The fourth instruction Justified the appel- | ejected him at the time, place, and under lant in ejecting Tuggle if he failed to pay the circumstances averred in the petition, his fare or purchase a ticket; while the fifth considering his mental and physical condiinstruction withdrew from the consideration tion. The liability of appellee, if it exists, of the jury the charge of negligence upon the arises from the disregard of those in charge part of those in charge of the freight train of the freight train for human life while in which struck Tuggle and caused his death. the performance of a legal right, and the The sixth and last instruction merely au- disregard for human life by the appellee's thorized a majority verdict. It will be seen, superintendent and agent after they were therefore, that the second and third instruc- advised of the perilous position which the tions, above quoted, are the only instructions decedent occupied, and their failure to use of which appellant is in a position to comcare to save him. All courts and all law plain. It insists, however, that these two in- writers agree that those in charge of the structions are erroneous, in that they equally train have no right to throw a trespasser authorize the jury to find against the defend- from it while moving, and thus jeopardize ant whether Tuggle was ejected at Wall's his life. Principles of humanity forbid the End station, or at a point between Pineville exercise of the right in such a cruel manand Wall's End; and that no attempt was For the same reason, if they eject a made in the instructions to differentiate be- trespasser who is not imperiling the lives tween the ejectment of Tuggle at Wall's End of the officers in charge of the train or the station and his ejectment between stations. passengers, or doing something which makes This contention is based upon the theory that it hazardous to permit him to remain upon appellant had a right to eject Tuggle at any the train (Railroad Co. v. Logan, 88 Ky. one of its stations, regardless of the fact 232 [10 S. W. 655, 10 Ky. Law Rep. 798] whether he was helplessly drunk or not. 3 L. R. A. 80 [21 Am. St. Rep. 332]), they must be regardful of the time, place, and Appellant's brief so states its position in as circumstances under which they perform the many words. We cannot agree to this view act of removal." See, also, L. C. & L. R. of the law. Co. v. Sullivan, 81 Ky. 624, 50 Am. Rep. 186, and Bohannon's Adm'x v. Southern Ry. Co., The evidence shows that shortly before the train reached Wall's End the conductor gave the "stop" signal for the next station, and that the train did stop at Wall's End at about 11 o'clock at night. It was not a night station, and there was no one there. There were some 40 or 50 houses in the neighborhood of the station, but there was no one at the station, probably by reason of the hour of the night, and the fact that the train was not expected to stop there. The conductor and the brakeman took Tuggle, with his basket and jugs, and left him at the station some 10 feet away from the track. One of the witnesses testified that as the train pulled out Tuggle, in a drunken manner, started toward the train for the purpose of boarding it, whereupon the conductor told him not to attempt to get on the train. It is immaterial whether Tuggle wandered back to the place where he was killed by walking on the track, or by walking upon the county road near the track. The negligence of defendant consisted in its leaving Tuggle, if it did so leave him, in a drunken and helpless condition, to the knowledge of appellant's conductor and brakeman, at a late hour of the night, in a strange place, upon a railroad track, and without any one to take care of him. There was abundant evidence tending to support that charge, and the instructions fairly submitted that question to the jury. The rule fixing appellant's duty to Tuggle was laid down in Fagg's Adm'r v. L. & N. R. R. Co., 111 Ky. 34, 63 S. W. 581, 54 L. R. A. 919, where the court, after reviewing the authorities, said: "The question here for determination is whether they should have 152 S.W.