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usual ones, it is the law that this character

The court properly overruled the motion of damage must be produced by overflows for a new trial, and its judgment is affrom usual and ordinary rains, since the de- firmed. fendant is not required under the law to anticipate and guard against the effects and

(180 Ky, 655) consequences of unusual and extraordinary

SLATON v. MILBURN. rains. L. & N. R. R. Co. v. Conn, 166 Ky. (Court of Appeals of Kentucky. May 21, 1918.) 327, 179 S. W. 195; Id., 179 Ky. 478, 200 S. W. 952, and cases therein referred to. 1. HUSBAND AND WIFE Sw333(9)—ALIENA

TION OF AFFECTIONS-SUFFICIENCY OF EVIThe rule as stated in the first opinion, su- DENCE. pra, and adopted by the second one, is that: In a husband's action for alienation of his

"It is the well-settled rule in this state that wife's affections, evidence held sufficient to auone who constructs a bridge over a stream is thorize the jury's verdict for him. liable only in the event that the bridge ob- 2. HUSBAND AND WIFE Om333(6) – ALIENAstructs the passage of water that accumulates

TION OF AFFECTIONS-EVIDENCE. from such ordinary and usual rainfalls in the

In such action, the court properly instructvicinity as might have been anticipated by per- ed that the evidence as to any action of defendsons of ordinary prudence and experience. He ant after filing of the petition could only be is not liable for damages flowing out of over- considered by the jury for the purpose of showflows which were caused by extraordinary rains ing the relation of the parties before the filing or floods, i. e. such floods or rains as are of of the action, without limiting the evidence to such unusual occurrence in the vicinity that acts of defendant after the separation between

husband and wife. they could not have been anticipated by persons of ordinary experience and prudence. C., 3. HUSBAND AND WIFE 324-ALIENATION St. L. & N. 0. R. Co. v. Hoover, 147 Ky. 37

-RECOVERY TO SUE. [143 S. W. 770]; Southern Ry. Co. v. A. M. E.

A husband, suing for alienation of his wife's Church's Trustee of Harrodsburg. 121 S. w. affections, had the right to allege and recover 972; Wallingford v. Maysville & B. S. R. Co., for anything occurring up to the time of the 107 S. W. 282 [32 Ky. Law Rep. 1049]."

filing of the suit.

4. HUSBAND AND WIFE 326-ALIENATION The rule is necessarily the same when ap

BY HUSBAND. plied to structures producing overflows in A husband could recover for alienation of other ways than the damming of streams, his wife's affections only if defendant had alien

ated her affections, not if the alienation was as was the case from which we have quoted, brought about by any conduct of the husband. and the same character of rains to be anticipated by the defendant in the one case

Appeal from Circuit Court, Breckenridge must also be anticipated and guarded against

County. in the other, and it necessarily follows that

Suit by Claude Milburn against Cliff Slaif a rain is so unusual and extraordinary

ton. From judgment for plaintiff, defendant as to relieve the defendant in the one case appeals. Affirmed. from responsibility for the damages produc- David R. Murray and Gus Brown, both of ed, the same fact would relievė him in the Hardinsburg, for appellant. John P. Hasother case. In the instant case, however, well, Jr., of Louisville, and D. C. Walls, of the great preponderance of the testimony Hardinsburg, for appellee. shows that the complained-of floods occurred from three to four times each year since THOMAS, J. The appellee, Milburn, who the alley was improved. This would seem was plaintiff below, seeks damages by this to indicate that the rainfall producing them suit of the appellant, Slaton, who was demay have been extraordinary, but it was by fendant below, for the alienation by the deno means unusual, and that an appropriate fendant of the affections of plaintiff's wife. description of them would be "a usual, ex- The answer was a traverse of the averments traordinary rainfall." Under the authori- of the petition, and upon trial the jury reties, supra, the law does not relieve the de turned a verdict for the sum of $500 in favor fendant from the consequences of that char- of plaintiff, upon which judgment was renacter of rainfall, for, as said in the last dered, and to reverse it the defendant proseopinion in the Conn Case, supra:

cutes this appeal. “We then have additional testimony

A number of alleged errors were insisted that such rains (as produced the flood com- upon in the motion for a new trial, among plained of) occur every two or three years, which is the improper admission and rejecand they cannot therefore be considered unusual or unprecedented.”

