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4. Damages 187-Plaintiff not entitled to recover for permanent impairment of earning power, when injuries not shown to be permanent.

Though plaintiff pleaded permanent injuries, where it was not shown that her injuries were permanent, she was not entitled to recover for permanent impairment of her power to earn money.

5. Damages 210(1)—Instruction predicated on finding that injuries resulted from fright alone held not authorized and properly re

fused.

Where plaintiff's statement to a witness that she received no physical injury from a gas explosion evidently meant no visible injury, and there was no evidence or admission that she was merely frightened, though there was testimony that her condition could have resulted from fright, an instruction predicated on a finding that her injuries were the result of fright or shock, unaccompanied by physical injury, was properly refused.

Appeal from Circuit Court, Kenton County. Action by Sarah O'Connell against the Union Light, Heat & Power Company. From a judgment for plaintiff, defendant appeals.

Reversed and remanded.

her knees, but held to the door, Mrs. O'Connell was thrown backward across a table, but recovered sufficiently, shortly afterward, to assist in hunting the children. She retired about 8 o'clock, but later collapsed and sent for a physician. She was in bed for some time; later went to a hospital, where she remained for nearly a month, and on her return home had a trained nurse for several weeks, and at the trial a year afterward was still nervous and suffered from her hip and back-it appearing, though, that her principal trouble during the entire time was neu

rasthenia.

A number of errors have been assigned, among which may be mentioned: (1) Excessive verdict; (2) error of the court in admission of improper evidence; (3) error of the court in giving instructions, and in refusing to give proper instructions, and in overruling the demurrer to the petition.

[1] It is insisted that the demurrer should have been sustained to the petition, for the reason that it did not allege any physical injury. In this respect it does say "she was violently thrown backward against a table," and alleges

Galvin & Galvin and John L. Rich, all of "that by the force caused by said explosion she Cincinnati, Ohio, for appellant.

John T. Murphy and Edward Tracy, both of Covington, for appellee.

was knocked motionless and speechless for thereafter she collapsed, and was confined to many seconds; says that within a few hours her bed and a physician called to attend her; that she has suffered as a result of said ac

tiff further says that as a result of said explosion her nervous system was permanently destroyed, and that her heart was partially affected, and that it has ceased to function as it did prior to her injuries; that she has lost weight and is unable to perform her household

MCCANDLESS, J. Sarah O'Connell recov-cident great mental and physical pain. Plainered a judgment for $4,331.50 in the Kenton circuit court against the Union Light, Heat & Power Company, for personal injuries; it being alleged that these were occasioned by an explosion resulting from the ignition of natural gas, which was escaping from a defective pipe owned by appellant and located in the rear of plaintiff's premises.

Plaintiff's lot runs back to an alley in which appellant's line of pipe was located. There was also a privy or vault to the rear of the lot next to the alley. For some months previous to the explosion odors had been detected in the alley, but it was not known from whence they came. Plaintiff's family and the neighbors had been sprinkling lime in the privies and adjoining premises without improvement, but they did not seem to recognize the odor as coming from gas. Plaintiff had a toilet in her house, but the privy was used occasionally.

On the evening in question her neice, Mrs. Garr, and her four children, were visiting her, and just after dark the children were permitted to go to this privy, carrying with them a lighted candle; the mother standing in the door and Mrs. O'Connell at an open window, watching them. As they reached the door of the privy, the gas ignited, causing a terrific explosion, flames going as high as the house. Mrs. Garr was staggered to

duties."

From this it is argued that plaintiff suf fered no physical injury, and, construing the pleadings most strongly against the pleader, her injuries were caused by fright alone, and under repeated adjudications of this court no cause of action is stated. This assumes that a physical injury cannot exist without external evidence, while it is a fact that an explosion may cause concussion or impact as serious as would a blow, though it comes in contact with so large a portion of the body that it may leave no external scar or wound; such a blow might destroy the nervous system and injure the body independent of any fright. "By a violent jolt or jar a physical injury may be done, though the flesh is not bruised, and there may be little externally to indicate it." K. T. & T. Co. v. Baine, 161 Ky. 44, 170 S. W. 499. The plaintiff was permitted to testify in reference to what occurred at the explosion:

"I fell back; it struck me right across here (indicating back). It is not better yet, and it is over a year."

