in common use in the vicinity, and the sons arriving at and departing from its station, proper limits of the "vicinity" here is the entire town rather than the immediate vicinity of the depot, evidently adopted in the Horse Cave case because of peculiar sewerage facilities in the immediate vicinity of the depot.

because to erect the building, lock the doors, and then fail to provide a means for its patrons to obtain the key during such times as they may be entitled thereto would deny to them the very facilities and accommodations the statute was enacted to insure. A privy had just as well not have been built, unless it may be used by patrons at such times as they have a right to be at the station; and the statute is violated whenever, even though a suitable privy has been erected at a convenient place, it is not kept open or accessible by application to an agent in charge of the station for the key. We have held the privies may be kept locked to insure their cleanliness, if the keys are to be had upon application to the agent (L. & N. R. R. Co. v. Commonwealth, 45 S. W. 362, 20 Ky. Law Rep. 100), but this, of course, contemplates the presence of an agent to whom application can be had at all such times as patrons have the right to be at the station and to use the privies.

It is shown that the defendant's privy is of the same character and as conveniently located as any in the town, except the one at the Louisville & Nashville Railroad depot, which is inside the station and operated by water from the company's tank, in which it pumps and stores water from a private pond by means of a private pumping plant, primarily for furnishing water to its engines; another at the courthouse operated by a hand pump, chemicals, and a septic tank, and about the success of which there is a conflict in the evidence; and still another at the public school building, operated by a private waterworks system, where the water is pumped into a tank by a gasoline engine, and the sewage discharged into a cesspool. These are the only places in the town where, according to the proof, inside toilets are maintained, and these under such conditions as to furnish proof of the possibility rather than the practicability of defendant locating the privy within the depot; and these few exceptions to the facilities in common use in the community furnish no proof whatever that the defendant failed "to exercise such care and judgment as may be reasonably expected of a person of ordinary prudence the cause remanded for a new trial consistent in locating the closet" under existing condi- herewith. tions, because required only to furnish "facilities in accord with the best in common

[4] We do not think, however, the evidence of Dr. Connell, which is all of the proof here upon the question, was sufficient to present such an issue for the jury, as does not seem to have been attempted upon the trial, since his evidence is not positive as to when the agent left the station, the arrival and departure of trains thereafter, or whether the doors were kept locked at such times, if any. Wherefore the judgment is reversed, and

(180 Ky. 851)

use" in the community, and without such HERRON'S ADM'R v. BATES & ROGERS proof, as we have seen, there was no crimCONST. CO.

inal liability.

FICIENCY.

2. Counsel for the plaintiff insists, how- (Court of Appeals of Kentucky. June 4, 1918.) ever, that even if there was no evidence 1. REMOVAL OF CAUSES 89(2)-BOND-SUFthat the privy was inconveniently located, and although it was proven that the building was suitable and cleanly kept, there was nevertheless a question for the jury as to whether the defendant maintained a convenient and suitable privy as required by the statute, because of the following evidence of Dr. Connell:

"Q. How late at night did the Louisville & Interurban run its cars before February, 1916? A. I think to the best of my knowledge approximately 1 o'clock in the morning was the last car. Q. What time at night did the agent leave the station? A. I never did find him there after 6 o'clock. Q. Was or not the closet kept locked? A. So far as I know, after the agent left, it was. Q. After the agent left how could any one get the key to get into the closet? A. I couldn't say.'

[3] A railroad company, to comply with this statute, unquestionably must not only provide a suitable and convenient privy, but also have it accessible to its patrons during the hours when it is required to keep its station open for the accommodation of per

Neither insufficiency of the bond, for removal of the case to the federal court, nor insufficiency of verification of bond, could be raised by general demurrer to petition for insufficient facts and for other reasons appearing on the face of the petition, but only by specific objections, pointing out wherein the bond and verification were defective.

2. REMOVAL OF CAUSES 89(3) DEFECTS IN BOND-WAIVER-REVIEW.

for removal to federal court and made no speWhere plaintiff simply demurred to petition cific objections pointing out wherein removal bond was defective, any defect in the bond will be deemed waived on appeal, and cannot be relied on as a ground for reversal of order of removal.

3. REMOVAL OF CAUSES 89(2)—PETITION IN STATE COURT-VERIFICATION.

Want of proper verification of petition for removal to federal court cannot be raised by general demurrer.

4. REMOVAL OF CAUSES 89(3)-SUFFICIENCY OF PETITION-WAIVER.

removal to federal court, if not raised by moWant of proper verification of petition for tion or other form of specific objections, will be deemed waived on appeal.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Allan D. Cole and H. W. Cole, both of Maysville, and Fred Forcht, of Louisville, for appellant. Stanley F. Reed, of Maysville, for appellee.

