ordinary care. With this admonition, the evidence was proper. The objection to evidence that it was dangerous to send a train of 15 cars on one trip is based upon the proposition that the only way in which proof of this dangerous condition could have been made was by the introduction of expert witnesses. This was a matter upon which the jury were entitled to have the opinion of some person familiar with the conditions, and the appellee qualified himself to speak upon this point. [4] Another objection is raised with reference to a declaration made by appellee. It appears from the record that it was customary to send three men out with a train of cars, and that appellee did not know that there were only two men on this train, including himself, until after the accident happened. In the course of his examination, appellee was asked this question: "Q. Do you know whether the trip that ran off with you had the brakes laid down on it or not, so as to check the speed? A. I didn't know it until after they were carrying me down, and passed by it, and I says, "They never even threw a brake.' I says, 'Where in the hell is that other fellow. If he had been here, he would have held that car.' And Wilson, the bank boss, he says, 'I sent him in the mines to make a shift.'" This statement of appellee was made at the place of the accident, and within a few moments after it happened, and was competent as a part of the res gestæ. [5] It is also insisted that the court erred in excluding testimony that subsequent to the accident to appellee as many as 22 loaded cars had been taken out in one train. Appellant was permitted to prove that two men were sufficient to handle 15 loaded cars, and it was not error to exclude from the jury offered evidence that more than this number was occasionally carried out by two men. Upon this point, the only issue was whether or not two men were sufficient to safely bring out the number of cars in the train at the time appellee was injured. His testimony was to the effect that two men were not sufficient. On the other hand, the evidence for appellant was that two men were sufficient. There was no reason why there should have been evidence as to larger numbers being carried out by two men. The company might have sent out trains of 25 cars, with only two men, but this would not conduce to show that two men were sufficient for this number of cars. It is further said that appellee was aware of the fact that only two men were on this train, and that he assumed whatever risk attended the failure to have the train equipped with a crew of three men; but appellee testifies positively that he did not know that there were 15 cars in the train, and did not know that the third man was not on it, as it had been customary to send out from 6 to 11 cars in charge of three men, and he supposed the trip on which he got hurt had the same number of cars usually carried and was equipped with the same number of hands, and that he would not have gotten on the train if he had known there were 15 cars in the train and only two men. [6] The instructions are criticised because they allowed a recovery for the ordinary neglect of the appellant. It is said by counsel that in actions by the servant against the master to recover damages for personal injuries gross negligence must be shown except where the master fails to furnish a safe place to work. But this point was expressly decided adversely to the contention of appellant in Illinois Central Railroad Company v. Langan, 116 Ky. 318, 76 S. W. 32, 25 Ky. Law Rep. 500. We find no error in the record that would justify us in remanding the case for a new trial, and the judgment is affirmed. SALYER v. HAWKINS. (Court of Appeals of Kentucky. March 12, 1912.) judgment against Sayler in favor of Hawkins for $29.96. Sayler appeals. Appellant complains that the case was not transferred to the Pike quarterly court. 1. JUSTICES OF THE PEACE (§ 75*)-JURISDIC- This objection is first made here. There was TION-AMOUNT IN CONTROVERSY-TRANSFER no objection in the justice's court to the OF CAUSE. Civ. Code Prac. § 720, provides that, when the amount of a counterclaim or set-off exceeds the jurisdiction of the court trying the cause, such court on motion of either party shall transfer the cause to a court having jurisdiction. Held that, under such section, it was proper for a justice of the peace to transfer an action to recover $71.55 to the circuit court, where defendant filed a counterclaim for $200 damages, which in the circuit court he increased to $330, instead of the quarterly court, whose jurisdiction is limited to $200. [Ed. Note. For other cases, see Justices of the Peace, Cent. Dig. §§ 243-245; Dec. Dig. § 75.*] 2. APPEAL AND ERROR (§ 1009*)-QUESTIONS OF FACT-REVIEW-CONFLICTING EVIDENCE -FINDING OF CHANCELLOR. Where the evidence is conflicting, a finding on the facts by the chancellor will be given considerable weight on appeal. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3970-3978; Dec. Dig. § 1009.*] Appeal from Circuit Court, Pike County. Action by J. E. Hawkins against L. H. Salyer. Judgment for plaintiff, and defendant appeals. Affirmed. transfer of the case to the circuit court. When the case reached the circuit court, there was no objection to the jurisdiction of that court. [1] Section 720 of the Civil Code, among other things, provides: "That when the amount of the counterclaim or set-off exceeds the jurisdiction of the court trying the cause, the court shall, on motion of either party to the action, or by their attorneys, transfer the cause to the court having jurisdiction." Under this section, it was proper for the justice to transfer the case to the circuit court, as the amount sued for on the counterclaim was $330, and this amount was within the jurisdiction of the circuit court. [2] On the merits of the case simply a question of fact is presented. In cases of this sort we give considerable weight to the finding of the chancellor, and we cannot say here that his judgment is against the weight of the evidence. While the evidence is conflicting, there is testimony warranting the conclusion that the logs were delivered at the places designated by the parties, and J. S. Cline, for appellant. Childers & Chil- that after they were delivered they were ders, for appellee. received by Salyer. While he gives one version of the contract, Hawkins gives another, and Hawkins is supported by Eli Mullins, from whom the timber was bought, and by circumstances that are not without weight. Judgment affirmed. CAMBRON v. BOLDRICK. (Court of Appeals of Kentucky. March 12, 1912.) USURY (§ 102*)—PAYMENT. Usury cannot be regarded as paid, so as of, till the satisfaction of the principal and to give any right of recovery on account therelegal interest. HOBSON, C. J. J. E. Hawkins brought this suit against L. H. Salyer in the court of a justice of the peace for Pike county. He alleged that the defendant agreed to pay him $2.50 per 1,000 feet for hauling certain timber to the Russel's fork of the Big Sandy river; that he hauled the timber, and the hauling at the contract price amounted to $152.80, which was to be credited by $81.40 which he owed the defendant on a store account, leaving a balance due him of $71.55. The defendant by his answer denied that 1. the plaintiff hauled the timber to the proper point, and pleaded that by his failure to haul the timber as required by the contract he had been damaged in the sum of $200. He also alleged the plaintiff owed $130 on the store account. Upon the filing of the answer in the justice's court, an order was made transferring the case to the circuit court, as the amount sued for on the counterclaim was beyond the jurisdiction of the justice. In the circuit court the defendant amended his answer, and pleaded that he had been damaged $330. He also set up other items which he alleged the plaintiff owed him. The circuit court referred the case to a commissioner, who reported that Salyer owed Hawkins $29.96. Exceptions were filed to the report, and, on final hearing, the circuit court overruled the exceptions, confirmed the report, and entered [Ed. Note.-For other cases, see Usury, Cent. Dig. §§ 241-258; Dec. Dig. § 102.*] 2. USURY (§ 129*)-RIGHTS OF THIRD PER SONS. If there is any usury in the claim secured by first lien on property of bankrupt, the right to have it purged thereof is not in the trustee in bankruptcy, but in persons having a second lien thereon for a debt of bankrupt, and that, too, for their own benefit; bankrupt's estate being insufficient to pay them. [Ed. Note.-For other cases, see Usury, Cent. Dig. §§ 384, 385; Dec. Dig. § 129.*] Appeal from Circuit Court, Marion County. Action by C. C. Boldrick, trustee in bankruptcy, against C. B. Cambron. Judgment for plaintiff, and defendant appeals. Reversed and remanded, with directions. *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes Sam T. Spalding and W. W. Spalding, for bonus or usury paid by the partnership to appellant. H. W. Rives, for appellee. CLAY, C. On November 14, 1910, R. G. Taylor was adjudged a bankrupt. On November 28, 1910, C. C. Boldrick was selected as trustee and duly qualified and entered upon the discharge of his duties as such. There after he brought this action in the Marion circuit court to recover of C. B. Cambron the sum of $200, alleged to have been paid as usury. Upon the conclusion of the evidence, the trial court directed a verdict in favor of the trustee, and Cambron appeals. Cambron, and that this right passed to his trustee in bankruptcy. It is the rule that no usury can be regarded as having been paid until the satisfaction of the principal and legal interest. Paine v. Levy, 142 Ky. 619, 134 S. W. 1160, and Neal v. Rouse, etc., 93 Ky. 151, 19 S. W. 171, 14 Ky. Law Rep. 126. In this case, there has been no pay-. ment by the bankrupt; not only so, but, as it is admitted that the