Office and Officers-Penal Actions.

OFFICE AND OFFICERS-Continued.

"wrongfulness" thereof, are legal conclusions, dependent on the
circumstances, and, hence, allegations merely stating that such
an arrest was made "without authority of law” and “wrongful-
ly" fail to state a cause of action. Idem. ....

...903

15. Same. No warrant or judicial order can justify an assaulting or
beating, and it is unnecessary to allege in a petition that an
assaulting and beating by a policeman, for which damages are
sought, was without such warrant or order. Idem...........904
16. Same. The mere averment in a petition based on an alleged
breach of policeman's official bond, that he had, in making an
arrest, "wrongfully, cruelly and severely assaulted, beat and
bruised the plaintiff," is not sufficiently specific to state a cause
of action. Idem.
..904

OFFICIAL BONDS-

See Office, etc., 11.

ORDINANCES-

See Mun. Corp., 24, 25, 26, 27. Office, etc., 4, 5.

PAROL TRUST--

See Life Ins., 4.

PARTIES TO ACTIONS—

1. Capacity to Sue-Objections Waived.-Whether the committee of
a lunatic could maintain an action for the sale of his ward's
land to pay debts, and whether after the lunatic's death the
curator of his estate could maintain an action for the settle-
ment of the estate, and whether the curator was properly ap-
pointed, were all matters going to the capacity of plaintiff to
sue, and not being pleaded at the proper time, were waived.
International Development Co. v. Howard.
..450

2. Jurisdiction of Defendant's Person-Warning Order-Presump-
tion-Action to Vacate Judgment.-In an action to vacate a
judgment in which the jurisdiction of defendant's person was
based upon a warning order, it will be presumed that an affidavit
for a warning order was filed, though none appears in the rec-
ord. Idem.
.450

PARTY DEVICE-

See Elec. Contest, 11.

PASSENGER--

See R. R., 4.

PENAL ACTIONS--

1. Repeal of Statute-Proceeding by Information.-Criminal Code,
section 11, providing that a public offense, of which the only
punishment is a fine, may be prosecuted by a penal action, was

PENAL ACTIONS-Continued.

not repealed by Kentucky Statutes, section 1141, providing that
"in misdemeanor cases, where the highest penalty that may be
imposed is a fine of $100 and imprisonment for 50 days, the
offender may be prosecuted by warrant as provided in the
Criminal Code, or by information filed by the Commonwealth's
or county attorney." Equitable Life Assur. Society of the U. S.
.126
v. Commonwealth.
2. Constitutional Provision.-Constitution, section 12, providing that,
with certain exceptions, "no person for an indictable offense
shall be proceeded against criminally by information," does not
apply to misdemeanors punishable by fine, and therefore the
Legislature had power to provide for the prosecution of such
offenses by penal action. Idem

...127
3. Discrimination in Insurance Rates.-Kentucky Statutes, section
656, providing that no life insurance company, doing business
in Kentucky, shall make or permit any distinction or discrimina-
tion in rates "in favor of individuals between insurants of the
same class and equal expectation in life," or make any contract
of insurance other than is plainly expressed in the policy issued
thereon, or allow any rebate of premium, is not unconstitutional
as preventing competition.
as being in restraint of trade or
.....127
Idem

4. Rebate on Premium-Policy on Life of Agent.-An insurance
company may discharge its debt to its agent by issuing a pol-
icy of insurance on his life, provided he is charged the same
rate that is charged other insurants of the same age and equal
expectation of life; but if the company agrees to pay him for
his services more than they are worth, with the design of giv-
ing him a rebate on premiums, there is a violation of the stat-
........ 127
ute. Idem.
5. Premiums Not Paid in Money.-Where premiums are paid in
something other than in money it is not necessary to recite that
fact in the policy in order to prevent it from being a violation
.....127
of the statute. Idem.
6. Written Plea Not Required of Defendant.-As the defendant in
a penal action can not be required to furnish evidence against
himself, it is error to require him to file an answer specifically
denying all of the allegations of the petition, a plea of not guilty
being all that is necessary. Idem.

.127

Pleading-Railroads.

PLEADING-

See Elec. Contests, 23. Office, etc., 14, 15, 16. Penal Actions,

6. R. R., 15, 16, 17. Parties to Actions, 1.

PRIVILEGED PUBLICATIONS-

See Libel, 1, 2, 6, 7.

PROSPECTIVE PRÓFITS—
See Contracts, 8.

PUNITIVE DAMAGES-

See Banks, 8. R. R., 4. Seduction, 3.

PURCHASER OF LAND—

See Vol. Conveyance, 1, 2.

1. Sale Subject to Ancestor's Debts-Stipulations in Deed-Notice to
Purchaser.-Where heirs, in selling land, stipulated as part of
the consideration that the purchaser was to pay all legal liabil-
ities of the ancestor, and when the purchaser conveyed to au-
other he stipulated in the deed that the grantee should pay not
only all such liabilities, but the costs of a pending suit to settle
the ancestor's estate, a subsequent purchaser took the land with
notice that it was charged with the ancestor's debts, and with
the costs of the suit referred to, and he can not complain of ir-
regularities in that suit which were waived by the heirs with a
view to having the estate settled as speedily as possible with-
out unnecessary cost. International Development Co. v. How-
ard. ...
450

RAILROADS-

See Carriers.

....