tion of testimony, but counsel for appellant If a rainfall occurring only every two or

in their brief say that: three years is not such an unusual or extraor-sustained by the court as to the evidence produc

"There are many objections overruled and dinary one as to relieve the defendant from ed. We do not mean to bother the court with liability for the damages produced, a fortiori these minor questions." would one occurring two or three times a We are disinclined to be less generous to year not be an unusual or extraordinary ourselves than is counsel, and will therefore one so as to relieve him, and there is there- not bother ourselves with those minor quesfore no room for the contention made in be- tions, especially since the reading of the half of the city that the verdict is flagrantly record fully justifies the course of appellant's against the evidence.

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counsel, as well as ours.

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203 S.W.-34

The two points urged here against the buggy and alone. After the separation, the judgment are: (1) That the evidence is insuf- wife filed suit against the plaintiff for dificient to show that defendant alienated the vorce, but the record does not show upon affections of plaintiff's wife; and (2) that what grounds. However, the appellant was the court erred in one of the instructions very active in developing the testimony in which it gave to the jury. A proper deter- behalf of the wife in the divorce proceedmination of the first ground urged necessi-ing, and went with her and attended upon tates a brief review of the testimony.

the taking of her depositions. At one time [1] Plaintiff and his wife were married in before the filing of this suit, according to 1913, and separated about the 22d day of one witness, the defendant and plaintiff's February, 1916. The ages of the parties are wife were together at a schoolhouse at some not shown, but it was a second marriage for kind of moving picture show, where they sat plaintiff. Up until about the 10th of De together upon the same bench, and during cember, 1915, according to the testimony, the performance, or at some supposedly apthe parties lived happily together. About propriate time, the defendant kissed Mrs. that time plaintiff's wife visited her sister, Milburn. who lived upon a neighboring farm owned Much of this testimony, especially the by the defendant. After her return from compromising conduct testified to, is denied that visit, according to plaintiff's testimony, ! by the defendant; but he admits having gone her conduct toward him was cold and in- with Mrs. Milburn to a number of the places different; but as to what, if anything, the mentioned by plaintiff's witnesses but atdefendant had to do with bringing about tempts in one way and another to justify such changed condition the record is silent. himself in doing so. There is nothing in the About that time, or shortly thereafter, the record to show any acts or conduct on the wife met the defendant at a country store. part of plaintiff justifying or authorizing his She was riding horseback; her saddle had wife to separate from him, or to show in the slipped in some way; the defendant arrang- least that he was any other than an affeced it for her, and stated: “That looks about tionate husband. Under this state of the like Claude Milburn's fixing.” On the second record, it can scarcely

scarcely be insisted that Sunday before the separation the wife again there was not a scintilla of evidence authorvisited her sister's home, which was on de- izing the submission of the case to the jury, fendant's farm and about 100 feet from his and we are equally convinced that it cannot residence, and she remained there until the be said that the verdict is flagrantly against following Wednesday. The defendant met the evidence. If we confine ourselves excluher on the Sunday afternoon of her arrival, sively to the developed facts occurring beand was at her brother-in-law's house, where fore the separation, it might reasonably be she was, that night, the next day and night, said that the evidence is not as full and on Tuesday and Tuesday night, and Wednes- complete as to the alienating acts or conduct

, day morning, in the afternoon of which day of the defendant as is sometimes found, and the wife returned home.

Rejected evidence offered by the plaintiff that it is not sufficient to relieve the case of showed the details of some of the conversa- all doubt. But when we consider that testitions which occurred between the wife and mony, and defendant's conduct after the septhe defendant upon that visit, but we are not aration as showing his state of mind toward permitted to look to that testimony. How- the wife, and his probable intentions and ever, that which we can consider shows that purposes in being with her frequently and defendant and the wife were together often alone, it makes the case eminently proper to on the three days mentioned. On the Mon- be determined by the jury. Indeed, it is in day following the return of the wife to her just such cases that the supreme efficiency of home she left her husband and returned to the jury system is demonstrated. Looking the home of that same sister, and it was the alone to the record before us, there might be defendant's wagon that went after her and doubts of the propriety of the verdict; but moved her small amount of belongings. when it is considered that the jury had the From that time on for several weeks the de- witnesses before them, that its members fendant was frequently at the house where knew the parties and their surroundings and the wife was staying, and according to the circumstances, it cannot be said, under the witness Dailey, who was the husband of rules governing this court on appeal, that the wife's sister, the defendant and plaintiff's the verdict of the jury is not authorized by wife were seen at least one time in a com- the evidence. promising attitude. Other witnesses, along [2, 3] Discussing the second ground relied about that time or afterward, and before the on, the complained-of instruction is No. 4, filing of this suit, saw them together occa- which reads: sionally and alone, one time in the barn to

“The court instructs the jury that the evidence gether, at other times going to places, and as to any acts of defendant after the filing of being together out upon defendant's farm, the petition can only be considered by the when no one was near or within sight. They the parties before the filing of said action, if it made a trip to the state of Indiana in a does so show to any extent.”

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The criticism of this instruction is that, Appeal from Circuit Court, Jefferson Couninstead of the phrase "after the filing of the ty, Common Pleas Branch, Fourth Division. petition," there should have been inserted (as Suit by Ora Iring against the Louisville was done by an offered instruction) “after Bridge Company. Judgment for plaintiff, the separation"; the argument being made and defendant appeals. Reversed and rethat the qualifying effect given to such testi- manded. mony should have applied to all acts and com

James R. Skillman and Helm & Helm, all duct after the separation. In one aspect of of Louisville, for appellant. Elmer C. Unthe case this might appear to be true, but it derwood, of Louisville, for appellee. also may have been true that the affections of the wife were not so completely alienated at the time of the separation as to prevent

CLAY, 0. This is a suit by Ora Iring

C. a reconciliation, which might have been pre

against the Louisville Bridge Company to vented and rendered impossible by the de recover damages for personal injuries. From fendant's conduct between that time and the a verdict and judgment in favor of plaintiff

for $2,000, the defendant appeals. filing of the suit, and plaintiff had the right to allege and recover for anything occurring the intersection of Fourteenth and Market

The defendant maintains crossing gates at up to the time of the filing of his suit. [4] Other instructions fully complied with streets in the city of Louisville. The gates

are on the east and west sides of Fourteenth the law in basing the right of recovery exclusively upon defendant being guilty of street, and the arms of the gates, when low

A few alienating the wife's affections, and excludered, extend across Market street. ing such right if the alienation was brought minutes before 7 o'clock on the evening of

December 7, 1915, plaintiff was driving her. about by any conduct of the plaintiff.

automobile along Market street. When she Upon the entire record, we see no legal reason for disturbing the verdict, and the reached Fourteenth street, the arm of the

southwest gate came in contact with the judgment is therefore affirmed.

wind shield on the machine, and the arm of

the gate was broken off at a point about 20 (180 Ky. 729)

feet from its base. Plaintiff stepped out LOUISVILLE BRIDGE CO. v. IRING.*

of her machine and after taking the names

of the witnesses, proceeded to her hus(Court of Appeals of Kentucky. May 28, 1918.) band's office at 1213 Main street. Her hus1. DAMAGES Onw208(2) – INJURIES CAUSE band then drove her home, where she was -JURY QUESTION.

given a hypodermic. A few months later In action for personal injuries, whether plaintiff's physical condition was caused by the she was operated on for misplaced kidney accident in question held a question for the and uterus, which condition her physicians jury.

attributed to the accident. On the other 2. MUNICIPAL CORPORATIONS O 821 (18) hand, certain physicians, who testified for CROSSINGS GATES NEGLIGENCE

the company, stated that the misplaced kidQUESTIONS FOR JURY.

Where plaintiff was injured while driving ney and uterus could not have been caused an automobile by the lowering of a gate arm by the accident. at a crossing, whether gatekeeper was negli. [1, 2] According to the evidence for plaingent held a jury question.

tiff, the arm of the gate was lowered on the 3. TRIAL 199—PROVINCE OF JURY-IN

machine, and there was not sufficient light STRUCTION-QUESTION OF LAW.