-18 ner. 112 Ky. 106, 65 S. W. 169, 23 Ky. Law Rep. 1390. In L. & N. R. R. Co. v. Ellis' Adm'r, 97 Ky. 337, 30 S. W. 981, 17 Ky. Law Rep. 259, the circuit court had given an instruction which assumed, as is claimed here, that the company had the right to eject a passenger regardless of the time, place, and circumstances, and his physical and mental condition. In condemning that instruction, the court said: "This certainly is not the law in this state. It seems to us that the ordinary principles which characterize humanity condemn such a claim. If the claim of appellee be true that the decedent was ejected in a cut, away from any station, with banks and fences on either side of the track, in such mental or physical condition as rendered him incapable of taking care of himself, the officer with a knowledge of his condition, then it was no less wrong to eject decedent under such circumstances than it would have been to have ejected from the train a toddling child who had not mental capacity to know the danger of walking upon a railroad track, or the physical ability to avoid such danger if it had the mental capacity to discern it. Would any one contend if appellant should kill a child under such circumstances that it would not be liable to damages therefor?" And in Haug v. Great Northern Railway Co., 8 N. D. 27, 77 N. W. 99, 42 L. R. A. 669, 73 Am. St. Rep. 731, the court said: "When the carrier discovers that one helpless from intoxication is upon its train without right, it must, in selecting a safe place to put him off, have regard to his actual condition, physical and mental, without any reference to his re In Elliott on Railroads, § 1637, the rule is formulated as follows: "If he is so intoxicated, or so young or feeble as not to be able to take care of himself, or look out for his own safety, the company should exercise reasonable care to see to it that he is not expelled and abandoned in such a place and under such circumstances that he will be exposed to unnecessary peril." sponsibility for such condition. The law ejection shall occur at such place and be declares to the carrier that it shall not ex-conducted in such manner as not unreasonpose him to great peril even in exercising ably to expose the party to danger." its undoubted right to eject him; and, in declaring whether he will be subject to peril, not only must climatic conditions, the propinquity of shelter, and other matters be taken into account, but also the actual state of his mind and bodily health and strength, if known to the agent of the carrier." And in Railway Co. v. Valleley, 32 Ohio St. 349, 30 Am. Rep. 601, the court said: "It might, perhaps, as far as this case is concerned, be conceded that, if a man were so intoxicated as to be without reason, sense, or intelligence, it would be unlawful, as it would be inhuman, to expel him from cars at night, where he would be just as likely as not to lie down upon the rails and go to sleep. We may concede, further, that to put off a drunken man during a bitterly cold night in the woods, far from any house, when the probabilities were that he would freeze to death before help could reach him, would be as indefensible in law as it would be wicked and cruel in fact. And, further, to put a man off on a dark night upon a high railroad bridge, or upon the brink of a precipice, where the first step would be destruction, this could find no justification in law." In A., T. & S. F. R. R. Co. v. Weber's Adm'r, 33 kan. 554, 6 Pac. 884, 52 Am. Rep. 543, the court said: "The duty of the railroad company, however, with respect to Weber, did not end with his removal from the train. He was unconscious, and unable to care for himself. The company could not leave him upon the platform helpless, exposed, and without care or attention. It was its duty to exercise reasonable care and diligence to make temporary provision for his protection and comfort. As was said by the learned court who tried the case: 'Of course, the carrier is not required to keep hospitals or nurses for sick or insane passengers, but, when a passenger is found by the carrier to be in such a helpless condition, it is the duty of the carrier to exercise the reasonable and necessary offices of humanity toward him until some suitable provision may be made.'" In Brown v. C., R. I. & P. Ry. Co., 51 Iowa, 236, 1 N. W. 490, the court formulated the rule fixing the carrier's duty, as follows: "In exercising the right of ejection reasonable and ordinary care should be employed. In determining whether such care has been exercised all the circumstances should be considered, as the physical condition of the person ejected; the time, whether in daylight or late at night; the condition of the country, whether thickly or sparsely settled; the place of the ejectment, whether near to or remote from dwellings of any character, including stations; the character of the weather, whether pleasant or inclement, etc. The rules of law, as well as the dictates of humanity, require that the All the cases which recognize the right of the carrier to eject a passenger who has no ticket and refuses to pay his fare hold that this right must be exercised in such a manner as not to imperil the life of a passenger, or subject him to danger of bodily injury. L. & N. R. R. Co. v. Johnson, 108 Ala. 62, 19 South. 51, 31 L. R. A. 372; Central R. R. Co. v. Glass, 60 Ga. 441; Ham v. D. & H. Canal Co., 155 Pa. 548, 26 Atl. 757, 20 L. R. A. 622; I. & G. N. R. Co. v. Gilbert, 64 Tex. 536; Hall v. S. C. R. R. Co., 28 S. C. 261, 5 S. E. 623; Isbell v. New York & N. H. R. R. Co., 27 Conn. 395, 71 Am. Dec. 78; Wyman v. Northern P. Ry. Co., 34 Minn. 210, 25 N. W. 349; Connolly v. Crescent City R. R. Co., 41 La. Ann. 61, 5 South. 259, 3 L. R. A. 133, 17 Am. St. Rep. 389; Indianapolis, Peru & Chicago R. R. Co. v. Pitzer, 109 Ind. 186, 6 N. E. 310, 10 N. E. 70, 58 Am. Rep. 387; Roseman v. Carolina Central Railroad Co., 112 N. C. 716, 16 S. E. 766, 19 L. R. A. 327, 34 Am. St. Rep. 524-support the rule just announced. Brown v. L. & N. R. R. Co., 103 Ky. 211, 44 S. W. 648, relied upon by appellant, is not in conflict with the doctrine announced by the foregoing cases. In the Brown Case the deceased was ejected at the station at London, Ky., at a time when several other passengers were alighting from the train, and porters from two hotels were at the depot to meet passengers. Furthermore, the depot was lighted and open, and as the train pulled away from the station one of the trainmen called to the porter and told him to take the deceased to a hotel-that he had money to pay for his lodging. In the Brown Case the court merely held, under those circumstances, that the trainmen had the right to assume that the deceased would be taken in charge by some of the persons who alighted at the depot, or by the hotel porters, and that it was not negligence therefore on their part to leave him at the station in company with other persons. In the case at bar, however, Tuggle was ejected and left alone under wholly different conditions. Appellant's rights were fully protected by instruction 3, which told the jury it could not find for the plaintiff unless it believed from the evidence that Tuggle at the time he was ejected from the train was in such a state of intoxication as rendered him mentally or physically incapable of taking care of himself, and in such a helpless condition that to put him off of the train under the circumstances necessarily or probably exposed him to danger, or death, or great bodily harm from passing trains; and that the defendant's agents and servants in charge of the train at the time had notice of his helpless condition, and the danger to which he would or probably would be exposed by being ejected from the train. 275 to the acreage in the tract conveyed, is unaffected by the fact that the grantee mortgaged the land to a third person and represented that it contained the acreage represented by the grantor, in the absence of anything to show that the mortgage had any relation to the sale. [Ed. Note. For other cases, see Fraud, Cent. Dig. §§ 31, 32; Dec. Dig. § 36.*] 4. VENDOR AND PURCHASER (§ 334*)—MISREP, Where a vendor represents that the tract contains a designated number of acres, and the purchaser relies thereon and purchases on the assumption that the representations are true, the purchaser, on discovering a more than 10 per cent. deficiency in quantity, may recover for the deficiency though the sale was in gross or of a boundary. [Ed. Note.-For other cases, see Vendor and Purchaser, Cent. Dig. 88 959-980; Dec. Dig. § 334.*] 5. FRAUD (§ 33*) — MISREPRESENTATIONSSHORTAGE IN ACREAGE-RIGHT OF ACTION. [6] Finally, it is contended that the verdict is excessive. Tuggle was a vigorous young man, 32 years of age, and earned $2 a day at mining coal from a narrow seam, and under unfavorable conditions. His expectancy of life was nearly 30 years. Under the later decisions of this court, we are not prepared to say that the verdict is excessive. In L. & N. R. R. Co. v. Engleman's Adm'r, 146 Ky. 19, 141 S. W. 374, we held that a verdict for $10,000 for the death of a young girl was not excessive; while in Board of An action by a purchaser, who buys in reInternal Improvement of Lincoln County Vliance on the representations of the vendor as Moore's Adm'r, 66 S. W. 417, 23 Ky. Law to the acreage, for the difference between the Rep. 1885, we upheld a verdict for $13,000 number of acres conveyed and the number of for the death of a girl 14 years of age. And acres paid for, is not based on any warranty in in C. & O. R. R. Co. v. Ward's Adm'r, 145 the deed, but on the representations. Ky. 733, 141 S. W. 72, a verdict for $12,500 for the death of a girl under 16 years of age, whose earning capacity as a stenographer was shown to be about $25 per month, was sustained. See, also, C., N. O. & T. P. Ry. Co. v. Lovell's Adm'r, 141 Ky. 249, 132 S. W. 569, and Cox's Adm'r v. L. & N. R. R. Co., In the Cox 137 Ky. 388, 125 S. W. 1056. Case a verdict for $12,500 for the death of a brakeman who earned $40 per month, and had an expectancy of 30 years, was held not excessive. Judgment affirmed. SALYER v. BLESSING et al. (Court of Appeals of Kentucky. Jan. 9, 1913.) 1. ASSIGNMENTS FOR BENEFIT OF CREDITORS (§ 269*)-FOREIGN ASSIGNMENTS-RIGHTS OF ASSIGNEES. [Ed. Note.-For other cases, see Fraud, Dec. Dig. § 33.*] 6. FRAUD (8 59*) - MISREPRESENTATIONS SHORTAGE IN ACREAGE-MEASURE OF DAM- A purchaser, seeking a recovery on the ground of fraudulent representations of the vendor as to the acreage, is entitled to recover the value of the shortage estimating it at the price paid per acre for the boundary contracted for. [Ed. Note.-For other cases, see Fraud, Cent. Dig. §§ 60-62, 64; Dec. Dig. § 59.*1 7. DAMAGES (§ 69*) - INterest — MISREPRESENTATIONS-SHORTAGE IN ACREAGE. the A purchaser, relying on the fraudulent representations of the vendor as to the acreage, is entitled to recover interest on amount of his recovery for the shortage from date of payment. [Ed. Note. For other cases, see Damages, Cent. Dig. §§ 137-140; Dec. Dig. § 69.*] Appeal from Circuit Court, Pike County. Action by John F. Blessing and another There was a judgagainst L. H. Salyer. An assignee for the benefit of creditors, under an assignment executed in a sister statement granting relief to plaintiffs, and deby a resident thereof, may prosecute an action in Kentucky begun by the assignor, in the ab- fendant appeals, and plaintiffs cross-appeal. sence of any suggestion that the assignment is Affirmed on the original appeal, and reversed prejudicial to any Kentucky creditor, or in conon the cross-appeal. flict with the laws or public policy of Kentucky, or of any motion to require a bond from the assignee. [Ed. Note. For other cases, see Assignments for Benefit of Creditors, Cent. Dig. § 816; Dec. Dig. § 269.*] 2. ASSIGNMENTS FOR BENEFIT OF CREDITORS (§ 269*)-STATUTORY PROVISIONS-CONSTRUC 3. FRAUD (8 36*) - MISREPRESENTATIONS J. S. Kline and Childers & Childers, all of Pikeville, for appellant. Robt. L. Miller, of Pikeville, for appellees. CARROLL, J. On October 20, 1909, the appellant, Salyer, sold and conveyed to John F. Blessing, in consideration of $11,022.90, a tract of land in Pike county. The deed recites that the boundary described is "estimated to contain about 1,200 acres, be the more or less." In 1910 Blessing same brought this suit against Salyer to recover from him $3,600 of the purchase money paid for the land, upon the ground that there was a deficit involving this amount between the number of acres sold and the number con. For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes should have judgment for $4,219, with like interest, in the event Salyer does not convey the 56 acres. [1, 2] Before taking up the merits of the case, we will dispose of a question of practice raised by counsel for Salyer. It appears from the record that after the institution of the suit by Blessing, who was a resident of the state of West Virginia, he made an assignment in West Virginia for the benefit of his creditors to Higgenbotham and Price, and by order of court these assignees were substituted as plaintiffs in place of Blessing. After this Higgenbotham died, and the case proceeded to judgment in the name of Price, the surviving assignee. It is now argued by counsel for Salyer that the assignees were without authority to prosecute the action or have judgment in their favor because they were nonresident assignees and had not executed any bond in this state permitting them to prosecute the action. There is some question as to whether this point was raised in the lower court in such manner as to make it available here, as there was no demand that the assignees execute a bond. But we will assume that objection was made in the lower court in due form to the right of the assignees to prosecute the action, and dispose of the matter on the merits. veyed by the deed, estimating the value of the land at $10 per acre. The petition as amended averred that the land was sold at $10 per acre and that Salyer falsely and fraudulently represented that there was 1,200 acres in the tract conveyed, and guaranteed that it contained 1,000 acres, and 'that Blessing, in ignorance of the quantity of land in the boundary, relied on the representations made by Salyer, and the purchase price of $10,000 was paid on the assumption that the tract described in the deed contained at least 1,000 acres. The deed recites the consideration as being $11,022.90, but the excess over $10,000 represents other matters not concerned in this litigation. It was further averred that a survey of the land disclosed that it contained 578.1 acres, making a deficit of 421.9 acres in the guaranteed acreage, and judgment was sought for $4,219, with interest from October 20, 1909. In his answer Salyer denied that he represented or stated that the tract of land contained 1,000 acres. He averred that he did not know the number of acres contained in the boundary sold, and that the sale was in gross, or of a boundary of land and not by the acre, and that he was induced by Blessing to agree that there might be inserted in the deed a recital that the boundary contained 1,200 acres more or less. Other matters were set up in the answer and among them a counterclaim, on which he sought to recover $2,611; but, as the evidence conclusively shows that there was no merit in the counterclaim, the failure of the lower court to allow anything on this account is not complained of by counsel in this court and need not be further noticed. Nor does it seem necessary to devote any attention to any of the issues made by the pleadings except in so far as they relate to the question concerning the number of acres in the tract. The lower court in disposing of the case found that the evidence showed that Salyer represented and guaranteed that the boundary sold and intended to be conveyed by the deed contained 1,000 acres, when he knew that it did not. He also found from the evidence that there was a deficit of 303 acres in the boundary described in the deed, and gave judgment in favor of the plaintiff for $3,030, with interest from May 1, 1910, the date at which Blessing first demanded that the deficit be made good. In addition to this, he found that 56 acres of the boundary sold by Salyer to Blessing were not embraced in or conveyed by the deed, and he directed in the judgment that Salyer should convey this 56 acres or else pay Blessing for it at the rate of $10 per acre. From this judgment both parties appeal; Salyer It is not suggested by counsel for appelinsisting that the petition should be dis-lant that the West Virginia assignment was missed, while counsel for Blessing contends prejudicial to any creditor in this state or that judgment should have gone for $3,560, with interest from October 20, 1909, the date of the deed, if Salyer conveys the 56 acres mentioned in the judgment, and that he In the chapter in the Kentucky Statutes relating to voluntary assignments for the benefit of creditors, and which contains sections 74-96, we do not find any provision denying to a foreign assignee the right to institute or prosecute an action in this state, or any direction that a foreign assignee before instituting or prosecuting an action in this state shall execute a bond. The sections of the statute supra, in so far as they relate to the qualification of assignees, refer to resident assignees only. We also think the right of a foreign assignee to maintain an action in this state has been determined adversely to the views of counsel for appellant in Peach Orchard Coal Co. v. Woodward, 105 Ky. 790, 49 S. W. 793, 20 Ky. Law Rep. 1613, and Zacher v. Fidelity Trust & Safety Vault Co., 109 Ky. 441, 59 S. W. 493, 22 Ky. Law Rep. 987. In these cases it was held that there was no provision of the statute which authorized or required a foreign assignee to execute a bond to enable him to maintain an action in his own name under a deed of assignment in another state, if the assignment was such as would be held good and enforced if made in this state and it was in harmony with the policy of this state and not prejudicial to the rights of any creditor residing in this state. in conflict with the laws or public policy of this state, nor was any motion made to require the execution of a bond, and therefore the assignees of Blessing had the right to prosecute to judgment the action institut- | there is a sale in gross and not by the acre, ed by him. if the discrepancy is more than 10 per cent., Coming now to the merits of the case, the a suit may be maintained to recover the decided weight of the evidence shows that, amount due. Page v. Hogan, 150 Ky. 726, about a month before Salyer sold and con- 150 S. W. 801. Here the deficit is more than veyed the land to Blessing, he had it survey- 30 per cent., and so, although the sale may ed and learned from the survey that there have been of a boundary and not by the was only 697 acres in the boundary, and acre, the vendee is entitled to recover the that he represented to Blessing, and others difference between the number of acres acacting for Blessing in the negotiations, at tually conveyed and the number of acres the time the deed was made, that there was paid for. This action is not based on any at least 1,000 acres in the boundary. It is warranty in the deed, but upon the reprefurther shown that Blessing and the person sentations and statements made by the venacting for him in the transaction relied on dor, relying on which the vendee made the the statements made by Salyer as to the purchase. That such a suit may be mainnumber of acres in the boundary and did tained is well settled. In Biggs v. Lexington not have any survey made until after the & Big Sandy. R. R. Co., 79 Ky. 470, the deed had been accepted and the purchase court said: "The general principle of law price paid. But notwithstanding the exist- authorizing an action for compensation for ence of these facts, it is insisted in behalf a material deficit in land sold under a misof Salyer that no recovery should be had: take as to the quantity was long since well (1) Because the deed did not contain any established; but the right of recovery greatwarranty of the number of acres in the ly depends upon the nature of the purchase, tract, and the sale was of a boundary of the circumstances, knowledge, and conduct land and not by the acre. (2) Because, al- of the parties. This right of action is based though there may have been less than 1,000 upon the contract which the law implies as acres, the land actually conveyed was worth the result of justice and reason and growing more than the amount paid for the tract. out of the mutual mistake of innocent parties. • [3] It is further argued that Blessing, although he knew the tract of land did not contain 1,200 or 1,000 acres of land, mortgaged it to a third person, representing that it contained 1,200 acres, and thereby practiced a fraud upon the third party. So far as this matter is concerned, it is of little conse quence in the settlement of the issues between Salyer and Blessing. In the first place, the evidence does not support the charge that Blessing practiced a fraud on the party to whom he mortgaged the land, and, if he had, it would not relieve Salyer from liability, as there was no privity of contract or arrangement between the party to whom Blessing mortgaged the land and Salyer, nor is there any evidence showing that the mortgage executed by Blessing had any relation to the transaction had with Salyer. [4] As before stated, the deed recites that the tract of land conveyed contained 1,200 acres more or less; but the evidence shows that, although this recital was put in the deed, the sale was made upon the understanding and agreement between the parties that the tract contained at least 1,000 acres. When a vendor in selling land represents to the vendee that the tract proposed to be sold contains a designated number of acres, and the vendee relies on these representations and makes his purchase on the assumption that they are true, he may, upon discovering that there is a deficit in the number of acres, bring an action to recover the amount due on account of the deficit, notwithstanding the sale was in gross or of a boundary of land, if the discrepancy is sufficient in quantity to justify a recovery. [5] In this state the rule is that, where Neither of the deeds contains any warranty of quantity. The lands are described in them by metes and bounds, and 'supposed to contain in the whole 3,700 acres, be it more or less.' * * But this court has too often held that the remedy for a deficit, where such deeds as these exist, is based on an implied assumpsit to refund the money paid by mistake that results from ignorance, accident, or confidence." In Dye v. Holland, 4 Bush, 635, the court said: “Although the sale of the land to the appellant was not by the acre, but in gross, the deficiency proved of 41% acres in the tract, which was supposed to contain 200 acres, was beyond the range of ordinary contingency, and such as would in proper time have entitled the appellant to relief, on the ground that he acted, in purchasing the land, under a palpable mistake as to its true quantity." To the same effect are Nave v. Price, 108 Ky. 105, 55 S. W. 882, 21 Ky. Law Rep. 1538; Crane v. Prather, 4 J. J. Marsh. 75; Harrison v. Talbot, 2 Dana, 258; Boggs v. Bush, 137 Ky. 95, 122 S. W. 220. [6] Nor do we find available for appellant the argument of counsel that the land actually conveyed was worth more than the amount paid for the tract, assuming that it contained 1,000 acres. If this suit had been brought to recover damages for false representations as to the value or quality of the land, or upon a breach of a covenant of warranty, then the criterion of recovery would have been the difference between the value of the property as it was represented or warranted to be and its actual or market value at the time of the sale; but this action was not brought on either of these grounds. |