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der an indictment charging a violation of the time of finding of the indictment, unless the local option law, which alleged that the sale time be a material ingredient in the offense." was made within 12 months prior to its finding,

From these sections of the Statute and sustained by the evidence, will be upheld, though the specific date named was more than Code it will be seen that the element of time 12 months before such findings.

that is material in a misdemeanor indictment [Ed. Note.-For other cases, see Indictment is the fact that the offense was committed and Information, Cent. Dig. $ 548; Dec. Dig. within 12 months just preceding. The only $ 176.*]

time necessary to be averred in an ordinary Appeal from Circuit Court, Henry County. misdemeanor indictment is such as to show

Frank Paul was convicted of selling liquor on its face that the prosecution is not barred in local option territory, and he appeals. by limitation. Affirmed.

In Jones v. Commonwealth, 1 Bush, 34, 89 W. P. Thorne, of Eminence, and W. 0. Jack- Am. Dec. 605, an indictment was found at son, of New Castle, for appellant. James the May term, 1865, which charged that the Garnett, Atty. Gen., for the Commonwealth. offense was committed on the

-day of

July, 1865. The court held the indictment NUNN, J. The appellant, Frank Paul, was good, notwithstanding the inconsistent date, indicted, tried, and convicted for selling liq- because the indictment in express terms uor in Henry county, in violation of the local charged the offense to have been committed option law. He was fined $100, and sentenced before the finding thereof. to imprisonment in the county jail for 40 In C. & O. R. R. Co. v. Commonwealth, 88 days.

Ky. 370, 11 S. W. 87, 10 Ky. Law Rep. 920, The part of the indictment involved in this two indictments were found against the deappeal is as follows:

fendants on the same day, charging it with "The said Frank Paul, in the said county of obstructing a road with its cars. Each Henry, on the 4th day of July, 1912, and before the finding of this indictment, within 12 charged that the offense was committed at the months just prior to the finding of this indict- same time substantially in the same language. ment, did unlawfully sell, barter, and loan to The defendant was acquitted under one inIve Kelly spirituous, vinous, and malt liquors.” | dictment, and offered the judgment in this

As the indictment was returned on Sep- case as a bar when placed on trial on the othtember 16, 1913, and alleges the sale to have er. In overruling this plea this court said: occurred July 4, 1912, and the further fact “It is true the indictments were found upon that this sale occurred within 12 months just the same day; they were for the same character prior to the finding of the indictment, there of offense; they covered the same period of

time, because the statutory limitation under our is an inconsistency. The specific date in the law to such a prosecution is one year; but indictment is more than 14 months before the the time named in them as being that when the indictment was found. The question present offense was committed was not material, and ed, then, is whether this inconsistency is fa- state was not confined to any particular time,

each obstruction was a distinct offense. The tal. The appellant contends that the date but had the right to show that the appellant named, July 4, 1912, is the material time, and had so offended at any time within a year prethat the commonwealth is bound by it, and vious to the finding of the indictment, that the statement following is mere sur In Commonwealth V. Miles, 140 Ky. 579, plusage, where it is charged that the sale 131 S. W. 386, 140 Am. St. Rep. 401, the court was made within 12 months just prior.

uses this language: Ive Kelly was the only witness introduced, "It is competent for the commonwealth, in and he swears that he purchased two pints indicting for that offense [a misdemeanor), to of whisky from the appellant on Decoration that the offense was committed in the county

charge, without respect to a particular date, Day in May, 1913. So there is no question of of the indictment within one year before the fact in the case, for it stands undisputed presentment by the grand jury, and then prove that the appellant did sell the whisky within the act to have been committed on any day

within that year." Williams v. Commonwealth, 12 months before he was indicted. It is proba- 37 S. W. 839, 18 Ky. Law Rep. 667;

Combs v. ble that the draftsman of the indictment got Commonwealth, 119 Ky. 836, 84 S. W. 753, 27 his holidays confused, and inadvertently used Ky. Law Rep. 273. the figure "2" instead of "3" In his dates. The It follows, then, that where an indictment commonwealth contends that the date named charges the offense to have been committed is surplusage, and that the indictment is suffi- within the 12 months just preceding, and cient, because it avers that the sale occurred this charge is sustained by the proof, a conwithin 12 months just before the finding of viction under it must be upheld, although the indictment.

