104 Ky. 507, 47 S. W. 321, 20 Ky. Law Rep. [and less easily overthrown than other presump696; C., N. O. & T. P. Ry. Co. v. Yocum's Adm'r, 137 Ky. 117, 123 S. W. 247, 1200. tions of fact, because marriage is of the high- Cent. Dig. §§ 58-69, 79; Dec. Dig. 40.] Appeal from Circuit Court, Jackson others. From a judgment for Baker and others, the company appeals. Affirmed. J. R. Llewellyn, of McKee, and Williams & Johnson, of London, for appellant. A. W. Baker, of McKee, for appellees. [3, 4] This case does not come within that line of cases where the injury may have resulted from two or more causes, only one of which was the master's negligence. If it was mere conjecture or speculation as to Action between the Rockcastle Mining, whether the wild car were released by appel-Lumber & Oil Company and D. H. Baker and lant or by Lewis, appellant, of course, would not be liable. If the evidence showed that by a mere possibility the injury was the result of the master's negligence, it would not be sufficient to fix liability. Negligence will not be presumed from the fact that the servant has been injured, and one who alleges negligence must prove it. In the case of TURNER, J. On the 9th day of January, death by wrongful act, this rule applies with 1892, Emeline B. Gardner executed a deed equal force to one who alleges contributory by which she conveyed to John F. Hubbard a negligence. As to appellant, there is suffi- small tract of land in Jackson county. Robcient evidence to show that it was negli-ert Gardner, who had for many years lived gent in the manner in which it stocked emp- with Emeline Gardner as her husband, did ty cars on the track in and about the old en- not join with her in this deed. Thereafter try. It was negligent also in the manner in which it operated the train of cars where-appellee Baker recovered a judgment against by the cars already standing on the track Emeline Gardner, and, treating the conveyance by her to Hubbard as void, had his exwere released and permitted to run wild down the grade. In this way the appellant and at the sale became the purchaser, and ecution issued, levied on the land, and sold, failed to exercise ordinary care to provide Lewis a reasonably safe place to work. now claims under this execution sale. These conditions were known to appellant, appellant is claiming title under the deed or in the exercise of ordinary care it could from Emeline Gardner to Hubbard, and the have known of and provided against them. only question in the case is whether, at the To make out a case it is not necessary to time of the execution of the deed to Hubestablish it by eyewitnesses. This may be bard, Robert Gardner was the husband of The Emeline Gardner, for, if he was, her deed to done by circumstantial evidence. L. & N. v. Taylor, 158 Ky. 633, 166 S. W. 199; South-Hubbard was void, and, if he was not, her ern Ry. Co. v. Caplinger's Adm'r, 151 Ky. 749, 152 S. W. 947, 49 L. R. A. (N. S.) 660. It seems to us that the appellee made out a plain case of negligence against appellant; a case in which there is very little conflict in the evidence. Such questions as were in issue the court submitted to the jury under proper instructions, and the finding of the jury in behalf of appellee is, as we think, in accord with the evidence. The judgment is therefore affirmed. ROCKCASTLE MINING, LUMBER & OIL 1. MARRIAGE SUMPTION-REBUTTAL. The presumption of marriage, which arose from cohabitation for over 50 years under a generally recognized claim of marriage by a couple who raised a large family of children, was not overcome by the testimony of the woman's child, who was an interested witness, that his mother and stepfather began cohabiting without marriage when he was 5 years old. [Ed. Note. For other cases, see Marriage, Cent. Dig. §§ 58-69, 79; Dec. Dig. 40.] 2. MARRIAGE SUMPTION. 40-COHABITATION - PRE The presumption of marriage arising from cohabitation in apparent matrimony is stronger conveyance was valid, and Baker acquired nothing by the subsequent execution sale. Hubbard was the son of Emeline Gardner, but it is not clear from the record whether he was an illegitimate son, or her child by a former marriage. In an effort to uphold the conveyance of his mother to him, he testifies that when he was about five years of age his mother and Robert Gardner began illicit relations in Kenton county, Ky.; that they continued such relations thereafter when they moved to Ohio and Indiana, and when they moved back to Kentucky; that they had never in fact been married. On the other hand, it is shown that these two old people had lived together as husband and wife since about the year 1860, or earlier; that they each had held themselves out as husband and wife in the communities where they lived; that they had raised a large family of children; that they had claimed they were married by a ceremony performed in 1860 at Cincinnati; that they were recognized in the communities where they resided as husband and wife; that they were devout Christian people, and were recognized by their church associates as husband and wife, and in all respects were considered and treated by their neighbors as such. [1] There is a great deal said in the briefs about common-law marriages in Kentucky, Likewise Keezer on Marriage and Divorce, and about the recognition of common-law § 44, distinctly recognizes this doctrine in marriages in other states by the courts of the following language: this state; but in our view of this case the "In the absence of any charge of criminal inonly real question is whether, after this long tent, as in the case of bigamy, marriage may be presumed to exist as a fact between a man and lapse of years, this weak, unsatisfactory tes-woman, who have openly cohabitated and contimony of an interested witness, testifying sorted together, under circumstances which about transactions which occurred when he would justify the presumption. This presumption of fact is based upon the various presumpwas an infant only five years of age, is suf- tions of law in favor of innocence rather than ficient to overcome the presumption of mar- guilt, of regularity in a ceremony rather than riage which arises because of the long, un-irregularity, and a general presumption of marriage." interrupted cohabitation of the old people, the raising of a family by them, and the recognition of them by their friends and neighbors as husband and wife during this long period. There is evidence in the record that the old people claimed to have been married in Cincinnati in September, 1860; but there is no competent record evidence of such marriage, although there appears in the record a certificate of a probate judge or justice from Cincinnati to the effect that in 1884 the courthouse in Cincinnati was burned and many of the marriage records destroyed. How far the presumption of marriage will be indulged by the courts when men and women See, also, Caldwell v. Williams, 118 S. W. 932; Klenke v. Noonan, 118 Ky. 436, 81 S. W. 241, 26 Ky. Law Rep. 305; and 26 Cyc. 840. This presumption of law arising from long cohabitation and recognition has not been overcome by the evidence in this case. The judgment is affirmed. LACK SINGLETREE CO. v. CHERRY. (Court of Appeals of Kentucky. Nov. 18, 1915.) 1. MASTER AND SERVANT 220—INJURIES TO SERVANT-INCOMPETENT FELLOW SERV ANT. be incompetent, and complains of that fact to If a servant believes another servant to the master, and the master assures the servant there is no danger, and the servant, relying upon this assurance, continues in his work, and other servant, the master is liable, unless the is injured by reason of the incompetency of the danger was so obvious that an ordinarily prudent person would not have continued his work; so, a petition averring such state of facts is sufficient, though it does not deny plaintiff's knowledge of his fellow servant's incompetence. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 625-637, 641, 644-647; Dec. Dig. 220.] cohabit together, in the absence of direct evidence of marriage, has been frequently considered in the courts of this state as applied to the presumption of legitimacy of children; but in this case there is no question of legitimacy raised. We think, however, that the same general rule of law must control, although the presumption might not be so freely indulged where no question of legitimacy arises. We have here an old couple who have lived together constantly for more than 50 years; who have in that time raised a large family of children; who claimed to have been married in another state, although there is no record evidence of such marriage; who had been constantly during that time recognized and treated by their neighbors as husband and wife; who throughout that period in all their social and commercial activities have been recognized as man and wife. To permit, under these circumstances, weak, flimsy, and unsatisfactory testimony While a servant assumes the risk of ordiof an interested witness to overcome the pre-bound to engage reasonably competent fellow nary negligence of fellow servants, the master is sumption which necessarily arises from these servants. conditions, would be a dangerous precedent. [2] Bishop on Marriage, Divorce, Separation, vol. 1, § 959, under the general title of "Evidence of Marriage," thus states the rule which must control this case, to wit: "Persons dwelling together in apparent matrimony are presumed, in the absence of any counter presumption or evidence special to the case, to be in fact married. The reason is that such is the common order of society, and that if the parties were not what they thus hold themselves out as being, they would be living in the constant violation of decency and of law. And because marriage is the highest public interest, this presumption is stronger and less 2. MASTER AND SERVANT 216-—INJURIES 3. MASTER AND SERVANT 216-INJURIES [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 567-573; Dec. Dig. 216.] Appeal from Circuit Court, McCracken County. Action by W. W. Cherry against the Lack Singletree Company. From a judgment for plaintiff, defendant appeals. Affirmed. Berry & Grassham, of Paducah, for appellant. Hendrick & Nichols and F. N. Burns, all of Paducah, for appellee. MILLER, C. J. The appellant operates a easily overthrown than the other and ordinary factory in which it makes singletree clips. presumptions of fact." George Koerner worked as a molder for the appellant, and the appellee, W. W. Cherry, was his "shifter" or assistant. Koerner's duties required him to carry the molten metal from the place where it was melted and pour it into molds; and it was Cherry's duty to ship the molds from one place to another after they were filled with the molten metal, as the necessities of the work required. The petition alleges that Koerner was so incompetent and negligent by reason of his clumsiness and defective eyesight, that he negligently struck a ladle he was carrying, filled with molten metal, against a plank, and spilled the metal upon Cherry's foot, burning it to the bone, and seriously and permanently injuring him. Cherry recovered a verdict and judgment for $1,000, and the defendant appeals. [1] After charging Koerner with the delinquencies and negligence above stated, the petition admits that the plaintiff knew these delinquencies before he was injured; and it further alleges that he went to appellant's of opinion that the facts of the instant case brought it within the rule announced in BogenLaw Rep. 376], which in effect holds that, if schutz v. Smith, 84 Ky. 330 [1 S. W. 578, 8 Ky. the information of the master and servant with respect to the place of work or tools with which to perform the work are equal, and if both are either without fault or in equal fault, the servant cannot recover damages of the master. This rule was first declared in England, and later followed in many of the American states, but it has in this state been so modified in cases decided since that of Bogenschutz v. Smith, as to have been practically disaffirmed. Pfisterer v. J. H. Peter & Co., 117 Ky. 501 [78 S. W. 450, 25 Ky. Law Rep. 1605]; L. & N. R. R. Law Rep. 171: Olive Hill Fire Brick Co. v. Co. v. Foley, 94 Ky. 224 [21 S. W. 866, 15 Ky. Ash, 146 Ky. 253 [142 S. W. 403]; Frazier & Foster v. Danner, 146 Ky. 76 [142 S. W. 216]; Ky. Free Stone Co. v. McGee, 118 Ky. 306 [80 S. W. 1113, 25 Ky. Law Rep. 2211]; Angel v. Jellico Coal Mining Co., 115 Ky. 728 [74 S. W. 714, 25 Ky. Law Rep. 108]; Ohio Valley Ry. Co. v. McKinley [33 S. W. 186] 17 Ky. Law Rep. 1028; Int. Coal Co. v. Fannon, 145 Ky. 198 [140 S. W. 163]." ed in Bell-Coggeshall Co. v. Lewis, 89 S. W. The law upon this subject was tersely stat135, 28 Ky. Law Rep. 149, as follows: foreman upon two occasions and complained to him of Koerner's lack of sight, of his awk-ly presented the law governing the case. They, wardness and clumsiness, of his incompetency to perform the services required of him, and that it was dangerous for appellee to work with or near Koerner. The petition further alleges that the foreman assured Cherry that Koerner was a competent and experienced man, and capable of performing his duties as a molder; that there was no danger in Cherry's working in conjunction with him for a short while, and until the foreman could place him elsewhere; that Cherry relied upon the superior knowledge and judgment of the foreman, and upon the assurance above stated; and that one of said assurances was made to appellee three or four days before the accident, while the second was made only a day or two before the accident. Appellant insists that the petition does not state a cause of action, and that its demurrer thereto should have been sustained, because it admits that appellee knew of Koerner's infirmities and incompetency, and that, his knowledge in these respects being equal to the knowledge of the master, Cherry could not recover under the rule laid down in Bogenschutz v. Smith, 84 Ky. 330, 1 S. W. 578, 8 Ky. Law Rep. 376. Appellant relies upon the authority of that case for a re versal. While it must be admitted that Bogenschutz v. Smith, supra, sustains appellant's contention, in a large measure, it should not be forgotten that the doctrine there announced upon this subject has been somewhat departed from by this court, if not entirely repudiated. In the late case of the East Tennessee Telephone Co. v. Jeffries, 153 Ky. 136, 154 S. W. 1113, we said: "It is evident from the language of the instructions referred to that the trial court was "The instructions given by the trial court aptin substance, informed the jury that, if they believed from the evidence the assistant furnished appellee by appellant was competent to perform the duties assigned him, they should find for appellant; upon the other hand, if they believed from the evidence that the assistant was incompetent to perform the duties, and aptence of such assistant, and that before being pellee was injured by reason of the incompeinjured he complained to appellant's superintendent of the incompetence of the assistant, and was assured by the superintendent of his appellee accepted the services of the assistant, competency, and, relying upon such assurance, it was the duty of the jury to find for appellee, unless they further believed from the evidence that the danger of his continuing work with the incompetent assistant was so obvious that an ordinarily prudent man would not have continued to work as appellee did, even though such assurance was given. "The jury were also advised that, if they believed from the evidence that, though appellee's assistant was incompetent, and still he continued to work without complaint on his part and without assurance on the part of his employer or superintendent of the competency of such assistant, or if they believed from the evidence that, though such assurance was given, appellee did not rely upon it, they should find for appellant." The modern doctrine may therefore be said to be that, if a servant believes another servant to be incompetent, and he complains of that fact to the master, and the master assures the servant that there is no danger, and the servant, relying upon this assurance, continues in his work, and is injured by reason of the incompetency of the other servant, the master is liable, unless the danger of continuing in the work with the incompetent assistant was so obvious that an ordinarily prudent person would not have continued to work, as appellee did, even though such assurance was given; and a petition showing such a state of facts is sufficient, although it fails to contain the allegation negativing the plaintiff's knowledge of the defective place, as was held in Bogenschutz v. Smith, supra. | U. S. 642, 6 Sup. Ct. 590, 29 L. Ed. 755, where It was the duty of the appellant to use the Supreme Court of the United States ordinary care to employ a competent molder, and if it failed to do so, and assured appellee it would replace him by a competent workman, appellee had the right to rely upon this assurance. said: * the "The servant does not undertake * risks arising from the want of sufficient and skillful colaborers, or from defective machinery. ** ** His contract implies that in regard to these matters his employer will make adequate The petition fully complies with the mod-provision that no danger shall ensue to him." ern rule as above laid down, and the demurrer thereto was properly overruled. [2] The proof shows that Koerner was blind in one eye, and could see very indifferently with his other eye; that he was quite awkward and clumsy in his movements; and appellant insists that, since Cherry had worked with Koerner for about six months before the accident, he necessarily knew his delinquencies and defects as a workman, and consequently assumed that risk. We think this point is sufficiently answered by the following language taken from the opinion of this court in I. C. R. R. Co. v. Langan, 116 Ky. 321, 76 S. W. 32, 25 Ky. Law Rep. 500: "Appellant's next point is that appellee was aware of the danger in his employment resulting in his injury at the time he undertook it, and that his continuing in this employment, with knowledge of the inadequate force, was equivalent to his own assumption of the danger incident to the task. This would be true if the danger was such an obvious one as that the injury was reasonably certain to result, so that none but a reckless man would have undertaken it under the circumstances. We understand the rule on this subject to be that, if the danger or risk is such that a prudent man would have refused to do the work under the circumstances because of the danger, then the servant will act at his peril in undertaking it. But where the probability of injury is such that the minds and judgments of prudent men might well differ upon the certainty of its happening or with regard to whether the force or appliances are reasonably safe or adequate to the performance of the task, and where the master insists, after objection, that the servant proceed with the work, or assures him that the force is adequate or the machinery safe, then the servant has a right to rely upon the master's presumed superior knowledge. The risk is thereby assumed entirely by the master, and he impliedly assures the servant, who relies upon his statement, or who obeys his positive direction, that if he (the master) is in error as to the safety, he would indemnify the obedient servant against the consequences. Shearman & Red. Neg. 126; Clark v. Holmes, 7 Hurl. & N. 937; Snow v. Housatonic R. R., 8 Allen (Mass.) 450, 85 Am. Dec. 720; Conroy v. Vulcan Iron Works, 62 Mo. 39." The opinion in that case also quoted from the case of N. P. R. R. Co. v. Herbert, 116 179 S.W.-68 See, also, Lasch v. Stratton, 101 Ky. 672, 42 S. W. 756, 19 Ky. Law Rep. 889; Shanks v. Citizens' General Electric Co., 76 S. W. 379, 25 Ky. Law Rep. 811; L. & N. R. R. Co. v. Mahan, 113 S. W. 886. [3] Finally, appellant insists that the trial court erred in refusing to give instruction M offered by appellant, upon the law of fellow servants. Considered as an abstract proposition of law, appellee does not question the soundness of the instruction, but denies its applicability to this case. The recovery was sought in this action because of the master's failure to select a competent servant to work with the appellee, and, further, because the master assured appellee that the incompetent servant was competent. We think the contention of appellant is well answered by the following excerpt taken from the opinion of this court in the Langan Case, above referred to: "There are certain risks which a laborer as sumes as incident of his employment. these is that of the ordinary negligence of his Among fellow servants. Although each servant in the common employment is a representative of the master to the extent that he is acting within the scope of his duties, yet for many kinds of ordinary neglect towards his fellow servants juries. However, there are certain duties which the master may not be liable for resulting inthe master owes to his servants that are primary and personal in their nature, and which he may not delegate to another so as to escape liability for their nonperformance. he owes to his servants to furnish them a reaAmong these sonably safe place in which to do their work, and must furnish them reasonably safe tools and appliances with which to do it. Alongside of these he must furnish them adequate assistwhere the master assigns or imposes upon one ance, or a sufficient number of workmen. So, of his servants the duty of representing him in providing these means, the servant's acts are deemed to be those of the master, and for a simple neglect by such servant the master is responsible as though he acted in person." The doctrine of fellow servant had no applcation under the facts of this case, and the court properly refused to give the instruction asked. Judgment affirmed. CITY OF PRINCETON et al. v. PRINCETON ELECTRIC LIGHT & POWER CO. tricity as a commercial product is a business which is open to all, and the franchise which a city can grant is the use of its streets for the delivery of light and power produced by electricity to the consumers thereof, but it cannot grant the privilege to one to use its streets and alleys to the exclusion of another to whom it may grant a franchise for the same purpose. 683-FRAN[Ed. Note.-For other cases, see Municipal CONSTITU- Corporations, Cent. Dig. §§ 1467-1470; Dec. Dig. 682.] (Court of Appeals of Kentucky. Nov. 17, 1915.) 1. MUNICIPAL CORPORATIONS CHISES ADVERTISEMENTS TIONAL PROVISIONS. The purpose of Const. § 164, prohibiting any municipality from granting any franchise for a term exceeding 20 years, and providing that, before granting a franchise for a term of years, the municipality shall first, after due advertisement, receive bids therefor publicly, and award the same to the highest and best bidder, is to secure municipalities against the loss of valuable rights, and to give information to all having an interest in the privileges to be sold, and thereby enable municipalities to receive the value of privileges to be granted. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1471-1476, 1479; Dec. Dig. 683.] CHISES 2. MUNICIPAL CORPORATIONS 683-FRANADVERTISEMENTS CONSTITUTIONAL PROVISIONS. Under Const. § 164, providing that a municipality before granting a franchise, shall after due advertisement receive bids therefor, and award the same to the highest and best bidder, a city advertising the sale of a franchise, with a right to exercise it for 10 years, may not receive a bid and grant a valid franchise to exercise the privilege for 15 or any other number of years; and a stipulation in an ordinance granting a franchise for 10 years, pursuant to a bid after advertisement, that the grantee shall have the right to another franchise, which the city may conclude to create and sell at the expiration of the 10 years, is invalid. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1471-1476, 1479; Dec. Dig. 683.] 3. MUNICIPAL CORPORATIONS 684-GRANT OF FRANCHISE - NATURE OF RIGHT-CONSTRUCTION "FRANCHISE.' A "franchise" is a special privilege bestowed by the government on an individual, and which does not apply to the citizens generally as a matter of right; and where there is any ambiguity, in an ordinance granting a franchise, as to the time in which it is to be enjoyed, it will be construed more strictly against the grantee. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 1481; Dec. Dig. 684. For other definitions, see Words and Phrases, First and Second Series, Franchise.] 4. MUNICIPAL CORPORATIONS 683-FRANCHISES-VALIDITY. An ordinance of a city granting a franchise for 10 years, enacted without advertising and receiving bids, as required by Const. § 164, is void, and the grantee of the franchise receives nothing thereby. [Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. §§ 1471-1476, 1479: Dec. Dig. 683.] 5. MUNICIPAL CORPORATIONS CHISE VALIDITY. A franchise granted by a city for more than 20 years after the granting thereof is beyond the power of the city to grant. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1467-1470; Dec. Dig. 682.] 7. WORDS AND PHRASES "PUBLIC POLICY." "Public policy" is equivalent to the policy of the law, and is a principle of law which holds that no one can lawfully do a thing which tends to be injurious to the public, or is contrary to the public good; and public policy must be looked for in the Constitution and statutes and the decisions of the highest court of a state. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Public Policy.] 8. MUNICIPAL CORPORATIONS 682-FRANCHISES-VALIDITY. A grant by a city of a franchise to an electric light and power company for 10 years, to begin about 42 years after the enactment of the ordinance granting the franchise, is invalid, as contrary to public policy. Corporations, Cent. Dig. §§ 1467-1470; Dec. [Ed. Note. For other cases, see Municipal Dig. 682.] 9. ELECTRICITY 11-INVALID FRANCHISE COMPENSATION-ENFORCEMENT. Where a franchise to an electric light and power company to supply a city and the inhabitants thereof with electric light and power for a term of years is void under Const. § 164, the company furnishing light and power for the city may not collect therefor. [Ed. Note.-For other cases, see Electricity, Dec. Dig. 11.] 10. MUNICIPAL CORPORATIONS TRACTS-VALIDITY. 247-CON One contracting with a municipality must at his peril know the rights and powers of the officers thereof to make contracts, and the manner in which they must make them. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 645-650; Dec. Dig. 226.] 682-FRAN-12. ELECTRICITY 11-CURRENT FURNISHED CITY-COMPENSATION UNDER VOID FRANCHISE-PAYMENT-RECOVERY. A city, paying for electricity furnished by company operating under a void franchise, cannot recover the sums paid, where the sums charged and paid were not unreasonable, and not induced by fraud or mistake. An ordinance of a city granting to an electric light and power company the exclusive right for a term of years to manufacture and sell a electric light and power within the limits of the city, with the privilege of using the streets and alleys for poles and wires, attempts to create a franchise beyond the power of the city to grant, for the right to produce and sell elec [Ed. Note.-For other cases, see Electricity, Dec. Dig. 11.] |