assets of the bankrupt's estate are insufficient to pay Thompson & Hughes, who hold a second lien on the property, it follows that if there is any usu selves are entitled to have it purged of usury for their benefit, and to subject the remainder of the proceeds to the payment of their lien claim. Banta v. Louisville Sav. Loan & B. Co., 59 S. W. 501, 22 Ky. Law Rep. 1045. That being true, no right of recovery has been shown. This conclusion makes it unnecessary for us to pass on the right of the trustee to sue and recover usury paid by the bankrupt. The judgment is reversed, and cause remanded, with directions to dismiss the petition. EAST TENNESSEE TELEPHONE CO. v. WATSON. (Court of Appeals of Kentucky. March 12, It appears from the record that R. G. Tay-ry in the loan made by Cambron they themlor, Tom Thompson, and E. K. Hughes were partners, engaged in farming and trading under the firm name of "Taylor, Thompson & Hughes." In December, 1909, they negotiated with one William Dawson for the purchase of his farm in Nelson county at the price of $9,150. Not having the available money on hand, they arranged with C. B. Cambron for a loan. The transaction was finally consummated in the following manner: Cambron purchased the land from Dawson for the sum of $9,150; it being agreed at the time that the partnership would pay him the sum of $1,500, the difference between the amount he agreed to lend on the farm and the amount of the purchase price, and also $200 as a bonus for making the loan. The partnership borrowed $1,700 from a bank and paid this sum to Cambron, who then deeded the land to the partnership, reserving a lien thereon for the sum of $7,650, which was represented by 10 promissory notes for the sum of $765 each, and payable in one, two, three, etc., years respectively. Before Taylor was adjudged a bankrupt, the partnership had paid to the bank the sum of $300 on the $1,700 borrowed by them, and Taylor purchased from the partnership the farm purchased by the partnership; the consideration being the assumption by Taylor of the payment of the 10 notes, aggregating $7,650, and the further consideration of $1,600, represented by three notes and secured by a lien on the property. It is agreed by the parties that the estate of the bankrupt, R. G. Taylor, will not be sufficient to pay all the preferred claims; that the land which the bankrupt purchased, when sold by the trustee, brought only $8,650; that the general estate of the bankrupt was not sufficient to pay the costs incident to the set tlement of the estate in bankruptcy, and that the $1,600 debt of Thompson and Hughes, secured by a second lien on the land they conveyed the bankrupt, will not be paid in full. [1, 2] For appellee, it is insisted, and the trial court held, that Taylor, by the purchase of the farm of his copartners, acquired a right to sue for and recover the alleged 1. RECEIVERS (8 57*)-RIGHT TO APPOINT MENT AND COMPENSATION-ESTOPPEL. Though Civ. Code Prac. § 300, prohibits persons interested in the subject of litigation from being appointed receivers thereof, one who has agreed that the receiver might continue to act at specified compensation is estopped to thereafter object to his qualifications to act, or to his right to such compensation. Cent. Dig. § 36; Dec. Dig. § 57.*] [Ed. Note.-For other cases, see Receivers, 2. RECEIVERS (§ 196*)-RELATIONSHIP TO PAR TIES. were Where two telephone companies established physical connection under agreement that the revenue from joint messages should be prorated between them according to the length of the lines over which the messages transmitted, and a receiver for one of the companies continued the arrangement, the relation between him and the other company, as to revenue, was merely that of debtor and creditor; no trust relation existing as affecting his right to preference for his compensation from the tolls collected by him. [Ed. Note. For other cases, see Receivers, Cent. Dig. §§ 387, 389-391; Dec. Dig. § 196.*1 Appeal from Circuit Court, Montgomery County. Action by Henry Watson against the Eastern Kentucky Telephone & Telegraph Company. From a judgment allowing plaintiff compensation as a receiver, the East Tennessee Telephone Company appeals. Affirmed. •For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes J. M. Stevenson, for appellant Robert H. he collected on account of toll service for Winn, for appellee. son re the East Tennessee Telephone Company $687.56. These tolls, so collected, were used by the receiver, along with other moneys coming to his hands, to defray the operating expenses of the company. On February 21, 1910, all of the physical property of the insolvent local corporation was sold by the master commissioner for $750. Out of this sum the court costs and commissioner's charges, amounting to $266.68, were paid, and there remained a balance of There was in the hands of the $485.32. receiver on said date the sum of $183.90. In fixing the