it further appears from the indictment that Section 1138, Kentucky Statute, requires a sale was charged to have occurred on a that prosecutions of this character shall be particular date not within the 12 months. commenced within one year after the offense For reversal the appellant relies upon was committed.

the case of Williams v. Commonwealth, 37 Section 129 of the Criminal Code declares S. W. 839, 18 Ky. Law Rep. 667, and others that the time at which the offense was com- of similar import. In the Williams Case an mitted "1s not material further than as a indictment was returned on November 12, statement that it was committed before the 1895, charging that Williams "on the *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

day of November, 1890, in the county and state 5. EVIDENCE (8 536*)-OPINION EVIDENCEaforesaid, and before the finding of this in

COMPETENCY OF EXPERTS. dictment, dià unlawfully and willfully point a thrown from a platform by a nlank thereof slip.

In an action for the death of an employé deadly weapon, to wit, a pistol, at F. G. ping, carpenters who had had an experience of Brinker," etc. It was not charged that the from 16 to 40 years in working in timber and offense was committed within 12 months be with nails, and who possessed a wide range of fore the finding of the indictment, and from the matters with respect to which they were

knowledge, both practical and scientific, upon the date given it would appear that the of- questioned, were properly permitted to testify fense was committed about 5 years before. as to the strength of an oak plank such as that Of course, where the only time stated in the used in the platform to sustain the weight of indictment for the commission of the offense quired to securely fasten and hold it, and the

an iron shaft, the quality and size of nails reis a particular date, and that date is not with weight and force required if the plank was prop. in the period of limitation, a demurrer to it erly nailed to wrench it from its supports. should be sustained. In the case at bar, it

[Ed. Note.-For other cases, see Evidence, is charged, the offense was committed within Cent. Dig. 88 2343, 2344, 2347; Dec. Dig. s

536.*) 12 months just before the finding of the indictment, and is therefore unlike the Williams 6. APPEAL AND ERROR ( 882*)-Review-EsCase.

TOPPEL TO ALLEGE ERROR-OPINION EVI.

DENCE. The judgment of the lower court is affirmed. Defendant was estopped to object to the

introduction of expert testimony by plaintiff, where plaintiff's witnesses were called to refute

and contradict testimony given by defendant's INTERSTATE COAL CO. v. SHELTON.

witness, who apparently fell short of qualify

ing as an expert. (Court of Appeals of Kentucky. Oct. 2, 1914.) [Ed. Note.-For other cases, see Appeal and

Error, Cent. Dig. 88 3591-3610; Dec. Dig. $ 1. MASTER AND SERVANT (88 286, 289*)-AC-882.*) TIONS FOR INJURIES--QUESTIONS FOR JURY.

In an action for the death of an employé Appeal from Circuit Court, Knox County. thrown from the platform upon which he was Action by Joe Shelton, administrator, working by the slipping of one of the planks thereof, evidence held to make a question for against the Interstate Coal Company. From the jury as to whether the employer negligently a judgment for plaintiff, defendant appeals. failed to fasten the plank, or whether deceased Affirmed. negligently threw an iron' shaft from the plat

See, also, 152 Ky. 92, 153 S. W. 1. form in such a manner as to cause it to strike and loosen the plank.

Black, Black & Owens, of Barbourville, [Ed. Note.--For other cases, see Master and for appellant. J. M. Robsion, of BarbourServant, Cent. Dig. $$ 1001, 1006, 1008, 1010-ville, for appellee. 1015, 1017-1033, 1036–1042, 1044, 1046–1050, 1089, 1090, 1092–1132; Dec. Dig. 88 286, 289.*)

SETTLE, J. This action was brought by 2. MASTER AND SERVANT (88 101, 102*)—LIA- the appellee, Joe Shelton, administrator of BILITY FOR INJURIES-PLACE TO WORK.

