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to Pikeville on a certain day. Section 597 of the Civil Code is as follows: “A witness may be impeached by the party against whom he is produced, by contradictory evidence, by showing that he has made statements different from his present testimony, or by evidence that his general reputation for untruthfulness or immorality renders him unworthy of belief; but not by evidence of particular Wrongful acts, except that it may be shown by the examination of a Witness, or record of a judgment, that he has been convicted of felony.” There was no attempt to show, either by the Witness himself or by the record of a judgment, that the Witness had been convicted of false swearing. By the express provisions of the Code, and by the uniform deciSiOnS Of this COurt, it is not proper to impeach a witness by evidence of, or inquiry as to, particular acts or crimes, nor is it proper to ask him. Whether Or not he has been indicted Or arrested for a particular Offense. The Only proper method of inquiry in regard to every Offense is to ask him. Whether Or not he has been convicted of a felony. Ashcraft v. Com., 60 S. W. 931, 22 Ky. Law. Rep. 1542; Powers v. Com., 110 Ky. 386, 61 S. W. 735, 63 S. W. 976, 22 Ky. Law Rep. 1807, 23 Ky. Law Rep. 146, 53 L. R. A. 245; Howard V. Com., 110 Ky. 356, 61 S. W. 756, 22 Ky. Law Rep. 1845; Com. v. Welch, 111 Ky. 530, 63 S. W. 984; Welsh v. Com., 60 S. W. 185, 948, 1118, 63 S. W. 984, 64 S. W. 262, 23 Ky. Law Rep. 151; Parker v. Com., 51 S. W. 573, 21 Ky. Law Rep. 406: Wilson v. Com., 64 S. W. 457, 23 Ky. Law Rep. 1044; Mitchell V. Com., 64 S. W. 751, 23 Ky. Law Rep. 1084; Pennington v. Com., 51 S. W. 818, 21 Ky. Law Rep. 542; Leslie v. Com., 42 S. W. 1095, 19 Ky. Law Rep. 1201; Baker v. Com., 106 Ky. 212, 50 S. W. 54, 20 Ky. Law Rep. 1778; Britton v. Com., 123 Ky. 411, 96 S. W. 556, 29 Ky. Law Rep. 857; Hayden v. Com., 140 Ky. 634, 131 S. W. 521. Judgment reversed, and cause remanded for proceedings consistent with this opinion.
WILLIAMSON V. MORRIS. (Court of Appeals of Kentucky. Oct. 15, 1915.)
1. FRAUDULENT CoNVEYANCEs 3:299 – ACTIONS—EVIDENCE—SUFFICIENCY. Evidence held to show that a conveyance by a husband of his land to his wife was in fraud of creditors. [Ed. Note.—For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 876–890; Dec. Dig. <>299.]
2. FRAUDULENT CONVEYANCES @=208–WHAT
Under Ky. St. 1915, § 1906, declaring
that every gift, conveyance, or transfer of land made with intent to delay, hinder, or defraud creditors shall be void, a conveyance made with intent to hinder subsequent creditors is void and may be set aside.
[Ed. Note.—For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 631, 633; Dec. Dig. 8:208.]
3. FRAUDULENT CONVEYANCES @:241 - ACTIONS TO SET ASIDE—CONDITIONS PRECEDENT. Under, Ky., St. 1915, § 1907a, declaring that it shall be lawful for any person aggrieved, when realty has been fraudulently conveyed, to file in a court having jurisdiction a petition against the parties to such transfer, and when done a lis pendens shall be created on the property so described while the suit shall progress and be determined as other suits in equity, it is unnecessary that execution against the debtor who transferred the property be returned unsatisfied, or that an attachment be attempted. [Ed. Note.—For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 694, 696–726; Dec. Dig. 3:241.] Appeal from Circuit Court, Pike County. Suit by Matilda Morris against Tilden Williamson, who counterclaimed. From a judgment for plaintiff, defendant appeals. Reversed, with directions.
