MALICIOUS PROSECUTION-Continued—

Page.

and never collected, and afterwards on appeal she was
again tried and acquitted, is not estopped from bringing a
suit for malicious prosecution against one whom she alleged
in her petition knew she was not guilty, and that she entered
the plea of guilty under his direction while in jai! Holt-
man v. Bullock. .

MANUFACTURING ESTABLISHMENTS-

Manufacturing

Establishments-Exemption

From Taxation-

Merger of Three Into One-Effect.-Sec. 170 of the Kentucky
Constitution provides that: "The General Assembly may au-
thorize any incorporated city or town to exempt manufactur-
ing establishments from municipal taxation for a period not
exceeding five years as an inducement to their location
therein." Sec. 2980a, Kentucky Statutes, provides that "The
general council shall have power by ordinance to exempt
from municipal taxation for a period not exceeding five years,
manufacturing establishments as an inducement to their lo-
cation within the city limits." Held that where the evidence
shows beyond a doubt that three manufacturing corporations
in a city were merged into one corporation under a new name
and one management, said concern did not conduct such a
new manufacturing establishment as within the letter or
spirit of the Constitution or the Kentucky Statutes or the city
ordinance of Louisville as to entitle it to exemption from mu-
nicipal taxation. Jones Bros., Castleman & Blakemore v. City
Louisville

MARRIED WOMEN-

Married

Women-Conveyance of Land by-Where Husband
Does Not Join-Provision of Statute-A married woman can-
not sell and convey her real estate without her husband
join with her, and where she attempts to do so in an action
by her and her husband to recover it, its possession will be
adjudged to her. Simpson, et al v. Smith, et al......

MASTER AND SERVANT-See Instructions.

1.

2.

Where, though the facts are undisputed, reasonable men may
draw different conclusions from the facts, the question of
negligence is for the jury; not for the court. Central Coal
& Iron Co. v. Owens.

Where the driver in a coal mine jumped from his car to
avoid a collision and was mashed between the car and the
rib of the entry by reason of the narrowness of the cntry, it
is a question for the jury whether the narrow entry was a
reasonably safe place for the work assigned the servant.
Idem.

335

759

608

19

19

MASTER AND SERVANT-Continued—

4.

Page.

3. The master cannot complain that the servant drove in front
who was ordered to drive behind, when in driving in front at
the time, he followed a custom of the business, and did what
he was expected to do under the custom. Idem.
Master and Servant-Damages-Action For-Recovery.-Ap-
pellee while employed as foreman in appellant's car barn and
yard in Lexington, Ky., fell into a pit and was seriously and
permanently injured for which he sued appellant and resov-
ered a judgment for $4,000.00 in damages, from which Judg-
ment this appeal is prosecuted. Lexington Railway Co. v.
Cropper.

5.

Same Assumption of Risks.-Held, that while the servant as-
sumes all the risks incident to his employment he does not
assume such risks as arise from the master's neg igence.
Idem

6. Same-Burden of Proof.-It is well settled in this State that
the burden is on the master to show that the servant took the
risk with knowledge of the danger and that he failed to use
ordinary care for his own safety, but for which he would not
have been injured. Idem.

7.

8.

9.

Same-Question for Jury.-Whether appellee's injuries result-
ed from his failure to exercise ordinary care in approach-
ing the pit into which he fell, was a question for the jury,
as was the question of assumed risk, and whether the apper-
lant's servants in moving the car in appellee's absence, ex-
posing the pit into which he fell, and thus creating such a
change of conditions as made it dangerous for him to ap-
proach the car, were guilty of negligence. Idem....

Physical Examination-Right to Demand. Where a plaintiff
in a damage suit for injuries received has the arbitrary right
to demand a physical examination, is a matter addressed to
the sound discretion of the trial court, and on appeal its rul-
ing will not be disturbed unless it is made to appear that
there was an abuse of such discretion. Idem.....
Excessive Damages-Evidence.-A verdict awarding a plain-
tiff $4,000.00 in damages for injuries sustained will not be set
aside as excessive where the evidence of the witnesses.
including two physicians, shows they were of a serious and
permanent character. Idem. . .

10. Master and Servant.-The master is not liable to a servant
who in the ordinary course of his employment receives in-
juries as a result of his failure to exercise ordinary care for
his own safety. To authorize a recovery there must be a
breach of duty on the part of the master. Foreman v. L. & N.
R. R. Co.

11. Rule 33 of the Court.-The attention of attorneys is cited to
rule 33 of the Court, providing that "whenever a case cited

MASTER AND SERVANT-Continued-

or referred to by counsel in brief or argument has been pub-
lished in the Kentucky Reports, which is the only official pub-
lication of the decisions of this Court, attorneys must cite,
refer to and use the Kentucky Reports and no other publica-
tion." Its observance is requested, and will be appreciated
by the Court. Idem.

Page

63

12. Evidence-Conflicting Evidence-Duty of Court to Direct
Nonsuit. It is the province of the court to pass upon and
decide questions of evidence, and especially is this so if
the evidence is contradictory or conflicting, but it sometimes
becomes the duty of the trial court, even where the evidence
is conflicting, to enter a nonsuit or direct the finding of the
jury. This duty the law imposes on the court where the
evidence as a whole fails to show a right of recovery in the
party asking it. Cin. N. O. & T. P. Ry. Co. v. Rue, by, et al. 694
13. Master and Servant-Relative Duties. It is a well recog-
nized rule that the master is not responsible for the wrong-
ful act of his servant, unless the act be done in execution
of the authority, express or implied, given by the master. Be-
yond the scope of his employment the servant is as much a
stranger to his master as any third person, and the act of
the servant not done in the execution of the service for
which he was engaged can not be regarded as the act of
the master. Idem
695

14. Railroads

-

Trespasser on Train

-

Ejection Liability.-A
freight train does not, as a rule, carry passengers, and any
person who rides upon such a train without the consent of
those in control of it becomes a trespasser, and may, for
that reason, be summarily ejected therefrom. But if the
servants in charge of the train in removing the trespasser
should use unnecessary force and thereby inflict injury upon
him, the master would, in such case, be liable for the in-
jury, because the servant being possessed of the authority
to remove the trespasser in a proper manner, his wrong-
ful exercise of such authority, resulting in the injury, would
bring the act within the scope of his employment. Idem .. 695

15. Personal Injuries-Unsafe Horse. If the servant is injured
by the vicious conduct of an unsafe and dangerous horse owned
by the master, the master will be liable in damages if he
knew, or in the exercise of ordinary care, could have known
the qualities of the horse, and the servant was not guilty of
such contributory negligence as would defeat a recovery.
Mayfield Lumber Co. v. Lewis' Admr.....

16. Evidence of Habits of Horse.-In such a case it is competent
to show the bad habits of the horse both before and after the
injury complained of, and the reputation of the horse is also
admissible as evidence. Idem

727

728

MASTER AND SERVANT-Continued-

Page

17. Assumed Risk-Duty of Master to Use Ordinary Care. It is
the duty of the master to use ordinary care to furnish his serv-
ant with a reasonably safe place in which to work, and if
the work is of a dangerous or hazardous nature, and such
danger or hazard is not obvious and apparent, so that any
one can see and understand it, then it is the duty of the mas-
ter to use reasonable care to advise the servant of such dan-
ger or hazard; but if he knows that the servant is inex-
perienced and unfamiliar with the danger incident to his
employment, and not obvious to one unskilled in that line of
work, then before the servant can be charged with having as-
sumed the risk the master must use ordinary care to advise
him of the danger of doing the work. See v. Leidecker.... 752

MILITIA OF STATE-

1.

2.

3.

Militia of the State-Fower of Governor to Order into Ac-
tive Service.-The Governor of the State has the author-
ity to order into active service the militia of the State
at any time or place that he deems their presence necessary.
He need not wait before ordering them out to be requested
so to do by the local civil authorities. Franks v. Smith .. 232
Militia Power of the Governor to Direct Operations.--When
the militia are ordered out, the Governor may direct and con-
trol their movements through military channels independent
of the local civil authorities, or he may, if he chooses, direct
the militia to report to any local civil officer and receive
directions from him. Idem

is no

232

Decision of the Governor not reviewable.-There
limitation upon the power of the Governor to order into act-
ive service the militia or to direct into what locality they snal.
go or operate. He is to be the judge of the necessity for
military intervention, and the courts have no authority to
interfere with his action. The fact that this power may be
abused is not sufficient to deny the granting of it.. Iden!.... 232
4. Duty of the Governor to Preserve Peace and Quiet and see
That the Law is Executed.-The Governor is charged by the
Constitution and law with the duty of preserving the peace
and quiet of the State, and to protect the life and property
of its citizens; and to accomplish this end may use all the
military forces of the State. Idem.

5.

6.

.... 232

Governor acts as a Civil Officer.-in ordering out a control-
1 the milit: ry. and not in his capacit as commander-in-
chief of the army of the State. Idem

233

Military Subordinate to Civil Authority.-The military can-
not in any state of case take the initiative or assume to
do anything independent of the civil authorities; and it must
be at all times subordinate to the civil authorities. Idem.... 233

MILITIA OF STATE-Continued-

7.

8.

9.

Page.

Liability of Soldier for Violation of Law.-A soldier, like a
civilian, is liable to suit and prosecution in the civil and
criminal courts of the State the same as any other citizen
if he violates any of the laws of the State; and the fact
that he does so in obedience to the orders of his superiors,
will not furnish him any protection. Idem

Soldiers Have Powers of Peace Officers.-A soldier in act-
ive service, whether acting under the orders of his superior
officer or some civil officer of the State, has the same power
as a policeman or sheriff to make arrests, disperse disorderly
gatherings and preserve the public peace. Idem.....

A Soldier's Disobedience to Military Orders.-If a soldier is
ordered by his superior officer to do an unlawful act,
that is an act that a peace officer might not do, he must
take the risk of refusing to obey the command or subject
himself to suit or prosecution in the civil courts if re does.
Idem . .

10. Peace Officers-Powers Of.-The militia, acting as peace
officers, have the right to arrest any person who has com-
mitted a felony, or is committing in their presence an act
that constitutes a public offense, and the right to disperse,
control and suppress riots or unlawful assemblies or bodies
of men acting in concert for the purpose of, or that will
have the effect of, intimidating, threatening, alarming, dis-
turbing or injuring any person or molesting or destroying
any property, with all the force and power necessary to ac-
complish these ends. Idem

MORTGAGES-

1.

2.

3.

Mortgage-Insolvency-Preference

of Creditors. A mort-

233

233

233

233

gage will be held within the act of 1856 where the mortgagor
knew what he owed and what property he had, and a man of
ordinary prudence situated as he was would have known
he was insolvent, and would have contemplated that the
transaction would prefer some of his creditors to the others.
Union Trust & Savings Co. of Maysville, Ky. v. Taylor, et al.. 183
Same. Where a debt is secured by a mortgage not within
the statute which had not been recorded, a subsequent mort-
gage is good as to this debt, although within the statute as
to other debts. Idem

Same. Where a debtor made a mortgage for $40,000, execut-
ing mortgage bonds to a trust company, which furnished the
money with which he paid certain of his creditors, prefer-
ring these creditors to others, the creditors may be required
to pay back the money they received, and when this is done
the mortgage bonds should be enforced. Idem.....

183

183