It thus appears that Brown very frankly | 149 Ky. 80, 147 S. W. 882, 41 L. R. A. (N. S.) told the agent, Bohon, the substantial facts 505; Reserve Loan Life Ins. Co. v. Boreing, touching the accident at Covington, Tenn. 157 Ky. 730, 163 S. W. 1085. There is some attempt to show that this fall was due to an epileptic attack, but there is but slight evidence to support it, and no evidence that Brown knew it was due to this cause or to any cause seriously or in any material way affecting the condition of his health.

Some question is made as to the competen. cy of Bohon's testimony, but we think his evidence was competent, and have considered the whole of it. Ratliff v. Daniel's Ex'r et al., 137 Ky. 55, 121 S. W. 1034.

[5] The views we have expressed make it unnecessary to consider alleged errors in the instructions, as the trial court should have directed a verdict against the insurance company.

Wherefore the judgment is affirmed.

BARRETT'S ADM'R v. BRAND. (Court of Appeals of Kentucky. March 12, 1918.)

EVIDENCE 553(4)-HYPOTHETICAL QUES

TION-BASIS IN EVIDENCE.

It is error to incorporate facts, in a hypothetical question propounded to an expert, for the existence of which there is no testimony in

the record.

Now we think that the information conveyed by Brown to the agent of the insurance company was sufficient to charge it, before the delivery of the policy, with notice of the conditions upon which it now attempts, after Brown's death, to rely to defeat the collection of the insurance it agreed to pay his beneficiary. The company, having notice of the accident to Brown before the delivery of the policy, had ample opportunity to make a full investigation of all the facts and cir- 1. cumstances connected with it and determine for itself, before the contract according to its contention was accepted, whether it would consummate the contract, and to decline to accept it if not satisfied with the condition of Brown's health. But in place of availing itself of this opportunity, and declining, if it saw proper so to do, to deliver the policy at the time, it delivered the policy to Brown, leaving him under the impression that the contract had been completed, and not until In an action against a surgeon for malafter his death did it attempt to make the practice, medical witnesses were properly alinquiry that it should and could have made lowed to state in substance that an operation was practiced according to the approved methods before the policy was delivered. So that of the medical profession, and that the patient even if it should be admitted that this attack in her diseased and run-down condition would Brown sustained would have justified the have and as a matter of fact did die from such conditions, though defendant left a pad in the company in refusing to deliver the policy, wound. since, though an expert witness may not yet we think the company is now estopped to take the place of the jury by stating whether make the defense rested on the change in the certain acts constituted negligence, he may give condition of Brown's health between the date his opinion in regard to matters which require scientific or specialized knowledge or exof the application and the date of the deliv-perience, and for which the general common ery of the policy.

Our opinion is that when an insurance company, before it delivers the policy, or during the life of the insured, comes into possession of information that would reasonably put it on notice that some change had taken place in the physical condition of the insured, which, if it had known of, the contract would not have been accepted, or if accepted, would have been concealed, it, must, if the information is received before the policy is delivered, refuse to deliver it, or, if delivered, must, within a reasonable time after receiving the information, take such steps as it thinks necessary to cancel the contract, and failing to do either of these things, it cannot, after the death of the insured, defeat the collection of the insurance money upon the ground that if it had known before the delivery of the policy, or during the life of the insured, what it found out after his death, it would not have accepted the contract, or, having accepted it, would have canceled it. Masonic Life Ass'n of W. N. Y. v. Robinson,

2. NEGLIGENCE 56(1)-PROXIMATE CAUSE. Though an act may be negligent, and involve a violation of duty, before a cause of action can be predicated thereon the injury flowing therefrom must have been the proximate result of such dereliction.

3. EVIDENCE 512-EXPERT OPINION-MEDICAL TESTIMONY.

sense and practical experience of the jury are inadequate, a rule which should not be extended to permit witnesses to testify to conclusions or matters within the common scope of knowledge and experience.

4. EVIDENCE 121(1)-RES GESTE-ACTION
FOR MALPRACTICE.

who assisted at the operation concerning state-
Evidence given by some of the physicians
ments made by defendant relating to the condi-
tions which he found in the patient, and other
subjects connected with the operation, during
and while he was performing it, was admissible
as part of the res gestæ.
5. PHYSICIANS AND SURGEONS

18(10)—Ac

TION FOR MALPRACTICE-INSTRUCTION. After defining defendant surgeon's duty on structed as to liability, "and they (the jury) furundertaking the operation, the court properly inther believe from the evidence that such negligence or want of care, if any, on the part of of decedent," without adding that decedent's defendant, was the proximate cause of the death death "was not caused by ovaritis or other disease, if any, not produced by the operation." 6. PHYSICIANS AND SURGEONS 18(10) MALPRACTICE INSTRUCTION - DEFINITION OF "OPERATION."

It was not necessary for the court in its instructions to define what constituted an opera

tion, since any ordinary layman would know the use of morphine, and in addition had conI that an "operation" included everything done, tracted other ailments more or less dangerfrom its commenecment until it was completely ous, and at the time of the operation complained of she was in an exceedingly precari

finished.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Opera- bus condition. The operation occurred in tion.]

In an action against a surgeon for malpractice in negligently performing an operation for ovaritis, evidence held to sustain verdict for defendant, the patient's condition having been so precarious that it could not be said that any negligence was the proximate cause of her death. Appeal from Circuit Court, Mason County. Action by Florence Barrett's administrator against Leslie Brand. From a judgment for defendant, plaintiff appeals. Affirmed.

Allen D. Cole, H. W. Cole, and J. M. Collins, all of Maysville, for appellant. Worthington, Cochran & Browning and Slattery & Rees, all of Maysville, for appellee.

THOMAS, J. This is a malpractice suit brought by appellant, as administrator of his wife, Florence Barrett, against the appellee, a physician and surgeon, to recover damages because of the death of plaintiff's decedent, which he alleges was the proximate result of negligence, unskillfulness, and carelessness on the part of the defendant while performing an operation upon decedent for chronic ovaritis.

November, 1911, and in the early part of that year two minor operations had been performed by the defendant; but the one in November, which is termed the major operation, is the one about which negligence is charged. Other physicians and a trained nurse attended the operation, and the latter gave to and received from the defendant the gauze pads which he used while performing the operation. The patient showed signs of dissolution, and the cavity was hurriedly closed up to prevent it, and shortly thereafter the nurse discovered that one of the pads was missing. In closing up the cavity, as is usual in such cases, a gauze drainage was arranged so as to let out pus or other deleterious substances, and in it was one of the pads which was discovered four days after the operation by the wound being opened up. at which time some of the parts, including some of the smaller intestines, were found to be inflamed and the patient shortly died. The chief act of negligence complained of is that of leaving the pad in the patient, but under the evidence and instructions of the court the jury found that this was not an act of negligence, or, if it was, it could not be termed the proximate cause of the patient's death, and accordingly returned the verdict complained of.

[1] It is first insisted that the court erred in permitting a hypothetical question to be asked of two professional witnesses introduced in behalf of defendant, because it is claimed that there was incorporated in that hypothetical question facts which were not proven, or for which there was no evidence tending to establish them. Eleven such wrongfully incorporated facts are pointed out as being erroneously included in the complained of hypothetical question, which is so long that we will not incumber this opinion with its repetition, but we have thoroughly examined the record, and we are convinced that counsel is in error when he says that there was no evidence to support the assumption of the existence of the alleged wrongfully incorporated facts. That it is error to incorporate facts in a hypothetical question propounded to an expert, for the

The negligence charged was denied by answer, and upon trial the jury returned a verdict in favor of defendant, from which plaintiff prosecuted an appeal, and the judgment was reversed in an opinion reported in 165 Ky. 616, 177 S. W. 461. In that opinion the substantial and material facts are recited somewhat in detail, and it will be wholly unnecessary to repeat them here, they being practically the same upon the last trial as on the first one. The first judgment was reversed, as will appear from the opinion, upon the two grounds: (1) That the court erred in permitting the defendant to testify, since it was held that under subsection 2 of section 606 of the Civil Code of Practice he was an incompetent witness, and (2) that the court erred in giving two instructions which are set out in the opinion, but all other questions were left open. Upon the second trial, in which the court eliminated the errors pointed out when the case was first here, the jury again returned a verdict for the defend-existence of which there is no testimony in ant, and to reverse it this appeal is prosecuted.

There are numerous errors urged against the correctness of the judgment, but we deem it necessary to consider only such as will be discussed in this opinion. From the testimony as recited upon the former appeal, and which was the same upon the last trial, it appears that Mrs. Barrett had long been a sufferer, and perhaps because of her almost constant pain she had become addicted to

the record, is thoroughly established. In support of it counsel cite many authorities from the text-books and opinions from foreign courts, and also the case of Champ v. Comlth., 2 Metc. 17. A still later case from this court upholding the rule is that of Kentucky Traction & Terminal Co. v. Humphrey, 168 Ky. 611, 182 S. W. 854, in which many authorities, both foreign and domestic, are referred to; but if the complained of vice has no existence in point of fact, manifestly

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

there is no room for the application of the rule, and, as stated, we are convinced that there is substantial evidence in the record authorizing the court to allow the predicat-mitted to state, whether any particular act ing of the hypothetical question upon all of the material facts complained of, and this objection will have to be denied.

lowing cases: McLeod v. Ginther's Adm'x, I that an operation included everything done 80 Ky. 399; O'Donnel's Adm'r v. Louisville from its commencement until it was comElec. Light Co., 55 S. W. 202, 21 Ky. Law pletely finished. Every act necessary to its Rep. 1362; Brown v. Louisville Ry. Co., 53 performance is included within the known S. W. 1041, 21 Ky. Law Rep. 995; Louisville meaning of the term. As well might it be & N. R. R. Co. v. Shaw's Adm'r, 53 S. W. | insisted as being necessary to define the word 1048, 21 Ky. Law Rep. 1041; Louisville R. "trip" to mean and include all the time from Co. v. Johnson's Adm'r, 131 Ky. 277, 115 S. the moment the traveler boarded the instruW. 207, 20 L. R. A. (N. S.) 133; Lewis' Adm'r ment of conveyance or mounted his steed v. Bowling Green Gas Light Co., 135 Ky. 611, until he alighted therefrom at his destina117 S. W. 278, 22 L. R. A. (N. S.) 1169; I. C. tion. These acts are component parts of and R. R. Co. v. Houchins, 125 Ky. 483, 101 S. essential to a trip, but no one would seriousW. 924, 31 Ky. Law Rep. 93; Fidelity & Cas-ly insist that it was necessary to so define ualty Co. v. Cooper, 137 Ky. 544, 126 S. W. the word by an instruction. 111; Owensboro City Ry. Co. v. Rowland, 152 Ky. 175, 153 S. W. 206. See, also, Jones on Evidence, § 344. Under this well-established rule there can be no doubt but that the evidence complained of constituted a part of the res gestæ growing out of the main transaction, which was the operation, and serving to explain it, and the objection is therefore untenable.

[5] It is again insisted that the instructions are erroneous and that the judgment should be reversed for that reason. The instructions complained of are Nos. 1 and 2, given by the court. No. 1 is criticised because it did not expressly say to the jury that decedent's death "was not caused by ovaritis or other disease, if any, not produced by the operation." The court in the complained of instruction, after defining the duty of the defendant upon undertaking the operation, said: "And they (the jury) further believe from the evidence that such negligence or want of care, if any, on the part of defendant was the proximate cause of the death of the decedent," etc. It is contended that following the quotation just made the clause first above should have been inserted; but we do not find any merit in this contention, for if the negligence of the defendant, if any, was not the proximate cause of the patient's death, the defendant would not be liable; or if her death was not the result of the disease with which she was afflicted, it would necessarily follow that the operation was the cause of it, and if negligently performed the defendant would be liable. It is not essential in instructing the jury to negative what would be a proximate cause, for the jury are presumed to possess some intelligence and to be able to understand the instruction without such negation.

[6] It is furthermore claimed in regard to the instructions that the court should have defined what constituted an operation, i. e., that the court should have said to the jury in its instructions that the operation commenced at the beginning of making the incision and ceased when the incision was closed; but we do not regard the term "operation" to be one of such technical meaning as to require a definition at the hands of the court. Any ordinary layman would know

Instruction No. 3 given by the court is one which this court in the first opinion directed should be given if the evidence was substantially the same. It fully states the duty of the defendant with reference to reopening the wound for the purpose of searching for the missing pad.

[7] It is lastly insisted that the verdict is flagrantly against the evidence, and is not sustained by it; but we cannnot agree with this. There is abundant testimony to show that the unfortunate patient, because of her long standing ailments, was in a most precarious condition. According to the testimony, she had an extremely short time in which to live without the operation, and it was resorted to as a last chance. Unfortunately, it was unsuccessful; and, although it may be conceded that the leaving of the pad in the manner described was an act of negligence, yet before liability could be fixed upon the defendant therefor it must further be shown that such negligence was the proximate cause of her death.

These matters were submitted to the jury by instructions which we think are not subject to the criticism aimed at them, and we are not authorized, under the well-established rules of practice governing this court, to disturb the verdict, and the judgment is therefore affirmed.

FOSTER v. ROBERTS et al. (Court of Appeals of Kentucky. March 12, 1918.)

1. BOUNDARIES 52 (3)-REPORT OF PROCES

SIONERS-CONCLUSIVENESS.

A report of processioners under Ky. St. § 2368, after notice to adjoining owners, is prima facie evidence of the true location of a boundary line.

2. DEEDS 38(1)-DEFINITENESS.

A deed of a tract of land of which S. O. died possessed, lying on the waters of the Little South fork of Cumberland river in W. county, containing 365 acres, was sufficiently definite to

pass title.

3. ADVERSE POSSESSION 103-INTERFERING

PATENTS-POSSESSION.

Where one with legal title enters land, covered by a patent of a grantor, prior to entry of another into an interference under a junior patent, the former has possession beyond the actual close of the latter, although he never entered within the interference.

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

Under Civ. Code Prac. § 125, requiring answer in an action to recover land to state whether defendants claim any part of the land, and, if so, to describe that part claimed so as to identify it, an answer which described certain land was sufficient to warrant a judgment for defendant for land forming only a part thereof.

Appeal from Circuit Court, McCreary County.

4. QUIETING TITLE 37(1)—ANSWER OF DE- | scriptions in the deeds from certain of the FENDANT-DESCRIPTION OF LAND. heirs of Stephen Owens to George Owens were too indefinite to pass title. The rule is that a deed is not void for uncertainty if from the description contained in the deed the property can be located. 8 R. C. L. 1073; Barbour v. Tompkins, 58 W. Va. 572, 52 S. E. 707, 3 L. R. A. (N. S.) 715. In each of the deeds in question, the grantor was stated to be the heir of Stephen Owens, and the property was described as "my undivided interest and share to a certain tract or parcel of land of which my said father, Stephen Owens, aforesaid, died seised and possessed, lying on the waters of the Little South fork of Cumberland river in Wayne county, containing about 365 acres in all." In our opinion this description was sufficiently definite to pass title. Pennington v. Cumberland Valley Land Co., 150 Ky. 576, 150 S. W. 655; Ratliff v. Sowards' Guardian, 152 Ky. 97, 153 S. W. 25; Newman v. Newman, 154 Ky. 300, 157 S. W. 381.

Suit to quiet title by Sarah Roberts and others against John Foster and others. From a judgment, the named defendant appeals, and plaintiffs prosecute a cross-appeal. Af

firmed.

Virgil P. Smith, of Somerset, and H. M. Cline, of Whitley City, for appellant. H. C. Gillis, of Williamsburg, for appellees.

[3] While it is true that plaintiffs never entered within the interference, the evidence considered as a whole clearly shows that they entered and took possession of the land covered by the Stephen Owens patent prior to the entry by the defendants within the in

CLAY, C. Alleging that they were the owners and in possession of a tract of land consisting of about 50 acres and covered by a patent issued by the commonwealth to Stephen Owens in the year 1830, Sarah Roberts and others, the widow, heirs, and successors in title of Henry T. Roberts, deceased, brought this suit against John Foster and others to quiet their title. The defendants denied the ownership and possession of plain-terference under their junior patents. That tiffs, and pleaded title to a portion of the land, consisting of about 30 acres, which was described by metes and bounds. On final hearing the chancellor quieted the title of plaintiffs to all of the land in controversy, with the exception of that portion which the defendants held by inclosure. From this judgment John Foster, one of the defendants, appeals, and plaintiffs prosecute a cross-appeal.

[1] It appears that a year or two before the suit was brought, Mrs. Roberts, upon notice to the Fosters, had her lands processioned, and according to the report of the processioners the line of the Stephen Owens patent was so located that it embraced a portion of the land which the defendants held under inferior patents. Since the report of the processioners made under section 2368, Ky. Statutes, after notice to the adjoining owners, was prima facie evidence of the true location of the line of the Stephen Owens patent (Harrod v. Armstrong et al., 177 Ky. 317, 197 S. W. 816; Crouch v. Wainscott, 122 Ky. 107, 91 S. W. 289, 28 Ky. Law Rep. 1026), and as there was no evidence to the contrary, the chancellor did not err in holding that the location made by the processioners was correct, and that the Stephen Owens patent lapped on the land claimed by the defendants.

being true, the possession of plaintiffs, who were the legal title holders, was actual and coextensive with the boundaries of the patent under which they held title, and the subsequent entry of the defendants under their junior patents within the interference did not divest plaintiffs of their prior and existing possession beyond the actual close of the defendants. Simon v. Gouge, 12 B. Mon. 156; Harrison v. McDaniel, 2 Dana, 350; Hopson v. Cunningham et al., 161 Ky. 160, 170 S. W. 522. It therefore follows that the possession of plaintiffs was sufficient to maintain an action to quiet title.

[4] Civil Code of Practice, § 125, requires the answer in an action to recover land to state whether defendants claim any part of the land, and, if so, to describe that part claimed so as to identify it. It is insisted on the cross-appeal that the chancellor erred in awarding the defendants the land within their inclosure, because their answer did not set up the boundaries of the inclosure. It does appear, however, that the defendants set up claim to, and accurately described in their answer, a tract of about 30 acres of land embracing the inclosure. Though they failed to show title to the entire tract thus described, they did show title to the inclosed land forming a part of the entire tract. Under these circumstances the answer was [2] But the point is made that plaintiffs sufficient to authorize a judgment in favor did not prove either title or possession, and of the defendants for the inclosed lands. were not therefore entitled to recover. Judgment affirmed both on the original this connection it is insisted that the de- and cross-appeal.

In