An instruction leaving to the jury the ques- there to enable her to see the descending tion whether a gateman at a crossing was neg- arm. Her witnesses also testified that they ligent, without defining his duties in concrete did not hear the sounding of the gong. On form,' was insufficient, as it made the jury the the other hand, the evidence for defendant judges of the law as well as the facts. 4. MUNICIPAL CORPORATIONS Om798 tended to show that the place of the accident CROSSINGS-GATES-LIGHTS.

was not only well lighted, but that there Gates at crossings need have only suffi- were lights on each of the arms of the gates. cient lights, either upon the arms or elsewhere, There was further evidence to the effect that to enable a person, exercising ordinary care for his own safety, to see the arm of the gate. the east gates were lowered first, and the 5. MUNICIPAL CORPORATIONS

Omw 798 gong was then sounded. The gong continued CROSSINGS-GATES-GONG.

to sound while the west gate was being lowIt is the duty of a gateman at a crossing to ered. The arm of the gate which came in give reasonable warning, by sounding a gong, contact with plaintiff's machine was down of his purpose to lower the gate. 6. MUNICIPAL CORPORATIONS Om 803 (1) - at the time, and the lantern was thrown into

CROSSINGS-GATES--CONTRIBUTORY NEGLI- the air and on the ground. Without giving GENCE.

It is the duty of one approaching a crossing a more detailed statement of the evidence, to exercise ordinary care to discover whether we conclude that there was a sufficient conarms of a gate are down, or are being lowered, flict in the evidence to make it a question for and to keep out of their way, and if a failure the jury whether defendant's negligence was to do so contributed to his injury to such an extent that, but for it, he

would not have been the proximate cause of plaintiff's injuries. injured, no recovery could be had.

Nor are we prepared to say that the finding

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*Rehearing denied.

of the jury was flagrantly against the evi-, 131 Ky. 351, 115 S. W. 196; Smith v. Cornett, dence.

38 S. W. 689, 18 Ky. Law Rep. 818; C., N. Instruction No. 1 is as follows:

0. & T. P. Ry. Co. v. Hill's Adm'r, 89 S. W. “The law made it the duty of Roscoe Hines, 523, 28 Ky. Law Rep. 530; L. & N. R. R. the agent of the defendant, the Louisville Co. v. Crutcher, 135 Ky. 381, 122 S. W. 191;

' . , ferred to in the evidence at the intersection of Western Ky. Coal Co. v. Davis, 138 Ky. 669, Fourteenth and Market streets, to exercise and 128 S. W. 1074; Citizens' Trust & Guaranty observe such care in the management of said Co. v. Ohio Valley Tie Co., 138 Ky. 421, 128 gates as was reasonably necessary to the safes. W. 317. There is no merit in the contenty of the public, including the plaintiff, Ora Iring, in the lawful use of the highways,'Mar- tion that the error of the court in giving ket street and Fourteenth street; and if you the instruction complained of was induced shall believe from the evidence that the de- by instruction No. 2 offered by the defendant.

ndant's said agent in charge of the gates, in while the latter instruction did set forth the evidence referred to, failed on the occasion under investigation in this case to exer- | the duty of the defendant to exercise ordicise such ordinary care as was reasonably nec- nary care to avoid injuring the public, it essary to the safety of persons using the pub- also embraced other duties, and the court lic highways in question—that is, Market street refused to give the instruction. and Fourteenth street-and that by reason of refused to give the instruction. such failure upon the part of the defendant's [4-6] The law did not impose upon defendsaid agent, if he did so fail, the gate referred ant the duty of having a light upon the arm to in the evidence was caused or suffered to of each gate at the crossing. All that was strike or collide with the plaintiff's automobile, and that the plaintiff thereby sustained the in- necessary was to have sufficient lights, eijuries, or some of them, of which she com- ther upon the arms of the gates or elseplains, then the law of this case is for the where, to enable a person exercising ordinary plaintiff and the jury should so find."

care for his own safety, to see the arm of Instruction No. 2 is the converse of in- the gate. McDonald v. Covington & Cinstruction No. 1. Instruction No. 3 is as fol- cinnati Elevated Railroad Transfer & lows:

Bridge Co., 107 S. W. 726, 32 Ky. Law Rep. "The law made it the duty of the plaintiff, 992. It was also the duty of the defendant Ora Iring, as she approached said crossing at to give reasonable warning, by sounding the Fourteenth and Market streets, upon the occasion referred to in the evidence, to exercise gong, of its purpose to lower the gate. ordinary care for her own safety, and if you Therefore, if the defendant failed to perform shall believe from the evidence that she fail- these duties, or either of them, and by reaed to exercise ordinary care for her own safety son of such failure, if any, plaintiff was inon the occasion under investigation here, and that by reason of such failure, if any there was, jured, there should be a finding for plainupon her part, she so far contributed to bring tiff. On the other hand, it was the duty of about the collision with the gate referred to in plaintiff, in approaching the crossing in questhe evidence that. but for such failure upon tion, to exercise ordinary care to discover her part, if she did so fail, the collision would not have occurred, and she would not have whether the arms of the gate were down, or been injured, if she was injured, then the law were being lowered, and to keep out of their is for the defendant, and the jury should so way, and if she failed to exercise such care, find, although the jury may believe from the and such failure, if any, contributed to her evidence that Roscoe Hines, the defendant's said agent in charge of said gates at said time injuries to such an extent that, but for it, and place, was also negligent.”

she would not have been injured, there [3] It will be observed that instruction should be a finding for the defendant. On No. 1 did not define the duties of the gate- another trial the court will submit these isman in concrete form and then submit to sues by appropriate instructions. the jury the question of fact, but authorized

In view of the conclusion of the court, we a recovery if the jury believed from the evi- deem it unnecessary to pass on the alleged dence that the gateman failed to exercise and misconduct of counsel for plaintiff in his observe such care in the management of the argument to the jury. gates as was reasonably necessary for the

Judgment reversed, and cause remanded safety of the public, including plaintiff, thus for a new trial consistent with this opinion. leaving the question of negligence to the unguided judgment of the jury. Under this

(180 Ky. 712) instruction the jury may have believed that KENTUCKY DISTILLERIES & WAREthe defendant performed all the duties im

HOUSE CO. v. GLENMORE DIS

TILLERIES CO. posed by law, and yet was negligent for some other reason which they deemed suffi- (Court of Appeals of Kentucky. May 28, 1918.) cient.

Such an instruction has been fre- PRINCIPAL AND AGENT Cm24, 124(3)–RELAquently condemned by this court on the TION-AUTHORITY-QUESTION FOR JURY. ground that it is so general and abstract in and deliver empty barrels, evidence that D.,

In an action for breach of contract to sell form as to make the jury the judges of both with whom plaintiff's agent made the contract, the law and the facts. Pack v. Camden In- was the agent of or authorized to make a conterstate Ry. Co., 154 Ky. 535, 157 S. W. 906; tract on behalf of defendant held sufficient to Johnson et al. v. Westerfield's Adm'r, 143 Ky. the overruling of defendant's motion for a di

warrant submission of the case to the jury and 10, 135 S. W. 425; L. & N. R. R. Co. v. King, rected verdict.

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Appeal from Circuit Court, Jefferson Coun- , ant in its answer had traversed the allegaty, Common Pleas Branch, First Division. tion in the petition that it had sold the bar

Action by the Glenmore Distilleries Com- rels to plaintiff, the real and only issue upon pany against the Kentucky Distilleries & the evidence was whether or not a sale was Warehouse Company. From a judgment for effected in the conversation between Jones plaintiff, defendant appeals. Affirmed. and Darlington, upon which issues the jury Bruce & Bullitt, Wm. Marshall Bullitt, found for the plaintiff upon instructions in

& and Keith L. Bullitt, all of Louisville, for which it was assumed Darlington was the appellant. Wm. W. Crawford, of Louisville, agent and authorized to act for defendant in for appellee.