J. S. Cline, of Pikeville, for appellant. J. J. Moore and R. H. Cooper, both of Pikeville, for appellee.
TURNER, J. In August, 1900, W. T. Charles and Wife conveyed to K. B. Morris and Matilda Morris, his wife, jointly, a tract of land in Pike county, and they continued to be the OWners thereof until September, 1909, when K. B. Morris conveyed his interest in the land to his wife, the appellee, Matilda Morris. Prior to that time, however, and in 1907, K. B. Morris Sold to appellant, Tilden Williamson, 11 walnut trees on the tract of land and received the money therefor. After the COnveyance Of September, 1909, to his wife, and in about 1910 or 1911, K. B. Morris cut and Sold the 11 Walnut trees Sold to Williamson in 1907 and received the money therefor. About the 1st Of January, 1913, appellant, Williamson, instituted an action in the Pike quarterly court against K. B. Morris for the Value of the trees SO appropriated by him, and On or about the 22d Of January, 1913, recovered in that court a judgment against him. On that account for $75 and his costs. An execution thereon Was iSSued from the quarterly COurt and returned no property found, Whereupon appellant Secured a transcript, filed the same in the Office Of the circuit clerk, and had issued therefrom another execution, Which Was levied. On the land as the property of K. B. Morris. A Sale was had of the Morris land under this execution, and appellant became the purchaser at the amount of his debt, interest, and cost, which was less than two-thirds of the appraised Value. While the deed of September, 1909, from K. B. Morris to his wife is shown by the evidence to have been executed by him and delivered to her at the time it bears date, it was not lodged for record or recorded until the 21st day of January, 1913, a Short time after the institution of the Suit by Williamson against K. B. Morris, and only One day before he recovered a judgment in that action. This is an equitable action by Matilda Morris against Williamson and the Sheriff to cancel and set aside the execution Sale and to enjoin the sheriff from making Williamson a deed thereunder, and to quiet her title to the land as against any claim of Williamson. Williamson made his anSWer in the action a counterclaim against the plaintiff, and prayed that the deed of 1909 from K. B. Morris to his wife be declared fraudulent, and that said land be subjected to the payment of his debt. The lower court in its judgment set aside the execution sale and quieted the title of the plaintiff against any claim of Williamson by reason thereof, and Williamson has appealed. [1, 2] It is unnecessary to determine, for the purposes of this case, whether Williamson Was, at the time of the conveyance in September, 1909, from K. B. Morris to his wife, an existing creditor of Morris, although he at the time OWned the 11 Walnut trees Which were standing on the land, but which were not actually appropriated by Morris until after the conveyance; for a Conveyance actually fraudulent is Void as to Subsequent purchasers for value just as it is as to preexisting creditorS. Every fact and circumstance in the record Shows that there Was a fraudulent intent upon the part of Morris when he made the conveyance to his wife to defraud his creditors; he was at the time only 44 years of age and a reasonably active man; no reason is shown why he should suddenly have conveyed his property to his wife, except that he had made some timber contracts Which he feared would get him in trouble, and the evidence of at least two or three Witnesses shows that he had in mind the design to defeat future obligations which he feared would come upon him by reason of the existing timber contracts. The deed to his wife recites a consideration of $5 and love and affection, and there is no pretense that she paid anything more than this for the land. The evidence is that Since that COn Veyance he has continued to manage and control the farm just as he did before, and that they have actually received since that time Something like $5,000 from the sale of timber off of this land, a large part of which was paid to K. B. Morris himself. While K. B. Morris may not have had it in his mind at the time
of the conveyance in September, 1909, to his wife to defraud appellant by appropriating his timber, yet it is apparent from the evidence that he at that time had it in mind and made the conveyance with a fraudulent design to avoid the payment of obligations which he feared WOuld come upon him under existing contracts. Section 1906, Carroll's 1915 Ed. Ky. St. provides: “Every gift, conveyance, assignment or transfer of, or charge upon, any estate, real or personal, or right or thing in action, or any rent or profit thereof, made with the intent to delay, hinder or defraud creditors, purchasers or other persons, and every bond, or other evidence of debt given, action commenced, or judgment suffered, with like intent, shall be void, as against such creditors, purchasers and other persons.”  This act has been held to apply Where the conveyance has been made with a fraudulent design to defraud subsequent purchasers and creditors, as well as pre-existing creditors. Section 1907a. Of the Same Statute provides: “That hereafter in this commonwealth it shall be lawful for any party who may be aggrieved thereby, when any real property has been fraudulently conveyed, transferred or mortgaged, to file, in a court having jurisdiction of the subject-matter, a petition in equity against the parties to such fraudulent transfer or conveyance or mortgage, or their representatives or heirs, alleging therein the facts showing their right of action and alleging such fraud, or the facts constituting it, and describing such property, and when done a lis pendens shall be created upon the property so described, and said suit shall progress and be determined as other suits in equity, and as though it had been brought on a return of nulla bona, as has heretofore been required.” Prior to the enactment of this last statute in 1896, it was held that a return of “no property” or an attachment was necessary before a creditor might subject real estate to his demand, but under its provisions he may now acquire a lis pendens in the manner there indicated. Under the circumstances of this case the Wife Will be deemed to have been a privy to the fraudulent intent of her husband and Will be bound thereby. It is apparent that appellant acquired a lien on the one-half undivided interest of K. B. Morris in the land, which he was entitled to have enforced under his counterclaim. The judgment is reversed, with directions to enter a judgment as herein indicated.