compensation for the receiver, the court permitted him to retain this amount, and directed the commissioner to pay him out of the money in his hands the sum of $301.42, making a total of $485.32, which was the balance of money realized by a sale of the physical property of the local corporation. Its ob LASSING, J. On his own motion, Henry Watson was appointed receiver for the Eastern Kentucky Telephone & Telegraph Company, a corporation owning a telephone exchange in the city of Mt. Sterling, Ky. Watwas not only a creditor of said corporation, but was an officer and director of the company. The East Tennessee Telephone Company, at that time and for some time prior thereto, had a trade agreement or arrangement with the Eastern Kentucky Telephone Company, by which they interchanged messages upon an agreed basis, and at the time of this receivership proceeding the local corporation was indebted to the East Tennessee Company in a sum in excess of $1,500. After his appointment as ceiver, Watson filed a suit in the Montgomery circuit court against the East Tennessee Telephone Company, in which he To the order and judgment of the court sought to have said company enjoined and allowing the receiver $485.32 for his servrestrained from disconnecting its toll lines ices for the 17 months, the East Tenneswith the exchange of the local company. see Telephone Company objected. This suit for injunctive relief was consoli- jection being overruled, it prayed and was dated with the receivership suit, and no granted an appeal, and now seeks a reversal disposition has been made of that branch upon three grounds: First, because, being of the case; but the East Tennessee Tele- a party in interest, his appointment was unphone Company has continued its connection authorized; second, if authorized, that he with the local company as it theretofore is not entitled to any compensation whatexisted. Shortly after his appointment as receiver, the East Tennessee Telephone Company, through its representatives, appeared in court and sought to have the appointment of Watson as receiver set aside, on the ground that he was an interested party, and therefore disqualified from acting. Thereafter the motion to have Watson removed was withdrawn, and an agreement between the East Tennessee Telephone Company and Watson, as receiver, was filed in court and made part of the record. That agreement, so far as material to the questions raised upon this appeal, is as follows: "This cause coming on to be heard upon the motion of the East Tennessee Telephone Company and the American Telephone & Telegraph Company to remove the said Watson as receiver of the defendant company, and likewise upon the motion of said Watson for an allowance for his services herein, and upon the consideration thereof, the parties having arrived at an agreement and understanding, it is now agreed that said motions for the removal of said Watson be withdrawn, and that he be permitted to act as receiver, upon the condition that he receive as commission out of said trust, the sum of forty dollars per month from the time when he was appointed to this date, and at the same rate for future services." This receivership extended over a period of 17 months, from September 20, 1908, until February 21, 1910. During that time, ever; and, third, that the funds belonging to it which came to the hands of the receiver were held by him in a trust or fiduciary capacity, and he had no right to spend this money for the upkeep of the plant, and that, inasmuch as he did so, he should be required to return it into court before being allowed any compensation whatever for his services. [1] Section 300 of the Code expressly prohibits persons interested in the subject of a litigation from being appointed receivers. It is conceded that appellee was not only interested as a creditor, but was also an officer and director of the company, and, under normal conditions, should not have been appointed receiver. But it does not lie in the mouth of appellant to make this charge. It stands in no better position than it would if his appointment had been made upon its motion; for, in the agreed order above quoted, it expressly consented that he might continue to act, and, having so consented, it will not now be heard to complain because the court permitted him to act after objection was made. The same is true as to his compensation. Appellant, at the time the court had this matter under consideration, participated in the conference in which the compensation of appellee, as receiver, was fixed at $40 per month. Having agreed that he should receive a stipulated compensation, he will not now be heard, after the service is rendered, to say that the court erred in fixing as compensation | receipts by the home company of tolls due a sum even less than that agreed to by ap- appellant as a trust fund; but, on the other pellant. hand, the pleadings and accounts show that they were looked upon