Lean v. Fleming, 96 U. S. 245, 24 L. Ed. 828; Menendez v. Holt, 128 U. S. 514, 9 Sup. Ct. 143, 32 L. Ed. 526; Layton P. F. Co. v. Church, 182 Fed. 24, 104 C. C. A. 464; Gaines v. Whyte Co., 107 Mo. App. 507, 81 S. W. 648; Cedar L. H. Co. v. Cedar L. H. Co., 79 Wis. 297, 48 N. W. 371. To the extent that Northcutt v. Turney, 101 Ky. 314, 41 S. W. 21, 19 Ky. Law Rep. 483, announces a contrary doctrine, it is hereby overruled. Judgment affirmed. Pepper whisky which Peebles' Sons Company | 23, 6 L. R. A. 823, 23 Am. St. Rep. 537; Mcwere selling in violation of an alleged contract. It was held that plaintiffs were not in equity with clean hands, for the label sought to be protected described the whisky as "Old Pepper Whisky," when in truth and in fact part of the whisky was not made by Pepper. It is well settled that to preclude plaintiff from relief his representations must be both intentional and material, so as to constitute a deliberate fraud on the public. Nims on Unfair Business Competition, p. 480. Thus relief is frequently denied where there is a misrepresentation as to the identity of the manufacturer. Manhattan Medi CO. FORD'S ADM'R et al. v. SAME. (Court of Appeals of Kentucky. Oct. 22, 1914.) 1. APPEAL AND ERROR (§ 1203*)-PROCEEDINGS IN LOWER COURT-NEW TRIAL-SCOPE OF ISSUES-DECISION OF APPELLATE Court. cine Co. v. Nathan Wood, etc., 108 U. S. 218, | FORD et al. v. SOUTHERN NAT. LIFE INS. 2 Sup. Ct. 436, 27 L. Ed. 706; Leather Cloth Co. v. American Leather Cloth Co., 4 De G., J. & S. 137; Prince Mfg. Co. v. Prince's Metallic Paint Co., 135 N. Y. 24, 31 N. E. 990, 17 L. R. A. 129. Or where there is a misrepresentation as to the place of manufacture. Elgin National Watch Co. v. Illinois Watch Case Co., 179 U. S. 665, 21 Sup. Ct. 270, 45 L. Ed. 365. The rule is also applied where, as in the cases of Worden v. California Fig Syrup Co., supra, and Krauss v. Jos. R. Peebles' Sons Co., supra, there was a misrepresentation as to the nature of the article sold. In the case before us, as said before, there is no proof to the effect that other manufactured whisky was sold under the label of "Bonnie Rye." There is no misrepresentation as to the place of manufacture, or as to the real nature of the article. The only misrepresentation relied on is that the national Pure Food and Drug Act is violated because two whiskies made at different times are not labeled a blend. In view of our great doubt as to whether or not plaintiff's label as thus used constituted a technical violation of the national Pure Food and Drug Act, and since we do not believe that it was designed, or was calculated, to deceive the public, or was intended to operate, or did operate, as a fraud on the public, we are not disposed to deny plaintiff the relief asked for on the ground that he does not come into equity with clean hands. [5] Lastly; it is insisted that, as Bonnie & Co. have used the words "Bonnie & Co. Rye" as a brand of whisky for more than ten years, plaintiff's right of action is barred by the statute of limitations. Whether or not the statute, if available as a defense, would apply under the facts of this case, we deem it unnecessary to decide. It is sufficient to say that by the great weight of authority, the infringement of a trade-mark is a continuing injury, and though laches and limitation may defeat an action for damages, neither laches alone nor limitation is available as a defense to an action for relief by way of injunction for such infringement. El Modello C. M. Co. v. Gato, 25 Fla. SS6, 7 South.] Where a former decree, giving to an insurance company, which had loaned money to a young man and taken as security therefor a mortgage upon a trust estate given him by his father's will, a personal judgment for the amount but declaring the mortgage void and prohibiting payment out of the trust funds, was reversed on appeal by the insurance company with directions to the lower court to ascertain the correct amount due under the circumstances to the insurance company and to allow it as a claim against the estate of the mortgagor who had since died, the lower court may reopen the question as to the amount due and enter a decree for a smaller amount, even though no cross-appeal was taken from the former decree. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4666, 4684-4691, 4693; Dec. Dig. § 1203.*] 2. TRUSTS (§ 152*)-SPENDTHRIFTS CLAIMS AGAINST ESTATE-AMOUNT-VALUE OF CORPORATE STOCK. Where an insurance company had sold to a spendthrift, since deceased, certain shares of its capital stock at par value, taking therefor his ket value or actual value of such stock except note, and there was no evidence as to the marthat deceased had sold it for different amounts less than the par value, it was not error to allow the insurance company's claim against the estate for all such stock at the highest price received by deceased for any of it. [Ed. Note.-For other cases, see Trusts, Cent. Dig. 196; Dec. Dig. § 152.*] 3. TRUSTS (§ 152*)-SPENDTHRIFTS CLAIMS AGAINST ESTATE - AMOUNT INSURANCE PREMIUM. Where an insurance company issued a policy for a large amount upon the life of a man whose property was held in a spendthrift trust, who was known to the insurance company's agent to be an undesirable risk and whose application contained misrepresentations sufficient to avoid the policy, the premium on which the policy was secured by a mortgage upon the trust estate, and thereafter the company procured the cancellation of the policy by the payment of the cash surrender value, it is entitled to recover against the spendthrift's estate only the amount actually paid, and not the premium for the time the insurance was carried, since it could have defeated any recovery upon the policy. [Ed. Note.