CLAY, C. On January 18, 1913, James D. StokeS Was Struck and killed by a train OWned and Operated by the Louisville & Nashville Railroad Company. In this action by his administratrix to recover damageS for his death there Was a Verdict and judgment in favor of the plaintiff for $5,000. The railroad company appeals. It is not insisted that the defendant OWed the decedent the duty of using Ordinary care to discover his peril, or that his peril could have been discOWered SOOner than it Was by the exercise of ordinary care. The only ground on which the case Was Submitted to the jury Was the failure of the defendant, its agents and servants, to use Ordinary care to avoid injuring the decedent after his peril Was discovered. Defendant insists that the trial court erred in refusing it a peremptory instruction. The question turns on Whether Or not there Was Sufficient evidence to take the case to the jury. The accident occurred at 6:20 p. m. at the Madisonville station. A concrete platform extends along the entire front Of the station building. The platform is 113% inches higher than the track, and is 23 inches from the edge Of the innermost rail. The train which struck decedent consisted of an engine and tender, baggage car, combination Car, ladies’ Coach, and anOther Car known as a “miners’ rescue car.” The coaches were about 60 feet in length. The train started for the purpose of Setting Out the “miners’ rescue car.” The decedent Was Standing On the steps of the ladies' coach, the second Coach from the rear. While the train Was going at the rate Of about 5 or 6 miles an hour, he stepped off with his “left foot back
-about 10 feet.
ward.” He fell with his head towards the north, and rolled from the concrete into the place between it and the rail. The record is silent as to the nature of his wounds. He lived but a Short time. Plaintiff relies on the following evidence: The two rear coaches and the Space betWeen them measured 125 feet. Plaintiff Was not struck by the front trucks of the ladies' coach, but fell around them on the concrete and rolled towards the train. Riordan, the engineer, says that he had his hand on the throttle or brake valve When he received a signal by the bell cord and stopped the train Within about 10 or 12 feet. Jones, the porter, said that he presumed the signal from the conductor went immediately to the engineer; that the train could have been stopped by service application of the air brakes in Bohon, another witness, Stated that the signal by means of the Whistle cord was transmitted instantaneously, and that the engineer, after receiving the signal, Ought to Stop the train in about 8 Or 10 feet. Canstler, who had had some experience in the railroading, said that the time necessary to transmit the signal by means of the bell COrd Was SO short he did not know how to express it. It further appears that the Conductor Was just mounting the StepS Of the combination coach. When the decedent fell and he saw decedent fall. J. T. Smith testifies as follows: “Q. Describe to the jury what happened to him after he fell in that position. A. The train passed on over him, and when the springs would pass over him they would sorter catch in his coat and sorter jump him up, and he would fall back, and when the last coach went over him that doubled him up. Q. When the springs or the parts of the car that extended towards the concrete would pass over him, it would brush his coat? A. Brush his coat up a little. Q. And when the hind end of the last coach passed over him it doubled him up? A. Yes, sir. Q. Mashed him over? A. Yes, sir; doubled him over.” Yateman Cox, appellant's flagman, testifies as follows: “Q. Where were you at the time of this occurrence? Tell the jury what you heard and saw concerning that matter. A. I was on the rear platform of the train. Q. Let this represent the train. (Attorney places some books on the floor to represent the train.) A. I was standing on the rear end of the platform taking down my markers, when I first notic. ed the accident. The car bumped like it had run over a stick or broken rail. I was leaning back taking my markers down to change from this car to this one on account of switching this car off by the ice plant. When I heard the noise I was in such a position I could not looklike this (indicating)—and I had to turn around, and when I turned around I noticed a man lying on the track. Q. You did not see Mr. Stokes falling? A. No, sir. Q. The first you knew of his falling the rear wheel of the mine rescue car ran over some substance? A. Yes, sir.”
Cox further testified that the train stopped in about 8 feet after he heard the signal. For the defendant the COnductOr testifies that he was on the Station platform When decedent fell. It took him eight or ten secOnds to get from the platform to the platform of the car. It took an interval of from one to two seconds between the pull of the Cord to give the Signal properly. He gave the Signal as SOOn as he could. There is evidence pro and con as to whether Or not decedent Was intoxicated. From the above facts the following argument is made by plaintiff: The evidence shows that decedent was not injured until Struck by the rear trucks of the last car. These trucks were 117 feet from the place where decedent fell. The train was going about 5 miles an hour, or 7% feet per Second. An interval of 1521/22 seconds elapsed between the time decedent's peril Was discovered and his injuries were inflicted. In view of the evidence to the effect that it would require
but a second or two for the conductor to.
reach the platform, another second or two to pull the bell cord, and another Second Or tWO for the engineer to stop the train, it is claimed that the evidence ShoWS the COnductor was guilty of negligence in not SOOmer transmitting the stop signal. The difficulty With this argument is that it grows out of the assumption that the evidence of Smith and Cox Was Sufficient to show that the decedent was injured by the rear trucks of the train, and that men in an emergency think and act almost instantaneously. COX’s evidence merely tends to show that the decedent was struck by the trucks of the last car. It does not tend to ShoW that he had not been previously struck by that car Or the one preceding. Smith says that when the springs would pass over decedent “they would SOrter catch in his coat and SOrter jump him up, and he would fall back, and when the last coach Went Over him that doubled him up.” In reply to the Suggestive question, “When the springs or the parts of the car that extended towards the concrete Would pass over him it would brush his coat?” he said, “Brush his coat up a little.” It is manifest that this evidence does not possess the quality of proof. It is not sufficient to induce conviction. It by no means follows that, because the parts of the train “jumped him up” or “brushed his coat up a little,” the contact of the train with decedent's body was not sufficient to injure him. Here the decedent fell on the concrete. He rolled in between the concrete and the track. Being a man, it was practically impossible to place
him between the rail and the concrete so that his body would not come in contact with Some part of the car. All that the witness Smith says may be true, and yet the decedent may have been seriously injured by parts Of the car other than the rear trucks of the last car. Unfortunately, too, men do not think and act in an emergency with the Same dispatch with which others, in their calmer moments and who are free from the excitement of the occasion, think they should have acted. It necessarily took some time for the decedent to fall to the concrete and roll under the train. It took some time for the conductor to realize and appreciate the peril in which he was thus placed. It took Some time for him to decide on what was best to be done. It took further time for him to mount the steps and reach the bell cord. It took further time for him to give the proper signal to the engineer. It took further time for the engineer to think and act. It took further time for the train to stop after the engineer had acted. It seems to us, therefore, that the Statements of the witnesses that a particular thing could have been done instantaneously, or another thing in a second or two, or that the train could have been stopped in from 8 to 10 feet, are mere speculations, based on what might have possibly happened if all the participants Were apprised before hand what would take place, and the Verdict of the jury, founded on Such statements, is mere guesswork. Neither Courts nor juries are authorized to indulge in Speculation or guessWork as to the cause of accidents. To authorize a recovery there must be some tangible evidence from Which it may be fairly inferred that the defendant was guilty of negligence, and that Such negligence Was the proximate cause of the injury. . If the injury may as reasonably be attributed to a cause that will excuse the defendant as to a cause that will subject him to liability, then the well-settled rule is that a recovery cannot be had. Stuart V. N. C. & St. L. Ry., 146 Ky. 127, 142 S. W. 232; Weidekamp V. L. & N. R. R. Co., 159 Ky. 674, 167 S. W. 882; Osborne's Adm'r v. C., N. O. & T. P. Ry., 158 Ky. 176, 164 S. W. 818; L. & N. R. R. Co. v. Stayton's Adm'r, 163 Ky. 760, 174 S. W. 1104. In our opinion, the trial court should have directed a verdict in favor Of the defendant. Judgment reversed, and CauSe remanded for a new trial consistent with this Opinion. LIVERPOOL & LONDON & GLOBE INS. CO. W. WRIGHT et al.
(Court of Appeals of Kentucky. Oct. 13, 1915.)
1. JUDGMENT ©:559–RES JUDICATA—CRIMINAL JUDGMENT. In plaintiffs' suit on a fire policy, defendants pleaded that the fire Was Willfully set by one of the plaintiffs. Judgment for the plaintiffs was reversed, but subsequently one of them was convicted of having set fire to the building. Defendants on the second trial sought to amend the answers to show the conviction as res judicata. Held, that the motion was properly denied, because defendants were not entitled to rely upon a judgment to which they were not parties, and upon which estoppel was not mutual, as a bar, and, since defendants would not be estopped by acquittal, the plaintiff could not be estopped by conviction. [Ed. Note.—For other cases, see Judgment, Cent. Dig. §§ 1077, 1078; Dec. Dig. S->559.]
2. WITNESSES @:345 — IMPEACHMENT – CONVICTION OF FELONY. Conviction of plaintiff for having fired a building may be offered in evidence in an action on an insurance policy on the building to impeach his testimony. [Ed. Note.—For other cases, see Witnesses, Cent. Dig. §§ 1126–1128; Dec. Dig. 3:345.]
3. NEW TRIAL Q->100 – NEWLY DISCOVERED
Where a defendant knew of evidence which
might have been given and failed to produce the witness solely because he said he would not testify because it would tend to incriminate himself, he is not entitled to a new trial on the ground of newly discovered evidence. .
[Ed. Note.—For other cases, see New Trial, Cent. Dig. §§ 183, 201–204, 208, 209; Dec. Dig. 3:100.]
4. EVIDENCE Q->577 – EVIDENCE AT FORMER TRIAL-FOUNDATION FOR ADMISSION. It is error to permit the reading of the transcript of material evidence given at a former trial, when there is nothing to show that the witness whose testimony is read cannot be produced. [Ed. Note.—For other cases, see Evidence, Cent. Dig. § 2406; Dec. Dig. Q:577.]
5. WITNESSES Q-9379 — IMPEACHMENT – CON
TION OF EVIDENCE.
Questions asked a witness as to statements
he was alleged to have made out of court in conflict with his testimony were improperly excluded, since the other party was entitled to impeach his credibility by that method.
[Ed. Note.—For other cases, see Witnesses, Cent. Dig. §§ 1209, 1220–1222, 1247–1256; Dec. Dig. 3:379.]
6. NEW TRIAL (3:29—GROUNDS—MISCONDUCT OF COUNSEL-STATEMENTS OUTSIDE RECORD. Statements of counsel which are not Supported by the record and are palpably intended to improperly influence the jury are prejudicial, and verdict thereafter rendered in his client’s favor should be set aside. [Ed. Note.—For other cases, see New Trial, Cent. Dig. §§ 43, 44; Dec. Dig. Q:29.]
7. NEW TRIAL (3:49—GROUNDS—MISCONDUCT OF JURY – COMMUNICATION WITH JURY TREATING JURY. The jury in a civil action was placed in the custody of an officer. During the trial he and the jurymen procured whisky from the attorney of one of the parties. Members of the jury also talked in private with the same attorney. Held that, whether the jury was actually
influenced or not, its conduct was improper, and a verdict in favor of such attorney's client should be set aside.
[Ed. Note.—For other cases, see New Trial, Cent. Dig. §§ 97–99; Dec. Dig. 3:49.]
Appeal from Circuit Court, Graves County.
Action by B. W. Wright and another against the Liverpool & London & Globe Insurance Company, consolidated with actions by the same plaintiffs against the Old Colony Fire Insurance Company, against the Citizens’ Fire Insurance Company, and against the People's National Fire Insurance Company. Judgment was for plaintiffs, and defendants moved for a new trial, which Was denied, and they appeal. Reversed.
M. B. Holifield and Bunk Gardner, both of Mayfield, and Leslie Hindman, of Clinton, for appellants. W. J. Webb and Robbins & Thomas, all of Mayfield, and Sea & Wia, of Clinton, for appellees.
HURT, J. The appellees, B. W. Wright and W. E. Allen, were partners, and engaged in the business of buying, prizing, and Selling tobacco, in Mayfield, Ky., under the firm name and Style Of B. W. Wright, and, aS such, occupied for the purposes of their business a barn, which was the property of G. R. Allen and W. A. Usher. The appellants, Liverpool & London & Globe Insurance Company, Old Colony Fire Insurance Company, Ctizens’ Fire Insurance Company, and People's National Fire Insurance Company, each issued to the firm of B. W. Wright a policy of insurance upon the tobacco in the barn, insuring it against destruction or damage by fire. The owners of the barn also carried insurance against damage from fire upon the barn, but in what companies it does not appear. The barn and the greater part of its contents were consumed by fire, and thereafter, the appellants having declined to pay the losses on account of the destruction of and damages by fire to the tobacco, the appellees filed a Suit against each of them to recover the damages which Were insured against by reason of the policies. A separate Suit Was filed against each of the appellants, and answers and other pleadings were filed in each Of the cases until the issues Were made. Each of the answers presented Substantially the same defense against a recovery. The defense relied upon was the allegation that the appellees had willfully set fire to the barn and the stock of tobacco Which Was Contained in it and CauSed the barn and tObacco to be burned, for the fraudulent purpose of collecting the insurance carried upon the tobacco. This defense Was COntroVerted by reply in each case. Thereafter the four suits were consolidated and tried at the same time and before the same jury. The trial resulted in a disagreement of the jury and a continuance of the Case. At a Subsequent trial the jury returned a verdict against the appellants for a portion of the
Q->For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes