of March, April, May, and to the 13th day of June, 1900, and for proceedings consistent herewith.

HEMPHILL v. COULTER, Auditor.1 (Court of Appeals of Kentucky. March 18, 1902.)

DE FACTO OFFICERS CLERK OF SECRETARY OF STATE-COMPENSATION-MANDAMUS. 1. A clerk of the corporation department in the office of secretary of state, who was appointed by one who held that office under a certificate of election issued by the proper authority, was a de jure officer, and not merely a de facto officer, and therefore entitled to compensation for his services out of the fees of the office, as provided by statute.

2. Though the clerk paid the fees of the office to the state treasurer instead of to the persou who rightfully held the office of secretary of state at the time the services were performed, he was entitled to a mandamus compelling the auditor to issue a warrant upon the treasury for the compensation to which he was entitled out of such fees, the person to whom the fees should have been paid uniting in the prayer of his petition for the mandamus.

Appeal from circuit court, Franklin county. "Not to be officially reported."

Action by George R. Hemphill against Gus G. Coulter, auditor, for a mandamus. Judgment for defendant, and plaintiff appeals. Reversed.

E. D. & B. L. Guffy, for appellant. Robert J. Breckinridge and Clem. J. Whittemore, for appellee.

GUFFY, C. J. The petition in this case shows that Caleb Powers was duly certified by the election commissioners to have been elected to the office of secretary of state at the November election, 1899, and on the first Monday in January, 1900, took the oath required by law, and entered into and took possession of said office, and entered upon the discharge of the duties thereof, and employed, appointed, and designated plaintiff a clerk in said office, assigning him to duty in what is commonly called the "corporation department," plaintiff's duties being to receive, file, and record corporation statements, articles of incorporation, statements and returns, and reports of banks and trust companies, and building and loan associations, and collecting money and fees, and to generally discharge such duties, and perform such work and labor, as was necessary to execute and carry into effect the law designating certain duties to be performed by the secretary of state in relation to corporations; that it is provided by law that the secretary of state should cause said duties to be performed, and that so much of whatever money should be received under the provisions of said law as might be necessary to pay for having same enforced should be so applied; that plaintiff accepted the employment at the agreed and fixed price of $100 per month, and entered

Reported by Edward W. Hines, Esq., of the Frankfort bar, and formerly state reporter.

upon the discharge of the duties devolving upon him thereunder, and continued to perform said duties continuously from January, 1900, until and including the 13th of June, 1900, filing and recording articles of incorporation of corporations, statements and reports of banks, trust companies, and collecting and receiving the fees due thereon due under the law making it the duty of the secretary of state to collect the same; that during the time plaintiff was discharging said duties and performing said service-that is, between January 6, 1900, and June 13, 1900-he collected, as above mentioned, more than $1,580, which it was his duty to collect by virtue of his said employment, all of which he reported as required by law, and covered into the state treasury of Kentucky by paying same to the treasurer of Kentucky, S. W. Hager; that plaintiff received no compensation for his said services, except $100 per month, of the months of January and February, 1900, and has received no other compensation; and that there is due him salary and compensation at the rate of $100 per month for the months of March, April, May, and 13 days of June, 1900, aggregating $343.33%. It is further alleged that it was the duty of the auditor to draw his warrant upon the treasurer of Kentucky in his favor for the sum claimed, and a mandamus was ap plied for. After a demurrer was sustained to the petition, the plaintiff filed an amended petition, in which he reiterated the statements of the former petition, and stated that the said Caleb Powers, mentioned in the petition, demanded of defendant, Coulter, that he draw a warrant therefor in favor of said Powers, which defendant refused, and said Powers also demanded that defendant draw a warrant in plaintiff's favor, which defendant likewise refused to do and yet refuses to do, and plaintiff also demanded of C. B. Hill, who is now, and continuously since June 13, 1900, has been, secretary of state, that he (the said Hill) demand of defendant a warrant for said salary due plaintiff, and this said Hill refused to do. The court finally sustained a demurrer to the petition, and, plaintiff declining to plead further, the action was dismissed, and from that judgment this appeal is prosecuted.

There can be no question but that it was the duty of the auditor to issue a warrant in favor of Hemphill for the amount claimed, if Hemphill was legally employed and discharged the duties alleged by him to have been performed. The court evidently sustained the demurrer for the same reason that he adjudged against the plaintiffs in the cases of Smith v. Coulter (this day decided) 67 S. W. 1, that is, that Hemphill was merely a de facto officer,-which opinion was error, as we have already decided in the opinion supra.