-For other cases, see Trusts, Cent. Dig. § 196; Dec. Dig. § 152.*] For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No, Series & Rep'r Indexes 4. TRUSTS (§ 152*)-SPENDTHRIFTS AGAINST ESTATE-VOID MORTGAGE CLAIMS Where a spendthrift, being over 21 and under 25 years of age, whose father had devised property in trust for him until he should reach the age of 25 years, borrowed large sums from an insurance company giving a mortgage on the trust estate therefor, which mortgage was void because of the terms of the trust, the spendthrift estate after his death was liable for his contract, and the insurance company is entitled to a general unsecured claim for the amount actually advanced to him. youth, disposition, and experience, and the conditions surrounding him; and we see no good reason why whatever sum he justly owes the appellant should not be paid out of this trust estate as well as out of any other property which he may have owned. * It is perfectly apparent from this record that there has been no equitable adjustment of the claims pending between appellant and Ford's administrator, and that Elliott Ford, in the summer and fall of 1910, was in no physical or mental condition to have taken steps necessary to bring about a fair settlement. The court upon the return of this case will enter a judgment vacating the judgment of October 1, 1910, and declaring the mortgages executed by Elliott Ford upon the from Circuit Court, Franklin trust property to be void, and, after ascertaining [Ed. Note.-For other cases, see Trusts, Cent. Dig. 196; Dec. Dig. § 152.*] Appeal County. Suit by the Southern National Life Insurance Company against Elliott Ford's administrator and others. From a decree allowing the plaintiff to recover a portion of the amount sued for, both parties appeal. Affirmed on both appeals. Robt. C. Talbott and Robt. B. Franklin, both of Lexington, for appellants. John W. Ray, Bennett H. Young, and Marion W. Ripy, all of Louisville, for appellee. the correct amount due appellant by Elliott general claim against it. In all other respects Ford's estate, allow the same with interest as a the judgment is affirmed." On a return of the case there was a retrial on the validity and justness of the claim sued for. The court heard the proof on the first appeal, and that taken subsequently, on the questions suggested in the opinion, supra ; that is, whether the contracts were fairly made, or whether the boy had been overreached or defrauded or imposed upon by reason of his youth and inexperience, disposition, and surrounding conditions. As a result, the court entered a judgment in favor of the insurance company for $7,123.44. The judgment was itemized and was only for cash and cash value advanced to the young man. In other words, it permitted the insurance company to recover the actual cash it had advanced or loaned to the young man, and for 150 shares of stock in the company at the value of $12.50 per share. The value of these shares in the former judgment was NUNN, J. This is a second appeal, and it will therefore not be necessary to restate the facts which are so fully set forth in the form er opinion. Southern National Life Insurance Co. v. Ford's Adm'r, 151 Ky. 476, 152 S. W. 243. It is sufficient to say that the life insurance company sought to secure a judgment and enforce a mortgage lien for $10,215 against the estate of Elliott Ford, deceased. This effort was resisted by the administrator and guardian of Ford's infant child, because Ford was a profligate spend-fixed at $20, their par value. The amount of thrift, and therefore incompetent to transact business, and was so known to be by the insurance company, its officers and agents, at the time they permitted Ford, just after arriving at maturity, to incur the indebtedness with the company. The lower court had given judgment for the full amount of the debt, but held that the company had no recourse on the trust estate by reason of the mortgage, and that the debt should not be paid out of any part of the trust estate devised by T. B. Ford, his father. The only property Elliott Ford had was this trust estate, which he had endeavored to incumber by mortgage, so that a judgment for the debt alone was an empty thing, and gave to the company no substance of relief. The insurance company appealed. premiums charged for two years, in advance, on $15,000 of life insurance, amounting to $1,482.90, was eliminated by the last judgment, and a recovery permitted for only the surrender value, that is, $732.94, paid in cash to Ford by the company on surrender of the policies. Making allowance for interest charges, the last judgment is the same as the former one with these exceptions, that is, as to the amount, for as to the status of the claim the last judgment conforms to the opinion. From this judgment both parties appeal. [1] For the insurance company, it is insisted that the lower court erred in reopening the case on its merits, for it says that it was the only appellant on the former appeal, and the sole question there was whether the In disposing of the case, the court used this mortgage on the trust estate was enforcible, language: "So we conclude that the mortgages executed by Elliott Ford on the trust property are unauthorized and void; but Elliott Ford was at the time of these transactions of lawful age, and, while he did not have the power to incumber this trust property, he did have the power to bind himself by contract, and he was bound by his contracts with appellant, in so far as they were fairly made, and he was not overreached, defrauded, or imposed upon by reason of his and that was really the only question decided. For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes there had been no equitable adjustment of the claims between the insurance company and the estate, and the court was directed on a retrial to ascertain "the correct amount due" the insurance company and allow same with interest as a general claim against the estate. The measure for this ascertainment was established, and direction was given to find for appellant so much of the indebtedness as had not been incurred by overreaching, defrauding, or imposing upon Ford by reason of his youth, disposition, and inexperience. On the appeal the whole judgment-not a part of it was before us, and the opinion, supra, went to the whole of it. The opinion is the law of the case, and it makes no difference that the Ford estate was merely appellee's. For these reasons we conclude that the lower court did not err in reopening the case and trying the insurance company's claim upon its merits. Ford sold part of this stock for $12.50 and the balance for $6 per share. There is no evidence that it is worth more than $12.50, if that much, and, in our opinion, the court did not err to the prejudice of the company in taking the $12.50 value as "the correct amount due" on this account. [3] The company complains that, in the allowance of only one year's surrender value on the life policy, the court in effect denies it a premium for carrying the policy for one year on Ford's life. Soon after the policy was issued, Ford's physical condition became such as to alarm the company, and the proof indicates that the company took the initiative in securing a surrender of the policies. From the facts in evidence, we are convinced that Ford was not what is called a good risk at the time he made the application, and, from answers made to certain questions, he could not under ordinary circumstances have been permitted to recover on the polices, if death had occurred before surrender. In truth, the policies were applied for and the stock purchased, not for any benefits he might receive under them, but in order to get the further sum of cash, which he was thereby enabled to receive in the way of a loan. The company then says that the court erred in eliminating the items above referred to. The chief difficulty we have had is not in upholding the lower court in this ruling, but in sustaining the judgment for any sum. As indicated in the former opinion, the young man, under his father's will, was not entitled to possession of the property. It was to be held for him in trust In view of these circumstances, the poliuntil he reached the age of 25. All these cies should not have been issued, and, when transactions occurred while he was under the company voluntarily returned in cash that age, and in the face of an order of the circuit court limiting the trustee to an annual expenditure of $500 for his support. The insurance company had actual knowledge of this court order, and the proof tends to show that, before it parted with any of its money, it knew of his wasteful habits, and his willingness to sell his birthright for a mess of pottage. In all these transactions, he was shown to be careless and indifferent of the extent and character of the obligations he assumed if only he might thereby secure a relatively small amount of cash. [2] To the claim that the court erred in fixing its recovery for stock sold at $12.50 instead of the contract price, the company says that it should not be bound in value by the price which the young man realized for it. In other words, if the contract price is not to control, then the market price should. Proof for the company shows that the stock was not listed, and there is no evidence that it had any market value. the unearned premium for the last of the two years contracted for, it should be satisfied to recover that cash, when it was relieved of an obligation on a very questionable risk. [4] Ford's estate also appeals and claims that the court erred in permitting a recovery in any amount. It will serve no good purpose to go further into details as to the evidence in the case. Ford was of age, and, as stated in the former opinion, "while he did not have the power to incumber his trust property, he did have the power to bind himself by contract," and, to the extent that by such contracts he received money by way.of loan or advancement, we cannot see that he was overreached or imposed upon, although he proceeded without any delay to run through with it in riotous living. It was for the cash received from the company that the court rendered judgment, and this judgment, we believe, is supported by the law and facts of the case. It is therefore affirmed on both appeals. HALE'S ADM'R v. ILLINOIS CENT. R. CO. (Court of Appeals of Kentucky. Oct. 22, 1914.) 1. MASTER AND SERVANT (§ 296*)-DEATH OF SERVANT-RAILROADS DEFECTIVE APPLI ANCES-HAND CARS-INSTRUCTIONS. Where decedent was employed as a section band, and while being transported on a hand car lost his grip on the propeller and fell from the car and was killed as it was running backwards at a speed of 12 miles per hour, resulting from a defect in the car, an instruction that there could be no recovery unless the unsafe condition of the car could not have been discovered by decedent by the exercise of ordinary care was erroneous, since decedent was under no obligation to know the defective character of the car, but could assume that defendant had used reasonable care to furnish him with a safe car. [Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 1180-1194; Dec. Dig. § 296.*] 2. MASTER AND SERVANT (§ 295*) – DEATH OF SERVANT-ASSUMED RISK. In an action for death of a section hand by being thrown from a hand car, due to the defective character thereof, an instruction that, when decedent engaged to work for defendant, he assumed all the ordinary, usual, and necessary danger incident to the employment for which he engaged, and to exercise ordinary care for his own safety, was erroneous as authorizing the jury to believe that decedent assumed dangers incident to the operation of a car that was unsafe and defective, while his assumption of risk only extended to those dangers which were incident to the employment in which he was engaged after the railroad company had exercised ordinary care to furnish him with a reasonably safe car with which to work. [Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 1168-1179; Dec. Dig. § 295.*] of the car. The evidence introduced in behalf of the administrator tended to show that the wheels of the car were loose and wabbly, and that the lever, being worked by Hale and some of the other men on the car, was loose and out of repair, and that this condition of the lever, which had been brought to the notice of the section foreman in charge of this crew some time before, caused Hale to lose his hold on the handle, as a result of which he fell from the car. The evidence for the railroad company was to the effect that the car was in good condition, and that Hale by his own carelessness and negligence fell from the car. [1] Issues along these lines having been formed by the evidence, the court instructed the jury that: (1) "If they believe from the evidence, at the time John Hale fell from the hand car of defendant, said hand car was in an unfit, unsuitable, and unsafe condition to be used in the work it was doing, and that such unfit, unsuitable, and unsafe condition was known by defendant's agent in charge thereof, or could have been known by such agent by the use of ordinary care, and that such unfit, unsuitable, and unsafe condition was not known to decedent, John Hale, or could not by the use of ordinary care have been discovered by him, and you further believe from the evidence that such unfit, unsuitable, and unsafe condition of said hand car was the proximate cause of said decedent falling from the car, then the jury may find for plaintiff." In another instruction the jury were told that: (2) "When plaintiff's intestate engaged to work for defendant, he assumed all the ordinary, usual, and necessary danger incident to the employment for which he engaged, and to exer Appeal from Circuit Court, Graves County. cise ordinary care for his own safety." Action by John Hale's Administrator against the Illinois Central Railroad Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded, with directions. Stanfield & Stanfield, of Mayfield, for appellant. Robbins & Robbins, of Mayfield, Blewett Lee and R. V. Fletcher, both of Chicago, Ill., and Trabue, Doolan & Cox, of Louisville, for appellee. CARROLL, J. John Hale, while working as a section hand for the appellee railroad company, fell from a hand car on which he was riding and received injuries from which he died. His administrator brought this suit to recover damages for his death, and upon a trial before a jury there was a verdict and judgment for the railroad company. At the time Hale fell from the hand car, it was running at a speed of about 12 miles an hour and, as some of the witnesses say, coasting downgrade. Hale was standing with his back in the direction the car was going, and was working the lever by which the car was propelled. It will be observed that under instruction No. 1 the jury were told that there could be no recovery for plaintiff unless the unsafe condition of the hand car "could not by the use of ordinary care have been discovered by him." This instruction imposed upon the decedent the duty of exercising ordinary care to discover the unsafe condition of the car, or, in other words, the duty of inspection. Although he might not have known of its defective condition, yet there could be no recovery, if by the exercise of care he could have discovered the defective condition. The duty of inspection or of exercising care to discover defects is not imposed on the servant situated as Hale was. He was a mere hired hand, occupying a menial position under the supervision of a foreman, and was not required, by the rules of law prevailing in this jurisdiction, to take care to discover defects in the machinery with which he was working. The law imposed upon the railroad company the duty of exercising ordinary care to furnish the decedent with a reasonably safe hand car for his use in performing the work required, and put upon the decedent the duty of exercising ordinary care for his own safety, and the further duty of taking care to protect himself The principal ground of negligence relied on was the defective and unsafe condition For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes from danger, if