facts of this case, should be permitted to do

So.

For the reasons given, the judgment of the lower court is affirmed.

wealth (Ky.) 60 S. W. 185, 948, 1118, 63 S. W. 984, 64 S. W. 262; Howard v. Com. (Ky.) 61 S. W. 756.

For the errors indicated, the judgment is reversed, and cause remanded for a new trial under proceedings not inconsistent herewith.

MORGAN v. COMMONWEALTH. (Court of Appeals of Kentucky. March 25,

CRIMINAL

1903.)

LAW-EVIDENCE-CROSS-EXAMINATION OF DEFENDANT-IMPEACHMENT. 1. Defendant in a prosecution for felony, after testifying in her own behalf, was asked on cross-examination if she had not been convicted and sentenced to the penitentiary for a similar offense, and was compelled to answer. Held, that the evidence was competent for impeachment purposes.

2. Defendant in a prosecution for felony, after testifying in her own behalf, was asked on cross-examination if she were not the daughter of old Squire S., and the sister of the "notorious M. L. S." Held, that the use of the word "notorious" was improper.

3. In a prosecution for felony, after defendant testified in her own behalf, a witness called for impeachment purposes testified that defendant was a notorious blackmailer and thief, a daughter of Squire S., and a sister of M. L. S., and "the whole push was bad"; that defendant's business was "doing everybody she could." Held, that the evidence was irrelevant, and prejudicial.

.Appeal from Circuit Court, Marion County. "Not to be officially reported."

Anna Morgan was convicted of felony, and appeals. Reversed.

C. J. Pratt and M. R. Todd, for the Commonwealth.

O'REAR, J. Appellant, on her trial under a charge of felony, offered herself as a witness in her own behalf. She was asked on cross-examination if she was not the daughter of old Squire Spalding, and the sister of "this notorious Mary Lou Spalding," to which she was, over objection, required to answer. She was also asked if she had not been convicted and sentenced to the penitentiary for a similar offense to that for which she was being tried. The court is of opinion that it was competent to cross-examine this witness on the points above named, except that the commonwealth attorney should not have used the expression "notorious" in describing Mary Lou Spalding. A witness for the commonwealth, introduced for the purpose of impeaching appellant, was permitted, over her objection, to state that she was a notorious blackmailer and thief, and in answer to the question, "She is a daughter of Squire Spalding, and the sister of Mary Lou Spalding, is she not?" answered, "Yes, the whole push is bad." In answer to the question what business appellant was engaged in, he answered, "Doing everybody she can." All the foregoing answers were irrelevant and improper, and the court erred to the prejudice of appellant in suffering them to be considered by the jury. Welsh v. Common

2. Ky. St. 4428, provides that no school district shall contain less than 45 or more than 100 pupil children, and that the county superintendent shall from year to year equalize, in school population, the districts of his county. Held, that the action of the superintendent in changing the boundaries and numbers of districts does not oust the district trustees, where they live in the territory embraced within their districts as rearranged.

Appeal from Circuit Court, Harlan County.

"Not to be officially reported."

Action between Nancy Farley and Lavinia Gilbert. From a judgment for the latter, the former appeals. Affirmed.

W. F. Hall and Forester & Forester, for appellant. H. C. Clay, for appellee.

O'REAR, J. This appeal involves the power of the county school superintendent of schools to abolish two adjacent school districts in his county, and immediately re-establish them by different numbers, comprising substantially the same territory, and thereby remove from office the trustees holding in the former district. The power is supposed to be derived from the authority contained in article 7, c. 113, Ky. St., embraced in sections 4427-4433, inclusive.

Section 4427 provides that school districts shall remain, until altered or abolished pursuant to that chapter, as then described and numbered. Section 4428 looks to uniformity, as far as practicable, of the number of children within each district, so as to provide all, as near as may be possible, with the same facilities for education. It requires that all districts should be made to contain not less than 45 pupil children, and not more than 100, "except in cases of extreme emergency," and in incorporated towns and cities.

In this case the district in question contained 60 pupil children. By the change it was reduced so as to contain but 45. The necessity for the superintendent's action is not shown, but the court will presume that there was a proper reason for it. At the time of the change there were acting trus tees whose terms of office had not expired. It was supposed that the change of the districts and the change of the numbers was

an abolishment of the old districts, and, therefore, of the offices. The mere alteration of the boundary of a district by adding territory or taking from it territory would not abolish the district so as to remove its trustees from office, nor could the change of the numbers of the districts have such effect. For, if that were so, it would be within the legal power of the county superintendent to remove every trustee in his county from office by simply changing the numbers of the districts, or by slight and immaterial alterations of their boundaries, thereby substituting his selection of trustees for that of the patrons and voters of the county. Such an arbitrary and unlimited power in that officer is not conferred by any section of the statute, and ought not to be. It would be out of harmony with the whole spirit of our system of government, which looks to local control of such matters by the constituents of the respective localities.

The old trustees in this case do not appear to have been without the territory of their district by the change referred to. The circuit court adjudged that they continued in office, and that their contract bound the school district. In this conclusion we concur, and the judgment is therefore affirmed.

BLUE GRASS INS. CO. v. COBB. (Court of Appeals of Kentucky. March 25, 1903.)

CO-OPERATIVE FIRE INSURANCE - MEMBERSHIP-ATTACHMENT OF RISK-DELIVERY OF POLICY-PAYMENT OF PREMIUM.

It

1. Insured testified that, when his application was taken, defendant's agent stated that he did not know that defendant had been chartered, but that, as soon as it was chartered, plaintiff was insured; but he further testified that when he made the application he was told that when the policy came he would not have to take it, unless it was as represented. was the company's custom to issue a policy and send it to the insured for acceptance or rejection, and, if accepted, the insured paid the fees, and the contract was then consummated. Held, that the evidence was insufficient to warrant a finding that the insurance was in force before the policy was delivered or the premium paid.

2. Under Ky. St. § 702, relating to co-operative fire insurance companies, and providing that "every person insured who shall sign an application for insurance, shall thereby become a member of the company," a person who signed an application, but whose policy was not delivered or the premium paid before loss, was not insured, and was therefore not a member of the company. within such section.

Appeal from Circuit Court, Owen County. "Not to be officially reported."

Action by J. T. Cobb against the Blue Grass Insurance Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Jno. S. Gaunt, C. Strother, and F. C. Greene, for appellant. Lindsey & Botts, for appellee.

SETTLE, J. This case is now before this court on second appeal. The opinion ren

dered on the former appeal is reported in 58 S. W. 981.

The appellant is an assessment or co-operative fire insurance company, organized under section 702, Ky. St, and doing business in the 10 counties of this state named in its articles of incorporation. The form of policy in use by appellant is framed in accordance with the terms and meaning of the statute supra, and it contains, among other provisions, one to the effect that "any person owning property in territory embraced by our charter, who shall sign an application and hold a policy in this company, shall thereby become a member of the same." It appears that appellee, J. T. Cobb, on March 28, 1897, signed a written application for a policy of insurance upon his dwelling house and contents in the appellant company, pursuant to its rules and regulations, which required that the application should be forwarded to the company's office, in the city of Lexington, and, if accepted by the company, a policy was to be written and delivered to appellee, through the agent of appellant residing in his county, upon the payment by appellee of $1.50. The application also provided that certain assessments to meet losses were to be paid the company by appellee, in common with all of its members, from time to time as called for. It further appears that the policy applied for by appellee was placed by appellant in the hands of its agent to be delivered to appellee, but that, before it could be so delivered, the latter's house, named in the application, was totally destroyed by fire, and the agent did not, therefore, offer to deliver the policy. The appellee then brought suit in the Owen circuit court against the appellant to recover of it the loss sustained by reason of the destruction of his house. The ground of recovery, as set forth in the petition, is that when he made his written application for insurance in the appellant company the latter accepted the application and wrote the policy, and that appellee became thereby a member of the company, and entitled to the rights of such membership, and that the company became liable for the loss sustained by him in the destruction of his house by fire, notwithstanding the nondelivery of the policy, and his failure to pay the premium or membership fee. In the answer of appellant all liability was denied, and the further defense made that the policy to be obtained on the application was, when issued by the company, to be submitted to the appellee for his approval, when he was to have the right to either accept or refuse it, as he pleased; that he was not to become a member of the company by virtue of his application, and the policy was to have no force until and unless accepted by appellee, and the $1.50 was paid by him. On the trial, which took place before the lower court without the intervention of a jury, judgment was given, allowing appellee the sum claimed by him. The

