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the county in which the accident had taken
place or in which plaintiff resided, plaintiff's
failure to file a reply to the special plea to the
jurisdiction by order of court did not require
true, where plaintiff in his petition had alleged
court to accept the facts stated in the plea as
court to accept the facts stated in the plea as
that he was a resident of the county in which
the action was brought at the time the cause
of action accrued, since in such case the allega-
tions of the plea must be treated as an affirm-
ative denial of plaintiff's allegation.
5. Trial 139(1)-When verdict can be di-
rected stated.

had no capital to begin with. A court can- | the ground that the action was not brought in not shut its eyes to such glaring fraud, no matter how skillfully managed or operated. C. E. Flegle is the real owner of the 20 shares of stock in the Star Milling Company, as well as the automobile and the equity in the home in Clinton and other property mentioned in the petition, subject to the lien of Mrs. Flegle for the amount of the insurance money with interest and such other liens as existed at the time of the commencement of this action, and this property is subject to plaintiffs' debt. The trial court should have so adjudged.

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A man must have a legal residence at some place.

A court will not direct a verdict, unless every fact shown in plaintiff's evidence, as well as all other reasonable inferences and deductions fairly to be drawn therefrom, can be admitted as true.

6. Railroads 282(10)—Injury by trainmen held for jury.

In an action by one who claimed to have been kicked off a moving freight train, in which the railroad denied that he had been kicked off train, the question of whether he had been kicked off or had fallen off train held for the jury. 7. New trial 108(4) Evidence that plaintiff had fallen off, instead of having been kicked off, held to require granting railroad new trial.

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In action against a railroad, involving the question of whether plaintiff had been kicked 2. Railroads 5/2, New, vol. 6A Key-No. Se-off or had fallen off moving train, evidence as ries-injured party held to "reside" in county of venue.

Where a railroad employé, 24 years of age, left the state to work for the railroad in another state, and continued to work there 10 years, living in boarding cars, and during such time his father's home was broken up by death, after which the employé's younger brothers and sisters lived within a short distance from the old home with a married sister, to whom he sent money to aid in maintaining the home, which he visited at various times, his action against the railroad was properly brought in the county in which his sister's home was situated; such being his legal residence, within the Director General's orders.

3. Appeal and error 1062 (5) - Submission of question, though there was no real issue as to the facts, held harmless.

In action against railroad, defended on the ground that action was not brought in the county in which the cause of action took place or in which plaintiff resided, as required by Director General of Railroads' General Orders Nos. 18 and 18a, submission to the jury of whether plaintiff resided in the county in which the action was brought held not prejudicial to the railroad, though there was no real issue as to the facts, where under the facts the plaintiff's real residence was in such county.

4. Pleading 182-Allegations of plea to jurisdiction not accepted as true, in absence of reply, where contradictory of allegations of plaintiff's petition.

In action against railroad, in which defendant filed a special plea to the jurisdiction, on

to plaintiff's declarations, following the accident, that he had fallen off train, held sufficient to require court to set aside verdict for plaintiff and grant a new trial, in view of Civ. Code Prac. § 340, subsec. 6.

Appeal from Circuit Court, Hart County.

Action by Mit Gaines against Walker D. Hines, successor of William G. McAdoo, Director General of Railroads. Judgment for plaintiff, and defendant appeals. Reversed, with directions.

Benj. D. Warfield, of Louisville, Sims, Rodes & Sims, of Bowling Green, and Watkins & Carden, of Munfordville, for appellant.

Charles Carroll and M. T. Moran, both of Louisville, and Larrimore & Wheeler, of Munfordville, for appellee.

TURNER, C. Appellee was reared and lived with his mother and father at their home in Hart county, Ky., until the year 1908. At that time he was 24 years of age, and went to the state of Alabama to work for the Louisville & Nashville Railroad. He remained in Alabama until June, 1918, at which time, while riding on a freight train, he was either knocked or kicked therefrom, or fell therefrom, between the cars, which ran over his legs and necessitated their amputation.

