(257 S.W.) and that he (Middleton) also took from the A fair analysis of the evidence relied on same table a pop bottle containing moonshine by the commonwealth to establish the appelwhisky, in payment of which he too left 75 lant's guilt of the offense charged in the incents on the table. This witness also testi- dictment, will show that the testimony of fied that upon his arrival at Ball's house a Creech as to his purchase of the whisky at man there "he thought" was the defendant Ball's house, and the manner of its purchase, (appellant), in reply to his request to be in-was fully corroborated by that of Middleton, formed whether "any whisky could be found," which also reasonably and fairly identified said "he did not know of any but some might be found," and that later he saw a man "that favored the defendant" set the pop bottles on the table from which he and Creech were sup-circumstances that attended the sale, such plied with the bottle of whisky obtained by each of them, but that this man was not in the room when the bottles were taken and paid for by them. Although, when first questioned, Middleton seemed reluctant to positively say the appellant was the person of whom he inquired about whisky and who placed it in pop bottles on the table where he and Creech obtained and paid for it, when, before concluding his testimony, the appellant was made to stand before him in the presence of the jury for inspection, he then unhesitatingly declared that the latter "was the man to whom he talked about the liquor" and, "to the best of his belief," the man who put on the table the bottles of whisky obtained and paid for by him and Creech. Middleton further testified that Ball and wife were not at their home while he was there, and that the former's reputation as an illegal trafficker in intoxicating liquors was well known in the community including his place of residence. 1 the appellant as the seller of the whisky. In addition their testimony is given a corroborative background and coloring by the as the device resorted to for effecting it and the fact that the whisky was sought, found, and obtained, at the house where it was reputed to be kept, of the father-in-law of the owner, and all evidencing methods the "bootlegger" might be expected to employ in attempting to conceal the illegal character of his business from the officers of the law. On the other hand, when it is considered that the only contradiction attempted of the foregoing evidence of the commonwealth's witnesses, and the corroboration given it by the circumstantial evidence referred to, is found in the uncorroborated testimony of the appellant, whose interest in the result of the trial was personal and immediate, we are not surprised that the jury regarded the evidence of the commonwealth sufficient to establish his guilt. As we are furnished by the record with no reason for disagreeing with that conclusion, the verdict will not be disturbed. Hence the judgment is affirmed. RUSHING v. COMMONWEALTH. (Court of Appeals of Kentucky. Dec. 21, 1923.) Intoxicating liquors 238(1)—Evidence of possession of illicit still insufficient to take case to jury. In a prosecution for possessing an illicit still as defined by Ky. St. § 2554d3, evidence as to thing charged to be illicit still held insufficient to take the case to the jury. 2. Criminal law 789(4) — Instruction on reasonable doubt erroneous. [4, 5] The only evidence introduced for the appellant was furnished by his own testimony, which asserted his absence from Ball's residence at the time of the sale of the whisky in question, and specifically denied every statement of the commonwealth's witnesses that tended to implicate him in the sale. thereof. But we are unable to find any reason for attempting to differentiate this case from the many other cases merely presenting a contrariety of evidence, the submission of which to the determination of a jury has been approved by this court. It is peculiarly the province of the jury to weigh and pass upon conflicting evidence and determine from it the guilt or innocence of the accused; and the trial court is without authority to direct his acquittal by the jury, if there is any evidence conducing to prove his guilt. Sorrels v. Com., 197 Ky. 761, 248 S. W. 205; Pace v. Com., 170 Ky. 560, 186 S. W. 142; Carter v. Com., 131 Ky. 240, 114 S. W. 1186. Nor is the trial court authorized to grant the accused a new trial on the ground that the verdict is unsupported by the evidence, unless it is clearly made to appear that it is flagrantly or palpably contrary thereto. Partin & Allen v. Com., 197 Ky. 840, 248 S. W. 489; Day v. Com., 197 Ky. 730, 247 S. W. 951; Anderson v. Com., 196 Ky. 30, 244 S. W. 315. An instruction, "If you have a reasonable doubt from the evidence that the defendant is not guilty as charged, you should acquit him," was erroneous, since the reasonable doubt which authorizes an acquittal is one as to the and the word "not" should have been omitted. defendant's guilt and not as to his innocence, Appeal from Circuit Court, Graves County. John Rushing was convicted of possessing an illicit still, and he appeals. Reversed and remanded for new trial. B. C. Seay, of Mayfield, for appellant. Thos. B. McGregor, Atty. Gen., and Lilburn Phelps, Asst. Atty. Gen., for the Commonwealth. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes CLAY, J. Appellant was convicted of pos- 2. Contracts -Any modification that parsessing an illicit still. ties may subsequently make may be incorporated. An illicit still, as defined by section 2554d3, Kentucky Statutes, is as follows: "An illicit or 'moonshine' still under this act shall include an outfit or parts of an outfit commonly and exclusively used in the distillation of spirituous liquors which is not at the time of trial duly registered in the office of a collector of internal revenue for the United States, and the burden of proving that same is so registered shall be on the defendant under charge." [1] John Harris, the only witness introduced by the commonwealth, testified, in substance, as follows; He asked appellant to let him know when he was going to make a run. After that appellant met witness and said, "Let's go 'possum hunting." They then went into a gully. There he saw a can about 20 inches high, with a top on it. The can looked like a cream or milk can. There was a fire under it, and appellant put on kindling. In a short time the can exploded, and witness was burned. The can did not look like any still he had ever seen. He did not see or smell any mash or liquor of any kind, nor did he see any worm or other apparatus attached As an ordinary milk can cannot be regarded as an outfit commonly and exclusively used in the distillation of spirituous liquors, we conclude that the evidence was insufficient to take the case to the jury, and that the court should have sustained appellant's motion for a peremptory instruction. [2] The reasonable doubt instruction is as to the can. follows: "If you have a reasonable doubt from the evidence that defendant is not guilty as charged, you should acquit him." The reasonable doubt which authorizes an acquittal is one as to the defendant's guilt. not as to his innocence, and the word "not" should have been omitted. Judgment reversed, and cause remanded, for new trial consistent with this opinion. Any modification of the terms of a contract incorporate therein originally. the parties may subsequently make they may 3. Street railroads 24 (5)-Franchise for indefinite period valid. Under Ky. St. § 3290, subsec. 35, a franchise to operate a street railway in a city of the third class for not exceeding 20 years, the purchaser having the right to terminate it at any time by giving 10 days' notice, is valid, though the purchaser by terminating it may avoid payment for street improvements. Appeal from Circuit Court, Franklin County. Action by L. W. Morris against the Common Council of City of Frankfort, Ky. Judgment for plaintiff, and defendant appeals. Reversed, with directions to dismiss. James H. Polsgrove, of Frankfort, for appellant. Morris & Jones, of Frankfort, for appellee. CLARKE, J. By this action a citizen sought and obtained an injunction preventing a sale of a franchise to operate a street railway in Frankfort, a city of the third class. By subsection 35 of section 3290, the common councils of such cities are empowered to sell such a franchise "for a term not exceeding twenty years," but must reserve the right to require the purchaser, among other things, "to pay the cost of paving or otherwise improving between its rails, and, for reasonable distance on either side thereof." [1] We held, in Board of Council of Frankfort v. Morris, 200 Ky. 59, 252 S. W. 142, that the city may or not, in the franchise or otherwise, contract for payment by the purchaser of street improvement between the rails, etc., but that this right cannot be surrendered and must be reserved. However, in City of Henderson v. Henderson Traction Co., 200 Ky. 183, 254 S. W. 332, we held that a failure expressly to reserve the right in the franchise did not render the franchise invalid, since it would be presumed the parties knew the law and intended to act validly, and that such a provision would be COMMON COUNCIL OF CITY OF FRANK- read into the franchise contract by necessary FORT v. MORRIS. (Court of Appeals of Kentucky. Dec. 21, 1923.) 1. Street railroads 24 (5) Purchaser of franchise must pay cost of paving, though not mentioned. In view of Ky. St. § 3290, subsec. 