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close or seal the envelope, but placed it in from the Diegels precinct or the Plow Facthe ballot box along with the other returns, tory precinct, presumably for the reason of and delivered it to the clerk of the county the absence of a statement signed by the ofcourt on the evening of the day of the elec- ficers as to whether they had or had not tion. They did not accompany the question-counted the questioned ballots, and, if they ed ballots with any certificate signed by were counted, what part of them had been them stating whether or not the ballots or counted, and for whom they were counted. any of them had been counted, or were not The board of election commissioners was counted, or as to whom, or which of them about to complete its canvass of the returns were counted in the canvass which they had of the election in the county, and to adjourn made of the votes cast at the precinct. and issue certificates of election, when R. R.

On the same day, at the Plow Factory pre- Treadway, who was the Republican candicinct, in McCracken county, after the polls date for member of the House of Represenhad been closed, when the precinct officers tatives from McCracken county, instituted proceeded to canvass and certify the result this suit again Z. C. Graham, his Democratic of the election at the precinct, they found, opponent, and the precinct election officers among other ballots in the ballot box, 35 who had served at Diegels precinct and the ballots which the voters casting them had Plow Factory precinct, the members of the exercised their right of suffrage by stamping board of election commissioners, and the clerk with the stencil in the circle under the Dem- of the county court, in which he set up the ocratic device or the Republican device, and failure of the precinct election officers to peralso in the circle under the device of the inform their duties with regard to the quesdependent candidate. The precinct officers tioned ballots, by sealing them in envelopes did not count these ballots as being cast for and returning a statement signed by them as any one, but placed them in the envelope up- to whether they were counted or not counton which was printed the words "Questioned ed by them in their canvass of the ballots at Ballots.” They then sealed the envelope, and their respective precincts, and that the board at the point of the seal on the envelope each of election commissioners were refusing to of the officers of the election wrote his name. consider or to count these ballots, and that, This envelope was then placed in the ballot if they should fail to do so, he would be debox along with the other election returns feated for the office of member of the Legisfrom that precinct and locked, and delivered lature, to which he alleged he had been electto the clerk of the county court immediate- ed, and sought a mandatory injunction ly after the close of the polls on that eve against the precinct officers requiring them ning. The precinct officers of the election to convene and to secure the questioned baldid not accompany the envelope nor attach lots for their precincts, respectively, and to to it a statement or certificate signed by them place them in an envelope, and to seal the showing whether they had included in the envelope as required by law, and to make count of the votes cast in the precinct the out a statement by which they would certiquestioned ballots, or had not included them fy as to what had been done in regard to in that count, or whether they had counted counting the ballots which were returned as them for any one, or for whom.

questioned by them, and would deliver the The county court clerk and his deputy, ballots and the certificate to the clerk of the when the ballot boxes were delivered to them, county court or the board of election comcaused them to be unlocked, and took from missioners, and that the board of election the boxes the stub books and the envelopes commissioners should then be required to containing the questioned ballots, and tied convene and to complete the canvass of the them in a bundle with a heavy cord and de- returns of the election, and to enjoin them posited them in the vault of the clerk's of- from delivering a certificate of election to fice.

Z. C. Graham, his opponent, until the reWhen the board of election commission- turns of the election could be completed and ers convened on Friday, following the elec- canvassed, as above requested. tion on Tuesday, it convened in a room which The Republican candidates for the state ofadjoins the vault of the clerk's office in which fices also filed their petition against their the election returns were deposited and kept Democratic opponents and the precinct offiby the clerk. The board of election commis- cers at Diegels and Plow Factory precincts, sioners proceeded to canvass the returns of the members of the board of election comthe election at that time by calling upon the missioners, and the clerk of the county court, clerk for the returns of one precinct at a in which they made substantially the same time, and when the returns from that pre- allegations and sought the same relief as cinct had been canvassed, they were return- was sought by Treadway in his action, except ed to the vault of the clerk's office, or were they asked that the election commissioners be placed in a pile upon the table at which the enjoined from certifying the returns from election commissioners were sitting while en- the election as to any one until further orgaged in their work. The board of election dered. The defendants filed answer in each commissioners refused to consider or to make case traversing the allegations of the petibefore a special judge of the McCracken cir- ! questioned or disputed ballots will not be cuit court on the 11th day of November, 1915. counted when the precinct election officers A temporary restraining order was obtained have not accompanied them with a statement in each case restraining the members of the which shows whether or not they have been board of election commissioners from com-counted in the tabulation made by them in pleting the canvass of the returns and certi- their canvass of the votes at the precincts, fying the result of the election of the coun- and, if counted, for whom they were countty until further ordered by the court, and, in ed, and for such reason the precinct election the case of Treadway v. Graham, from is- officers, after they have returned them to suing a certificate of election to Graham the clerk of the county court without such until the further order of the court. The statement, ought not thereafter to be comtwo cases were consolidated and heard to pelled to do what by law it was their duty gether.

to do in the first instance. The evil effects The court, upon the trial of the motion of a rule which would permit election offibelow for a mandatory injunction, heard all cers, either from ignorance or fraud, to fail the evidence offered by either side, includ- to do the duties required of them by law ing the testimony of the county court clerk in the return of ballots about which they and his deputy, the members of the board of may have or pretend to have doubts as to election commissioners, and the precinct of- how they should be counted, is easily disficers who held the election at the precincts cernible. It is true that it has been held by from which the questioned ballots in contro- this court, in the cases of Struss v. Johnson, versy were returned. At the conclusion of 100 Ky. 319, 38 S. W. 680, 18 Ky. Law Rep. the trial it rendered a judgment granting the 771, Edwards v. Logan, 114 Ky. 312, 70 S. W. prayer of the petition for a mandatory in- 852, 75 S. W. 257, 24 Ky. Law Rep. 1099, junction requiring the precinct election offi- 25 Ky. Law Rep. 435, Childress v. Pinson, 100 cers at Diegels and Plow Factory precincts S. W. 278, 30 Ky. Law Rep. 767, Anderson to convene at the office of the county court v. Likens, 104 Ky. 699, 47 S. W. 867, 20 Ky. clerk on the 16th day of November, 1915, and Law Rep. 1001, Cole v. Nunnelly, 140 Ky. to obtain from the clerk, who was ordered 138, 130 S. W. 972, Banks v. Sergent, 104 Ky. to deliver them to them, the uncounted bal- 849, 48 S. W. 149, 20 Ky. Law Rep. 1024, lots which were returned by them, respec- Neeley v. Rice, 123 Ky. 806, 97 S. W. 737, 29 tively, and to place the ballots in envelopes, Ky. Law Rep. 1142, Duff v. Crawford, 124 to seal same, and to write their names across Ky. 73, 97 S. W. 1124, 30 Ky. Law Rep. the seal, and at the point of the seal indi- 323, and others, that questioned ballots, uncated for that purpose, the judges of the elec- accompanied by a statement from the pretion, in the presence of the clerk and sher-cinct officers of the election as to whether or iff, to place the county election seal in hot not they had counted them, and, if so, for wax so that it can be plainly read, and to whom, would not be considered in a suit conreturn the same to the county clerk with a testing an election. This rule had its origin true statement as to whether the questioned at a time when the law required the balballots have or have not been counted, and lots which were counted to be at once de

, if counted, what part and for whom, and stroyed by the precinct officers, and thus, if then the election commissioners were ordered unaccompanied by a statement as to whethto convene on November 16, 1915, at 1 o'clock er or not questioned ballots had been countp. m. and complete the canvass of the elec- ed, it was impossible to know whether they tion returns for the county, and to certify should be added to or taken from the numsame according to law. The appellants ex- ber of votes which were certified, as having cepted to this judgment, and prayed an ap- been received by a candidate at an election. peal to this court, and by agreement of par- The law now, however, provides that all of ties the cases were set upon the docket and the ballots shall be preserved and kept, and, agreed to be heard and decided at once. it now being possible in a contested election

The evidence in the case shows without to count all of the ballots, the rule adhered question that the questioned ballots were not to in the cases supra has become unnecessary. counted by the precinct election officers in In the recent case of Snowden v. Flanery, the canvass and tabulation made by them of 159 Ky. 574, 167 S. W. 896, the court, considthe votes cast at their respective precincts, ering this question, said: and the board of election commissioners has "Upon a reconsideration of the matter, howrefused to canvass them. We will not un- ever, we have reached the determination that dertake to detail all the evidence heard when upon a contest the ballot boxes are openbearing upon the question of the preservation questioned ballots, although they may not be

is of the questioned ballots, but suffice to say certified in such a manner as to authorize the that they have at all times since their deliv- canvassing board to consider them, if they are ery to the clerk on the evening of the elec- counted by the court; for in that event there is

otherwise properly preserved, they may be tion been in the custody and under the con- no necessity for a certificate showing whether, , trol of the clerk and election commissioners, and, if so, how, the questioned ballots were so far as the evidence discloses.

counted by the precinct election officers." [1] It is insisted that the judgment should [2, 3] It would now seem that the proper

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tioned ballots have been so preserved that anything of the election officers, except such they have not been tampered with, they should duties as are ministerial, and such duties as be counted, whether accompanied by a state- by law are required of them, and which they ment of the officers or not, as required by have failed to perform. section 1482, Ky. Statutes. The policy of the The judgment is therefore affirmed. law of this state has always been not to permit mistakes of the election officers to disfranchise the voters or to defeat the will of

IMPERIAL JELLICO COAL CO. v. FOX. the people expressed at the ballot box, where the truth of the matter is apparent. There (Court of Appeals of Kentucky. Nov. 23, 1915.) is an absence of all proof or insistence that 1. JURY 75-IMPANELING-STATUTE. the ballots have been tampered with or chang- Ky. St. § 2261, providing that the court ed since they were delivered to the clerk. may discharge the regular first panel of a jury From the proof in the case, as it now appears, panel another jury as provided in the chapter,

after they shall have served one week and imthe ballots have been so preserved that they authorizes trial courts to discharge only the should be canvassed. If they should be regular first panel of the jury after they shall counted, then they ought to be put in such Under it courts are without authority to dis

have served one week and to impanel another. condition that the board of election commis- charge the latter jury thus impaneled after a sioners may lawfully consider and canvass week's service and impanel a jury for the sucthem. This court has frequently held that ceeding week, and to continue the practice for

each week of the term. election commissioners are not authorized to

TEd. Note. For other cases, see Jury, Cent. consider or canvass questioned ballots, unless Dig. 88 384-390; Dec. Dig. Om75.] the statement required by section 1482, Ky. 2. MASTER AND SERVANT Cm 217–INJURIES TO St., accompanies them. Potter v. Campbell, SERVANT-ASSUMPTION OF OBVIOUS RISK. 155 Ky. 784, 160 S. W. 763; Booe, County Where a coal miner engaged in "robbing" Judge, v. Kenner, 105 Ky. 517, 49 s. w. 330, pillars noted that the roof was dangerous, and 20 Ky. Law Rep. 1343; Houston v. Steele, 98 the miner, coming to the conclusion that it

his "buddy" tested the same with his pick, but Ky. 596, 34 S. W. 6, 17 Ky. Law Rep. 1149. would stay up while they undercut the coal,

[4, 5] A proceeding by a mandatory injunc- stated that they could try it, the roof falling tion is a proper remedy to require election on him, necessitating the amputation of his

foot, he could not recover for the injury, since, officers to perform their duties. The duty of where the danger is so obvious to a servant that the precinct officers to inclose the questioned no man of ordinary prudence would continue ballots in an envelope, to seal it up, write their work under the circumstances, the servant asnames across the seal, place the county elec-sumes the risk in undertaking to work.

[Ed. Note.-For other cases, see Master and tion seal in hot wax at the point of the seal, Servant, Cent. Dig. 98 574-600; Dec. Dig. Om and return a statement as to whether they 217.] have or have not counted them, and, if count

Appeal from ed, what part and for whom, are ministerial

Circuit Court, Whitley duties, about which they exercise no discre- County. tion. They exercised their discretion when

Suit by John Fox against the Imperial Jelthey determined not to count the ballots. lico Coal Company. Judgment for plaintiff, The election commissioners can be lawfully

and defendant appeals. Reversed. required to canvass the returns of an elec- Tye, Siler & Gatliff, of Williamsburg, for tion, and to canvass the questioned ballots, appellant. Golden & Lay, of Barbourville, when they are accompanied by the proper for appellee. statement. As to how they shall count them, or whether they shall be counted at all, if the

MILLER, C. J. The appellee Fox brought

, purpose of the voter is not expressed upon the this suit to recover damages for personal inballot, or if it is not intelligible, are matters juries received by him while at work for the within the discretion of the election commis-defendant in pulling stumps and pillars in sioners, and the court will not control their its coal mine. Fox was 38 years old, and discretion. Potter v. Campbell, 155 Ky. 784, of more than 12 years' experience as a miner. 160 S. W. 763; Riddell v. Childers, 156 Ky. The work of pulling stumps and pillars, 315, 160 S. W. 1067; Richardson v. Grin-sometimes called "robbing” work, consists stead, 156 Ky. 319, 160 S. W. 1069; Denny in removing the pillars of coal that have v. Bosworth, 113 Ky. 785, 68 S. W. 1078, 24 been left standing as a support to the roof of Ky. Law Rep. 554; Bennett v. Richards, 83 the mine while the ordinary work of mining S. W. 154; Mason v. Byrley, 84 S. W. 767, was going on. That it is very dangerous 26 Ky. Law Rep. 487; Anderson v. Likens, work is well known to any experienced miner. 104 Ky. 699, 47 S. W. 867, 20 Ky. Law Rep. In this case a piece of slate had been hang1001; State v. Gibbs, 13 Fla. 55, 7 Am. Rep. ing from the roof for some time, and had 233; State v. Pigott, 97 Miss. 599, 54 South. been noticed by Fox, as well as by Harp, his 257, Ann. Cas. 19120, 1254; cases cited in "buddy." Fox and Harp, accompanied by note to State et al. v. Jackson & Prather, 36 Mays, whom they had employed to operate L. R. A. (N. S.) 1091. The court below does their cutting machine, began work on the not seem by its judgment to have required pillar in question about 8 o'clock in the eve

ning. Fox and Harp examined the projecting had been asking for props for about two slate in the roof, and Harp struck it several weeks. Appellant concedes it to be a sound times with his pick, to ascertain its condi- proposition of law that if the slate, without tion; Fox standing by and looking on. Harp being molested, had fallen upon and injured says he found the roof "about half and half,” the plaintiff, then, in the light of the proof, meaning that the center of the projecting he should recover; but that when Fox, by his slate was “drummy," while around the edges own act, and without notice to the company, it was hard or solid. Harp undertook to made the place more dangerous, and was pull the slate down, and did remove a small injured by reason thereof, no recovery should part of it. Harp finally said he believed the be allowed him. In other words, defendant slate in the roof would stand until they could insists that since plaintiff bases his right of finish their work at that place. Whereupon recovery on the failure of the company to Fox said; “I don't know; we can try it.” furnish props so that he might make safe a They at once began to operate the machine, dangerous roof which he thereafter examundercutting the coal, thereby causing the ined, and, after having reached the concluslate "to take on more weight"; and, in about sion that it would not fall within a certain 40 minutes later, four or five carloads of length of time, he went to work during that slate fell from the roof, mashing Fox's left time, with a machine undercutting the coal, foot to such an extent that it became neces- and thereby caused the slate to take weight, sary to amputate the foot at the arch. He become more dangerous, and fall upon plainrecovered a judgment for $1,000, and the tiff, he, himself, was the sole cause of the accompany appeals.

cident and cannot recover. The plaintiff based his cause of action on It should be borne in mind there was no the failure of the company to furnish props assurance upon the part of the mine boss, after having been requested so to do. The or anybody representing the company, that testimony for plaintiff shows there was one the place was safe; on the contrary, Fox prop at his working place, but he claims it and Harp both say they examined the roof was about 18 inches too long, and could not and came to the conclusion that it would be used without being cut off.

hold until after they had finished their work, [1] 1. The judgment will have to be re- and that they would take that chance. On versed on account of the error of the circuit the other hand, they say they had called for court in requiring the appellant, over its ob- props, and that the mine boss had promised jection, to try this case before a jury taken to furnish them, but had failed to do so; from the third panel selected by the court and Harp and Fox both say it was their during its May term, 1914. Under section duty to do the propping of the roof in the 2261 of the Kentucky Statutes, trial courts place in question. So the case finally comes are authorized to discharge only the regular to the proposition that, although the plaintiff first panel of the jury after they shall have had called for props and had not received served one week, and impanel another jury; them, yet, is he entitled to recover where he they are without authority to discharge the proceeded to work, after satisfying himself, second jury thus impaneled after a week's from an examination of the roof, that he service, and impanel a third jury for the could afford to take the chance of its fallsucceeding week, and thus continue this prac- ing? We think not. tice for each week of the term, as seems to The rule is well settled that, where the have been the practice in the Whitley cir- danger is so obvious to the servant that no cuit. This precise question was before the man of ordinary prudence would continue to court in Louisville & Nashville R. Co. v. work under the circumstances, the servant Owens, 164 Ky. 557, 175 S. W. 1039, and assumes the risk if he undertakes the work, again in Louisville & Nashville R. Co. v. and the master is not liable if injury results. Messer, 165 Ky. 506, 176 S. W. 1200; and, in And we are of opinion this case comes within each case, the action of the court in discharg- that rule. The failure of the company to ing the second panel and impaneling another furnish props, even though that fact be conjury, as was done in this case, was held to be ceded, did not prevent the operation of the a reversible

But, as the case will rule above announced, since it was the plainhave to be retried, it is proper to consider tiff's duty, in protecting himself, to decline at least one of the other alleged errors, in to work when the danger was as obvious as order that it may hereafter be avoided.

he describes it. [2] 2. Appellant insists that its motion for Appellant's motion for a peremptory ina directed verdict in its favor, at the end of struction should have been sustained; and, all the evidence, should have been sustained. under this view of the case, it becomes un

The proof shows that the slate had been in necessary to consider the alleged the condition in which Fox and Harp found the instructions. it for at least a month, and Harp says he Judgment reversed.

Appeal from Circuit Court, Jefferson CounLOUISVILLE TRUST CO. v. BAYER ty, Common Pleas Branch, Third Division. STEAM SOOT BLOWER CO.

Action by the Bayer Steam Soot Blower (Court of Appeals of Kentucky. Nov. 17,

Company against the Louisville Trust Com1915.)

pany. Judgment for plaintiff, and defendant 1. SALES Cw16842-SATISFACTION OF BUYER-appeals. Affirmed. TEST-DUTY,

Wehle & Wehle, of Louisville, for appelWhere, in an action to recover the price of soot blowers, it appeared that under the

lant. Grubbs & Grubbs, of Louisville, for purchase contract defendant was allowed six appellee. months in which to try them, agreeing to pay at the end of that time if the blowers proved satisfactory, an answer seeking to excuse a

CLAY, C. Plaintiff, Bayer Steam Soot failure to try the blowers on the ground that Blower Company, a Missouri corporation, they had proven unsatisfactory to other cor: brought this action against the Louisville porations haying similar boiler pressure, and that defendant, to save the useless expense of Trust Company to recover $330, the price of installation, treated them in good faith as un- two soot blowers which it furnished defendsatisfactory, was bad, since it was defendant's ant for use in its office building. Judgment duty under the contract to determine the suffi- was rendered on the pleadings in favor of ciency of the blowers by actual test.

[Ed. Note.-For other cases, see Sales, Cent. plaintiff, and the defendant asks that an apDig. 88 409_421; Dec. Dig. w16872.]

peal be granted.

The contract between the parties was en2. EVIDENCE O 441-PAROL EVIDENCE.

The contract A demurrer was properly sustained to detered into on August 1, 1913. fendant's answer alleging that at the time the provided, in substance, that the Louisville contract was made plaintiff agreed to send a Trust Company was to have the privilege of man to help installation, and charging a failure trying the blowers for a period of six months, So to do, since a collateral parol agreement cannot vary the terms of a previous written dating from the date of receipt of the blowcontract, unless omitted therefrom through fraud ers, and, if at the end of that time it was or mistake.

not satisfied and did not desire to retain [Ed. Note.--For other cases, see Evidence, the blowers, they would be removed by plainCent. Dig. $$ 1719, 1723-1763, 1765–1845, 20302047; Dec. Dig. 'ew 441; Sales, Cent.' Dig. stiff at its expense. The contract also pro721.]

vided that, if the blowers did not prove sat3. SALES O 347ACTIONS-PLEADING-WANT isfactory, the trust company was to notify OF CONSIDERATION.

plaintiff to that effect in writing within ten A demurrer was properly sustained to de- days after the expiration of the trial period; fendant's third paragraph of the answer, alleging that after the suit was in issue defend otherwise the purchase price was to become ant offered to perform the contract if plaintiff due and payable six months from the date of would send a helper, which plaintiff agreed to the receipt of the blowers. do, and charging plaintiff's failure to perform, with a loss of $48 expended by defendant on

The petition was filed on August 17, 1914. the faith of such agreement, since plaintiff's After setting out the contract between the right under the original contract had already parties, it states that the two blower systems accrued, and the agreement set up was without were delivered to defendant in the month consideration. [Ed. Note.-For other cases, see Sales, Cent.

of August, 1913, and although defendant had Dig. 88_962–972; Dec. Dig. Om 347; Contracts, had ample opportunity after receiving the Cent. Dig. § 1196.]

machinery to give the system a fair trial, it 4. COMMERCE 40INTERSTATE COMMERCE

had never given the system any trial whatFOREIGN CORPORATION - ACTS OF SALES' ever, but had retained the machinery in its AGENT-EFFECT.

possession ever since its delivery. Defendof business in the state and selling machines ant answered in three paragraphs. through traveling agents, who send their orders By the first paragraph it pleaded, in subto the home office, whence the goods are shipped, stance, that it failed to make a trial of the is engaged in and the transaction is one of inter- blower system, because it had ascertained state commerce unaffected by the fact that the salesman measures the building and the pro

that the system had been tried by other corposed location therein of the machine.

porations in the city of Louisville having [Ed._Note.-For other cases, see Commerce, a similar boiler pressure to that of defendCent. Dig. $$ 29, 30; Dec. Dig. Om40.]

ant's plant, and that the soot blowers were 5. COMMERCE @80—FOREIGN CORPORATIONS' found unsatisfactory, and had to be removed ACT-OPERATION SERVICE OF PROCESS. and returned to St. Louis; that to install the

Since Ky. St. § 571, requiring foreign corporations to maintain an agent in the state to system would have entailed an expense of receive service of process as a condition pre- from $150 to $160, which, in view of the excedent to doing business therein, prevents a perience of other concerns having a similar noncomplying corporation from recovering on boiler pressure to that of plaintiff, would a contract made in the prosecution of its business in the state, it is inoperative as to inter- have been a useless waste; that, for this state commerce transactions, in that it im- reason, defendant failed to make the conposes an unreasonable burden on interstate com- nections and give the machinery a trial, and merce, in conflict with the commerce clause of considered and treated the blowers in good the federal Constitution.

[Ed. Note. For other cases, see Commerce, faith as unsatisfactory to itself, and offered Dec. Dig. Om 80.]

to return same to plaintiff.

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