in each year, or within thirty days thereafter, insurance company, other than fraternal as return to the Auditor of Public Accounts for deposit in the insurance department a statement under oath of all premiums receipted for on the face of the policy for original insurance and all renewal premiums received in cash or other- life insurance company. It is not organized wise in this state, or out of this state, on business done in this state during the year ending the 31st day of December, and no deductions shall be made for dividends, or since the last returns were made, on all premium receipts, which shall include single premiums, annuity premiums, and premiums received for renewal, revival, or reinstatement of policies, annual and periodical premiums, dividends applied for premiums and the policy for original insurance and all additions and all other premium payments received during the preceding year on all policies which have been written in, or on, the be lives of residents of this state, or out of this state on business done in this state, and shall at the same time pay into the state treasury a tax of two dollars upon each one hundred dollars of said premiums as ascertained. Every life insurance company not organized under the laws of this state, but doing business therein on what is known as the industrial insurance plan, whereby weekly premiums are collected, shall at the same time make a return to the Auditor of Public Accounts for deposit in the insurance department, a statement under oath of all pre miums received on insurance written exclusively on the industrial plan, and shall at the same time pay into the state treasury a tax of two dollars upon each one hundred ed dollars of said premiums as ascertained. Any insurance company mentioned in this section doing insurance business other than on the industrial plan, shall sessment life insurance companies, not organized under the laws of this state, but doing business therein." Clearly plaintiff is a under the laws of this state. It is doing business in this state and, though an assessment life insurance company, it is not a fraternal assessinent life insurance company. The statute plainly provides for a statement of all premiums receipted for on the face of renewal premiums received in cash or otherwise in this state, or out of this state on business done in this state during the year ending the 31st day of December. It goes further and provides that no deduction shall be made for dividends, or since the last returns were made, on all premium receipts, which shall include single premiums, annuity premiums, and premiums received for renewal, revival, or reinstatement of policies, annual and periodical premiums, dividends applied for premiums and additions, and "all other premium payments received during the preceding year on all policies which have been written in, or on, the lives of residents of this state." The statute provides for a tax of $2 on each $100 of said premiums as make reports and pay into the state treasury ascertained. In view of the fact that the the taxes due thereon under each report." Plaintiff is authorized to do business in statute plainly shows a legislative purpose to tax assessment life insurance companies, this state as an assessment life insurance other than fraternal assessment life insurance company under and by virtue of subdivision companies, and in view of the use, not only 3, art. 4, Kentucky Statutes, c. 32, entitled of the word "premium," but of the words "Assessment or Co-operative Life Insurance | "premium receipts" and "premium payments," Companies." To sustain the contention of plaintiff that it is not taxable under section 4226, Kentucky Statutes, it is argued that that section provides for the payment of a tax on premiums alone, and nowhere provides for a tax on assessments. It is further argued that the various sections of subdivision 3, art. 4, Kentucky Statutes, define assessment of cooperative life insurance companies, provide for their organization, prescribe the terms on which they can do business in the state, and further provide that such companies "shall be subject only to the provisions of this subdivision." It must be remembered, however, that the provisions of subdivision 3, art. 4, Kentucky Statutes, do not relate in any way to the question of taxation. They cover merely the subjects above referred to, and do not in any wise restrict the right of the Legislature to impose a tax on assessment companies, nor do they evince a legislative intent not to do so. The only question in the case, therefore, is whether or not section 4226 of the Kentucky Statutes is broad enough to cover assessment companies. By its very terms, it embraces "every life 179 S.W.-65 we think it clear that the Legislature intended to tax the premium income, or the charge for the insurance, regardless of the manner or form of payment or of the name by which it might be called. Here the plaintiff receives from its members in this state dues amounting to $3 per annum on each $1,000 of insurance. These dues are fixed in advance and are payable just as premiums are paid. That they are called "dues" instead of "premiums" is immaterial. They serve exactly the same purpose. Though it does not clearly appear from the petition, we take it that, if the dues be not sufficient to discharge the company's obligation, then additional assessments may be made. When or how often this occurs does not appear. Since the assessments are a portion of the charge for insurance, we conclude that both the assessments and so-called dues should be covered by the report which the company is required to make, and are properly taxable under the statute. It follows that the trial court should have sustained the demurrer to the petition. Judgment reversed, and cause remanded for proceedings consistent with this opinion. EAGAN v. CITY OF COVINGTON. (Court of Appeals of Kentucky. Nov. 19, 1915.) 1. TRIAL 139 EVIDENCE-QUESTION FOR JURY. damages for injuries sustained to her person resulting from a fall into a hole of water in a sidewalk, which, it was alleged, appellee had knowingly and negligently maintained or permitted to exist. The accident, according to the evidence, occurred under the following circumstances: On March 26, 1913, about 5 o'clock p. m., appellant left a street car, upon which she had been a passenger, near the intersection of Third street and Where any evidence is introduced tending to sustain the cause of action set out in the complaint, the case must be submitted to the jury. [Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 332, 333, 338-341, 365; Dec. Dig. 139.] 2. MUNICIPAL CORPORATIONS WAYS-SAFETY-DUTY. 762-PUBLIC The duty of a municipality to keep its streets and sidewalks reasonably safe for travel extends to cases where the unsafe condition is caused by the act of persons other than the agents of the municipality. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1605-1611; Dec. Dig. 762.] 3. MUNICIPAL CORPORATIONS 788-DEFECTIVE STREETS-LIABILITY-KNOWLEDge. A municipality is not liable for injuries due to the unsafe condition of a street or a sidewalk, created by the act of a third person, unless it had, or by ordinary care might have had, knowledge thereof. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1641-1643, 1646, 1652; Dec. Dig. 788.] Crescent avenue, for the purpose of going to her home, about half a square on and beyond Crescent avenue. Third street runs into and ends upon Crescent avenue. On its west side Crescent avenue is bounded by a hill or hills. Third street is the first one reached in entering the city at that point from the Ohio river, and runs parallel with the river. The street cars run along Third street, and upon reaching Crescent avenue turn northwardly. The regular stopping place of the cars is on Crescent avenue at its intersection with Third street, but, as at the time of the accident the Ohio river, owing to frequent heavy rains, was out of its banks, and the presence of a large body of back water from a sewer overflowed Crescent 4. MUNICIPAL CORPORATIONS_788-DEFEC-avenue at the point of its intersection with TIVE WAYS-KNOWLEDGE-LIABILITY. Where plaintiff, while walking along a Third street, the car upon which appellant street partly submerged by an overflow, was in- was a passenger had to turn northwardly jured by falling into a week old water hole cre- and run several yards on Crescent avenue ated by a previous overflow, which defect had before stopping. not rendered the sidewalk unsafe until the day When appellant left the of the accident, and the municipal authorities car she could not, owing to the presence of had no notice or reasonable opportunity to learn the standing water on Crescent avenue, imof its dangerous condition, the city was not lia-mediately cross to the west side thereof withble, since a municipality is not liable for injuries from defects in its ways unless it has actual or constructive notice thereof. [Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. §§ 1641-1643, 1646, 1652; Dec. Dig. 788.] 5. MUNICIPAL CORPORATIONS DENCE-QUESTION FOR COURT. 821- EVI Where but one inference can be drawn from the evidence, the question whether a city is charged with notice of a defective way so as to render it liable to a person injured thereby is for the court. [Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. §§ 1745-1757; Dec. Dig. 821.] Appeal from Circuit Court, Kenton County, Common-Law and Equity Division. Action by Josephine Eagan against the City of Covington. From judgment for defendant, plaintiff appeals. Affirmed. B. F. Graziani, of Covington, for appellant. Fred W. Schmitz and John A. Richmond, both of Covington, for appellee. SETTLE, J. This is an appeal from a judgment of the Kenton circuit court, law and equity division, entered upon a verdict in favor of the appellee, city of Covington, returned by the jury in obedience to a peremptory instruction from the court. The action was brought by the appellant, Josephine Eagan, to recover of the appellee city out wading through the water, nor could she cross Crescent avenue from Third street in a southerly direction, for the same reason. She was therefore compelled to walk along the north side of Third street eastwardly to a point where there was no water between the curbs, in order to cross from the north side of Third street to the sidewalk on the south side thereof, from which she could proceed in a westerly direction to Crescent avenue, where it was sufficiently elevated above the water to enable her to reach its west side and proceed to her home. Third street is paved with brick between the curbing; but the sidewalk on the north side thereof, upon which appellant had to travel, is not paved. After leaving the street car and walking eastwardly on the north sidewalk of Third street a distance of about 40 feet, appellant claimed to have stepped upon two boards which lay upon the sidewalk with one end of each resting upon the curbing. Upon stepping upon the boards they either broke or separated, and she fell between or from them into a hole of water of such depth that her person was completely submerged. She, however, rose with her head to the surface, and succeeded in catching hold of the curbing, to which she clung, until rescued by two young men who came out of a nearby saloon in time to witness the accident. After being taken out of the wa-! contained little or no water. When first ter appellant was carried to her home. It does not appear that any of her bones were broken, or that her body was materially bruised by the fall, but the wetting and shock she received greatly chilled her and caused her to contract a cold, which resulted in rheumatism, and confined her to her room or bed for about three weeks, by all of which she was caused very considerable physical and mental suffering. seen by him, there was space enough north of the hole to enable those traveling the sidewalk to pass it in safety. At that time there were boards lying on the sidewalk and curbing near the hole, but none across or upon it. He further testified, however, that on the day of the accident the sudden rise of the river or overflow of the sewer filled the hole with water, and he then observed for the first time that two boards had been placed across the hole. Leo Harrington, one of the two young men who rescued appellant from the water hole at the time of the accident, never saw or knew of the existence of the hole until the rescue was effected. Henry Wanderla saw the washout or hole about a week before the accident. It was not then filled with water, nor was it so large as on the day of the accident. When first seen by him, there were boards scattered along and upon the sidewalk from Crescent avenue to a point beyond the hole, but there were no boards across the hole, and there was space on the north of it of sufficient width to be used by persons traveling the sidewalk. According to his further testimony, he again saw the hole on the day of the accident, and the two boards lying across it. It was then keep its streets and sidewalks in a reason-filled with water, and the water covered the ably safe condition for persons traveling sidewalk where the hole was situated to The answer of the city is in two paragraphs, the first containing a traverse, and the second a plea of contributory negligence. A reply was filed controverting the plea of contributory negligence, and with the issues thus joined the case went to trial. The peremptory instruction directing the verdict for the appellee city was granted by the court at the conclusion of the appellant's evidence, and we are now called upon to say whether this action of the trial court was or was not error. [1-3] If there was any evidence introduced in behalf of appellant conducing to sustain the cause of action set out in her petition, the case should have gone to the jury; otherwise the nonsuit was properly directed. It is admittedly the duty of a municipality to thereon, and this duty extends to cases where the obstruction or unsafe condition of the street or sidewalk is brought about by persons other than the agents of the city; but in such case the party seeking to recover against the city for a failure to perform such duty must show that it had knowledge of the defect, or might have had knowledge thereof by the use of ordinary care. In other words, the city is not liable for injuries caused by such defects in its streets, in the absence of actual notice thereof, or unless they have existed so long that notice should be imputed to it. Bell v. City of Henderson, 74 S. W. 206, 24 Ky. Law Rep. 2434; Mayfield v. Hughley, 135 Ky. 532, 122 S. W. 838; Canfield v. City of Newport, 73 S. W. 788, 24 Ky. Law Rep. 2213. Appellant introduced six witnesses besides herself. Her testimony only shows how the accident occurred, and that she had no information of the existence of the water hole until she fell therein. Mrs. Canfield testified as to the manner in which the accident occurred and to the effect that she knew nothing about the water hole, other than the fact that she had observed the boards lying across it about an hour before the accident. Mrs. Vandruff saw the accident, but knew nothing of the existence of the hole until the morning of the day the accident occurred, at which time it was not entirely filled with water and was covered by the boards. Clifford Johnson first saw the water hole about two days before the accident. According to his testimony, the hole had within about an inch of the top of the curbing. Anna Williams first saw the hole three or four days before it was filled with water, and knew that it did not become filled with water until the day of the accident. Nearly all of the witnesses mentioned testified that at the time of the accident the water in the hole must have been of the depth of ten or more feet. [4] It is patent from the foregoing evidence that the hole into which appellant fell was caused by a previous rise in the river or overflow of the sewer; that it had not existed for more than a week; that it contained no water of consequence until the day of the accident, when it was filled by a sudden rise in the river or overflow from the sewer ; that down to the day of the accident it was plainly discernible, and that those traveling the sidewalk had sufficient space in the sidewalk to pass it without danger; in other words, that its presence did not make the sidewalk dangerous until the day on which the accident occurred, and we have been unable to find in the record any evidence conducing to show that the authorities of the appellee city had any knowledge or information of its existence prior to the accident resulting in appellant's injuries. This is not strange, as the place of the accident is in a suburb of the city of Covington. It is true one or two witnesses testified that members of the police force of the city occasionally visited that neighborhood, but no witness testified that any of them were seen at or near the place of the accident on the day it of the police force of a defect in a city street | by running over a pile of crushed stone three is only notice to the city when he is charged with some duty with reference thereto. City of Louisville v. Lenehan, 149 Ky. 537, 149 S. W. 932, Ann. Cas. 1914B, 164. It is not apparent from the evidence how or by whom the planks from which appellant fell were placed over the water hole. They were probably floated over the hole by the water that overflowed the sidewalk. At any rate, there was no attempt to show that the planks were placed over the hole by any agent or employé of the appellee city, and neither the facts shown nor any reasonable inference deducible therefrom make it fairly apparent that the exercise of ordinary care on the part of the city authorities would have enabled them to discover the dangerous condition of the sidewalk before the occurrence of the accident resulting in appellant's injuries. In Canfield v. City of Newport, supra, it is in the opinion said: "The appellant, Patrick J. Canfield, brought this suit against the appellee, the city of Newport, to recover damages for injuries which resulted from falling into a manhole in the gutter at the southeast corner of Saratoga and Fifth streets, in the city of Newport, which he alleges the defendant negligently and knowingly permitted to remain open and unguarded. The testimony shows that on a Sunday morning in October, 1899, between 11 and 12 o'clock, some boys took the iron covering from this manhole to release a cat which had fallen into the sewer, and that when they attempted to replace the lid it fell into the hole, which was some nine feet deep; that a citizen who lived in the vicinity immediately place a barrel over the hole and weighted it down with rocks, thus furnishing an effectual barricade against accidents; that it remained in this position during the day, but was removed by some unauthorized person during the following night; that the appellant, Patrick J. Canfield, fell into this hole on Monday morning before daylight, while on his way from his home to the butcher shop. The testimony fails to show at what hour or by whom the barrel was taken from over the hole, or that the city authorities had notice that the covering had been removed. A city is not responsible for accidents which happen in its streets as the result of defects caused by the acts of persons not connected with its government, unless such defect has existed for such a length of time and under such circumstances that the city or its officers, in the exercise of proper care and diligence, ought to have obtained knowledge of it. Elliott on Roads and Streets, § 628; City of Covington v. Asman [68 S. W. 646] 24 Ky. Law Rep. 415. There was no defect in the covering of this manhole before it was interfered with by unauthorized persons, and the placing feet high and eight feet wide. The evidence introduced in his behalf showed that the obstruction was first seen by the witnesses at 5 o'clock that afternoon, three hours before the accident. The trial court, at the conclusion of the plaintiff's evidence, granted a peremptory instruction directing a verdict in favor of the defendant, city of Frankfort. In affirming that judgment we in part said: "In order to render the city liable, it must be shown that it, by exercising ordinary care, could have known of the existence of the ob struction in the street and removed the danger. We cannot say that it is actionable neglect for the city to fail to discover in three hours an obstruction in one of its streets caused by a lot of rock screenings being dumped there. There is no evidence that the city knew of the obstruction, and the bare fact that it had been there for three hours is not sufficient to charge it with liability." In Reed v. City of Detroit, 99 Mich. 204, 58 N. W. 44, it was held that: "Where the evidence for plaintiff showed that she stepped through a hole in a culvert in an outlying residence street, which hole was first seen on the morning before the accident, a verdict should have been directed for the city." In Bell v. City of Henderson, supra, the appellant sued the city of Henderson to recover damages for a personal injury sustained by stepping into a hole in a platform which had, with the permission of the city, been erected by Norris & Lockett, hardware merchants, in front of their business house on First street, in the city of Henderson, the platform extending from the curbing of the pavement across the gutter to the street beyond, it being alleged that the platform was rotten and unsafe, which fact was known to the city, or could by the exercise of ordinary care have been known by it, in time to have prevented the accident. It appeared from the evidence that on Friday evening before the plaintiff was hurt on Saturday night a plank in the platform was broken. A verdict in behalf of the defendant was directed by a peremptory instruction from the trial court. In the opinion it is said: "It was the duty of the defendant [city] to use ordinary care to keep its streets and alleys free from obstructions and in safe condition for persons traveling in the usual modes by day and night. When they permitted Norris & Lockett to erect and maintain a platform in the street, which was liable to be used by pedestrians passing from the pavement to the street, it was as much bound to see that it was kept in good con of a barrel over it appears to have been a rea-dition as if they had erected it themselves. sonable precaution against accidents, although not taken by the city, and no injury would have resulted except for the unauthorized removal of it from the hole some time during Sunday night. The facts in the case do not, therefore, warrant a presumption of negligence on the part of the city of Newport, and we think the trial court properly directed the jury to find a verdict for appellee." In Hazelrigg v. City of Frankfort, 92 S. W. 584, 29 Ky. Law Rep. 207, damages were claimed by the plaintiff (appellant) because of being thrown out of a buggy he was driving along a street of South Frankfort at 8 o'clock p. m., And their liability for defects in the platform is exactly the same as their liability for defects in any other part of the street. But a municipality is not an insurer against accidents to persons using its thoroughfares. It is not liable for injuries caused by defective streets in the absence of actual notice of such defect, or unless they have existed so long that notice or knowledge thereof should be imputed to them. And notice should not be imputed where the defects are of recent origin, and particularly where they are concealed in anywise. Whilst generally the jury should determine as a question of fact whether a city has such notice, yet, where the facts are undisputed, and but one reasonable inference can be drawn from them, it J. P. Hobson & Son, of Frankfort, and W. A. Berry, W. V. Eaton, S. E. Clay, S. H. Crossland, and J. D. Mocquot, all of Paducah, for appellants. J. C. Speight, of Mayfield, T. N. Hazelip and David Browning, both of Paducah, and O'Rear & Williams, of Frankfort, for appellees. HURT, J. At the election held in the state of Kentucky and in the various counties of it on the 2d day of November, 1915, the Republican party had candidates for the various state offices, and in the county of McCracken a candidate for member of the House of Representatives from that county. The Democratic party likewise had candidates for all of the state offices and for a His McCracken county. In the judicial district in which McCracken county is situated there was a Democratic candidate for judge of the circuit court, but no Republican candidate for that office, but there was an independent candidate for the office of circuit judge. The names of all the Democratic candidates were placed upon the ballot under the Democratic device, and all of the Republican candidates were placed under the Republican device, but the name of David Browning, the independent candidate for circuit judge. in the county of McCracken, was placed on the ballot under a device of his own. device was his own picture, and immediately under it was a circle, such as is under the Republican and Democratic devices, respectively, and at the end of his name was a small square, such as follows the name of each candidate whose name was upon the ballot. In Diegels precinct of McCracken county, when the officers of the election came to count the vote and certify the returns of the election from that precinct, there was found 40 ballots which had been cast by voters who had exercised their suffrage, by stamping with the stencil in the circle under the Republican device or the 'Democratic device, and also in the circle under the device of the independent, David Browning, and 11 ballots which had no stencil mark upon them, and one spoiled ballot, making in all 52 ballots, such as are described above. The precinct officers of the election, being in doubt as to how they should count the 40 ballots which were stamped under either the Democratic or the Republican device, and also in the circle under the device of the in * * * 99 becomes a question for the court to decide., ilar action by Edwin P. Morrow and others City of Corbin v. Benton, 151 Ky. against John Thompson and others. Judg. 483, 152 S. W. 241, 43 L. R. A. (N. Š.) 591. ment for plaintiffs, and defendants appeal. Affirmed. [5] Applying the principle announced by the authorities supra to the facts of this case, they were not, in our opinion, sufficient to authorize its submission to the jury; and while, ordinarily, whether a city has had such notice of a defect in a street or sidewalk as to charge it with liability is a question for the jury, yet, where but one inference can be drawn from the facts, the question is for the court. In our opinion, there was no error in the giving of the peremptory instruction directing a verdict for appellee; therefore the judgment is affirmed. GRAHAM et al. v. TREADWAY. THOMPSON et al. v. MORROW et al. (Court of Appeals of Kentucky. Nov. 18, 1915.) member of the House of Representatives from 1. INJUNCTION 80- OFFICERS — DUTIES MANDATE. Precinct election officers can be compelled to perform their omitted duty to accompany the return of ballots to the county clerk with a statement showing whether and how contested ballots have been counted, since the rule that contested ballots cannot be considered in an election contest, has been abrogated by the statute requiring all ballots to be preserved. [Ed. Note. For other cases, see Injunction, Cent. Dig. § 151; Dec. Dig. 80.] 2. ELECTIONS 299-QUESTIONED BALLOTS— WHEN COUNTED. Questioned ballots properly preserved and untampered with will be counted by the court in an election contest, whether or not accompanied by the statement required of the precinct officers by Ky. St. § 1482, showing whether and how they were counted; it being the policy of the law not to permit the disfranchisement of voters through the mistakes of election offi cials. [Ed. Note. For other cases, see Elections, Cent. Dig. §§ 306, 307; Dec. Dig. 299.] 3. ELECTIONS 260-COMMISSIONERS-QUESTIONED BALLOTS-AUTHORITY. Election commissioners are not authorized to canvass questioned ballots unaccompanied by the statement as to whether they were counted and how, required of precinct officers by Ky. St. § 1482. [Ed. Note. For other cases, see Elections, Cent. Dig. § 236; Dec. Dig. 260.] 4. INJUNCTION 80-OFFICERS MINISTERIAL DUTIES-MANDATE. Mandatory injunction is a proper remedy to require the performance of purely ministerial duties by precinct election officers. [Ed. Note.-For other cases, see Injunction, Cent. Dig. § 151; Dec. Dig. 80.] 5. INJUNCTION 80-OFFICERS-DISCRETIONARY DUTIES-MANDATE. Duties of election commissioners involving the exercise of discretion will not be enforced by mandatory injunction. [Ed. Note. For other cases, see Injunction, Cent. Dig. § 151; Dec. Dig. 80.] Appeal from Circuit Court, McCracken County. Action by R. R. Treadway against Z. C. Graham and others, consolidated with sim dependent candidate, did not count them at all as having been cast for any candidate, but, with the 11 unmarked ballots and the spoiled ballot, placed them in the envelope, which is marked "Questioned Ballots," but on account of their volume they could not |