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(248 S.W.)

Again, referring to the occasion of the, by the jury to have included one or both of injury: those elements; in either event it was not

"I went out. I could hardly get out for the justified. C., N. O. & T. P. Ry. Co. v. Giboney, pain in my back." 124 Ky. 806, 100 S. W. 216, 30 Ky. Law Rep. 1007; Weil v. Hagan, 161 Ky. 295, 170 S. W.

In referring to her subsequent pain and 618; Acton v. Smith, 150 Ky. 703, 150 S. W. suffering, she said:

"I had severe sick headaches; my back nearly killing me all the time."

854. In another trial, if the pleadings remain in their present condition, the only elements of damage which can be submitted to the jury will be as to the mental and physi

At another place, as to her suffering a year cal pain and suffering, and the expense inafter the injury, she said:

"I am still very nervous; I suffer so much with my back; I just nearly die with my back, and a little of everything, it seems."

Dr. Hoppe testified as to her condition some time subsequent to her injury, and after describing her nervous troubles, he added, "also I should have mentioned that she was unable to lie on her left side," and accounted for that by saying that "she had pain and tenderness in the small of her back, over her right hip." He further testified that her nervous trouble had improved, but that he could not say about her hip, or as to whether or not the injuries to it would prove pernra

nent.

[2] By reference to the averments of the petition as set out above, it will be seen that the plaintiff did not plead any injury to her back or hip, and this evidence was introduced over the objection and exception of the defendant, and without any admonition upon the part of the court as to the purpose for which it was admitted. This was error. Louisville R. Co. v. Ellerhorst, 129 Ky. 142, 110 S. W. 823, 33 Ky. Law Rep. 605; L. & N. v. Henry, 167 Ky. 157, 180 S. W. 74. While the testimony was competent as tending to show the violence of the concussion and the resultant injury, the jury should have been instructed that they could only consider her physical injuries, for the purpose of showing the extent of the injury to her nervous system, and not as a cause for which damages could be allowed. L. & N. R. R. Co. v. Gaugh, 133 Ky. 474, 118 S. W. 276; Louisville Ry. Co. v. Ellenhorst, 129 Ky. 142, 110 S. W. 823, 33 Ky. Law Rep. 605; L. & N. v. Henry, 167 Ky. 151, 180 S. W. 74.

curred in payment of physicians, nurses, hospital, and drug bills.

[5] The appellant offered an instruction denying a recovery if the jury believed from the evidence that the plaintiff's injuries were the result of a shock or fright, not accompanied statement of Dr. Hoppe that her present conby physical injury. This was based on the dition could have resulted from fright alone, and from the testimony of Dr. Ryan that plaintiff, in giving him the history of her case, said she received no physical injury. Admitting both statements, it is evident that. by physical injuries she meant some kind of visible injury; it being nowhere admitted by her, or proven by any one else, that she was merely frightened at the time, and to so assume would not be in accordance with the other facts proven. We conclude that instruction on that point was properly refused.

Judgment reversed, and cause remanded for proceedings consistent with this opinion.

COX et al. v. BURRUS.

(Court of Appeals of Kentucky. March 2, 1923.)

Guardian and ward 42-Guardian's contract to sell ward's property at specified price if decree for sale is secured is invalid.

A contract whereby a guardian agreed to sell land belonging to herself and ward to the other party in the event that a decree for the sale of the lands could be secured, and by which the other party agreed to bid a specified price at such sale, was invalid as a contract binding the guardian to sell at the specified price, so that she cannot recover damages because the other party failed to bid at the sale the sum he agreed to bid.

Appeal from Circuit Court, Madison County.

[3, 4] In her petition the appellee did not plead loss of time, but alleged permanent injuries. There was proof of loss of time from service, but it was not shown that the injuries were permanent. In the measure of damage instruction the jury were authorized to award damages for the impairment of her power to earn money. This was also erroneous. Loss of time from service is of the nature of special damage, and must be pleaded in order to recover therefor; nor was she entitled under the proof to a recovery for permanent im- G. Murray Smith, of Richmond, and pairment of her power to earn money. The Foster V. Cox, of Carlisle, for appellants. instruction given might have been construed C. C. Wallace, of Richmond, for appellee.

Action by Josephine D. Cox, as guardian, and others against E. H. Burrus. Judgment for defendant, and plaintiffs appeal. firmed.