the transaction. Whether or not the court

was authorized in this assumption and in CLARKE, J. The appellee, Glenmore Dis- overruling defendant's motion for a directtilleries Company, was plaintiff below, and ed verdict depends solely upon whether there recovered a judgment of $2,000 against the was any evidence of Darlington's agency, as defendant, now appellant, as damages for there was no denial of it, and we are of the breach of a contract to sell and deliver 7,000 opinion that the testimony of Jones that he empty barrels at $1.05 each.

made the sale to plaintiff for defendant The single ground urged for a reversal is through Darlington, as above set out, was that plaintiff failed to prove that a Mr. Dar- some evidence of his agency for defendant, lington, with whom its agent, a Mr. Jones, which, in the absence of a denial, was suffimade the contract, was the agent or author-cient warrant for the court's action in overized to make a contract on behalf of the de- ruling the motion for a peremptory and in fendant; and, while it must be admitted submitting the case upon the whole issue of there is no direct proof of that very essential whether or not a sale was effected in the fact, we think it sufficiently appears from the conversation between Jones and Darlington, evidence to warrant the submission of the the evident theory upon which both plaintiff case to the jury, and to obviate the necessity and defendant interrogated the witnesses. of a reversal of the judgment against the de- Wherefore the judgment is affirmed. fendant. Thomas S. Jones, for the plaintiff, testified

(180 Ky, 704) that he was engaged in the whisky broker

COFFINBARGER v. COFFINBARGER. age business; that he bought and sold emp- (Court of Appeals of Kentucky. May 24, 1918.) ty barrels on commission; that on or before (Court of Appeals of Kentucky. May 24, 1918.) January 21st, he sold barrels for the defend- DIVORCE Com314-LIMITED DIVORCE-ToRTS OF

HUSBAND-SUIT BY WIFE. ant, and, being asked to "tell how that sale A wife who has secured a divorce a mensa came about," said:

et thoro may sue her husband for a tort there“On January 21, 1916, I called up the office after committed, in view of Ky. St. & 2121, proof the Glenmore Distillery Company, and Mr. viding that a divorce from bed and board shall James Thompson gave me an order for between operate to property thereafter acquired, and up6,000 and 7,000 barrels freshly empty cooperage on the personal rights and legal capacities of the packages, and as soon as I obtained the order parties, and a divorce from the bonds of matrifrom him I went to the telephone, and I called mony, except that neither shall marry again durup Mr. Darlington, that gentleman sitting right ing the life of the other, and except that it shall there, and asked him if he had any empty bar- not bar curtesy, dower, or distributive right. rels for sale. He told me he had plenty of them. Appeal from Circuit Court, Campbell He said, 'How many do you want? I says, 'I want between 6,000 and 7,000.' He said, “We

County. ' , ' your price?' He said, "The price is $1.05; you Coffinbarger and others. Petition dismissed get the five cents commission, and we get the as to defendant named, and plaintiff apdollar.' That dollar and five cents, the price, was based f. o. b. cars at Louisville. I asked peals. Reversed and remanded. him, 'Could I confirm the same?' and he said, “Yes; we will fill the orders.' The barrels were

Horace W. Root, of Newport, for appelto be delivered between that date and June 1,

lant. A. M. Caldwell, of Newport, for ap1916."

pellee. For the defendant, Mr. Darlington, its only witness, admitted the conversation with CLAY, C. Minnie Coffinbarger, who had Mr. Jones in reference to the sale about been granted a divorce a mensa et thowhich he had testified, and which Jones stat- ro from her husband, John Coffinbarger, ed was a sale by the defendant to plaintiff, brought this suit against him and others to denying simply that the sale was ever clos- recover damages for false arrest and imed, but he did not deny, nor did the defend- prisonment occurring after the decree of diant attempt to disprove that this sale was vorce had been granted. Her husband's defor the defendant, as Jones testified it was, murrer to the petition as amended was susnor does counsel for defendant even pretend tained on the ground that plaintiff could not now that if, in the conversation between sue him for a tort, and the petition was disJones and Darlington, the trade was consum- missed as to him. Plaintiff appeals. mated, it was not a sale by the defendant. We have held that under section 2128, It will therefore be seen that while defend- Kentucky Statutes, empowering the wife to

have got the barrels. I said, Well, what

is Suit by Minnie Coffinbarger against John

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