It was the duty of an employer to use or- the estate of Lee Hamblin, deceased, to redinary care to furnish an employé a reasonably cover of the appellant, Interstate Coal Comsafe place to perform the work required of him. pany, damages for the death of his intestate;

[Ed. Note.--For other cases, see Master and it being alleged in the petition that his death Servant, Cent. Dig. $$ 135, 171, 174, 178–184, was caused by the negligence of the appel192; Dec. Dig. 88 101, 102.*]

lant in failing to provide him, as its em3. MASTER AND SERVANT (8 235* ) –LIABILITY ployé, with a reasonably safe place in which FOR INJURIES–CONTRIBUTORY NEGLIGENCE.

An employé had a right to assume that his to perform his work. When killed Hamblin employer had performed his duty to use ordi- was engaged with other employés of the apgary care to furnish him a reasonably safe pellant in making repairs upon its coal tipplace to work, and he was not required to inple, and while standing upon a platform used spect the platform upon which he was required to work for the purpose of ascertaining wheth-| in making the repairs and attempting to reer it was reasonably safe, unless its dangerous move an iron shaft of the tipple in order that character was so obvious that a person of or- it might be replaced by a larger shaft, a dinary understanding and judgment, situated as he was, could, by the exercise of ordinary plank of the platform upon which he was care, have discovered the danger.

standing slipped from a girder upon which [Ed. Note.-For other cases, see Master and it rested, causing him to be thrown to a coal Servant, Cent. Dig. $8 710–722; Dec. Dig. 8 car under and 20 or 25 feet below the plat2353*]

form, which caused his death. The repair4. APPEAL AND ERROR (8 1001*) — REVIEW - ing was done at night, and the only light QUESTIONS OF FACT.

employed was what was furnished by miner's That the evidence is conflicting, or that lamps in the caps of the workmen. Appelthe Court of Appeals would have made a different finding on the facts, or that in its opin- lant's foreman, Trosper, was directing the re ion the verdict is against the weight of the ev- pairs, and when Hamblin and his assistant idence, furnishes no cause for setting it aside Dawson had the shaft on the platform, unless it is clearly and palpably against the Hamblin said to Dawson that he would throw evidence.

[Ed. Note.-For other cases, see Appeal and it off. Dawson said: “No; it might break Error, Cent. Dig. $$ 3922, 3928–3931; Dec. it.” Hamblin then replied no, that was the Dig. $ 1001.*]

way that he and Trosper had done before, *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes and to this Trosper, who was in hearing, said that certain evidence introduces as expert nothing. When thrown by Hamblin the shaft testimony should have been excluded from came in contact with the end of the plank the consideration of the jury, because the which it displaced, and thereby caused Ham- witnesses furnishing it were not experts, and blin to fall and be killed. The answer of because the evidence should have been given appellant denied the negligence complained in chief and not in rebuttal. of, and alleged that the death of Hamblin [1] The first contention cannot prevail. was the result of his own negligence. There The evidence introduced in appellee's behalf have been two trials of this case in the court upon the last trial as to the unsafe and danbelow. On the first trial appellee recovered gerous condition of the platform, caused by of appellant a verdict and judgment for $6,- | the presence thereon of the loose or unsecur000 damages. On appeal this judgment was ed plank, and the manner in which the decereversed for various errors occurring on the dent met his death, was substantially the trial in the lower court. On the second trial same as was furnished by his witnesses upon appellee recovered a verdict and judgment the first trial, and the opinion on the former against the appellant for $6,000, and the case appeal is clear and emphatic in the stateis again before us for review upon appeal ment that this evidence was sufficient to take from the last judgment.

the case to the jury. Indeed, we may add The opinion of this court on the first appeal that the fact that the plank slipped from is reported in 152 Ky. 92, 153 S. W. 1, and the girder and caused Hamblin to fall of the following excerpts therefrom will so ful- itself furnished some evidence that it was ly present the issues made by the pleadings nôt nailed to the platform, and was sufficient and evidence and the salient facts connect to take the case to the jury upon the quesed with the accident as to render a more tion of appellant's negligence. elaborate statement of them than we have Appellant introduced on the last trial, in here given unnecessary.

support of its defense that the death of “This suit was brought by his (Hamblin's] Hamblin was caused by his own negligence personal representative to recover for his death in throwing the shaft and causing it to strike on the ground that the company was negligent and loosen the plank that produced his fall, in failing to furnish him a reasonably safe place to work, that the planks in the platform all the witnesses who testified on that subwere not nailed, and that the structure was aject in its behalf on the first trial, and in dangerous one for the purpose for which it was addition a new witness, Blaine Parker, who intended. The proof introduced on the trial

Frank conduced strongly to show that Hamblin's fall was not present at the first trial. was due to the plank on which he was standing Burch testified for appellant on the last slipping until the end opposite to the place trial, as he did on the first, that five or six where the shaft was thrown off had slipped off weeks before the death of Hamblin he nailed the girder, and that this plank was not fastened or secured in any way. There was proof for some planks on the tipple platform, and that the defendant that there was a collar on the there were then no loose planks on it, and shaft, also some other attachments, and that this statement was again partially corrobothere was a scar on the end of the plank, indi- rated by his brother. Frank also produced cating that the shaft as it fell struck the plank, and so caused it to fall. There was also proof on the last trial a plank which he said was for the defendant that the planks constituting the eighth plank in the platform at the time the floor of the platform were securely nailed Hamblin was killed. This plank contained with large nails six inches long. While it is true that Hamblin ould not have in one end a nail by which he claimed it been hurt if he had not thrown the shaft off, was 'fastened to the platform when he reit is also true that throwing the shaft off would moved it during the last trial, which was not have caused any trouble if the plank had more than two years after Hamblin's death. been securely fastened. Trosper, under whom he was working, had done the work in the same Evidently this testimony had no weight with way on a previous occasion, and Trosper, who the jury as, according to all the other witwas in charge of the work, made no objection nesses, there were not eight planks, but only to his suggestion that they should throw the shaft off. It cannot be said, therefore, that he five or six, in the platform at the time of was acting outside of the scope of his duty, and Hamblin's death. And, besides, the nail in the circuit court properly refused the peremp- the plank produced was not rusty or distory instruction asked by, the defendant. colored, as would have been its condition had

* The plaintiff proved by one witness (Buchanan] that he was working on this plat- it been driven in the plank two years before, form about a week before the accident, and but a bright new nail, and smaller than those while working there had occasion to move one all the other witnesses agreed had been used of the planks of the platform. He could not state definitely which one, and that this plank in the platform. If there were eight planks was not nailed, but loose. *

There was

on the platform when Burch brought this sufficient evidence to take the case to the ju- plank into court, it is fairly evident that the

plank produced had been placed there and It is insisted for appellant: (1) That ap- the nail driven in it long after Hamblin's pellee failed to prove the negligence charged death. The witnesses, professing any knowlin the petition, and that appellant was there. edge on the subject, said the plank which fore entitled to a peremptory instruction; caused Hamblin's fall was about the middle (2) that the injury was caused by the de- of the platform; and, while it is true appelcedent's own negligence; (3) that the ver- lant's new witness, Blaine Parker, testified

*

*

ry. *

Hamblin's fall, when it was replaced on the , to Hamblin. Indeed, we can well understand platform, and that it had in each end a nail why he could not have discovered the defect or nails which were bent as though they had or danger, as the platform was shown to been suddenly and violently wrenched from have been covered by and its cracks practhe girders, he was uncorroborated in this tically filled with coal dust, and his work by any other witness and flatly contradicted had to be performed by the uncertain light by Buchanan, the present jailer of Knox furnished by the lamps carried in the caps county, who said he saw the plank when it of himself and assistant. was seen by Parker, and in fact handed it On the whole case we see no reason to de to Parker; that he then examined it, and part from the conclusion expressed in the there were no nails in it. Buchanan is the opinion on the former appeal that the case same witness who testified on both trials should have been submitted to the jury, and, that a week before the death of Hamblin he this being true, it follows that in our opinion went upon the platform with a forge to re the trial court did not err in overruling the pair the tipple, and that in order to keep appellant's motion for a peremptory instrucone of the four legs of the forge from go- tion. It could not properly have been granting in a crack between the planks of the ed, either upon the ground of the failure of platform he slipped one of the planks, which proof of negligence on the part of appellant, he found to be loose, against the other. or upon the ground that the decedent's death

It is obvious from what has been said was caused by his own want of ordinary that there was no material variance in the care. evidence heard upon the two trials, and that [4] Nor is the case one in which it can on the last, as on the first, there was much be said that the verdict is flagrantly against proof on each side of the main issue; that of the evidence. appellee being to the effect that the platform "To say of the verdict that it is flagrantly upon which the decedent was required to against the evidence means that it is palpabiy

against the evidence. The fact that the eriwork was, by reason of the loose plank, a

dence is conflicting, or that this court would d:uigerous place for the performance of his have made a different finding on the facts, or duties, that the loose plank would not have that in its opinion the verdict is against the been moved from its supports in the plat- weight of the evidence, furnishes no cause for form by the shaft coming in contact with it clearly palpably against the evidence will give

setting it aside; nothing short of its being when thrown by Hamblin if it had been prop- the appellate court authority to disturb it on erly nailed thereto, and that the negligence this ground.”. L. & I. R. v. Roemmele, 157 Ky. of appellant in failing to thus secure the 84, 162, S. W. 547; Empire Coal & Mining Co.

v. Mackintosh, 82 Ky. 554; McCoy v. Martin, plank was the proximate cause of Hamblin's 4 Dana, 580;' Chiles v. Jones, 3 B. Mon. 51; death. On the other hand, appellant's evi- | Page v. Carter, 8 B. Mon. 192. dence tended to show that the plank in ques

Tested by this rule, no one, familiar with tion was securely fastened to its supports; the weight and effect of evidence, can say that the weight of the shaft upon coming in that the verdict here is clearly and palpably contact with the end of the plank when

against the evidence. thrown by Hamblin, was sufficient to have

[5, 6] We are unable to find any sufficient torn it from its fastenings, and that his act reason for sustaining appellant's complaint in thus attempting to remove the shaft from of the admission of the evidence furnished by the platform constituted negligence which so appellee's witnesses McNiel, Hays, and Jackcontributed to his death that but for such son. They were permitted to testify, in subact he would not have been killed.

stance, as to the strength of oak plank, such [2, 3] It was manifestly the duty of the

as was used in the platform from which the appellant to use ordinary care to furnish decedent fell, to sustain the weight of such Hamblin a reasonably safe place to perform an object as the shaft on appellant's tipple, the work required of him. He had the right the quality and size of nails required to se to assume that this duty had been or would curely fasten and hold such plank, and to be performed by appellant. Hamblin was what weight or force they would have to be not required to make an inspection of the subjected, when properly nailed, to wrench platform before beginning his work for the them from their supports, etc. Before an purpose of ascertaining whether it was rea- swering as to these matters all three witsonably safe. If, however, its dangerous nesses named appear to have fairly qualified character was so obvious as that a personas experts. They are carpenters and have of ordinary understanding and judgment, sit- had an experience of from 16 to 40 years in uated as he was, could, by the exercise of working in timber and with nails, and it is ordinary care, have discovered the danger not to be denied that their testimony shows in time to have prevented his death, there them to possess a wide range of knowledge, should have been no recovery, for in such both practical and scientific, upon the matcase it would have been caused by his own ters with respect to which they were ques negligence. If the plank was, in fact, un- tioned. But aside from what has been said nailed to its supports, there is no evidence we do not think the admission of the testiwhatever to the effect that this was so ob- mony of these witnesses can be complained vious as that it ought to have been known / of by appellant, or that it constitutes revers

ible error, because they were introduced for, to be suitable for roads like those upon which the purpose of refuting and contradicting plaintiff desired to operate it, defendant is

bound to furnish a machine having sufficient what had first been testified to by appel, power to propel itself over such roads, or there lant's witness, English, who appears to fall is no compliance with the contract. short of being himself an expert. Having by [Ed. Note.--For other cases, see Sales. Cent. the introduction of English and his testimo- Dig. $$ 391-400, 402; Dec. Dig. 166.*] ny with reference to the same matters open Appeal from Circuit Court, Ohio County. ed up this line of evidence, appellant is, we Action by L. B. Bean against the Internathink, in all fairness estopped to insist that tional Harvester Company of America. From appellee was permitted to introduce the three a judgment for plaintiff, defendant appeals. witnesses named in rebuttal. It is true that | Affirmed. in the opinion on the former appeal we held

