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minutes before 5 o'clock. It is only claimed that one voter was prevented from voting by intimidation, and that One Voter WaS prevented from voting by the closing of the polls before the hour fixed by law. It further appears that about 20 per cent. of the votes cast were illegal, but they were almost evenly distributed between the two candidates. It is Well Settled that an election affected by fraud, intimidation, or other illegality should be set aside only when it cannot be determined by any reasonable method on Which Side a majority of the legal Votes were cast. Wallbrecht et al. v. Ingram et al., 164 Ky. 463, 175 S. W. 1023. The determination of this question is not difficult in this case because the election Was Viva Voce, and it can be readily ascertained who the illegal voters were and for whom they voted, and What voters were prevented from Voting by intimidation or other misconduct. Of the contested Votes for Goff, the evidence in our opinion shows that Julia Ann Holloway, Sarah Holloway, Virgie Blackburn, Lydia Kendrick, and Sarah Kendrick were able to read and Write, and that Charles Billiter was a resident of the district, and all were qualified to vote. On the other hand, it is conceded that Mary Golf, Lydia Holloway, Rebecca Billiter, Susie Justice, and Almeda Billiter could not read and write, and Were therefore disqualified. Deducting these votes from 32 makes the number of legal votes which Goff received 27. Of the contested votes for Daniels, Texie Smith, Barnara Justice, Margaret Justice, Dollie Justice, and Elizabeth Billiter all admit their disqualification. It further appears that John Smith Was an infant when he Voted; that Ida Devins Was a nonresident of the district; and that Nannie Hunter, who had been a nonresident for Several years, had not been a resident of Kentucky for a year at the time of the election. Deducting these eight votes from the 30 Votes received by Daniels makes his legal Votes 22, unless the votes of J. T. Billiter and Eliza Smith should be counted on the ground that the former was prevented from voting by intimidation, and the latter was prevented from voting by the closing of the polls before the hour fixed by law. Fairly considered, the evidence does not show that J. T. Billiter was prevented from voting by intimidation. It merely shows that he refrained from voting because he did not Want to cause any hard feeling between neighbors. It is by no means clear that Eliza Smith was prevented from voting by the closing of the polls, since it was not shown that she asked to vote, but even if it be conceded that she was prevented from voting and would have voted for Daniels, the addition of her vote would have made his vote only 23.  Here, then, we have a case where it is
ed, and the contestant was given the benefit of One Vote Which would have been cast for him had not the polls closed too soon, the contestee received 27 legal votes and the contestant 23 legal votes. It therefore followS that the election should not have been set aside, but that the contestee should have been declared elected. Judgment reversed and cause remanded, with directions to enter judgment in conformity with this opinion.
(181 Ky. 100) WALDEN v. CUMBERLAND R. CO. (Court of Appeals of Kentucky. June 11, 1918.)
CoMMERCE C-27(5) – EMPLOYERS’ LIABILITY ACT-EMPLOYED IN INTERSTATE COMMERCE. A railroad employé injured while on the tracks on his way to repair the dwelling house of the general manager was not at the time em- . ployed in interstate commerce within the federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. 1916, §§ 8657–8665]). Appeal from Circuit Court, Knox County. Action by William Walden against the Cumberland Railroad Company. Judgment for defendant, and plaintiff appeals. Affirmed.
B. B. Golden, of Barboursville, for appellant. Black & Owens, of Barboursville, for appellee.
CARROLL, J. The opinion on a former appeal of this case, which may be found in 166 Ky. 371, 179 S. W. 245, states the facts So fully that it is not necessary to repeat them here. In the former Opinion, the case, On the appeal Of the railroad company, Was reversed, with directions to instruct the jury to find for it on the evidence found in that record. On a return of the case, the appellant, Walden, filed an amended petition, setting up that at the time of the injuries he Complained Of the Cumberland Railroad Company Was engaged in interstate commerce, and he was employed by it in such C0mmerce, and On this new issue, at another trial, three witnesses were introduced by Walden Seeking to establish the averments of his amended petition. The Other evidence on this second trial consisted of the evidence heard On the first trial from Which the former appeal was prosecuted. The result of the SecOnd trial was that the lower court directed the jury to return a Verdict for the railroad COmpany, and from that ruling the case comes here; therefore, it Will only be necessary to consider the effect of the new evidence Offered On the last trial, Which conSisted entirely, as We have said, of an attempt to bring the case within the scope of the federal Employers' Liability Act.
We do not think the new evidence Sufficient to show that the railroad Company was
clear that after all illegal votes were reject- | engaged in interstate commerce, but, if we
should be mistaken about this, it is very clear that Walden, who was injured while Walking on the tracks on his way to repair a dWelling house occupied as a residence by the general manager of the railroad company, Was not at the time employed by the company in interstate commerce, or in a service so closely related thereto as to be a part thereof. Wherefore the judgment is affirmed.
(181 Ky. 25) ROY v. LOUISVILLE GAS & ELECTRIC CO.
(Court of Appeals of Kentucky. June 7, 1918.)
1. MASTER AND SERVANT ©222(2)—ASSUMPTION OF RISK-COMMAND OF FOREMAN. . Where a laborer, engaged in removing a portion of a brick wall, at the direct command of the employer's foreman proceeded to remove bricks at a point where work had been done the day before, and it was thought the wall was dangerous, he did not assume the risk of injury by a brick or bricks falling upon him as he stooped over, unless the danger was so obvious and imminent that an ordinarily prudent person would have refused to encounter it. *. 2. MASTER AND SERVANT ©:288(12)—ASSUMPTION OF RISK-QUESTION FOR JURY. In laborer's action for injury in removing portion of brick wall at command of foreman, whether danger was so obvious and imminent that an ordinarily prudent person would have refused to encounter it, so that he assumed the risk, held for the jury. 3. MASTER AND SERVANT ©=>107(5)—INJURIES TO SERVANT—CREATION OF DANGER. Where a laborer was injured in removing a portion of a brick wall by the fall of a brick upon him from a portion of the work done the day before and not by himself, the employer was not entitled to a peremptory instruction on the ground the servant himself created the danger during the progress of the work. 4. MASTER AND SERVANT ©:285(3)—INJURIES To SERVANT—MoDE OF INJURY — QUESTION FOR JURY. In an action for injuries to a laborer removing a portion of a brick wall, whether the laborer was struck on the head by a brick or a portion of the wall, as he alleged, held for the jury.
Appeal from Circuit Court, Jefferson County, Common Pleas Branch, First Division.
Action by George ROy against the LOuisville Gas & Electric Company. Judgment for defendant and plaintiff appeals. Reversed, and cause remanded for new trial.
Elmer C. Underwood and Beckham Overstreet, both of Louisville, for appellant. Matt O'Doherty, of Louisville, for appellee.
CLAY, C. In this action for personal injuries by George Roy against the LOuisville Gas & Electric Company, the trial court at the conclusion of plaintiff’s evidence gave a peremptory in favor of the defendant, and plaintiff appeals. *
At the time of the accident, Which occurred On December 14, 1915, plaintiff, together with other laborers, was engaged in removing a certain portion of a brick wall on defendant’s
pOWer plant for the purpose Of taking Out certain boilers within the building. In addition to other allegations not material, the petition contains the following: “That while the plaintiff was engaged in said work, and acting under the orders and directions of his foreman, the plaintiff was required, ordered, and directed to remove certain bricks from the lower portion of the breach made in said wall, and while executing said order under the command of and as required by his said foreman a portion or portions of the wall above fell, striking the plaintiff upon the head, and throwing the plaintiff backward against the aforesaid boilers.” A demurrer was sustained to the petition, whereupon plaintiff filed the following amendment: “That at the time and place mentioned in the petition the plaintiff did not know that it was dangerous for him to work at the time and place and in the manner alleged in the petition and as directed by his said foreman, and did not know that said portion of the wall above was likely to fall and strike the plaintiff, but that said defendant and said foreman and the other officers, agents, and employés of the defendant, superior in authority to the plaintiff, knew said facts and each of them, or could have discovered them by the exercise of ordinary care.” According to plaintiff's evidence, he had been at Work for defendant at another phoice and was ordered to report at the power plant on Monday, December 13th. At that time defendant's employés were thern engaged, under a foreman named Christi:\nsem, in tearing out a portion of the wall. When plaintiff arrived he was put to work with a Wheelbarrow and directed to Wheel and Stack the bricks which others had removed from the wall. Towards the close of the day's WOrk, plaintiff Saw Other laborers remove from the upper portion Of the Wall an iron beam which had been placed there when the building was built for the purpose of supporting the bricks. Plaintiff took no part in this work, but saw several bricks fall While the beam was being removed. Monday evening plaintiff and Several other laborers hung, a tarpaulin Over the opening in the Wall. On the following morning plaintiff reported for WOrk, and the foreman Ordered Some of the men to remove the tarpaulin from the opening. He then directed them to enlarge the Opening by digging out some of the bricks at the top of the Opening. At this time the opening in the wall was about 14 feet in height and the 10Wer part Was about 4 feet from the ground. When the laborers started to remove the bricks at the top of the Opening, the Company’s Superintendent appeared and countermanded the order. At the same time he directed the foreman to have the men dig out the bricks at the bottom of the Opening. Thereupon the foreman directed a negro by the name Of Cochran and plaintiff to climb up in the opening and to loose the bricks at the bottom with a pick and chisel. Before this Order was given One of the workmen said to the foreman that the wall looked pretty dangerous to him. The foreman then said, “That is all right; you fellows go up there and dig those bricks out.” Plaintiff then proceeded with the Work, as he thought the foreman knew better than he did. After working a While, something fell from above and struck plaintiff in the back of the head. Plaintiff then fell from the hole against the boiler and received a wound in the back of his head. He further stated that there was nothing above to fall except bricks. On cross-examination plaintiff stated that he knew the wall was dangerous. After other evidence as to the extent of plaintiff’s injuries, the defendant moved for a peremptory. Before the peremptory was passed on plaintiff tendered an amended petition pleading defendant's failure to furnish him a reasonably safe place for work and an assurance of safety on the part of the foreman. The trial court refused to permit the amended petition to be filed, and directed the jury to return a verdict in favor Of the defendant. [1, 2] The peremptory appears to have been given because plaintiff himself stated that he realized the danger. Ordinarily, of course, this fact WOuld be sufficient to defeat a recovery, for the servant assumes the risk where he knows and appreciates the danger, Or the danger is SO Obvious that an Ordinarily prudent person in his situation would have known and appreciated it. C. & O. Ry. Co. v. De Atley, 159 Ky. 687, 167 S. W. 933; Stearns Coal & Lumber Co. v. Calhoun, 166 Ky. 607, 179 S. W. 590. But this rule is subject to the qualification that, where the master or his representative is present and gives the Servant a direct command to proceed with the work, the servant, though aware of the danger, does not assume the risk, unless the danger is so obvious and imminent that an ordinarily prudent person in his situation would have refused to encounter it, and ordinarily this is a question for the jury. Stewart Dry Goods. Co. v. Boone, 175 Ky. 271, 194 S. W. 103; Yellow Poplar Lumber Co. v. Bartley, 164 Ky. 763, 176 S. W. 201. Here the petition as first amended alleged the dangerous condition of the place where plaintiff was required to work and the further fact that plaintiff Was acting under the orders and instructions of his foreman. Not only so, but the evidence shows that, notwithstanding the fact that the foreman's attention was called to the dangerous condition, he nevertheless gave plaintiff a specific command to proceed with the Work. The evidence further Shows that the Opening in the wall had been cut out and the Support removed the day before. In order to remove the brickS it WaS necessary to use a pick and chisel. Viewing the case in the light of this fact, and of the further fact that all bricks likely to fall had fallen, we
G=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
Cannot say as a matter of law that the danger Was So Obvious and imminent that an Ordinarily prudent person in plaintiff's situation would have refused to encounter it, but conclude that this was a question for the jury.  The point is also made that the peremptory was proper because plaintiff himSelf was engaged in creating the danger during the progress of the work. It must be remembered, however, that the upper portion of the Wall was cut out and the Support removed the day before, and that plaintiff took no part in that work. When injured he was working on the lower portion of the wall, and his injury was not caused by the work then being done. This is not a case, therefore, where the servant was engaged in creating the danger during the progress of his Work, but a case where the danger had already been created and existed at the time the foreman Ordered the Work to be done. Hence We conclude that the defendant was not entitled to a peremptory instruction on the ground that plaintiff himself created the danger during the progress of the work. Ada Coal Co. v. Linville, 152 Ky. 2, 153 S. W. 21; Proctor Coal Co. v. Price's Adm'r, 172 Ky. 627, 189 S.W. 923; Borderland Coal Co. v. Kirk, Adm’r, 180 Ky. 691, 203 S. W. 534.  While it is true that neither plaintiff InOr any One else testified that he was struck by a brick, yet in view of the fact that he claims to have been struck in the back of the head while leaning over, and of the physical conditions under which he worked, we think it was for the jury to say whether he Was Struck by a brick or a portion of the wall, as alleged in the petition. Judgment reversed, and cause remanded for a new trial consistent with this opinion.
(181 Ky. 30). MOORMAN et al. V. LOUISVILLE TRUST CO. et al.
(Court of Appeals of Kentucky. June 11, 1918.)
1. EVIDENCE &43(1) - JUDICIAL NOTICE – LAWSUITS. The court will take judicial notice that there is always a chance to lose in any kind of a lawsuit, and especially in a will contest. 2. WILLS @:651—NoNCONTEST CLAUSE—VALIDITY. A clause in a will devising personalty, providing for forfeiture in case of contest, with a gift over, is not absolutely void. 3. INFANTS 3:113—ACTIONS BY INFANTS— CoNCLUSIVENESS. Infants are bound the same as adults by judgments in actions prosecuted in their names and for their supposed benefit in the manner prescribed by law, even though the result might prove the action unwise, and they are responsible likewise for the legal consequences of such actions. 4. INFANTS @->73—WILL CONTEST-SUIT BY NEXT FRIEND-DISMISSAL-DISCRETION OF COURT. Where a will provided that part of the income of a trust fund should be paid to an infant
legatee until the portion not used should amount to $200,000, and that when the legatee became 25 years old such sum should be paid to her, and further provided for forfeiture in case of contest, with gift over, the refusal of the probate court to allow a contest by the infant's next friend by appealing from probate was not an abuse of discretion, where by postponing the contest until the infant arrived at her majority she could make the election for herself, although if the will were set aside she would inherit over $1,250,000.
Appeal from Circuit Court, Jefferson County, Common Pleas Branch, Second Division.
Suit by Lucy Elizabeth Moorman and others against the Louisville Trust Company and others to probate a Will. From a judgment dismissing an appeal from the County court probating the will, plaintiffs appeal. Affirmed.
Humphrey, Middleton & Humphrey and Trabue, Doolan & Crawford, all of Louisville, for appellants. Helm Bruce, Ben F. Washer, Fred Forcht, Lawrence Leopold, and Bruce & Bullitt, all of Louisville, for appellees.
CLARKE, J. This is an appeal from a judgment of the Jefferson circuit court dismissing, without prejudice, an appeal from a judgment of the county court probating a Will, prosecuted in the name and for an infant devisee and heir of the testator by a next friend, and the only question involved is Whether in So doing the trial court abused a sound judicial discretion.
The Written Opinion of the lower court, made a part of the record, SetS forth SO admirably the facts and issues, and proves so conclusively the power and duty of the court, in the exercise of a Sound judicial discretion, to COntrol the action Of the next friend SO aS
to safeguard the interests of the infant, it
is, to that extent, adopted, and is as follows:
“C. P. Moorman died in the city of Louisville, Ky., on February 13, 1917, having, theretofore, on March 17, 1916, and March 18, 1916, made in due, form his will and a codicil thereto, in which he devised a large estate, according to the record more than $2,300,000, how much more does not appear, upon which there is an annual income of more than $100,000, how much more does not appear. He left as his sole descendants and heirs at law a son, C. P. Moorman, Jr., and a granddaughter, the appellant Lucy Elizabeth Moorman, a daughter, the only child of his deceased son, Elmore B. Moorman. By his will he made a number of specific devises, one, a substantial one, of $50,000, to Joan Moorman, the widow of his deceased son, Elmore Moorman, mother of Lucy Elizabeth. The other specific devises were not large. He nominates the Louisville Trust Company as executor and trustee of certain trusts under his will. The thirteenth clause of his will is as follows:
“‘Thirteenth. I direct my executor with the approval of the committee aforesaid to divide all the rest and residue of my estate, real and personal, into two equal parts, and I devise and bequeath one of such parts to the Louisville Trust Company in trust for my son, Charles P. Moorman, Jr., for and during his natural life subject to the following limitations; so much of the income accruing from this portion as may be necessary shall be used by said trustee under the direction of the committee for the proper
and comfortable support of my son Charles, and after his death the principal and unused income of this share shall be disposed of as in this will hereinafter directed. “‘I devise and bequeath, the other of said two equal parts to the Louisville Trust Company in trust for my granddaughter, Lucy Elizabeth Moorman, for and during her natural life subject to the following limitations, so much of the income from said portion as may be necessary shall be used by the trustee under the direction of said committee for the proper and liberal support of my said granddaughter and her family, should she have one. I direct that the income from this portion not devoted to the support of my granddaughter as aforesaid shall be accumulated by the trustee and held as the property and estate of my said granddaughter until such accumulations shall have reached the amount of two hundred thousand dollars; when my granddaughter arrives at the age of twentyfive years said two hundred thousand dollars shall be paid to her as her absolute estate but in the event the accumulations do not amount to such sum at said time, then the trustee shail continue to apply the surplus income as aforesaid, until said amount shall have been accumulated at which time it shall be paid to her. So long as my granddaughter lives she shall receive such portion of the income of this trust as is required for her liberal support and that of her family, if any as hereinbefore provided. “‘Should my said granddaughter die at any time leaving issue surviving her the trust shall continue until the youngest of such issue living at her death attains the age of 21 years and so much of the income from this portion of my estate as the committee may deem proper shall be used by the trustee for support and educa; tion of such issue until the time above designated when this trust shall cease, and the principal and accumulated income of this share of my estate shall be distributed per stirpes among such issue. “‘Should my granddaughter die leaving no issue surviving her or should such issue die without issue surviving before attaining the age of 21 years, then the share left for my said granddaughter in this will shall be employed for the same uses and purposes as the share of my son, Charles P. Moorman, Jr., and pass under this will as said share passes.’ “The seventeenth clause of the will is in these words: “If any person receiving any benefit under this will shall directly or indirectly resist its probate or seek in any way to contest it, or vacate or annul any of its provisions, then in such event the person so doing or for whom any one authorized by law to act shall do so, shall forfeit all interest in my estate under this will or otherwise and my estate shall be distributed under this will as though such person had died before me, leaving no issue surviving him or her.’ “By the fourteenth clause of the will, he provides for the organization and establishment by a committee which he nominated for that purpose, of a public charity for indigent old women, to be known as the ‘Charles P. Moorman Home for Women.” The will provides elaborately for the management of the home; for the care and management of the estate. It provides also elaborately for the care and keeping of his son, Charles P. Moorman, Jr., whom he refers to as an invalid. “There are various provisions in the will which are not pertinent to the issue now before the court, and it is unnecessary to discuss them. The will was probated on February 17, 1917, and the defendant Louisville Trust Company qualified as executor, and accepted the trust imposed by the will. On February 24, 1917, Joan Moorman, mother of Lucy Elizabeth, qualified as her guardian, and on March 27th thereafter resigned, and on that day the Kentucky Title Savings Bank & Trust Company was appointed by the county court, duly qualified, and is now the statutory guardian of Lucy Elizabeth Moorman. “On August 23, 1917, Lucy Elizabeth Moorman, the infant, through Nicholas H. Dosker, her next friend, filed statement of appeal, alleging that the paper probated was not the true last will and testament of C. P. Moorman, deceased, because of lack of testamentary capacity, and also because of undue influence exercised in its making, in which all the parties interested were made defendants and duly summoned, including the executor and trustee, the Louisville Trust Company, and the statutory guardian, Kentucky Title Savings Bank & Trust Company, and Charles P. Moorman, Jr. The trustee and Charles P. Moorman, Jr., filed special demurrer. to the statement, on the ground that the plaintiff and appellant has not the legal capacity to sue or maintain the proceeding. They also move the court to require the next friend to execute bond to protect Lucy Elizabeth Moorman against loss or damage which may be sustained by reason of the proceeding. They file also a plea in abatement on the general ground that the proceeding is against the real interest of Lucy Elizabeth Moorman, and, further, that Joan Moorman, while she was guardian, accepted as guardian certain benefits under the will. The appellant files answer to the plea in abatement, denying the contention that the proceeding is against the best interest of Lucy Elizabeth, and denying also that Joan Moorman, as guardian, accepted anything under the will other than certain items of expense for the maintenance and care of Lucy Elizabeth, and exhibit copies of correspondence between the Kentucky Title Savings Bank & Trust Company, guardian of Lucy Elizabeth, and Mrs. Elizabeth C. T. Warren, maternal grandmother of Lucy Elizabeth, and also letter from Mrs. Warren to Nicholas Dosker, and a letter from Dosker to counsel for appellant in this case. In a response the defendants disclaim any plea of estoppel, on the ground that Joan Moorman, as guardian, accepted benefits under the will, but aver that the facts thus pleaded were for the purpose of bringing before the court the question of the right of Nicholas Dosker to sue as next friend, because, as the defendants claim, such action is against the best interests of the infant. “The statutory guardian, Kentucky Title Savings Bank & Trust Company, though a party to this suit, has not responded in any way, and while, as appears in its letter to Mrs. Warren, it declines to prosecute the appeal, it nowhere says that in its judgment the appeal ought not to be prosecuted, by a next friend. “Mrs. Joan Moorman, while she was guardian, did not prosecute the appeal, and since she had a $50,000 bequest under the will, she perhaps would not be expected to jeopardize her personal interest to have the validity of the will tested, so that her failure, while she was guardian, and the failure of the present statutory guardian, the Kentucky Title Savings Bank & Trust Company, do not aid the court in determining whether or not this appeal should be prosecuted. “It is manifest upon the record that if the appeal is prosecuted, whatever the infant would gain through the appeal the executor and trustee would lose, and whatever the infant would lose by reason of the appeal the executor and trustee would gain, and therefore the advice from the executor that the proceeding is in conflict with the rights of the infant must be considered in the light of advice from one whose interests are directly in conflict with the interests of the infant so far as the contest is concerned. “In the will itself there is such clear and unmistakable evidence that the testator considered his son, Charles P. Moorman, Jr., incapable not only of looking after his own estate, but of looking after himself, by reason of his being an invalid, the court cannot look to him for reason for acting the one way or the other upon the question involved. There is nothing in the
record from which the court would conclude that the next friend is not a competent and suitable person to act in that capacity, and the fact that the only other relative the infant has, its maternal grandmother, has requested such action on the part of the next friend, makes this course not at all one of intermeddling or a volunteer without grounds to investigate and prosecute this proceeding. The mere wish of the grandmother, Mrs. Warran, to have the contest made and prosecuted cannot be considered by the court a sufficient reason therefor. She is prompted manifestly by laudable and natural affection for her granddaughter, but she may or may not realize the responsibility which attaches to the course being pursued. “The next friend has employed able counsel, and the court does not doubt, if permitted by the court, this proceeding would be thoroughly prepared, and the cause ably presented and the contest of the will vigorously prosecuted. “The first question to be decided is, Has the court the power and is it the court's duty to determine whether or not the next friend will be permitted to prosecute the appeal? A next friend of an infant is, and of necessity must to a large degree be, acting under the direction and control of the court. In Longnecker v. Greenwade, 5 Dana, 516, an action had been brought by Lucy Ann Trimble, a minor, by her father, Isaac Trimble, her next friend, for slander. During the progress of the proceeding the father being insolvent, one Longnecker was substituted as next friend. Pending the litigation, the infant and her father made a compromise of the Suit, and at their united instance and against the consent of Longnecker as next friend, the suit was dismissed in the circuit Court, and an appeal Was taken by the next friend, and in sustaining the action of the lower court, the Court of Appeals says: “The court. in the exercise of sound discretion, may control a next friend of an infant plaintiff, as well as a guardian ad litem of an infant defendant, and should always in that respect do that which the infant's interests shall seem to require. In Robinson v. Talbot, 78 S. W. 1108, 25 Ky. Law Rep. 1914, the court dismissed a petition brought by a next friend over his objection, and say: “It is the duty of the chancellor to protect the infants and to see that they are not prejudiced by any act or omission of the next friend; and to this end may, if he deems it necessary, revoke the authority of the next friend and substitute another, or dismiss suits instituted for the ostensible but not real, interest of the infants.” An elaborate discussion of this question is found in Swoope et al. v. Swoope, 173 Ala. 157, 55 South. 418 (31 Ann. Cas. [1914A] 935), in which the court reaches the same conclusion, as in the two Kentucky cases quoted, and there is an extensive note to this case in Annotated Cases, citing many authorities in support, and to the same effect is Stevens v. Cole, 7 Cush. (Mass.) 489, where it is said: “The name of a prochein ami being thus introduced into the process, without any previous order or sanction of the court, the power of supervision, so far as to prevent either an unauthorized use of the name of one as prochein ami, or the improper institution of a suit by a volunteer prochein ami in disregard of the interest of the infant, must, of course, remain with the court to be exercised on a motion to stay proceedings, or dismiss the action, and to this extent the court will control the use of the name of a prochein ami.’ “It is not contended by the appellant that the court is without power of control, but it is very earnestly contended that this is not a case for the exercise of control. In view of the conclusion based upon the authorities and sound reasoning that the court has the power and rests under the duty to protect the substantial interests of an infant and see to it that nothing