35, pur chaser of franchise to operate a street railroad in a city of the third class must pay the cost of paying between its rails, though the franchise is silent in that regard, and such silence does not invalidate the franchise. implication. We must therefore read into the involved franchise such a provision, and it is not invalid because of its omission. The remaining question presented by the appeal is whether the franchise is invalid because it is for "an indeterminate period of not exceeding twenty years, * * the purchaser having the right to fully, finally and immediately terminate this contract at any time within said period of twenty years by giving the city of Frankfort ten days notice in writing of such intention to terminate, For other cases see same topic and KEY-NUMBER in all hey-Numbered Digests and Indexes Ky.) JARRETT v. LOUISVILLE & N. R. CO.. and at the expiration of said ten days this franchise, and not in a waiver of the city's No case directly in point has been found, but the only limitation upon the city's power relating to the duration of the franchise is that it shall be "for a term not exceeding twenty years"; and, as this franchise cannot extend beyond that time, it is valid unless because of the right of the purchaser to terminate it at will within that period. It is clear the city could have made the franchise cover any definite number of days, months, or years less than 20 that in its discretion seemed wise or desirable, and there seems no doubt it could have provided for its duration throughout any such period, unless sooner terminated by agreement of parties, or unless revoked for failure of the purchaser to comply with its terms. 19 R. C. L. 1162, and notes. [2, 3] If the city council and the owner may terminate a franchise by agreement at any time before its expiration after it has been granted and accepted, why may they not validly agree beforehand how it may be terminated by either party within its ultiThere certainly is mate period of duration? no such limitation, either expressed or implied, upon the power of the city council, or it could not agree to a cancellation before the expiration of the contract period. result to all parties to or interested in the contract is precisely the same in either event, and it seems to us axiomatic that any modification of the terms of a contract the parties may subsequently make, they could have incorporated therein originally. The The single objection urged by the taxpayer plaintiff is that the purchaser's option to terminate the franchise at any time upon 10 days' notice will enable him to prevent the city's exercise of its option to require him to pay for street improvements, and that being unable to procure a purchaser otherwise, this provision was included for that very purpose. But the city's option to require payment for street improvements, although necessarily a part of the franchise, as we have seen, can only last so long as the franchise, and may or may not be exercised as the city council elects. Hence the right to exercise that option is neither denied nor lessened by the right of the purchaser to terminate the contract at will, since until the contract is terminated-that is, throughout its life-the city's right to impose improvement costs exists. option during the life of the franchise to re- It follows that since the present or any subsequent council may require the purchaser to pay the costs of street improvements at any time it may elect to do so during the life of the franchise, there is no reasonable ground for complaint upon the part of a citizen or interference by a court of equity, simply because the contract may be terminated by the franchise purchaser before the city may elect to assess street improvements against it. As the chancellor enjoined the sale of the franchise, the judgment is reversed, with directions to dismiss the petition. The whole court sitting. JARRETT v. LOUISVILLE & N. R. CO. 1. Compromise and settlement 23 (1)—Bur- In an action for personal injuries, where defendant alleged settlement, and plaintiff in his reply did not deny the settlement but alleged that it was procured by fraud, the burden was upon plaintiff to prove the fraud as well as his original claim, in view of Ky. St. § 473. 2. Pleading 121(2, 4)-Denial of appointment of guardian and execution of receipt upon information and belief. In action for personal injuries, wherein defendant set up settlement with guardian, as plaintiff did not execute a receipt relied upon by defendant to defeat the action, it was only necessary that he should deny that he had sufficient knowledge or information to form a belief that it was executed by his guardian, but it was not sufficient to simply deny knowledge or information of the appointment of the guardian; such fact being a matter of public record, a certified copy of which was filed with the annot being authorized by Civ. Code Prac. § 113. swer, and a denial of knowledge concerning it 3. Guardian and ward 33-Guardian may compromise, settle, and release claim for personal injuries. Under Ky. St. § 2030, a guardian of an infor personal injuries, without leave of court, fant may compromise and settle claim of infant and the ward will be bound thereby unless it is done in bad faith or in fraud of his rights. Appeal from Circuit Court, Logan County. Action by Ray Jarrett against the Louisville & Nashville Railroad Company. JudgAffirmed. ment for defendant, and plaintiff appeals. E. J. Felts, W. T. Lasley and S. H. Brown, In other words, the city's right to impose such costs necessarily continues as long as the franchise does, so even if we might assume the present city council is attempting to waive the city's right to coerce payment by the franchise purchaser of street improve- all of Russellville, for appellant. ment costs, which it may not do, the attempt can only result in a termination of the S. R. Crewdson, of Russellville, for appellee. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 257 S.W.-2 Woodward & Warfield, of Louisville, and CLARKE, J. Upon reaching his majority, appellant filed this action to recover damages for personal injuries alleged to have been negligently inflicted upon him by appellee on May 9, 1902, when he was but 13 years of age. The answer traverses the allegations of negligence, pleads contributory neglect, and alleges, as a full and complete settlement of the claim, the payment of $100 to S. J. Browning, appellee's statutory guardian, in June, 1902. Replying to this latter plea, appellant alleged ignorance of what was done at the time, and "therefore denied" the appointment of Browning as his guardian, or his authority to settle the claim, or that he was bound thereby, or that the $100 was paid or received in full or complete, or any, settlement of his claim. But with its answer the defendant set out, filed, and made parts thereof, certified copies of the county court orders showing the appointment and qualification of Browning as guardian of plaintiff upon the motion and request of his father, the canceled check to and indorsed by Browning as his guardian, and his receipt of same in full and complete settlement of the claim herein asserted. Plaintiff did not deny the execution or verity of any of these papers, and alleged in avoidance of the settlement that it was procured by fraud. This latter plea was traversed by rejoinder, and upon these issues the case went to trial. Plaintiff offered no proof of fraud in connection with his guardian's settlement of the claim sued on, and, upon the completion of his evidence, a verdict was directed for the defendant, and he appeals. "A traverse is a denial; by a party of facts alleged in an adverse pleading, if they be presumptively within his knowledge; or a denial of them, or a denial that he has sufficient knowledge or information to form a belief concerning them, if they be not presumptively within his knowledge." Construing these provisions, we said in Walsh's Ex'r v. Pearce's Ex'r, 148 Ky. 760, 147 S. W. 739: "It is necessary to constitute a good plea of non est factum that the answer [or reply] shall be verified and be in express terms a denial of the execution of the instrument sued on, or a denial of sufficient knowledge or information to form a belief concerning its execution. If this defense is made by the person who it is alleged executed the paper, the denial should be in express terms but if the denial is made by the personal representative of the person whose signature is attacked, or by some other third party who has a right to make the defense, a denial of sufficient knowledge or information to form a belief will be sufficient." [2] As plaintiff did not execute the receipt relied upon by the defendant to defeat his action, it was only necessary that he should deny that he had sufficient knowledge or information to form a belief that it was executed by his guardian. But he did not do this. He made no denial of any kind that the receipt was executed, but simply denied its effect, and he did not, therefore, put in issue its execution by his guardian. And while he denied knowledge or information of the appointment of his guardian, that fact was a matter of public record, a certified copy of which was filed with the answer, and a denial of knowledge concerning it is not authorized by section 113 of the Civil Code. Walsh's Ex'r v. Pearce's Ex'r, supra; Wing [1] His first contention is that the court. Dugan, 8 Bush, 583; Barret v. Godshaw, erred in directing a verdict against him, because he proved negligence, and the burden was upon the defendant to prove the alleged settlement. Waiving the question of negligence, the question then is, did plaintiff by his reply deny the plea of settlement, or did Plaintiff's reply therefore was merely a he simply plead fraud in avoidance thereof, denial of the legal effect of the papers necessince if, as his counsel insist, he did the sarily exhibited with and made parts of the former, the burden of proving same was up- plea in bar of the answer, and a plea of on defendant, and as it offered no such or fraud in avoidance thereof. It was thereany proof, the court erred in directing a fore incumbent upon the plaintiff, in order verdict for it. But if plaintiff simply plead-to make out a case for the jury, not only to ed fraud in avoidance of the alleged settlement, as counsel for defendant insist, the burden was upon him to prove this plea as well as his original claim, and as he did not do this, the court did not err in directing a verdict for the defendant. Section 473, Kentucky Statutes, provides that 12 Bush, 592; Johnson v. Ahser, 105 S. W. 943; Daisey R. Co. v. Brown, 35 S. W. 637, 18 Ky. Law Rep. 155; Lucas v. Lucas, 37 S. W. 588, 18 Ky. Law Rep. 661; Gridler v. Farmers' & Drovers' Bank, 12 Bush, 333. prove negligence, but also to avoid the settlement by his guardian by proof of its fraud. Not having done this, the court did not err in directing the verdict for the defendant, unless, as is also contended by the plaintiff, his guardian did not have authority, without court approval, to make the settlement. [3] Without statutory restraint, a guard"The execution of a writing on which a suit ian may compromise, settle, and release or defense is founded, or its assignment, shall claims and demands due to or made by or on only be denied by answer or other pleading ver- behalf of his ward, and the ward will be ified by oath." bound thereby unless it is done in bad faith Subsection 7 of section 113 of the Code or in fraud of his rights, as is conceded by counsel for plaintiff. But it is insisted that reads: (257 8.W.) the powers of guardians in this state are the Declaratory Judgment Act. Judgment for restricted by section 2030 of Kentucky Stat-plaintiffs, and defendants appeal. Affirmed. utes, which provides thatW. W. Ensminger, of Harrodsburg, for appellants. "He shall also receive and sue for the debts and demands owing to the ward, defend actions against him, and with leave of the court, may compound a debt or demand, or settle or compromise any controversy concerning the lands of his ward when the interest of the ward will be subserved thereby." In the case of Manion v. Ohio Valley Ry. Co., 99 Ky. 504, 36 S. W. 530, 18 Ky. Law Rep. 352, where an infant was seeking to avoid a settlement made by his guardian with a railroad company for personal injuries, it was held that a claim for damages for personal injuries such as was there and is here asserted "is not the kind of claim which is embraced in the meaning of the words 'debt or demand' used in the statute, and which a guardian may not 'compound' without leave of court," and that the guardian had the power and authority under the law to compromise the claim. C. E. Rankin and E. M. Hardin, both of Harrodsburg, for appellees. under the Declaratory Judgment Act (Acts "I hereby bequeath to my brother Thomas use of my sister, Sue C. Hardin, during her M. Cardwell in trust for the sole and separate natural life, my dwelling house in which I now reside, on the corner of Main and Water streets in Harrodsburg, Ky., and at the death of my said sister to my niece Sophia H. Grimes free of trust. But should my said niece Sophia H. Grimes die without issue, then said house and lot shall go to my brothers and sisters, the children of my deceased brother or sister to take the share which would have belonged to the parent." It was, no doubt, upon this authoritative construction of the Statutes that the settlement in this case was effected, as well as a It appears that Mrs. Sue C. Hardin surgreat many more like it, and while the con-vived the testatrix, but is now dead. The struction is not, in our opinion, entirely free from doubt, we do not feel authorized, after so long a time, to depart therefrom. chancellor was of the opinion that the plaintiff Sophia H. Grimes is the owner in fee simple of the real estate described, and so adjudged. There is nothing in the will, aside from the language quoted, to indicate any other period to which the "dying without issue" could refer, and the case naturally falls within the familiar principle: "Where an estate is devised to one for life, with remainder to another, with the further provision that, if the remainderman should die without child or issue, then to a third person, the rule is that the words 'dying without child or issue' are restricted to the death of the remainderman before the termination of the particular estate." Reuling's Ex'x v. Reuling, 137 Ky. 637, 126 S. W. 151; Harvey v. Bell, 118 Ky. 521, 81 S. W. 671; Rice v. Rice, 133 Ky. 406, 118 S. W. 270; White v. White, 168 Ky. 753, 182 S. W. 942; Hughes v. Covington, 152 Ky. 421, 153 S. W. 722; Bradshaw v. Williams, 140 Ky. 160, 130 S. W. 985. It follows that, upon the death of Sue C. Hardin, Sophia H. Grimes acquired a feesimple title in the lands devised. Appeal from Circuit Court, Mercer County. Suit by Sophia H. Grimes and others against W. W. Ensminger and others under is affirmed. The judgment of the chancellor, so holding, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |