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contract and deed, yet the testimony of the appellant stoutly denied that he had failed in any respect to provide for the appellee and her mother the necessaries of life, and that he was at all times affectionate and attentive to them, and secured for them all the help they needed, and, in short, fully complied with his contract to support and maintain them. Therefore, as already stated, if it were only a question as to whether or not appellant had complied with his contract to provide the necessary food and clothing for the appellee and her mother, the burden being upon the appellee, it could hardly be said that she had shown by the preponderance of the evidence that the appellant had breached his contract and that the consideration for the deed had failed. But the obligation of appellant to support and care for his grandmother and aunt during the remaining years of their lives, written as the express consideration in the deed, included not only the duty to furnish them food and clothing but also the duty to provide for them a home suited to their condition in life where they could live with comfort. would be idle to say that he complied with his contract by merely administering to their physical necessities when by his conduct he had made it impossible for them to use or enjoy these necessities in ease and peace, and had actually rendered their condition in


times, much of which is exceedingly revolting, and clearly shows, if true, that appellant instead of providing for appellee a home where she could live comfortably, had made her home a rendezvous for his own and his associates' dissipation, and by so doing had rendered her condition in life wholly intolerable.

While appellant in his testimony categorically denies these alleged charges of drunkenness and misconduct, we are convinced from his own testimony and the testimony of other witnesses that these allegations are in the main sustained. The testimony of the appellant, himself, shows that he contracted the habit of drink as early as 1904, long before the death of his grandfather. While he denied that he ever drank whisky at any time to an extent to cause him to neglect his business, and denied that he ever drank on the place, yet his own brother, who lived with them continuously during the year 1915, testified that he saw appellant there drunk or intoxicated a good many times and quarreling with the appellee three or four times; that he came in after night in an intoxicated condition and brought others with him, whom witness presumed to be drinking. One witness, who lived with them in 1909, and who lived a little over one-half mile from them in 1910, 1911, and 1912, and was about the house a good deal and witnessed the conduct of appellant, saw him drinking and keeping In addition to the allegation that appel-ers with him intoxicated frequently in the whisky there all the time; saw him and othlant had failed to provide appellee and her presence of the appellee; heard him say he mother "with all the necessary conveniences built the little parn, back of the house, to and comforts of life" appellee alleges that: lock his whisky up in; heard him talking Appellant "would frequently return home loud and making noises; had seen crowds drunk or in an intoxicated condition, and sometimes bring others with him in a like condition over there a few times on Sundays and a few and be boisterous and abusive and insulting to times had heard shooting and hollering on the plaintiff and subject her and her aged moth- Sundays like drunken fellows. Another witer to great indignities and humiliation; that his ness testified that more than once he had continued acts of neglect, dissipation, and abuse of plaintiff have been kept up until it has be- been over there and every time appellant had come intolerable and unbearable; that he quar- whisky and would be drinking. reled with plaintiff, called her bad names, ap- The testimony discloses, therefore, that the plied to her vile epithets, accused her of stealthily slipping things away from the place, and has year after appellee had executed the deed become so depraved that he often, when they appellant began to drink to excess, and that were at home alone, solicited plaintiff to commit the appellee remonstrated with him and incest by cohabiting with him; that his drunk-endeavored to reform him and that he conenness and inhuman conduct have become unbearable for plaintiff and for her own personal safety she has been compelled to leave her home and seek protection among her relatives."

life intolerable.

The court found among other things that appellant by his conduct towards appellee "has rendered her condition with him intolerable and unbearable." The testimony of the appellee, herself, tends to prove specifically all these allegations. She testifies that after the execution of the deed and as early as 1910 the appellant began to drink whisky; he would go off and come home intoxicated and be very ill; he got worse every year; she would remonstrate with him and he would answer her in a very rough manner, telling her that it was none of her business. She described fully many of his debaucheries and his conduct during those 203 S.W.-19

tinued, notwithstanding, until his drunkenness, and misconduct towards appellee produced thereby, became such as to render her condition intolerable. The doctrine of laches and estoppel has no application to such a state of facts. The aunt could not be considered guilty of laches because she endeavored by persuasion to have her wayward nephew abandon his drink habit, which was manifestly the cause of his neglect of herself and mother, and his bad treatment of her. She could not be estopped because she had not upon the first occasion of his drunkenness and neglect declared his contract forfeited and taken steps to cancel the deed. If appellant had at any time yielded to the admonitions and entreaties of his aunt and had abandoned his cups and shown a willingness to com

ply with his contract, then the appellee would | intention from the inception of the contract, have had no cause of action against him. and therefore vitiates the deed based upon Therefore it cannot be held that appellee such consideration. Such contracts are in a would be estopped because through several years she endured the profligacy of her nephew in an effort to reform him and to obviate the necessity of having to resort to the law in order to secure her rights under the contract and deed.

[5] This court is committed to the doctrine, which is supported by the great weight of authority, as announced in 4 R. C. L. p. 509, § 22, that:

"Where a grantor conveys land, and the consideration is an agreement by the grantee to support, maintain, and care for the grantor during the remainder of her or his natural life, and the grantee neglects or refuses to comply with the contract, that the grantor may, in equity, have a decree rescinding the contract and setting aside the deed and reinvesting the grantor with the title to the real estate." Salyers v. Smith, 67 Ark. 526-531, 55 S. W. 936; Priest v. Murphy, 103 Ark. 464, 149 S. W. 98; Whittaker v. Trammell, 86 Ark. 25, 110 S. W. 1041.

class peculiar to themselves, and where the grantee intentionally fails to perform the contract, the remedy by cancellation, as for fraud, may be resorted to, regardless of any remedy that the grantor may have had also at law. See Salyers v. Smith, supra; 4 R. C. L. supra; Russell v. Robbins et al., 247 Ill. 510, 93 N. E. 324, 139 Am. St. Rep. 342; Luther Stebbins v. Joseph Petty et al., 209 I'l. 291, 70 N. E. 673, 101 Am. St. Rep. 243; Spangler et al. v. Yarborough, 23 Okl. 806, 101 Pac. 1107. See, also, Bruer v. Bruer, 109 Minn. 260, 123 N. W. 813, 28 L. R. A. (N. S.) 608; Abbott v. Sanders, 80 Vt. 179, 66 Atl. 1032, 13 L. R. A. (N. S.) 725, 130 Am. St. Rep. 974, 12 Ann. Cas. 898; Glocke v. Glocke, 113 Wis. 303, 89 N. W. 118, 57 L. R. A. 458. See, also, case note 43 L. R. A. (N. S.) 918-925.

The findings of the court that the personal property involved was the property of the appellant, and that appellant had received rents and profits sufficient to pay him for the improvements which he had placed upon the land, are correct. We find no reversible error in the record, and the decree is therefore

[6, 7] The rationale of the doctrine is that an intentional failure upon the part of the grantee to perform the contract to support, where that is the consideration for a deed, raises the presumption of such fraudulent affirmed.

(180 Ky. 572)


Members of a second crew pushing and dumping slag cars outside a mine were not fellow servants of a member of the first crew in like work, against whom, to his injury, they pushed their car.


that the men pushing this second car were fellow servants of Paradise. And so, as the negligence if any of the men pushing the second car was taken out of the case, the jury must have found a verdict for Paradise upon the ground that the track was unsafe.

[1] If, however, the men pushing the second car were guilty of negligence, and his injuries were the result thereof, the company 1201(6)-PLEADING was liable to him for any injury sustained thereby, and there is no dispute about the fact that the injuries he sustained were caused by the collision of this second car with him. The men pushing the second car were not fellow servants of Paradise. See Cummins v. W. J. Sparks Company, 173 Ky. 803, 191 S. W. 515; Harris v. Rex Coal Company, 177 Ky. 630, 197 S. W. 1075.

-AMENDMENT-AFTER REMAND. Where a servant sought damages for injuries under the safe place doctrine, but the evidence failed to show negligence, and other evidence showed that the injury resulted from acts of coemployés, not fellow servants, plaintiff, on remand after reversal, should be allowed to amend so as to seek recovery for negligence of the coemployés.

Appeal from Circuit Court, Floyd County. Action by Mike Paradise against the Elk Horn Mining Corporation. Judgment for plaintiff, and defendant appeals. Reversed,

with instructions.

Allie W. Young, of Morehead, Ed. C. O'Rear, of Frankfort, and Smith & Combs, of Prestonsburg, for appellant.

CARROLL, J. Paradise was injured while working for the Elk Horn Mining Corporation, and in this suit to recover damages there was a judgment in his favor for $750, and the company appeals, insisting that there should have been a directed verdict in its favor, and that the verdict was excessive. The accident happened in this way: The mining company had constructed a short single track railroad for the purpose of hauling, in little cars pushed by men, slate and

rubbish from the mouth of a mine that it was developing to a place not far from the mouth where this useless material could be dumped. When Paradise was injured, he and two other employés were pushing a load of refuse from the mine to the dump, and it appears that on account of an elevation in the track they had some difficulty in pushing the car over this place, and in fact were apparently unable to do so. While they were making an effort to push the car over this elevation, another similarly loaded car coming behind them, and also pushed by men, ran into and struck Paradise.

This suit was brought upon the theory

that the track was unsafe, and therefore the mining company had failed to furnish Paradise a safe place in which to work, and on this theory of the case it was submitted to the jury, but we do not think the evidence in this record shows that the company was guilty of any negligence in this respect. Saulsbury v. Elkhorn, C. C. & C. Company, 174 Ky. 324, 192 S. W. 20. The court also instructed the jury that there could be no recovery by Paradise if his injuries were sustained by or on account of the acts and conduct of the men who were pushing the car that ran into him, and this upon the ground

[2] As evidence was not sufficient to sustain the finding of the jury, the case must be reversed, but upon its return to the lower

court the plaintiff should be permitted to amend his petition if he so desires, and in addition to the ground of negligence relied on in the petition seek a recovery upon the ground that Paradise was injured by the negligence of the men pushing the second car, and if there is evidence to support this averment, the case should go to the jury upon this issue. It should, of course, also be submitted on the issue of unsafe place if the plaintiff can make out on this issue a better case than he made on the last trial, and a case that would authorize a submission on this issue.

Wherefore the judgment is reversed, with instructions for a new trial in conformity with this opinion.

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For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

on certificates made pursuant to subsection 15,
and counterclaim for excess payments made pur-
suant to such estimates, were not demurrable.

The court abused its discretion in refusing,
on the ground that it came too late, to permit
defendant to file a second amended answer,
where on the day that it overruled the motion
therefor it thereafter permitted plaintiff to file
a demurrer to the first amended answer and a
reply to original answer and counterclaim.
Unless it appears from the record that
amended pleading was rejected for want of cer-
ification, failure to verify will not upon appeal
be treated as a sufficient ground for its rejec-
tion in view of Civ. Code Prac. § 139, providing
that courts may in their discretion permit
amendments without verification unless a new
and distinct cause of action or defense be there-
by introduced.

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Action by the Durret Construction Company against Caldwell County, in which the county filed a cross-petition. Judgment for plaintiff, and defendant appeals. Reversed

and remanded.

| section 15 of the statute, the state road inspector and the county road engineer certified to the fiscal court, in writing, that the construction company had performed certain portions of its work under its contract, and that there was then due it for said work the aggregate sum of $2,695.48, of which 20 per cent. ($539.09) should be retained under the terms of the contract. Again, on December 29, 1915, a similar certificate was issued to the court showing the contractor had further performed work of the aggregate value of $1,475.25, of which 20 per cent. ($295.05) should be retained. The fiscal court paid these two estimates, but the record fails to show what orders were entered upon its records, if any, in that connection. At that time the contractor had about finished the excavation and grading work, and was proceeding with the work of macadamizing the road by putting on the rock, rolling it, etc.