Appeal from Circuit Court, Mason County. I demurrer to the petition for removal on the Action by Thomas Herron's administrator ground that it did not state facts sufficient against the Bates & Rogers Construction to authorize a change of jurisdiction, “and Company. From an order approving bond for also for other reasons appearing on the face removal, and removing case to the federal of the petition." The bond was in no sense a court, plaintiff appeals. Affirmed. part of the petition, and the demurrer to the petition did not raise the question of the inHad plaintiff desufficiency of the bond. sired to raise the point that the bond was not properly executed, he should have done so by a specific objection pointing out wherein the bond was defective. Had this been done, it is fair to suppose that the defendant would have filed another bond curing the alleged defect, or that the court would have refused to surrender its jurisdiction of the case. Miller v. Soule et al. (D. C.) 221 Fed. fect will be deemed to have been waived, and 493. Having failed to do so, the alleged defect will be deemed to have been waived, and cannot be relied upon in this court as a ground for reversing the order of removal. [3, 4] Whether the verification of the petition for removal was sufficient we also deem it unnecessary to decide. The want of proper verification cannot be raised by general demurrer. It can only be raised by motion or other form of specific objection. Since the question was not properly raised in circuit court, any defect in the verification will be deemed to have been waived, and will not furnish ground for a reversal of the order of removal.

CLAY, C. Thomas Herron's administrator brought this suit in the Mason circuit court against the Bates & Rogers Construction Company, an Illinois corporation, to recover damages in the sum of $50,000 for his death. The defendant filed its petition and bond for the removal of the cause to the United States District Court for the Eastern District of Kentucky, on the ground of diversity of citizenship. The bond was executed by the Bates & Rogers Construction Company as principal, with Stanley F. Reed as surety,

and was signed as follows:

"Bates & Rogers Construction Company, by S. F. Reed, Attorney, S. F. Reed."

The verification of the petition was as fol

lows:

"I, Stanley F. Reed, being duly sworn, do "I, Stanley F. Reed, being duly sworn, do say that I am the attorney for the petitioner in the above-entitled case; that I have read the foregoing petition and know the contents therein contained are true as I firmly believe." Plaintiff filed the following demurrer to the petition:

Judgment affirmed.

CONST. CO.

(180 Ky. 848)

"The plaintiff, the Equitable Trust Company of Dover, Ky., as administrator of Thomas Herron, deceased, demurs to the petition for removal FOGARTY'S ADM'R v. BATES & ROGERS filed herein; because the same does not state facts sufficient to authorize this court to surrender jurisdiction or to enable the United States District Court for the Eastern District of Kentucky to assume jurisdiction of this action and also for other reasons appearing on the face of the petition."

An order was entered approving the bond and removing the case. From that order this appeal is prosecuted.

The action of the Mason circuit court is challenged on the ground that both the bond and verification were insufficient. The point is made that Reed exhibited no authority to execute the bond on behalf of the defendant, and on the further ground that the Kentucky Statutes prohibit an attorney at law from becoming surety for his client. The verification is attacked on the ground that defendant's attorney was not an officer or agent of the corporation, and therefore had no authority to verify the petition, unless it appeared from his affidavit that the defendant corporation had no officer or agent residing in the county in which the action was brought or was pending. Subsection 2, § 117, Civil Code.

[1, 2] We deem it unnecessary to determine whether the bond was properly executed or not. Plaintiff merely filed a general

(Court of Appeals of Kentucky. June 4, 1918.) REMOVAL OF CAUSES 49(3) JOINT AND SEVERAL CAUSES.

In an action by a resident administrator for the death of intestate against a foreign corporation and its superintendents, resident defendants, the only negligence charged against resident defendants was failure to furnish a that they had authority to employ other men, sufficient number of men. It was not charged that other men employed by the master were available, or that the resident defendants were charged with the duty of seeing that a sufficient number of men were engaged in the work. Held that, as no joint cause of action was stated against the corporation and the resident defendants, corporation's petition for removal to federal court was properly granted.

Appeal from Circuit Court, Mason County. Action by William Fogarty's administrator against the Bates & Rogers Construction Company and others. From an order transferring the case to the federal court on petition of the Construction Company, plaintiff appeals. Affirmed.

Allen D. Cole and H. W. Cole, both of Maysville, for appellant. Stanley F. Reed, of Maysville, and Fred Forcht, of Louisville, for appellee.

It appears that the bond was executed by the Bates & Rogers Construction Company, by S. F. Reed, attorney, and by S. F. Reed individually. It further appears that the petition for removal was verified as follows:

"I, Stanley F. Reed, being duly sworn, do say that I am the attorney for the petitioner in the above-entitled case; that I have read the foregoing petition and know the contents thereof; that the statements of the allegations therein contained are true, as I firmly believe." Plaintiff filed the following demurrer to the petition for removal:

"The plaintiff, the Equitable Trust Company, of Dover, Ky., as administrator of William Fogarty, deceased, demurs to the petition for removal filed herein because the same does not state facts sufficient to authorize this court to surrender jurisdiction or to enable the United States District Court for the Eastern District of Kentucky to assume jurisdiction of this action and also for other reasons appearing on the face of the petition."

CLAY, C. William Fogarty's administra- & Rogers Construction Company and was entor brought this suit in the Mason circuit gaged in carrying heavy timbers, became court against the Bates & Rogers Construc- prostrated from the heat, and died because tion Company, an Illinois corporation, Rob- he was not given proper hospital and medert Irvine, and Richard Ellis, to recover ical treatment, to which he was entitled undamages in the sum of $50,000 for his death. der his contract of employment. It is The Bates & Rogers Construction Company charged, in substance, that Fogarty was infiled a petition and bond for removal to the experienced, and the defendant failed to United States District Court for the East- warn and instruct him of the danger. It ern District of Kentucky on the ground of is further alleged that he was engaged unseparable controversy and fraudulent join- der the directions of the defendant, and der. The order of transfer was made, and especially under the directions of the deplaintiff appeals. fendants Robert Irvine and Richard Ellis, who were his bosses or superintendents, and that the defendant corporation and its codefendants, Robert Irvine and Richard Ellis, carelessly and negligently failed to supply a sufficient number of men to do the work. It is also alleged that the place where he was required to work was dangerous and unsafe, and because of such labor he became prostrated from the heat and from dilatation of the heart, and that his condition was such as to require the immediate services of a physician, as well as the comforts, conveniences, and necessities of a hospital, and that the defendant, its agents and servants, failed to furnish him speedy and adequate medical attention, and that if such attention had been given him he would not have died. It will be observed that the several acts of negligence relied on are: (1) Failure to warn; (2) failure to furnish sufficient number of men to do the work; (3) failure to furnish a safe place for work; (4) failure to furnish proper medical and hospital attention. The only negligence, however, charged against the local defendants is their failure to furnish a sufficient number of men to do the work. It is not charged that the local defendants had authority to employ other men, or that other men employed by the master were available for the service, and that the local defendants were charged with the duty of seeing that a sufficient number of men were engaged in the work. For aught that appears in the petition these duties may have devolved upon some one else. Therefore the mere allegation that they negligently failed to furnish a sufficient number of men to do the work is not sufficient to state a cause of action against them. Since plaintiff is a resident of Kentucky and the removing defendant is a resident of Illinois, and no joint cause of action was stated against the moving defendant and the resident defendants it necessarily follows that the petition for removal was properly granted. C., N. O. & T. P. Ry. Co. v. Robertson, 115 Ky. 858, 74 S. W. 1061, 25 Ky. Law Rep. 265; Davis' Adm'r v. C. & 0. Ry. Co., 116 Ky. 144, 75 S. W. 275, 24 Ky. Law Rep. 1125.

The point is made that the bond was insufficient because the authority of Reed, who signed the bond on behalf of defendant, did not appear, and because the Statutes of Kentucky prohibit an attorney from becoming surety on such a bond. The point is also The point is also made that the verification by Reed was insufficient because he did not show in his affidavit that he was an officer or agent of the defendant, or that the defendant had no officer or agent in the county in which the action was brought or was pending. Subsection 2, § 117, Civil Code. In response to In response to these contentions it is sufficient to say that in the case of Herron's Adm'r v. Bates & Rogers Construction Co., 203 S. W. 719, this day decided, we held that neither the insufficiency of the bond nor the insufficiency of the verification could be raised by a general demurrer such as was filed by plaintiff in this case, but only by specific objection pointing out wherein the bond and verification were defective, and that, where such defects were not specifically pointed out in the circuit court, they will be deemed to have been waived, and will fürnish no ground for a reversal of the order of removal. It appears from the petition of the administrator that Fogarty, who was in the employ of the Bates

203 S.W-46

Judgment affirmed.

(180 Ky. 705)

been overruled, he declined to plead further,

STANLEY V. FARMERS' BANK & TRUST and there was a judgment on the averments

CO.

(Court of Appeals of Kentucky. May 28, 1918.)

1. NEW TRIAL 102(1)-NEWLY DISCOVERED EVIDENCE-DILIGENCE.

A new trial under Civ. Code Prac. § 340, will not be granted to an administrator to relieve it from a judgment for failing to secure possession of property of estate, on the ground of newly discovered evidence that value of property was less than adjudicated, where he could have produced such evidence on the trial. 2. NEW TRIAL 102(1)-NEWLY DISCOVERED EVIDENCE-DILIGENCE.

Where judgment was rendered against an administrator for failing to secure possession of deceased's diamond' brooch, the administrator would not be denied a new trial solely on ground that he knew where the brooch was, if by the exercise of due care and diligence it could not have produced the brooch at the trial, the introduction of which would show that its real value was less than adjudicated.

3. NEW TRIAL 100-MATTERS FULLY LIT

IGATED.

Where a judgment was rendered against an administrator because of its bad faith, fraud, or gross negligence in failing to secure possession of diamond brooch, and administrator moved for new trial on ground that the amount of the judgment was greater than value of the brooch, and that he had secured possession thereof since trial, and its introduction would show its value to be less than adjudicated, there was no right to new trial, since the issue tried on the merits precluded him from contending that he could not have secured possession at the trial if he wished, and so show what its value

was then.

Appeal from Circuit Court, Henderson County.

Suit by the Farmers' Bank & Trust Company against W. M. Stanley to set aside a judgment and grant a new trial. Judgment for plaintiff, and defendant appeals. Reversed, with directions to dismiss the petition for new trial.

McClain & Pentcost, H. M. Stanley, and Yeaman & Yeaman, all of Henderson, for appellant. Clay & Clay and John C. Worappellant. Clay & Clay and John C. Worsham, all of Henderson, for appellée.

of the petition, as amended, setting aside the January judgment and granting the trust company a new trial in the case in which the January judgment was rendered. This appeal is from the judgment ordering a new trial, and the only question before us is, Did the petition, as amended, state a cause of action?

It appears that in February, 1915, the trust company, in its corporate capacity, filed its petition in equity against H. M. Stanley, the Farmers' Bank & Trust Company, as administrator with the will annexed of Mrs. McCallister, and others, setting up that Stanley, with Mrs. McCallister as surety, executed and delivered to it three promissory notes for $400, $300, and $1,000 each, and it sought judgment against Stanley and the administrator of Mrs. McCallister for the sums.

It further appears that in July, 1915, H. M. Stanley filed, in this suit, an answer, counterclaim, and set-off, in which he stated that he was the principal in the $400 note, and only the surety of his mother, Mrs. McCallister, in the notes for $300 and $1,000. He further set up that Mrs. He further set up that Mrs. McCallister owned at the time of her death, and the administrator was chargeable with $4,000, the value of a diamond brooch that the administrator had negligently and willfully failed and refused to take possession of; that had it taken possession of this brooch, as it should have done, the estate of Mrs. McCal

lister would have been increased in value $4,000, and more than sufficient to pay the debts due by the estate.

After this Stanley brought a separate suit against the Farmers' Bank & Trust Company, as administrator, in which he he did in his answer and counterclaim and made substantially the same allegations as subsequently the two suits were consolidated. In these suits the Farmers' Bank & Trust Company, as administrator, filed its answer, controverting all the allegations made by Stanley concerning the diamond brooch, and then set up that Mrs. McCallister died in April, 1914; that the trust company did not qualify as administrator until November, 1914;

CARROLL, J. In a suit in the Henderson circuit court between H. M. Stanley and the Farmers' Bank & Trust Company, as administrator with the will annexed of Mrs. McCallister, there was a judgment, in January, that before the death 1917, against the trust company for $4,000, the alleged value of a diamond brooch which, of Mrs. McCallister, her heirs, namely H. it was charged, the trust company, as ad- M. Stanley, Mrs. Matthews, and McClain ministrator of Mrs. McCallister, should be Stanley, took possession of all of the perheld accountable for, because the brooch was sonal property left by the decedent and lost to the estate on account of the failure divided it among themselves; that in this of the trust company, as administrator, to division Mrs. Matthews got the diamond reduce it to possession. In May, 1917, this brooch, and took it with her to her home in suit was brought by the trust company the state of Ohio; that when an effort was against Stanley for the purpose of setting made, by the administrator, to get possesaside the judgment rendered in January, sion of the brooch, Mrs. Matthews claimed 1917, and granting it a new trial. To the that it had been given to her by her mother petition, as amended, Stanley entered a in 1899, and since that time she had had general demurrer, and, his demurrer having possession thereof, claiming it as her own,

gone against it, and it does not appear in any satisfactory way that it could not have shown the real value of the brooch.

and she refused to deliver it to the administrator or account for its value: that Mrs. Matthews had always been a nonresident of the state of Kentucky, and the brooch had not been in the jurisdiction of the state of Kentucky since the appointment of the administrator; that it had no way of disproving the claim of Mrs. Matthews that the diamond brooch was hers, and under such circumstances it was not its duty, as administrator, to expend $400 or $500 in an attempt to recover the brooch. It was further amended in this pleading that if the court should be of the opinion that the administrator should take steps to steps to recover the brooch, it be given the aid of the court in so doing, and it prayed that Mrs. Matthews be required to answer and set up whatever to obtain a new trial under section 340 of claim she might have to the brooch.

To this pleading, Stanley, in November, 1916, filed a reply controverting its allegations, and further averring that in November, 1916, he had notified the administrator that Mrs. Matthews had the brooch in her possession, and requested that the administrator recover the possession of the same, or its value; that the administrator said it knew Mrs. Matthews had the brooch, and that when Stanley returned a ring, it was claimed he had, belonging to the estate, the brooch would be forthcoming. Stanley also averred, in his reply, that the brooch was owned by and in the possession of Mrs. McCallister at the time of her death, and was never in the possession of Mrs. Matthews except on a few occasions, which facts were known to the administrator when it qualified; that Mrs. Matthews had an interest in bonds in Henderson county of sufficient value to pay the value of the brooch, $4,000, but that the administrator, although it knew of this fact, refused to take any steps to secure out of these bonds the value of the brooch.

The argument is made that if the judgment stands, the administrator will lose $2,500 the difference between the value of the brooch fixed in the judgment and its real value. This may be so, but if the administrator did not introduce any evidence, or any sufficient evidence, on the trial to show that the value of the brooch was less than $4,000, we do not see how it can complain of the judgment against it, when it does not appear that it could not have shown, on the trial, that the brooch was only worth $1,500. [1] Coming now to the law of the case as we understand it, the administrator sought

the Civil Code upon the ground that it had discovered new and material evidence which it could not, with reasonable diligence, have discovered and produced at the trial. This alleged newly discovered evidence consisted in the fact that after the judgment it had secured possession of the brooch, and thereupon was enabled to ascertain, for the first time, its real value, $1,500. The ascertainment, after the judgment, that the value of the brooch was only $1,500 in place of $4,000 as determined by the court in the trial in which the judgment was rendered, does not furnish a sufficient reason why a new trial should be granted, because, as we have determined, there appears to have been no satisfactory reason why the value of this brooch could not have been discovered before the judgment.

[2] Passing this issue, it is earnestly, insisted that the fact that the administrator was able, after the judgment, to secure possession of the brooch when it could not, by the exercise of reasonable care and diligence, have secured its possession before the judgment, entitled it to a new trial for the reaIn the petition for a new trial the adminis- son that the brooch itself, being the very trator, after setting out the above facts, thing in issue, would have determined the averred that, on account of the nonresidency case in its favor if it had been able to of Mrs. Matthews and the fact that the tender the brooch during the trial. It is brooch was in her possession, it was unable undoubtedly true that if the administrator, on to secure possession of the same during the trial, and had been advised by its counsel not to incur the risk and expense that would follow an effort to get possession of the brooch; that it acted in good faith and in

the trial of the case, had tendered the brooch this would have ended the case in its favor without regard to the value of the brooch, and so the only remaining question for our decision on this petition for a new trial is,

Did the administrator exercise due care and

a prudent manner in all that it did in connection with the brooch; that since the judgment it had secured the possession of it, diligence to secure the possession of the and its value was only $1,500, as it could brooch before the judgment went against clearly show. It is, of course, manifest that it, or was its failure to get possession of the if the possession of the brooch had been se- brooch due to bad faith, or fraud or gross cured by the administrator pending the orig- negligence on its part? The failure to seinal case, that would have been the end of cure possession of the brooch before the the case, no matter what the value of the judgment was not caused by the fact that brooch might have been, and no judgment the administrator did not know where the in any sum would have gone against the ad- brooch was, or who had it in possession, beministrator, or if it had shown in that case cause it knew at all times during the trial that that the value of the brooch was only $1,500, the brooch was in existence, and the name judgment for that sum only would have and address of the party who had it in pos