he knew of the defective tion of the car, if it was in such condition, condition of this car, or if the defects were was known to the decedent, or was so obvious so obvious as that he should be charged with that a person of his age and experience notice of them. This was the measure of his should have known of it. duty. The decedent might not have known of this defect, but there appears no reason why he could not have discovered it, and, if he could have discovered it, there could be no recovery. This is not the law. In Ahrens & Ott Mfg. Co. v. Rellihan, 82 S. W. 993, 26 Ky. Law Rep. 919, after citing a number of cases supporting the rule, the court said: "It has been held by this court in several cases, of comparatively recent date, that when a master employs a servant to work for him he impliedly undertakes that the machinery and tools with which the servant is to work, as well as the place of work, are in a reasonably safe condition, and to keep them in such condi-pany. tion, and it is the duty of the servant to use ordinary care to avoid injury from the use of a defective tool or appliance, or from danger in the place of work, if the defect or danger is known to him, or so obvious that the performance of his duties would make it known to him, but no duty devolves upon him to make a crit ical examination of such tool, appliance, or place of work, and for injuries resulting from their dangerous or unsafe condition, of which he had no knowledge, he is entitled to recover against the master. In East Tennessee Telephone Co. v. Jeffries, 153 Ky. 133, 154 S. W. 1112, it was again said: "The rule, as now held in this jurisdiction, is that the duty of furnishing reasonably safe tools, materials, and place to work is primarily on the master, and that the servant is under no duty to discover defects therein, and unless he knows of their existence, or they are so patent and obvious that a person of his experience and understanding must have discovered them, he will not be precluded from recovery." To the same effect are Pfisterer v. Peter, 117 Ky. 501, 78 S. W. 450, 25 Ky. Law Rep. 1605; Bell Knox Coal Co. v. Gregory, 152 Ky. 415, 153 S. W. 465. [2] The other instruction is also objectionable in so far as it advised the jury that the deceased assumed all the ordinary, usual, and necessary danger incident to the employment. Under this instruction, the jury was authorized to believe that the deceased assumed dangers incident to the operation of a car that, according to the evidence for the plaintiff, was in an unsafe and defective condition. But the decedent did not assume the risk of danger arising from the operation of a car that was unsafe or dangerous on account of the negligence of the railroad comHe only assumed the ordinary risk incident to the employment after the railroad company had exercised ordinary care to furnish him a reasonably safe hand car with which to work. If the hand car was in reasonably safe condition, then he assumed the ordinary risks attending its operation; but, if the hand car was in an unsafe condition. he did not assume the risk that might occur as a result of this unsafe condition. This precise question, in a case the facts of which are almost identical with this, was before us in Brents v. L. & N. R. R. Co., 104 S. W. In that case 961, 31 Ky. Law Rep. 1216. "The employé does not assume such risks as arise from the negligence of the employer in in which to work, and reasonably safe instru failing to furnish him a reasonably safe place mentalities and materials with which to work; In place of the instruction given, the jury and, where this failure is the only negligence should have been told it was the duty of the complained of, any instruction as to the ordinary risks assumed by the employé must be defendant to use ordinary care to furnish misleading. Now, in the case at bar the negli the decedent with a reasonably safe hand car gence complained of is the failure of the emwith which to work, and to keep the same ployer to furnish the appellant with a reasonin reasonable repair for the work the de- ably safe instrument with which to work, to wit, a hand car. No other negligence is comcedent was employed to do, and if the jury plained of, and no other risk than that growing believe from the evidence that while in the out of a defective car is involved in the case; discharge of his duty as a section hand, and it was therefore misleading to the jury to tell them that the appellant, when he accepted emexercising ordinary care for his safety, the ployment under appellee, assumed all ordinary decedent was caused to be thrown from the risks attendant upon his employment. A jury car by reason of its defective and unsafe con-instructions were directed to the question in isof laymen were bound to conclude that the court's dition, and that the defendant, its agents or sue, and that there was some risk attendant servants charged with the duty of supervis- on the use of the defective hand car, if it was ing the car, knew, or by the exercise of or- defective, which appellant assumed." dinary care could have known, of its defective or dangerous condition, if it was defective or dangerous, they should find for the plaintiff, unless they believe from the evidence that the defective or dangerous condi Being of the opinion that the errors mentioned were prejudicial to the substantial rights of the appellant, the judgment is reversed, with directions for a new trial in conformity with this opinion. |