case was appealed to this court by the appellant, and the judgment of the lower court was reversed. In the opinion delivered it was held by this court that "there was no payment of premium and no delivery of the policy, and we think the rule laid down in May on Insurance (section 56) is correct: If there has been no payment of the premium, and no delivery, in fact, of the policy, the contract is prima facie incomplete, and he who claims under it must show that it was the intention of the parties that it should be operative notwithstanding these facts. The presumption of law is that the delivery of the policy and the payment of the premium are dependent upon each other, but this presumption may be rebutted," etc. Upon the return of the case to the circuit court, reply was filed by appellee, in which it was averred that, when the application was made and signed by him, it was with the agreement between himself and appellant's agent that his property was to become and remain insured from that time until the policy should be issued and sent to him, and, if he then desired to continue the insurance, he was to accept the policy and pay the $1.50; otherwise the insurance would cease upon his refusal to accept the policy. The court sustained a demurrer to the reply, and thereafter, on July 10, 1901-more than three years after the institution of his suit, and over four years after the making of the application-appellee filed an amended reply, whereby a new cause of action was attempted to be set up, differing in whole from the contract as originally claimed. In other words, in the amended reply it is averred, in substance, that, by the terms of the contract made between appellee and the agent of appellant, it was agreed that the contract of insurance was to become effective and operative when the company was chartered, and that the company was chartered at the time of the making of the contract, which fact was, however, then unknown to both appellee and appellant's agent. The reply as thus amended was controverted by the rejoinder thereafter filed, and, the case having proceeded to the second trial without the intervention of a jury, a second judgment was rendered in appellee's behalf by the court, allowing him the full amount of the loss sued for. From that judgment, and the subsequent refusal of the court to grant it a new trial, appellant prosecutes this appeal.

Waiving the question of whether the new cause of action could have been set up in a reply, instead of by amended petition, we are unable to see how the facts testified to on the trial by appellee could have authorized the judgment rendered by the lower court. His testimony was to the effect that, when his application was taken, appellant's agent, Kenny, said to him that he did not know whether the company was chartered or not, but that as soon as it was chartered he (appellee) was insured. It does not ap

pear from the statements of appellee whether this statement was made by the agent before or after the application was signed; nor does he say that he was induced by such statement of the agent to sign the application, or that he would not have done so but for same. Upon the contrary, he further testified on cross-examination that when he gave his application to the agent the latter told him that, when the policy came, he would not have to take it unless it was as he represented it. It would seem, therefore, from appellee's own statements, that the signing of the application by him did not complete the contract; and, whatever else may be in doubt, there can be no question, from the evidence, that he had the right to reject the policy, and to refuse payment of the membership fee upon the tender of the policy to him. In other words, it is shown by the evidence that it was and is the custom of the insurance company to issue the policy after receiving at its Lexington office the application, and the policy is then sent to the person to be insured, through the agent residing in the county, who submits it to him; and he then has the right to accept, or reject the policy, and, if accepted, he pays the agent the membership fee of $1.50, and thus the contract is consummated. The evidence further shows that the uniform rule of the company was to insure in this manner, and no other, the property of those seeking membership with it.

We will not undertake to comment in detail upon the findings of fact made by the lower court, but, after a careful examination of the evidence found in the record, we are unable to reach the conclusion, as did the lower court, that the contract between appellant and appellee was to be operative upon the appellant's becoming incorporated, for the incorporation had been accomplished nearly a month before, nor are we able to conclude, either, that it was understood by the parties that this insurance was a part of the $100,000 which it was necessary for the appellant to obtain before it could secure a charter, or that the alleged assistance which appellee rendered appellant in raising the requisite amount to enable it to commence business was the consideration for the contract, as there was no evidence tending to establish these propositions. Upon the contrary, we think it is shown by the evidence that the $100,000 had been made up before the appellee signed his application for membership, and we have been able to find nothing in the evidence conducing to prove that he rendered any assistance to appellant in raising the sum necessary to secure its charter. We are therefore of the opinion that the conclusions of fact reached by the lower court are not sustained by the evidence. Consequently the judgment was unauthor

ized.

We think the case, on the facts now presented, by the record, stands practically as

it did when this court decided the former appeal; and, in addition to the quotation already made herein from the opinion in that case, we also quote the following, which expresses the mind of this court as to the meaning of the statute from which the appellant | derives its corporate existence: "The person [insured] must not only sign the application for insurance, but must be insured in such corporation; and while the language of the section is awkward, in disregarding the order of the two events in point of time, it seems undoubtedly to require two things to concur in order to make such person a member of the company-videlicet, that he shall sign the application for insurance, and shall become insured." This view of the statute is embodied in one of the provisions of the policy set out in the petition, to wit, "any person owning property embraced by our charter, who shall sign an application and hold a policy in this company, shall thereby become a member of the same."

Being of the opinion, from the facts presented by the record, that the contract between appellant and appellee was never completed, the judgment of the lower court is reversed, and the cause remanded, with directions to set aside the judgment and grant appellant a new trial, and for such further necessary proceedings as may not be inconsistent with the opinion herein.

LOUISVILLE & E. MAIL CO. v. GILLILAND. (Court of Appeals of Kentucky. March 20, 1903.)

SHIPPING-LANDING STEAMBOAT-INJURY TO PERSON ON SHORE NEGLIGENCE - QUESTION FOR JURY-SUFFICIENCY OF EVIDENCE. 1. A steamboat, in making a landing at a customary place, struck a tree, knocking it over and injuring plaintiff. The river was "bank full." and there was an eddy in front of the landing, which necessitated an approach bow on. The only evidence of negligence was that the steamboat was being driven with more than usual speed. Held, that the issue of negligence was properly submitted to the jury.

2. Defendant's evidence showed that extra speed was necessary to overcome the eddy; that a stiff wind was blowing; that the accident occurred through the eddy driving the bow of the boat upstream and against the tree, and that, while a still higher speed might have avoided this, due care of passengers prevented a greater speed. Held, that a verdict for plaintiff, based on defendant's negligence, was unsupported.

Appeal from Circuit Court, Breckinridge County.

"Not to be officially reported."

Action by Minnie Gilliland against the Louisville & Evansville Mail Company. Judgment for plaintiff, and defendant appeals. Reversed.

Chas. F. Taylor and David R. Murray, for appellant. B. H. Young, N. M. Mercer, and E. C. Waite, for appellee.

PAYNTER, J. The appellant, Louisville & Evansville Mail Company, owned and operated a line of steamers on the Ohio river between Louisville and Evansville, among which was a steamer known as the "Tell City," which carried passengers, freight, and the United States mail. She was about 200 feet long and 35 feet wide. On April 25, 1901, the river was "bank full" when the boat was landed at a place well known as "Addison's Landing." At this landing there was an eddy with a considerable current upstream. It was caused by some timber at the lower, and by other conditions at the upper, end. The eddy was 80 or 90 feet wide. The space between the lower and upper ends of the eddy was too short to admit the boat to land, except by approaching it from the current of the river, bow foremost. There was a sycamore tree standing at the upper end of the eddy, and near it was some cord wood, to be taken on board. The high waters had washed away nearly all of the dirt from around the roots of the tree. In making the landing the boat struck the tree and knocked it over, and it seems to have fallen on a stump and against a distillery which stood upon the bank, and which seem to have prevented it from falling to the ground. The appellee and her husband were on the bank, to watch the boat make the landing. As the tree began to fall, they endeavored to make their escape, but the small limbs of the tree caught them and knocked them down, and the appellee claims she was injured in consequence thereof. This action was instituted to recover damages upon the ground that those in charge of the boat were guilty of gross negligence in handling it upon the occasion in question. The evidence offered by the appellee conduced to show that, in landing the boat, it was done with greater speed than was usual in landing boats. There was no other fact proven which tended to show negligence upon the part of those in charge of the boat.

The court permitted the case to go to the jury. Under the rule of this court, if there is any evidence from which a jury might infer negligence, it is the duty of the court to submit the question to the jury. Under this rule, we are of the opinion that the court properly submitted the question to the jury.

The appellant offered evidence of those in charge of the boat which showed that there was a current upstream in the eddy, and on the outside of it there was a strong down current; that the only way the boat could be landed was to go in with considerable speed, so as to overcome the down 'current, which swept the stern of the boat, and the up current, which tended to force the bow of the boat from the shore; that on the occasion in question there was a stiff wind blowing, which also contributed to make the landing a difficult one. The evidence further conduced to show that the boat was han

dled in the usual way in making the landing, and that the cause of the boat striking the tree was that the down and up currents forced the bow of the boat against the tree. There is evidence, also, to the effect that, had the boat come in faster than it did, it might have avoided striking the tree; but those in charge of the boat had the lives of the passengers within their keeping, and they had to guard against the boat striking the shore with too much force, and therefore the boat, after attaining the speed that was thought to be necessary to overcome the force of the currents, was backing when the tree was struck. The testimony of the appellant showed that there was no negligence in the handling of the boat, and fully explained the evidence introduced by the appellee, which, unexplained, the jury might have inferred negligence from. Even when steamers do not encounter high water, high winds, and troublesome currents, as in this case, they cannot be handled with mathematical precision. The fact that they may approach the shore with more speed at one time than another may be easily explained, so as to show it was not the result of negligence. Our opinion is that the verdict of the jury is palpably against the evidence, and for that reason a new trial should be granted.

The judgment is reversed for proceedings consistent with this opinion.

LYON v. LYON et al.

(Court of Appeals of Kentucky. March 24, 1903.)

MARRIED WOMEN-SEPARATE ESTATE-REALTY IN WIFE'S NAME-SOURCE OF PURCHASE

MONEY-EVIDENCE-SUFFICIENCY.

1. In a suit to subject real estate purchased by a married woman to a debt of her husband, it appeared that on a certain day defendant gave birth to five children, and she testified that this remarkable occurrence caused many persons to send her contributions, amounting to nearly the price paid for the property, and this testimony was corroborated. For plaintiff there was evidence that the husband was at the time hard pressed for money, and attempted to borrow several small sums, and that defendant had stated at one time that she had only a small sum of money. Held to justify a finding that the property was purchased with money which the wife received in contributions.

2. Ky. St. § 2127, provides that marriage shall give to the husband, during the life of the wife, no interest in the wife's property owned at the time, or acquired after marriage; and section 2128 provides that a married woman may acquire and hold property by gift as if she were unmarried. Held, that contributions given to a married woman on account of her having at one time given birth to five children became her separate estate, and could not be subjected to the claims of her husband's creditors.

ty.

Appeal from Circuit Court, Graves Coun

"Not to be officially reported."

Action by M. F. Lyon against O. D. Lyon and others. From a judgment in favor of

G. R. Allen and another, defendants, plaintiff appeals. Affirmed.

R. E. Johnston, for appellant. D. G. Park, for appellees.

BARKER, J. The appellant, Mrs. M. F. Lyon, sold to her son, the appellee O. D. Lyon, a tract of land containing about 30 acres, near the town of Mayfield, Graves county, Ky.; retaining a lien for the sum of $350, the unpaid purchase money. Subsequently O. D. Lyon, desiring to borrow money from the Globe Building & Loan Association of Louisville, Ky., applied to his mother to release her vendor's lien, and in lieu thereof to accept a new note secured by a mortgage second to that of the building and loan association on the same property. This arrangement was necessary in order to obtain the money from the building and loan association, and was carried into effect; M. F. Lyon accepting O. D. Lyon's note for the sum of $350, secured by a second mortgage, as before stated. Not having been able to pay off the debt due the building and loan association, and that corporation having begun to press him for payment, he applied to appellee G. R. Allen for the loan of sufficient money to discharge it. This Allen seems to have been willing to do, provided Lyon could obtain the release of his mother's lien secured by the mortgage to her. Lyon again applied to his mother for the release of her lien. She appears again to have been willing to accommodate him, and executed to one Coulter a power of attorney for her, and in her name, to release her lien in accordance with the wish of her son, which was done; and thereupon Allen loaned O. D. Lyon the sum of $400, which was secured by first mortgage on the property in question, and the debt of the building and loan association was paid. M. F. Lyon contends that O. D. Lyon promised and agreed to give her a second mortgage on the land to secure her debt of $350, which had never been paid. This he denies. Afterwards O. D. Lyon and his wife, Elizabeth, conveyed 11 acres of the land to G. R. Allen, for $440 cash, and still later they conveyed the remainder of it to him for the sum of $540 cash. About the time of this last conveyance, Elizabeth S. Lyon purchased from Mary Albrighton a tract of land for $600 cash, a part of which was borrowed by her from G. R. Allen, and a lien upon the property was given him to secure the payment thereof. On the 14th day of February, 1900, the appellant, M. F. Lyon, instituted an equitable action in the Graves circuit court against O. D. Lyon and his wife and G. R. Allen, in which she sought a personal judgment against O. D. Lyon for her debt of $350, and set up his verbal promise to reinstate her mortgage lien against the land in question. She did not claim priority over the mortgage of G. R. Allen for the sum of $440, but admitted that her rights only ex