This is an action instituted in the Hart circuit court of this state by him for damages For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(232 S.W.)

resulting from such injury, wherein he al-, their work, necessitating absence from their leges, in substance, that while so riding on trains for days and sometimes a week or more, the freight train in Alabama he was either which practice is highly prejudicial to the just kicked or knocked therefrom by a brakeman interests of the government and seriously inassisting in the operation of the freight train, roads, and the practice of suing in remote juterferes with the physical operation of the railand that his injuries resulted therefrom. risdictions is not necessary for the protection roads, and the practice of suing in remote juThe answer controverted the material parts of the rights or the just interests of plaintiffs: of the petition, and, in addition, relied upon "It is therefore ordered, that all suits against the alleged contributory negligence of the carriers while under federal control must be defendant. On a trial a verdict was returned brought in the county or district where the for the plaintiff for $6,000, upon which judg- plaintiff resides, or in the county or district ment was entered, and, the defendant's mo- where the cause of action arose." tion for a new trial having been overruled, he has appealed.

The original petition alleged that the plaintiff was at the time, and had been continuously for 10 years, a resident of Hart county, Ky., and the defendant, before filing his answer to the merits, filed a special plea to the jurisdiction of the court, wherein it is alleged that the plaintiff did not reside in Hart county, Ky, and did not reside in said county on the day of the injury for which he sued, and had not so resided at any time in the past 15 years prior to bringing the action, and relied upon the act of Congress providing for the federal control of transportation systems (U. S. Comp. St. 1918, U. S. Comp. St. Ann. Supp. 1919, §§ 31154a-31154p), and providing that all such carriers, while under such federal control, should be subject to all liabilities as common carriers, whether arising under state or federal laws, or at common law, except in so far as might be inconsistent with the provisions of that act, or any act applicable to federal control, or with any order of the President. He then sets out two orders, General Order No. 18, dated April 9, 1918, and General Order No. 18a, dated April 18, 1918, issued by the Director General of Railroads under the authority of the President. Said two orders are as fol

lows:

"Washington, April 9, 1918. "General Order No. 18. "Whereas, the act of Congress approved March 21, 1918, entitled 'An act to provide for the operation of transportation systems while under federal control,' provides (section 10) 'that carriers while under federal control shall be subject to all laws and liabilities as common carriers, whether arising under state or federal laws, or at common law, except in so far as may be inconsistent with the provisions of this act or with any order of the President, but no process, mesne or final, shall be levied against any property under such federal control'; and

"Whereas, it appears that suits against the carriers for personal injuries, freight, and dam age claims are being brought in states and jurisdictions far remote from the place where plaintiffs reside or where the cause of action arose, the effect thereof being that men operating the trains engaged in hauling war materials, troops, munitions, or supplies, are required to leave their trains and attend court as witnesses, and travel sometimes for hundreds of miles from 232 S.W.-40

"April 18, 1918.

"General Order No. 18a. "General Order No. 18, issued April 9, 1918, is hereby amended to read as follows:

"It is therefore ordered that all suits against carriers while under federal control must be brought in the county or district where the plaintiff resides at the time of the accrual of the cause of action or in the county or district where the cause of action accrued.'

in the first one, was to localize so far as The purpose of these two orders, as stated might be practicable actions against carriers, so that witnesses in such actions, who might be engaged in either the transportation of soldiers or of war material, might not be called as witnesses to distant points and thereby be taken from their important duties as employés in such transportation; but the right of a litigant to bring his action in the county or district where he resided at the time of the accrual of his cause of action was not attempted to be restricted or limited, and the whole question in this case on this branch is whether the plaintiff was at the time of the accident a resident of Hart county, Ky.

The facts are that for some time before

1908 appellee, then admittedly a resident of Hart county, had been locally employed by

the Louisville & Nashville Railroad Company, and lived with his father and mother at their home in that county, and was unmarried; that in 1908 he went to the state. of Alabama under employment with that company, and remained in that state under such employment practically all of the time between that and June, 1918; that during the period he was in Alabama, or a very large part of it, he was engaged as a mem

ber of a construction crew, and that such crews lived in what are known as boarding cars, and that they had no fixed habitation, but would go from one point on the line to another, and remain only a short time at any given place, and that this was the nature of his work and employment practically all the time he was employed in the state of Alabama, although for short periods upon one or two occasions he was engaged in work for that company in other capacities, but he never remained at any one point in the state of Alabama for any great length of time or acquired a fixed habitation therein.

It likewise appears that a year or so after appellee went to Alabama his mother died, and thereafter his father's home was broken up and appellee's. younger brothers and sisters went to live with their married sister, a short distance from their father's home, and in Hart county. It likewise appears that appellee would make such visits to Hart county during his stay in Alabama as his work would permit, going back there, sometimes once a year, and sometimes often er, and at certain other times not so often, and that when he did go back he would remain only a day or two on some visits, and longer on others; that, after his mother's death and the breaking up of his father's home, he treated and considered his married sister's home, the place where his younger brothers and sisters were living, as his own home, and that he often sent money to his married sister to aid in keeping up and maintaining that home; that he remained unmarried during his whole stay in the state of Alabama.

[1-3] It is the theory of the law that a man must have a legal residence at some place, and it is clear from the evidence on this issue that the appellee never acquired at any point in the state of Alabama a legal residence, or any such domicile he might have called home. Under the facts, if his sister's home was not his legal residence, chen he had none; and we therefore hold that a fair interpretation of the two orders quoted gave him the right to institute and maintain this action in Hart county, the only home he had. This question, however, was submitted to the jury, although there was no real issue about the facts, and of this action appellant cannot complain.

this cannot be sustained under our liberal rules requiring the submission of questions of fact to the jury, for such an instruction is not justified, unless every fact shown in the plaintiff's evidence, as well as all reasonable inferences and deductions fairly to be drawn therefrom, can be admitted as true. In this case the plaintiff stated, in substance, that while he was sitting on a tank car of the moving freight train, a brakeman of the train, with a Louisville & Nashville lantern on his arm, came up to him and ordered him to get off of the train, and kicked--him in the side and caused him to fall off. He further said that he did not know the name of the brakeman, but that he had often seen him and knew he was a brakeman, and had seen him before at work on that train.

But it is said that, even under such liberal rules requiring the submission of questions of fact to the jury, the unsupported testimony of the appellee is so discredited and overwhelmed by the whole of the other evidence in the case that the verdict is not sustained by sufficient evidence, and is flagrantly against the evidence, and should therefore have been set aside by the trial court and a new trial granted. Subsection 6 of section 340 of the Civil Code authorizes the granting of a new trial by the trial court where the verdict or decision is not sustained by sufficient evidence. This contention involves an analysis of the evidence, and that analysis will be approached at the outset with the admitted fact that appellee's statement that he was kicked by a brakeman and thereby caused to fall from the moving train is wholly unsupported by any other witness. or by any fact or circumstance in the record.

The undisputed evidence is that appellee fell from the moving train only a short distance from a station called Georgiana, between 12 and 1 o'clock at night, and that the train from which he fell did not stop at that station. Appellant introduced on the trial 7 witnesses, who reached appellee just a short time after the accident, and while he was still in the railroad yards at the Georgiana station, and 6 out of the 7 witnesses say that appellant then said, in substance, that he had been riding on a tank car of the freight train, and that he had gone to sleep and fallen off, and the other witness, Dr. Watson, who probably reached him a little later than the other 6, says that he then stated to him that while riding on the tank car he had attempted to change his position and had fallen off.

[4] It is complained, however, that the allegations in the special plea to the jurisdiction were denied only by a reply filed in the clerk's office, but which was never filed by any order of court, and that therefore the allegations of that plea stand confessed, and, that being true, the motion for a peremptory should have prevailed. If the allegations of the plea to the jurisdiction had gone to matter not mentioned in the plaintiff's petition, and had been intended to defeat the jurisdiction upon new facts not referred to in the plaintiff's petition, there would be much force in appellant's contention; but the plaintiff in his petition had already alleged that he was a resident of Hart county, and that he was such resident at the time his cause of action accrued, and the allegations of the defendant's plea, setting up in detail. It is argued, however, that appellee, at the facts which were relied upon to show that he was not such resident, must be treated as an affirmative denial of what the plaintiff had already alleged.

[5, 6] It is further contended that the motion for a peremptory should have been sustained on the evidence. But manifestly

time he is said to have made these statements, was in excruciating pain from his injuries just received, and that they should not be given great weight for that reason; but it is sufficient to say in response to this that while appellee was in the hospital at Georgiana, and at a time when he was well

(232 S.W.)

repeated to the truck driver, in the presence of the witness, that he had fallen off of a freight train and received his injuries.

on the road to recovery, he made, in sub- Gaines to Gatzie Smith's, and that Gaines stance, the same statements, not only to Dr. Watson, but to others who called upon him there, and it is made clear in the evidence of Dr. Watson that at the time he reiterated these statements in the hospital he was perfectly at himself and free from the influence of any drugs.