1. Joinder of Master and Servant.-Under Kentucky Statutes, sec-
tion 3, a corporation and its servant may be sued jointly for a
death resulting from the negligence of the servant. Cincinnati,
N. O. & T. P. Ry. Co., etc. v. Cook's Adm'r.
......161
2. Removal to Federal Court.--Where a non-resident corporation
and its resident servant are properly joined as defendants, the
non-resident servant is not entitled to have the cause removed
to the federal court. Idem.

....161
3. Negligence of Engineer-Question for the Jury.-Where a brake-
man, who had gone to uncouple a car for the purpose of leaving
it upon the side track, being on the fireman's side of the train,
gave through him a signal to the engineer for slack when he
reached the car, whereupon the engineer backed the train a
little, and then in a short time again backed it upon a signal
from the brakeman on his side of the train without waiting for
any signal on the fireman's side, who was then between the cars
for the purpose of uncoupling a car to be detached, it was a

Railroads.

RAILROADS-Continued.

question for the jury whether the engineer was guilty of neg-
ligence under the rules and the usual course of doing the work,
which required the engineer not to move the train when he knew
a brakeman was uncoupling without a signal from him or no-
tice of his safety. Idem.

....

.....

.....161

4. Gross Negligence-Punitive Damages.-Under Kentucky Statutes,
section 6, giving a right of action for death caused by defend-
ant's negligence or wrongful act, the court properly instructed
the jury that they might allow compensatory damages if there
was ordinary negligence, and punitive damages if there was
gross negligence. Idem.
....162
5. Negligence of Superior Servant.-Under that statute there may
be a recovery against the master for the death of a servant re-
sulting from the ordinary negligence of a superior servant en-
gaged in the same employment, though there could have been
no recovery for the injury if it had not resulted in death.
Idem.
.....162
6. Variance. The fact that plaintiff alleged gross negligence did
not preclude him from recovering upon proof of ordinary neg-
ligence, as there was merely a failure to prove a part of the
negligence. Idem.

....162

7. Evidence-Res Gestae.-Declarations of the engineer of the train
made several hours after the injury was inflicted were not ad-
missible against the master, not being part of the res gestae,
but were admissible against the engineer himself, who was
joined as a defendant, and the court properly so ruled. Idem ..162
8. Error in Instructions.-Evidence having been admitted which was
competent against one of the defendants and not against the
other, it was error to instruct the jury that if their verdict be
for plaintiff, it "shall be" against both defendants. Idem.....162
9. Rules of Company-Defendants should be permitted on another
trial to read to the jury the rules of the company in regard
to the obedience of signals by the engineer. Idem...........162
10. Stock Pens--Injury From Prudent Construction and Operation.-
Under Constitution, section 242, providing that corporations and
individuals invested with the privilege of taking private prop-
erty for public use shall make just compensation for property
injured or destroyed by them, a railroad company, though bound
by law to furnish suitable stock pens, is liable for injuries to
adjacent property resulting from the construction and opera-
tion of such pens, though it has been guilty of no negligence
whatever. Bramlette v. L. & N. R. R. Co. .....

.....300
11. Same-Res Judicata.-A Judgment for plaintiff in an action
against a railroad company to recover damages for injuries

Railroads.

RAILROADS-Continued.

resulting solely from the negligent construction and operation of
stock pens, is not a bar to a subsequent action by plaintiff to
recover damages for the permanent depreciation in the value of
his property resulting from the prudent construction and op-
eration of such pens. Idem.
......300

....

12. Same-Demurrer-Defense.—The fact that it appears from plain-
tiff's petition in an action to recover damages for the permanent
depreciation in value of his property from the prudent con-
struction and operation of stock pens, that there was a judg-
ment for him in a former action to recover damages for in-
juries "in consequence of said pens" and their condition prior
to a certain date, does not render the petition bad on demurrer,
as defendant must, if the question of permanent depreciation
in value necessarily resulting from prudent construction and op-
eration was involved in the former litigation, affirmatively show
that fact by way of defense, it not appearing from the petition.
Idem.
....300
13. Master and Servant--Danger Incurred in Obedience to Order of
Superior. The principle that the servant may lawfully obey the
orders of his employer, relying on his superior knowledge and
judgment, applies where a section hand obeyed the order of the
section boss to ride on a hand car to his place of work when he
knew that a fast train was overdue, though the station where
the men boarded the car was not a telegraph station, and the
boss knew no more of the whereabouts of the delayed train than
the servant knew, and therefore the master will not be heard
to say that the servant assumed the risk of a collision unless the
danger was so obvious that a servant of ordinary prudence,
situated as he was, would not have obeyed; and that is a ques-
tion for the jury. Long v. Illinois Central Ry. Co.........806
14. Duty to Protect Proposed Passenger At Station From Assault--
Use of Waiting Room Unreasonable Time Before Departure of
Train. Kentucky Statutes, section 784, requiring all railroad
companies to open their ticket offices at least thirty minutes
preceding the schedule time for the departure of all passenger
trains, fixes what is a reasonable time for the carriers to be
required to care for passengers before they have taken actual
passage, and, therefore, where plaintiff was assaulted in the
waiting room of a station about three hours before the schedule
time for the departure of the train upon which she proposed
to take passage, the company was not liable, in the absence of
any contract, express or implied, to accommodate her for a longer
time than that fixed by the statute. Illinois Cent. Ry. Co. v.
Laloge.
...897