H. P. Taylor, of Hartford, and Humphrey, that the evidence given at appellee's instance Middleton & Humphrey, of Louisville, for apby the witnesses Trosper and Buchanan, and pellant. M. L. Heavrin and Ernest Woodperhaps two or three other witnesses, along ward, both of Hartford, J. M. Porter, of Beathe same lines, should have been excluded ver Dam, and A. D. Kirk, of Hartford, for apon the trial, and should not be admitted on

pellee. the last trial, but this was because what they said were mere expressions of opinion

HANNAH, J. L. B. Bean was engaged in from nonexperts.

the operation of a transfer line for the transThe principal ground given by the court portation of passengers and their baggage, for the reversal of the judgment on the first and mail, express, and freight shipments, appeal was error in the instructions. Upon between Hartford and Beaver Dam, in Ohio the last trial the instructions were made to county. He was visited by an agent of the conform to the opinion, and are therefore International Harvester Company of America, free from error and not complained of by who proposed to furnish an auto wagon suitappellant.

able for operation in the transfer line menNo reason being shown by the record for tioned. This agent was made acquainted a reversal, the judgment is affirmed.

with the nature and condition of the roads to be traversed and the needs and require.

ments of Bean in the way of vehicular equipINTERNATIONAL HARVESTER CO. OF

ment. Bean possessed little or no knowledge AMERICA V. BEAN.

of vehicles of this character and their per

formance under the conditions to which sa me (Court of Appeals of Kentucky. Oct. 1, 1914.) I would be subjected in his use, but, relying 1. SALES ($ 126*)-RESCISSION-RIGHT TO RE- on the skill and judgment of the company's

agent in furnishing him a machine suited to Where plaintiff purchased an auto wagon for use upon his transfer line, and the machine his requirements, he ordered from the Harproved inadequate, plaintiff's retention of the vester Company one auto wagon. The Har. machine for about 60 days, during which time , vester Company manufactures several styles be thoroughly tried it, and it was mended by of these auto wagons, and the particular experts of defendant, was not such a delay as to preclude him from rescinding the contract. style of auto wagons so ordered was that

[Ed. Note.-For other cases, see Sales, Cent. selected and recommended by the company's Dig. 88 313-317; Dec. Dig. & 126.*]

agent. When the auto wagon was delivered 2. SALES ($ 273*) — WARRANTIES – IMPLIED to him, Bean paid for it, and placed it in CONTRACTS.

service on his transfer line. At the expiraWhere a seller contracts to supply an article to be applied to a particular purpose, and tion of about 60 days, he notified the Harthe buyer necessarily trusts to his skill

or vester Company that it was worthless for his judgment, there is an implied warranty that purposes and that it was held subject to the the article will be reasonably fit for the purpose company's demand. He thereupon instituted for which it is to be applied. [Ed. Note.-For other cases, see Sales, Cent.

a suit in equity in the Ohio circuit court Dig. $$ 772–776 ; Dec. Dig. $ 273.*]

against the Harvester Company for rescission 3. Sales ($ 267*)-WARRANTIES CONSTRUC

of the sale and recovery of the purchase TION. .

money paid by him. . Where plaintiff, who knew little about au The company answering, alleged that the tomobiles, purchased one of the type recom- only warranty made by it was one contained mended by defendant's agent, a stipulation contained in the order blank that an express war in the order signed by Bean for the vehicle ranty as regarded the machine should exclude in question, which contained the following all implied warranties will not be presumed to language: bave been procured fairly, and will not defeat an implied warranty of fitness for the purpose

"The International Harvester Company of for which plaintiff desired to use the machine. America (a corporation) hereby warrants the [Ed. Note. For other cases, see Sales, Cent. of good materials, and hereby agrees to replace

auto vehicle herein ordered to be well made, Dig. $8 760, 761; Dec. Dig. & 267.*]

free of charge any broken parts that are defec. 4. SALES (8 166*)--CONTRACTS-BREACH. tive (except tires, on which there is no war

Where defendant sold an auto wagon, and ranty): Provided they break or prove defective It was selected with reference to an advertise within sixty days from the receipt of the auto ment in defendant's catalogue, representing it I vehicle by the purchaser, and said company is

SCIND.

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