In addition to this, it was testified by the conductor of the train that he knew nothing that night of any outsider or stranger being on his train, and that he did not throw off or kick off of that train the appellee, and that if any such thing was done it was done without his knowledge or information, and that the crew on that train consisted of Darby, the engineer, Butts, the flagman, anu Leonard Johnson, the brakeman-the latter colored. The engineer, Darby, testified that he knew nothing of any negro being on that train that night, or being injured by that train, and that he had no knowledge or information of the negro being kicked or thrown off. Butts, the flagman, testified that he had no knowledge or information of any negro being on that train, or being forced or put or kicked off, and that, if any such thing was done, he had not done it. And the negro brakeman, Johnson, testified that he was at the time in the employ of the railroad company as extra brakeman, but did not remember whether he was running that week or not. The plaintiff had testified that the man who kicked him off was a white . brakeman.

Dr. W. T. Morris states in his affidavit. that he is a resident of Georgiana, Ala., and a practicing physician, and that he assisted Dr. Watson in amputating the limbs of Mit Gaines, and that he had examined said Gaines and during the examination had asked him his name and how the accident occurred, and that Gaines told him his name. and said he was riding on a tank car of a freight train, and that in attempting to change his position he lost his hold and fell off, and that Gaines was at the time, in witness' opinion, in full possession of his mental faculties and knew what he was saying.

The affidavit of Marvin Deaton states that he was a resident of Georgiana, Ala., and that he was employed by the Louisville & Nashville Railroad Company, and that the night of the accident he was working at the railroad shops at that place; that he heard the cries of some one in distress and went with others to the place whence the cries came, and that in his presence some one asked the man his name and how he happened to be hurt, and in reply he gave his name and said he was riding the freight train, and in attempting to change his position he lost his hold and fell off.

So that we have, as opposed to the single and unsupported testimony of the appellee,

the statement of 11 or 12 witnesses, undenied except by appellee, that at the time of the injury, and shortly thereafter, appellee had made statements utterly inconsistent with and directly contrary to his statements under oath on the trial; that he had made practically the same statements, not only to the persons who reached him soon after the injury, and who were strangers to him, but had subsequently, while in the hospital, and at a time when he was recovering from his injuries, stated the substance of the same thing both to his doctor and to his nurse, while sustaining toward those two the intimate relation which grows out of the ministrations to suffering humanity by nurses and doctors. And it nowhere appears that he made any different claim or any different statement of how the injury occurred to any person as long as he remained in the state of Alabama after his injury, which was approximately two months.

In addition to all this evidence, the appellant, on a motion for a new trial, filed the affidavits of Gatzie Smith, F. C. Webb, Marvin Deaton, and Dr. W. E. Morris. The affidavit of Gatzie Smith states that she is a practical nurse, and that appellee was brought to the hospital on the 5th of June, where she was engaged, and that he remained under her personal care for about 50 days, and that during that time she many times heard him say how his injuries were re ceived, and that he always stated that he was riding on a tank car of a freight train, and lost his hold and fell off of the train, and that she had heard him numerous times read letters written by him to his relatives, in which he always stated that he received his injuries by falling off of a freight train. F. C. Webb's affidavit states that he is a resident of Georgiana, Ala.; that he is a druggist, and often assisted Dr. Watson in emergencies, and that about 1 o'clock a. m. on June 5, 1918, by request he arose and [7] While the action of the trial court in went to the house where appellee was, and submitting this case to the jury was proper while the doctor was preparing to amputate under our scintilla rule, yet upon the motion his limbs witness asked appellee his name for a new trial, when it appeared, as it seems and how he happened to get hurt, and he to us, that the verdict was clearly and flaanswered that his name was Mit Gaines, and grantly against the weight of the evidence, that he was riding a tank car on a freight the court should have, in the exercise of its train and fell off; and that later that day right under the section of the Code referred he accompanied the truck which carried to, granted the appellant a new trial. L. &

The judgment is reversed, with direction to grant appellant a new trial, and for further proceedings consistent herewith.

N. Railroad Co. v. Baker's Adm'r, 183 Ky.[ the county jail for the period of one year. 795, 210 S. W. 674. A judgment was rendered in accordance with the verdict of the jury. His motion to set aside the verdict and to grant him a new trial was overruled, and from the judgment he has appealed. In the motion for a new trial, only two grounds were presented or relied upon, and these were:

(192 Ky. 206)

MCLAUGHLIN v. COMMONWEALTH. (Court of Appeals of Kentucky. June 24, · 1921.)

1. Criminal law 1004-Right of appeal is solely of legislative creation.

The right of appeal in criminal cases is solely of legislative creation, and has no basis in any constitutional guaranty.

2. Criminal law 1023 (4)-There can be no appeal from decisions of the trial court upon challenge to the panel or for cause.

While Cr. Code Prac. §§ 199, 206, 207, provide for challenges to the panel and for cause, and section 280 provides for exception to any decision of the court by which the substantial rights of a party are prejudiced, yet as section 281 declares that decisions of the court upon challenges to the panel and for cause shall not be the subject of exception, an accused, who was convicted by a jury on which sat a woman, cannot, though Const. § 7, declares that the ancient mode of trial by jury shall be inviolate, appeal from a decision overruling a challenge to such juror, on the theory that she was not qualified, within Const. § 248, and the Statutes defining qualifications; for, except as allowed by the Legislature, no appeal can be

taken.

Appeal from Circuit Court, Jefferson County, Criminal Branch, Criminal Division.

Adolph McLaughlin was convicted of unlawfully shooting and wounding another in sudden heat of passion, etc., and he appeals.

Affirmed.

H. M. Denton, of Louisville, for appellant. Chas. I. Dawson, Atty. Gen., Thos. B. McGregor, Asst. Atty. Gen., and W. W. Thum and Loraine Mix, both of Louisville, for the Commonwealth.

HURT, C. J. Adolph McLaughlin was indicted for the crime of maliciously shooting at and wounding another, with the intent to kill such other, but from such shooting and wounding the victim did not die. When tried, he was found by the jury not guilty of the crime charged, but was found guilty of the offense of unlawfully shooting and wounding another, in sudden heat of passion, without previous malice, and not in his selfdefense, a crime which is embraced in the indictment an offense of lesser degree than the one charged in the indictment, and his punishment was fixed at imprisonment in

(1) The verdict was against the law and the evidence.

(2) "Because the jury that tried him was composed of eleven men and one woman, which was illegal and contrary to the statutes and Constitution of Kentucky, which provided that the ancient mode of trial by jury shall remain inviolate."

Touching the first ground, an examination of the bill of exceptions does not develop any error made by the court in instructions to the jury, and also shows that the evidence was sufficient to support the verdict, and and hence there could be no insistence that the verdict was in any wise contrary to the law or the evidence.

[1] The second ground, upon which a reversal of the judgment is sought, concerns a question of interest at the present, but, if it requires a review by this court of a decision of the trial court which is not a subject of exception and cannot be reviewed by this court, it at once appears that the question involved is not presented for decision here; and, while there would be no hesitation in determining the question if presented in a way which would enable this. court to pass upon it, we do not feel justified in traveling out of the record to render an opinion which would amount to no more than useless obiter dictum. It has been held a great many times, and there is no holding or opinion to the contrary, that the right of appeal is purely a thing of legislative creation, and the right of appeal in a criminal

action has no basis in any constitutional guaranty. Until the adoption of the Criminal Codes of Practice in 1854, an appeal from the judgment of a trial court in a criminal action could not be had for any purpose. At that time the General Assembly provided for appeals in criminal actions, and since that time it has enlarged the number of decisions of the trial courts, which may be the subject of exception and reviewed by this court, but it has been invariably held that the appeal in such actions was subject to the decisions imposed by the legislation which provided for the appeal. In other words, the appeal must be prosecuted, if at all, in the time and way, and from such decisions of the trial court as the Legislature has provided for.

[2] The Legislature having authority to deny an appeal in such causes altogether, it follows as a logical and necessary consequence, that an appeal cannot be prosecuted

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

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