as any other debt. If these toll receipts were not a trust fund in the hands of the home company, the mere appointment of a receiver for the company cannot make them such. Not being entitled to a preference, appellant is in no position to complain of the allowance made to the receiver. Perceiving no error in the judgment, it is affirmed. WINN, J., not sitting. LEWIS' ADM'R v. BOWLING GREEN (Court of Appeals of Kentucky. March 12, [2] Lastly, it is urged that, under the agreement which the appellant company had with the company for which appellee was acting as receiver, the moneys which he received belonging to it were held by him in a trust or fiduciary capacity, and that he should not have expended said moneys in the upkeep of the plant, and that, having done so, no compensation should be allowed him whatever until this fund is returned by him to court, or paid over to appellant. The contract under which these two telephone companies operated provides that "the parties of this contract mutually agree to make physical connection between their systems at Mt. Sterling, Ky., and at such other points reached by lines of both parties of the contract as may hereafter be agreed upon, and agree to transmit each other's messages over the lines so connected. The revenue from these joint messages to be prorated between the parties of this contract in such proportion as each party's lines bear to the whole length of the line over which these messages are transmitted." Under this arrangement each company kept an account of the messages transmitted, and at the end of the month the accounts would be audited, the difference ascertained, and the balance due either company charged as a debt against the other. In this way the business had been conducted from the beginning, and the receiver, who merely represented the home company, continued to trans-mitted to leave the car, but that the motorman act the business with the appellant company in exactly the manner in which it had theretofore been conducted. A part of the charges against the receiver are for rentals due on "transmitters" and "receivers" and a part for toll service. The transactions between the appellant company and the receiver were not unlike those between merchants having mutual accounts. The relations were simply those of debtor and creditor. 1. APPEAL AND ERROR (§ 713*)-RECORD-INCORPORATION OF PLEADINGS-PREREQUISITES. A pleading not made a part of the record by order of court or by bill of exceptions, cannot be considered on appeal, though copied into the record. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2379, 2463, 2645, 2956, 2957; Dec. Dig. § 713.*] 2. CARRIERS (§ 238*)-STREET RAILROADSINJURY TO PASSENGER-PLEADING-SUFFICIENCY. A petition against a street railway company, charging that its motorman and conductor assaulted plaintiff's decedent, a boy 13 years old, and forcibly carried him into their car to carry him down town for delivery to the police department, that decedent begged to be per refused, and decedent attempted to leave the car, whereupon the motorman, in attempting to pull him back, caused him to fall under the wheels of the car, resulting in his death, the petition stating that all the acts were wrongfully and negligently done, sufficiently shows plaintiff's right to recover, on the theory of the relation of carrier and passenger, as against demurrer. [Ed. Note. For other cases, see Carriers, Cent. Dig. § 973; Dec. Dig. § 238.*] 3. PLEADING (§ 214*)-ADMISSION BY DE A demurrer to a petition admits the truth of the allegations therein contained. [Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 525-534; Dec. Dig. § 214;* Corporations, Cent. Dig. § 2044.] Appeal from Circuit Court, Warren County. Action by Herman Lewis' Administrator against the Bowling Green Railway Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded. MURRER. No trust relation existed. Neither company could know how much of the money received by it belonged to the other until their accounts were cast at the end of the month, and it probably would frequently happen that all of the money received during any one month by the receiver would belong to his company; and, as he had no means of ascertaining how the accounts stood until the end of the month, it could hardly be claimed that he should have kept all of the receipts intact until it should be determined just what part his company was entitled to of the tolls so collected before he could use any part thereof NUNN, J. This action was instituted by toward defraying the operating expenses of appellant against the Bowling Green Railway the company. The parties themselves did Company, Hubert Meyers, and W. C. Brownnot, prior to this receivership, treat the field. Appellee filed a demurrer to the petiFor other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes Bradburn & Basham and J. H. Gilliam, for appellant. T. W. Thomas, R. C. P. Thomas, and Sims & Rodes, for appellee. |