Powers having been made a party to this suit, it is wholly immaterial whether it was the duty of the auditor to issue the warrant to Powers, to the end that he might pay the

plaintiff, or not, for the reason that Powers, having been made a party hereto, assents to and unites in the plaintiff's petition. Section 878, Ky. St., sets apart the fees collected from the sources set out by plaintiff as a fund for the payment of the expenses incident to the department. It appears from the petition in this case, which is admitted on demurrer, that he collected and paid over to the treasurer, Hager, more than $1,500, which was more than necessary to pay him for the services rendered; and while in strict law, perhaps, the amount due the plaintiff should have been paid to the secretary of state, or, in other words, the party in possession of the office and records, and controlling same, during the rendition of the services, for the purpose of paying plaintiff, yet, as before indicated, Powers, having united in the request of Hemphill, the auditor, should now be required to issue his warrant in favor of Hemphill for the sum claimed, so far as the pleadings in this case appear.

For the reasons indicated, the judgment appealed from is reversed, and cause remanded, with directions to overrule the demurrer to plaintiff's petition as amended, and for proceedings consistent herewith.

SWEET v. LOUISVILLE RY. CO.1 (Court of Appeals of Kentucky. March 12, 1902.)

CARRIERS-STREET RAILROADS-DISCHARGING PASSENGER AT DANGEROUS PLACE

-LIABILITY.

1. While a street railway company is not bound to furnish safe places for depositing its passengers, yet where the dangerous condition of a street at the place of discharging a passenger is known, or is such as must be known, to the carrier, and is unknown to the passenger, as where, because of the darkness, he cannot see it, the carrier is bound to warn him of the danger, or to assist him in safely alighting.

2. Whether a hole in the street at the place of discharging a passenger was the cause of the passenger's injury, and was such a defective place for discharging passengers as to render it obviously unsafe, were questions of fact for the jury.

Appeal from circuit court, Jefferson county, law and equity division.

"To be officially reported."

Action by Annie Sweet against the Louisville Railway Company to recover damages for personal injuries. Judgment for defendant, and plaintiff appeals. Reversed.

Augustus E. Willson and Morris B. Gifford, for appellant. Fairleigh, Straus & Eagles, Kohn, Baird & Spindle, and J. H. Hazelrigg, for appellee.

O'REAR, J. Appellant was a passenger on appellee's street railway on the evening of July 4, 1899. It was dark when the car reached its destination. The cars were stopped at or near the usual street crossing. In

Reported by Edward W. Hines, Esq., of the Frankfort bar, and formerly state reporter.

attempting to alight, appellant fell, severely injuring her ankle. She complains of appellee, charging it with negligence in stopping the car at a point where the steps she was to use in alighting were just over a hole or unusual depression in the street, and in not warning her of the danger before she stepped from the car. The evidence disclosed that the street in question was a macadam road. It had become so worn at this particular point that a depression was formed of two or three feet in length, and six inches deep. It was at the edge of the appellee's track, and so near it that one stepping from the car would be apt to step into it. It was easily to be seen in the light. At the close of the evidence for appellant a peremptory instruction to find for the defendant was given. For appellee it is argued that the street at the point in question was under the exclusive control of the city, which alone had either the duty or the right to make repairs, and that appellee merely undertook to safely carry appellant to any desired point on its line, and to allow her to leave the car at any customary stopping place, such as at street crossings. It is stated, and it seems to be true, that a different duty attaches to street railway and to steam railway operators in respect to furnishing safe places for discharging their passengers. The latter must furnish such, while the former is under no such obligation, but discharges its passengers at convenient points along the streets it traverses. Booth, St. Ry. Law, § 326. If the street at the place of discharging the passenger presents a dangerous condition to one alighting there, and such danger is obvious to the passenger, the carrier is not liable to him for injuries received from such defects. But where the danger is known, or is such as must have been known, to the carrier, and is unknown to the passenger,-as where, because of the darkness, he cannot see it,the carrier is bound to warn the passenger of the danger, or to assist him in safely alighting, or stop the car at a point beyond or short of the dangerous point. Its failure to take one of these precautions renders it liable to the passenger sustaining injury hecause of such neglect. Railway Co. v. Scott, 86 Va. 902, 11 S. E. 404; Stewart v. Railway Co. (Minn.) 80 N. W. 854; Sowash v. Traction Co., 188 Pa. 618, 41 Atl. 743. While the street railway company is not bound to furnish safe places for depositing its passengers, it is bound to either select them or to warn the passenger of the conditions. Whether the hole in this instance was the cause of appellant's injury, or was such a defective place for discharging passengers as to render it obviously unsafe, are questions of fact that should have been submitted to the jury.

The judgment is reversed, with directions to award appellant a new trial under proceedings not inconsistent herewith.

COCHRAN et al. v. RENNISON.1 (Court of Appeals of Kentucky. March 14, 1902.)

HUSBAND AND WIFE-INVESTMENT BY HUSBAND OF MONEY RECEIVED FROM WIFE -RIGHTS OF CREDITORS.

C. purchased a tract of land, paying about $3,000 therefor; $2,000 of this amount having been received by him from his wife under an agreement with her to invest it in land, and take the title to her and her children. After her death, and after he had married again, he took a deed conveying the land to himself, and then conveyed it to H. upon condition that H. would reconvey about 40 acres to him and his then wife for life, remainder to certain named children, and would hold the remainder in trust for his children by his former marriage, subject to the payment to him of $150 annually out of the rents. Held, that the agreement between C. and his first wife was valid as to his creditors, and therefore his creditors can subject only the $150 of rent annually reserved; the 40 acres reconveyed to C. in lieu of his investment of $1,000 being the equivalent of a homestead.

Appeal from circuit court, Bullitt county. "Not to be officially reported."

Action by Mattie Rennison against Tom Cochran and others to enforce a judgment. Judgment for plaintiff, and defendants appeal. Reversed.

J. W. Croan and R. F. Hays, for appellants.

O'REAR, J. Tom Cochran, J. N. Cochran, and Ben A. Chapeze were indebted to appellee in the sum of $208.75, with interest from the 28th day of April, 1895, upon which she recovered a judgment in the Bullitt circuit court on the 24th of December, 1896, against all of the parties to the note. This action was brought upon a return of nulla bona, in which attachments were issued against the property of the three defendants, and various garnishees were joined. The controversy upon this appeal is as to the correctness of the judgment of the circuit court in subjecting certain lands formerly owned by defendant James N. Cochran to the payment of the debt. It appears that James N. Cochran received from the father of his first wife, and through her, about $2,000. Some witnesses place it at more, but we are satisfied that the figure may be safely stated at $2,000. The agreement between James N. Cochran and his wife at the time was that he would invest this money in land for, and take the title to, her and her children. He bought the land at a decretal sale,-333 acres,-at the price of $3,150. He furnished the difference between her $2,000 and the purchase price. Before a conveyance of the land, she died. He married again, and thereafter took a conveyance of the land to himself. Subsequent to this he executed a deed to appellant H. S. Cochran, who was his son and the son of his first wife, conveying to him in trust the whole of the farm, upon the

1 Reported by Edward W. Hines, Esq., of the Frankfort bar, and formerly state reporter.

condition that the trustee reconvey to said James N. Cochran and his then wife, Mathilda C., 40 acres for their lives, with remainder to certain named children. The remainder of the tract of land the trustee was to hold for the eight children of James N. Cochran's first wife, namely, Henry S., Minnie A., William Lee, Enoch A., James C., Edith M., Thomas C., and Goebel Cochran. But it was provided that the trustee should, out of the rents of this last-named portion of the farm, pay to James N. Cochran $150 annually during his life. The circuit court disregarded this conveyance, and subjected the whole of this land to the payment of appellee's judgment, on the ground that the conveyance was voluntary and fraudulent as to his antecedent's creditors, including appellee.

The agreement between James N. Cochran and his first wife was valid, and, having been executed by him,-it having been satisfactorily established by the proof in the record.-it should not be disturbed. This proposition has been so frequently determined by this court that it seems unnecessary to further elaborate it than by a mere citation of some of the authorities: Wood v. Elliott, 7 S. W. 624; Beatty v. Dudley, 80 Ky. 381; Tabler v. Bank, 29 S. W. 335; Seiler v. Walz, 100 Ky. 105, 29 S. W. 338, 31 S. W. 729; Campbell v. Campbell's Trustee, 79 Ky. 395; Miller v. Edwards, 7 Bush, 394; Sparks v. Colson, 60 S. W. 540. would appear that the reconveyance to James N. Cochran of the 40 acres was in lieu of his investment of about $1,000 in the purchase price of the land, and may be taken as the equivalent of a homestead. We are of the opinion, however, that the $150 of rent reserved to James N. Cochran, payable out of the land held in trust for the first wife's children, is liable to appellee's debt.

It

denying that defendant spoke the words and that plaintiff was unmarried placed the burden of proof upon plaintiff, as judgment would have gone for defendant if no proof had been offered.

2. Where the words spoken are actionable per se, no inquiry should be permitted as to defendant's motive in speaking the words.

3. It was error to instruct the jury that in awarding compensatory damages they were "at liberty" to take into consideration any disgrace, shame, humiliation, mortification, or anguish of mind suffered by plaintiff by reason of the speaking of the words, as the jury should have been told that they "should" take into consideration those elements in awarding compensation.

4. It was error to instruct the jury that they were authorized to award punitive damages only in the event they believed that defendant was actuated by malice in fact in speaking the words, as the malice which the law implies is sufficient to authorize punitive damages where the words are actionable per se.

5. It was error to instruct the jury that they might give nominal damages, only, if they believed that defendant did not originate the slander, but, without malice, merely repeated it, and that plaintiff was in no manner injured by the speaking of the words.

6. While it was improper for plaintiff's counsel to read defendant's auswer to the jury in argument, as it had not been introduced as evidence, yet, as he did so, defendant's counsel was at liberty to place his own interpretation on the language used therein, so long as the words of the pleading were not misquoted.

Appeal from circuit court, Graves county. "Not to be officially reported."

Action by Minnie Nicholson against D. R. Merritt for slander. Judgment for plaintiff for a nominal sum, and she appeals. Reversed.

D. G. Parks, for appellant. Lee & Hester, for appellee.

O'REAR, J. This is an action for slander. The actionable words were: "Has one of Griff Nicholson's girls had a young one? I heard it." The young woman in question was unmarried. On a former appeal of this case the court held the words actionable per se, and consequently the essential element of malice was conclusively presuined. On a retrial the jury returned a verdict for a nominal sum for the appellant (plaintiff). This appeal presents these questions for review, namely:

1. The pleadings joined an issue as to the use of the words. The answer denied that defendant spoke them, maliciously or at all, and denied that appellant was unmarried. On the trial appellant assumed the burden, by first introducing her evidence in chief. Upon the argument the court ruled, over appellant's objections, that the burden of the case was on appellee (the defendant). This was error. The governing section of the Civil Code of Practice (section 526) is: "The burden of proof in the whole action lies on the party which would be defeated if no evidence were given upon either side." The right of concluding the argument is deemed some equivalent for the burthen of sustaining the main issue, and to deny such right

to the party entitled to It is to deprive him of a substantial benefit. It has been repeatedly held that that right belonged to the party who would lose, for lack of evidence, if no proof were offered upon the issue joined by the pleadings, and to refuse the right was reversible error. Railroad Co. v. Brown, 13 Bush, 478; O'Connor v. Bridge Co., 95 Ky. 640, 27 S. W. 251, 983; Ermert v. Dietz (Ky.) 58 S. W. 442; Crabtree v. Atchison, 93 Ky. 338, 20 S. W. 260. If no proof had been offered in this case, under the pleadings the court would have been compelled to render a judgment for the defendant.

2. In the course of appellee's testimony he was questioned by his counsel and answered as follows: "Q. I will ask you if you were aiming to charge that the young lady had had a baby? A. No, sir. Q. You were just making this inquiry to find out? A. I didn't believe it. I tried to hold up her character, instead of running it down. The reason I asked it, was to deny it when I heard it spoke of." This was all objected to. The form of the questions alone should have condemned them. But they are subject to a more serious criticism. When words spoken or written are offered in evidence of some act which is the subject of investigation, it would seem competent to explain the motive of the speaker, when motive is a relevant fact. But where the words are themselves the thing that is actionable, the secret intent of him uttering them is not permitted to be shown. Newell, Sland. & L. 270-275. The reason must be manifest. When the words are per se actionable, conclusively implying the necessary malice, the damage is done in publishing the slanderous matter. If the utterer would have the benefit of his secret thoughts and purposes in using the defamatory language, he should declare them at the same time in the hearing of his audience. It would be monstrous to suffer him to detail the most scandalous falsehood to his auditors, reserving in his own breast such mitigating or beneficial information as he was possessed of, and then allow him immunity in any part because of that which was good that he kept back. The objections to the questions and answers should have been sustained.

3. The first instruction told the jury that, as the evidence showed that defendant admittedly spoke the words charged, the verdict must be for the plaintiff. As to compensation, the court said: "You are at liberty to take into consideration any disgrace, shame, humiliation, mortification, or anguish of mind suffered by her by reason of the speaking and publishing of the words charged in the petition." We are of opinion that the use of the words "at liberty" in this instruction falls short of the law. The jury should have been told that they "should" take into consideration, in forming that part of their verdict, such of the elements named as they believed, from the evidence, existed.