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Af

MOORMAN, J. Josephine D. Cox entered into a contract with E. H. Burrus, by which she agreed to sell to him some real estate jointly owned by herself and her infant children. The contract was to be effective upon the granting of a decree for the sale of the real estate by the Madison circuit court, Burrus agreeing in that event to bid $6,000 for the property. The decree was granted, and the property sold at public outcry, but Burrus did not bid on it. This suit was instituted by Josephine D. Cox in her own name, and as guardian for her children, to recover the difference between the price for which the property was sold and the amount that Burrus agreed to bid. The lower court sustained a demurrer to the petition, and the plaintiffs are appealing.

be sold in certain states of case, pointed out in the statute, and must then be sold at public outcry, to the highest and best bidder, on such terms as the chancellor may direct; and in cases of this character the share of the infant remains a lien on the land until his majority, or until the guardian executes an additional bond, to be approved by the chancellor. The clear intent of all this is to protect the infant as to his real estate, and, in all cases where a sale is had, to guard against his interests being sacrified by his guardian or others. Any contract which tends to smother bidding at the sale of an infant's real estate is clearly contrary to the policy of the statute,

and will not be enforced."

It is suggested, however, that the Stanhope Case is inapplicable, because in that case the land sold for more than the contract price, whereas in this case it sold for less than the contract price. We do not regard that difference as material. The principle announced in that case is controlling here. It is that an infant's real estate can only be sold in the manner provided by statute, and the character of the bargain is not a question to be considered. It follows that the contract relied on is unenforceable, and, that being true, an action for its breach cannot be maintained.

In the suit for the sale of this property Mrs. Cox included other real estate owned jointly by herself and her children, the basis of the action being that none of the property could be divided without materially impairing its value. It was not, however, shown in that suit that an offer of $6,000 for the property that she claims to have sold Burrus had been received, nor does it appear that a minimum price of $6,000 for that property was fixed in the order of sale. The contract sued on purports to be an absolute sale, although it recognizes the necessity of obtaining a decree of court. Mrs. Cox bound herself to obtain the decree; and, while she did not agree that the property would not bring more than $6,000 at the decretal sale, she nevertheless obligated herself to sell it to Burrus at that price in the event an order of sale was obtained. The question, then, is: Can a guardian make a valid contract for the sale of his ward's real estate for a stipulated. amount, upon the condition that he will ob tain a decree of court for the sale of the property?

The judgment is affirmed.

MAMMOTH BLUE GEM COAL CO. v.
ELSWICK.

(Court of Appeals of Kentucky. March 6,
1923.)

Mines and minerals 109-In action for breach of mining contract, instructions held as favorable to defendant as it could ask.

In a miner's action for breach of contract

by which he was to be paid a specified price for mining all the coal in a certain entry in defendant's mine, in which defendant counterclaimed on ground that plaintiff abandoned the contract, instructions as to the rights of the parties and the measure of damages held as favorable to defendant as it could ask.

2. Mines and minerals 109-Evidence as to profits which would have been made on broken contract held to sustain verdict.

It is the general rule that a guardian cannot make a valid contract to sell his ward's lands unless he has testamentary authority so to do. 21 Cyc. 82, 83; 12 R. C. L. 1126. And it is the rule in this jurisdiction that a court of equity has no power to confirm a private sale of an infant's real estate made by an unauthorized person. Kinslow, etc., v. Grove, 98 Ky. 266, 32 S. W. 933, 17 Ky. Law Rep. 845; Vickers v. Vickers, Trustee, 189 Ky. 323, 225 S. W. 44. It has also been held that the land of an infant can be sold only at public outcry to the highest and best bidder on such terms as the chancellor may direct, and that a contract for the sale of an infant's land which contemplates that the purchaser shall become the accepted bidder at a public sale is void. Clark, etc., v. County. Stanhope, 109 Ky. 521, 59 S. W. 856. In the last-mentioned case it was said:

"A guardian has no authority to sell his ward's land. The land of an infant can only

In miner's action for breach of a contract for the mining of all the coal in a certain entry of defendant's mine at a specified price, evidence as to the profits he would have made if permitted to complete the contract held to sustain a verdict for the amount awarded.

Appeal from Circuit Court, Whitley

Action by J. H. Elswick against the Mammoth Blue Gem Coal Company. From a judgment for plaintiff, defendant appeals. Affirmed.

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Tye & Siler, of Williamsburg, for appel

lant.

but two issues to be considered by the jury, and they were as to which party breached

Stephens & Steely, of Williamsburg, for the contract, and the amount of damages, appellee.

if any, sustained by the party aggrieved.

[1] The first instruction set out the contract and authorized a recovery for appellee if it was abandoned and repudiated by appellant, at a time when appellee was ready, able, and willing to perform it. While unnecessarily long, we cannot see how the jury was confused by it, and, as the measure of damage was correctly stated, the appellant

MCCANDLESS, J. In July, 1918, J. W. Elswick and the Mammoth Blue Gem Coal Company entered into a written contract in which it was agreed that Elswick was to mine all the territory of coal known as the third right entry in the No. 2 mine and deliver same at the room neck, and the company was to haul the coal, furnish him track-was not prejudiced thereby. age, and keep the water, in excess of three barrels per day, bailed out of the working places in the entry, and pay him $2 per ton for coal at the room neck.

At that time miners were receiving $1.60 per ton for their work, this to include powder, and it was agreed that, if the scale of wages on that field should be raised, the contract price to Elswick should be raised the

same amount.

Elswick began his work in that month and continued to. October 31, 1919, at which time the mine was closed down. It was claimed by the company that this was caused by a strike of the miners; that Elswick was a union man and went out with the other miners; that it had information on November 12 that the strike was declared off, and that it tried at that time to get him to go back to work, and that he refused to do so; that this was an abandonment of the contract; and that it made other arrangements for further development of the mine.

On the other hand, Elswick claims that he and his hands could only work when the regular force of the mine was working; that otherwise he could not get his coal hauled and water bailed; that during the month of April the company did but three days' work; and that he acquiesced in that then, and on different occasions, only working when it did. He claims that on October 31, 1919, the company shut the mine down and brought out his tools without consulting hin; that the mine continued closed during the month of November; that on the 24th of the month he went to see the president of the company about going back to work, and was informed by him that he could only go back as a laborer, as the company was going to work the mine. Subsequently thereto he brought suit in the Whitley circuit court for breach of contract, praying a recovery of $4,200 in damages. The company, denying a breach on its part, pleaded a corresponding breach by him, alleging that it would have made a profit of $1.60 a ton on the coal he failed to produce under the contract. It made its answer a counterclaim and asked $12,800 damages against him. A jury trial resulted in a verdict of $1,400 for Elswick, and the company has appealed.

No work was done under the contract subsequent to October 31, 1919, and there were 248 S.W.-16

Instruction No. 2 told the jury, if they believed from the evidence that Elswick was a member of the miners' union, and as such obeyed the order to strike on October 31, 1919, and that while the strike was on the company through its president requested Elswick to comply with his part of the contract, and that he refused to do so, they should find for the defendant on its counterclaim, further setting out the measure of damage.

Instruction A-1, given on motion of appellant, further restricted the measure of damage if a verdict was given appellee.

reads:

It

"If you find for the plaintiff, then in estimating his reasonable profits you should deduct from $2 per ton not on the actual cost of mining the coal and the expense of the dead work, such as shooting slate, laying track, etc., but you should also make such further deduction as you may believe from the evidence is reasonable for the less time engaged by him, and also for his release from the care, trouble, risk, and responsibility attending a full execution of the contract."

It will be observed that these instructions were as favorable as appellant could ask, if not more so, and, while the evidence was conflicting, it was sufficient to uphold a verdict for appellee. The chief question is as to whether the verdict is excessive.

As

[2] Under the contract the appellant furnished the brattice cloth, track timbers, and all necessary material, and hauled the water in connection with the coal, and also paid so much per yard for driving entry into rock or slate; but appellee was to do the dead work, that is, laying the track and keeping up the timbers, shooting the slate and running it to the entry, keeping up the brattices, and driving the airways or widening the rooms. stated, the miners were paid $1.60 per ton, and the cost of these items must be added to this sum, and the total of this deducted from $2 would represent his net profit. Appellee claims that he kept an account of his operating expenses during the year 1919, and gives the total cost of various months at an average of 102 cents per ton during those months, or that he made a net profit of 291⁄2 cents per ton.

He further claims that most of the entries had been driven and track laid, and that the remaining work would have been cheaper,

especially in "robbing" the mine, this being a term applied to removing the pillars or stumps which are left to support the roof so long as the work is being extended, but when driven up these are removed and require but little, if any, of the dead work mentioned, and that he could have made 35 cents net. It is admitted by both parties that there was as much as 8,000 tons of coal remaining in the mine, and at the rate of profit he claims to have made on the previous work he would have made $2,280 if the contract had been completed, or more if the "robbing" work had yielded a higher rate of profit. It is evident that he includes his own labor in this.

On the other hand, the appellee claims that the actual cost of the dead work and extra mining in robbing was more than the 40-cent margin allowed him in the contract. It is shown that it paid his miners at the rate of $1.60 per ton. Its books show that appellant run an account with it up to May, 1919, and his earnings just about paid his monthly account, though the amount thereof is not shown. After that month only his mine expenses were charged to him, and the books show that there was credited to him from his profits from then on over and above his expenses, in May, $115.83; June, $146.36; July, $144.43; August, $121.15; September, $167.14; October, $187.97. But it appears that the company divided the earnings between him and his two sons, and, if his monthly profits were three times as large as set out above, it would seem that his contract was a profitable one.

The appellant's president itemizes the dead work and figures the total cost thereof at from 26 to 32 cents a ton. The mine foreman makes it just a little higher, though they do not agree as to the items. The president included brattices and driving airways, while the mine foreman included both, and also the item of widening rooms, but on cross-examination states that in this work they widened the rooms and did not drive separate airways. However that may be, taking the president's figures, it will be seen that in the cost of previous work they indicate a net profit to appellee of from 8 to 14 cents a ton. The appellee claims a profit of 291⁄2 cents. The jury gave a verdict for $1,400 which is equal to 172 cents a ton, or very little more than the maximum figures of the president. | It is true that the appellant's witnesses state that to "rob" a mine would require experienced miners at a higher price, but, on the other hand, appellee's witnesses, while they admit that it would require experienced miners, deny that the mining would cost more, and assert that the dead work would be much cheaper. On the whole case we cannot say that the verdict is excessive. Judgment affirmed.

JACKSON v. COMMONWEALTH. (Court of Appeals of Kentucky. March 6, 1923.)

1. Intoxicating liquors 174-Owning, possessing, selling, and loaning moonshine still are different offenses.

Under the new prohibition act, owning, possessing, selling, and loaning a moonshine still are separate offenses.

2. Indictment and information 125 (3)—Indictment charging defendant with owning and controlling moonshine still and assisting in its operation was duplicitous.

Under the new prohibition act, an indicttrolling a moonshine still and aiding and asment charging defendant with owning and consisting in operating it, was duplicitous.

3. Criminal law 369(6)-Error to admit evidence showing operation of moonshine still at different times and places.

On a trial for violating the prohibition act, introduce evidence tending to prove two distinct it was error to permit the commonwealth to offenses by showing that he was guilty of operating a moonshine still at two different times and places.

4. Criminal law 678 (3)-Introduction of evidence showing finding of still held election rendering subsequent evidence concerning different still inadmissible.

On a trial for violating the prohibition act, where the commonwealth first introduced evidence tending to prove that a still was found at a spring near defendant's house, it elected to try defendant for that offense, and it was not thereafter competent to prove that defendant was in possession of a still at an entirely different time and place.

Appeal from Circuit Court, Knox County.
William Jackson was convicted of offenses,
and he appeals. Reversed for new trial.
J. D. Tuggle, of Barbourville, for appellant.

Chas. I. Dawson, Atty. Gen., and Thos. B. McGregor, Asst. Atty. Gen., for the Commonwealth.

SAMPSON, C. J. Appellant Jackson was convicted on an indictment accusing him of several different offenses denounced by the new prohibition act (Acts 1922, c. 33) and his punishment fixed at a fine of $500 and confinement in the county jail for a term of 6 months. In prosecuting this appeal he relies upon the following grounds for a reversal of the judgment: (1) Error of the court in overruling the demurrer to the indictment; (2) error of the court in admitting incompetent evidence against the appellant and rejecting competent and material evidence offered by him; (3) error of the court in instructing the jury.

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