the work of surfacing the road until some The construction company proceeded with time in June, 1916, when it claims it had . done work of the value of $2,003.32, in addition to that embraced in the two estiJ. E. Baker and R. W. Lisanby, both of mates above referred to, and as these three Princeton, for appellant. John C. .Gates, items consumed the $6,250 which had been of Princeton, and E. Levi and Kohn, Bing-appropriated for this purpose the company ham, Sloss & Spindle, all of Louisville, for appellee.

MILLER, J. In 1915, the fiscal court of Caldwell county determined to construct so much of a turnpike road leading from Cadiz to Princeton as was located in Caldwell county, at an estimated expense of $6,250, one-half thereof to be paid by the state. The contract for the construction of the road was awarded to the Durret Construction Company under the provisions of the act of 1914, commonly known as the state aid act, and constituting section 4356x of Carroll's Kentucky Statutes. The plans, profiles, and specifications for the improvement, and the contract with the Chicago Bonding & Surety Company as surety thereon, were submitted to and approved by the state commissioner of public roads as required by sections 10 and 11 of the statute, supra. The contract provided that the contractor should be paid 80 per cent. of the contract price of his work as it progressed; and, further, that when the cost of the work which had been finished amounted to as much as $6,250, the sum available for road purposes, the work should

ceased work. Up to this time there had been no dispute between the county and the contractor as to the amount of work

done, or the amount of money due therefor, but when the contractor ceased work in June, 1916, claiming it had finished its work, the county contended that it had not completed its contract, and refused to pay the construction company for the work it had done in the spring of 1916, and it further claimed that the construction company had not performed the amount of work which it claimed it had done under the first two estimates furnished in November and December, 1915. The state inspector and the county road engineer refused to certify to the amount of work claimed to have been performed by the contractor in the spring of 1916. The fiscal court entered an order reciting the fact that the construction company had not completed its contract and calling to return and complete it, and a copy of this order was served upon the construction company and its surety.

The county filed an answer and counterclaim traversing the allegations of the pePursuant to section 14 of the statute, tition as to the completion of the work as rethe state road commissioner appointed Bar- quired by the contract, made it a cross-exnum Davis as state road inspector to repre- petition against the Chicago Bonding & sent the state's interest in Caldwell county. Surety Company, and asked a judgment The Durret Construction Company began against the construction company and its work on the road in October, 1915, and con- surety for $2,540 in damages. By an amendtinued the work, with some intermissions ment the allegations of this pleading were during the winter, until June, 1916, when it made more specific. The circuit court at ceased work, claiming it had completed its first overruled demurrers to the answer, contract. On November 24, 1915, pursuant to counterclaim, and cross-petition, but, upor

the demurrers being renewed, the court sustained them. By a second amended answer, counterclaim, and cross-petition tendered by the county on June 4, 1917, it charged that the construction company had practiced fraud upon it in constructing the highway, and that the indebtedness created by the contract exceeded the county's revenue for that year. The court refused to permit the amendment to be filed, dismissed the counterclaim and cross-petition, and entered judgment against the county for the sum of $2,837.45 prayed for.

As grounds for a reversal appellant insists: (1) That a judgment should not have been entered for the full amount found to be due to the contractor, because under the contract, 5 per cent. thereof ($321.50) would not be due until one year after the approval of the work by the state road commissioner as provided by subsection 12 of section 4356x of the Kentucky Statutes, and by the terms of the contract; (2) that the court erred in sustaining the demurrer to the counterclaim which stated a cause of action for damages for the improper construction of the road; (3) that the court erred in sustaining the demurrer to the answer which traversed the plaintiff's claim for work done under the contract; and (4) that the court erred in refusing to permit it to file its amended answer and counterclaim charging fraud against the construction company.

Subsections 12 and 15 of section 4356x of the. Kentucky Statutes, read as follows:

"12. The time and manner of payment for work done under any contract awarded under this act shall be set forth in said contract, and at least five per centum of the contract price shall not be paid to the contractor until after the expiration of one year from the completion of the work and acceptance thereof in writing by the commissioner of public roads."

"15. Where any contract provides for partial payment based upon the amount of work done, it shall be the duty of the inspector as each payment becomes due to present to the fiscal court a certificate signed by such inspector and the county road engineer, in which certificate shall be stated as nearly as can be the amount of work done for which payment is to be made and that the same has been done in all respects in strict compliance with the contract, plans and specifications. When the work under contract shall have been fully completed the inspector and county road engineer shall prepare a detailed and itemized statement in quadruplicate of the cost of the improvement, certifying the same, one copy of which shall be filed with the fiscal court of the county, one with the county road engineer and two with the state commissioner of public roads."

[1] 1. Preliminary, however, to a discussion of the questions raised by the appellant, the appellee insists that the circuit court was without jurisdiction to review the questions raised concerning the correctness of the estimates covered by the two partial payments made by the fiscal court in November and December, 1915, respectively, and that the propriety of those payments could only have been raised by an appeal from the action of

the fiscal court ordering their payment. This contention is based upon the well-established rule that where the fiscal court has statutory authority to appropriate money for the purpose attempted, and the appropriation is within its power, and the order clearly shows the object of the appropriation, the discretion of the court in making it cannot be questioned in a collateral proceeding; it can only be reviewed by an appeal. Elliott v. Commonwealth, 144 Ky. 335, 138 S. W. 300; Hickman County v. Richmond, 148 Ky. 849, 147 S. W. 913; Ray v. Woodruff, 168 Ky. 563, 570, 182 S. W. 662; Mills v. Lantrip, 170 Ky. 83, 185 S. W. 514. This rule, however, has its limitations; one of them being that the order must be a final order before it can be treated as conclusive between the parties. Section 978 of the Kentucky Statutes provides that:

"Appeals may be taken to the circuit court from all orders and judgments of the fiscal court or quarterly court in civil cases where the value in controversy, exclusive of interest and costs, is over $25.00."

It has repeatedly been held by this court

that when exceptions have been filed in the county court to a settlement, and an order is made overruling or sustaining them, the ruling can be reviewed only by an appeal to the circuit court; but where no exceptions are filed, the settlement is only prima facie correct, and errors therein may be corrected by a bill in chancery. Scott's Heirs v. Kennedy's Ex'r, 12 B. Mon. 515; Turley's Adm'r v. Barnes, 103 Ky. 127, 44 S. W. 446, 19 Ky. Law Rep. 1808. And in Stanberry's Adm'r v. Robinson, 27 S. W. 973, 16 Ky. Law Rep. 309, the rule was extended to cases wherein partial settlements had been made by an administrator and a final settlement was subsequently made. In cases of that character it was held that an appeal might be taken from the final settlement in which the partial settlements had been incorporated and reviewed. In other words, an order made in a county court confirming a report when no exceptions had been filed thereto, or where partial settlements have been made by an administrator to which no exception was taken, were not final orders which would prevent a correction of the settlements by a bill in chancery. Such orders are only prima facie correct. The reason for the rule is stated in Scott's Heirs v. Kennedy's Ex'r, supra, as follows:

"But we are of opinion that the order of the county court confirming a settlement, without exceptions, in a case in which it has jurisdiction is not such a final judgment or order as is the proper subject of a writ of error, or of revibecause: (1) There is in such a case no judision and reversal by this court on any ground, cial contest, and no judicial decision, but the order of confirmation partakes rather of the (2) There is no final adjudication or determinacharacter of a ministerial than of a judicial act. tion in favor of one person, or against another, or upon any question of property or of personal rights. (3) The settlement and its confirmation are not conclusive either upon the parties who may have been interested in opposing them, or

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