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(248 S.W.)

[1] 1. The indictment accuses appellant Jackson and one Brock of the offenses of "owning and harboring and controlling a moonshine still and parts of a moonshine still, commonly and exclusively used in the manufacture of spirituous liquors." The specifications in the indictment in part read: "Did unlawfully and willfully own, harbor, and control a moonshine still and parts of a moonshine still, and assist in operating said still." The Statute (section 4) denounces as different offenses the following acts: Buying a moonshine still; bargaining for a shine still; selling a moonshine still; loaning a moonshine still; owning a moonshine still; having in possession a moonshine still; owning and transporting a moonshine still. To own a moonshine still is one offense, and to have it in possession is another, and to sell one is another, and to loan one is yet another offense. Under another section of the same Statutes it is provided that to operate or run a moonshine still and manufacture or aid in the making of liquor, is an offense.

H. T. WHITSON LUMBER CO. v.

UPCHURCH.

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

1. Damages ~62(2)—Injured person required to exercise only ordinary care in selecting physician.

Even an adult person when injured is required to exercise only ordinary care and prudence in the selection of his physician and must moon-accept such as the country affords, so that a 12 year old boy was not contributorily negligent because he was treated only by one who was not a licensed physician, where the injury and the company's foreman endeavored to get occurred at an isolated point, and the father medical assistance without avail, and finally the father procured the unlicensed physician at the suggestion of the foreman.

[2] As the indictment under which Jackson was convicted charged him with not only owning and controlling a moonshine still but with aiding and assisting in operating the same, it was duplicitous. Appellant, upon the calling of the case, entered a general demurrer to the indictment which the court, after hearing, overruled, to which ruling appellant excepted. This was error prejudicial to the substantial rights of appellant. Bowles v. Commonwealth, 197 Ky. 259, 246 S. W. 799; Collins v. Commonwealth, 195 Ky. 745, 243 S. W. 1058; Brent v. Commonwealth, 194 Ky. 504, 240 S. W. 45; Criminal Code, §§ 122, 124. [3,4] 2. The court also erred in allowing the commonwealth, over the objection of appellant, to introduce evidence tending to prove two distinct offenses by showing that appellant was guilty of operating a moonshine still at two different times and places. Having first introduced evidence tending to prove that a still was found at the spring near the house of appellant, the common-his recovery to merely nominal damages. wealth elected to try appellant for that offense. It was not thereafter competent for the commonwealth to call witnesses in chief and prove that appellant was in possession of a still at an entirely different place and at a different time. The commonwealth had a right to elect for which offense it would pros-mony by three physicians as to the nature and ecute appellant, but it could not prosecute probable effect of such treatment, while plainhim for both at the same time under the tiff denied any such offer had been made, an same indictment, nor was evidence of a sec- instruction that, if the jury believed the injuond and distinct offense competent upon the ries could be lessened by an operation without trial of the first. risk of failure and of death, they might contained thereby in mitigation of damages, but sider the probable result which might be obin that event should allow plaintiff for loss of time, pain, and suffering and expense incurred in undergoing the operation, was as favorable to defendant as it could ask.

is not required to take the risk of a serious A person injured by the wrong of another surgical operation for the benefit of the wrongdoer, and his failure to do so does not reduce

Where defendant introduced evidence that it had offered to pay the expenses of an operation to mitigate plaintiff's injuries and testi

Some other minor errors are pointed out, but we deem it unnecessary to consider them, for it is not likely that they will occur on a retrial of the case. Judgment reversed for new trial.

2. Negligence

95 (1)-Father's negligent failure to procure competent physician not imputable to child.

competent physician to attend his injured boy The father's negligent failure to procure a cannot be imputed to the boy.

3. Damages 62(2)-Submission to suggest

ed treatment is not condition precedent to recovery of substantial damages for personal injury.

Though it is the duty of an injured person to secure relief from his injuries if he can do so by a practical treatment without serious danger to himself, or to have his damages minimized in proportion to the amount his injuries would have been reduced by such treatment, less the cost of the treatment and compensation for the pain occasioned thereby, submission to such treatment is not a condition precedent to a recovery of damages.

4. Damages 62(2)—Injured person is not required to undergo serious operation for benefit of wrongdoer.

5. Damages 214-Instruction on mitigation of damages for refusal to undergo operation held favorable to defendant.

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

6. Damages w 132(6)-$10,000 for crippling , isolated point near the Tennessee line. Both injuries to boy's legs held not excessive. the father and the company's foreman en

Where a boy had both legs broken and was deavored to get medical assistance without crippled at the time of the trial, and the evi- avail, and finally, at the suggestion of the dence was conflicting as to whether defendant former, the latter procured Dr. Hill. He arhad offered to pay for an operation which might rived 9 or 10 hours after the accident, and, lessen the injuries, verdict for $10,000, though a large sum'if plaintiff's former condi- together with Dr. Bertram, a college student, tion could be practically restored by the oper- set the limb and dressed the other injuries. ation, was not unreasonable if it could not be,

[1, 2] Even an injured adult is only reand does not show that the jury was moved quired to exercise ordinary care and pruby passion or prejudice.

dence in the selection of his physician, and

must accept such as the country affords. Appeal from Circuit Court, Wayne County. Certainly no more could be required of this Action by Otto Upchurch, by his father, mangled, as he was for hours. 8 R. C. L. p.

helpless 12 year old boy lying crushed and as next friend, against the H. T. Whitson 449; c. c. R. Co. v. Saxby, 213 IN. 274, 72 Lumber Company. Judgment for plaintiff,

N. E. 755, 68 L. R. A. 164, 104 Am. St. Rep. and defendant appeals. Affirmed.

218; L. & N. R. R. Co. v. Mount, 31 Ky. Law George E. Stone, of Danville, for appel- Rep. 211, 101 S. W. 1182. Even if the father lant.

had been able to procure another physician Duncan & Bell, of Monticello, and Wm. and negligently failed to do so, this negliWaddle, of Somerset, for appellee.

gence could not be imputed to the boy. A. C.

Co. v. Massey, 163 Ky. 796, 174 S. W. 499; McCANDLESS, J. Otto Upchurch, an infant L. & N. R. R. Co. v. Wilkins, 143 Ky. 576, 136 12 years of age, was employed by the Whit- S. W. 1023, Ann. Cas. 1912D, 518. son Lumber Company to haul lumber from

In addition to this the company's foreman its sawmill to its yard, a short distance away.

was participating in the matter, and not This was done by an iron truck drawn upon only did not object to Dr. Hill, but actually a tramway by a mule; be driving the mule sent for him himself, and the company is in and assisting in unloading the lumber. It no position to complain. It is urged that the appears that some loose plank were scattered boy was placed on a sagging cot; that the along the driveway, and he says that the weights were removed from his feet, and a company's agent promised him to move them pillow placed under his leg, which caused it out of the way.

to cup upward. While there is evidence to In the early morning of his second day at this effect, it was stoutly denied by the apwork, while walking beside the truck, his pellee and his witnesses, and the question of pants leg caught on a plank, and he was contributory negligence in all respects subthrown between the rails under the truck, mitted to the jury under instruction No. 3, and one of the wheels run upon bis left thigh, which reads as follows: breaking the bone. He shouted to the mule, "The court instructs the jury that, if they and it stopped with the wheels still upon his believe from the evidence that the injury or leg, and in an endeavor to extricate him injuries to the plaintiff, Otto Upchurch. were therefrom the truck was run over the other materially increased or aggravated by failure, foot and ankle, and they were badly mashed. if any, on his part to use such personal care He was confined to his bed for weeks and was in the effort to effect a cure as would have been unable to get around for two or three months, by a boy of the age, capacity, and experience

used or employed under similar circumstances and is now badly crippled. His left leg is of Otto Upchurch, they should not allow him bent and shortened by two inches, while any damages that may have resulted from such his right ankle is swollen, the bones of his aggravation, if any, to his injuries." foot misplaced, and he is suffering from fallen arches.

Two officers of the company severally testi. For these injuries, by his father, as next fy that they visited the boy's parents, and in friend, he brought suit in the Wayne cir- his presence proposed to send him to the hoscuit court against the company and recov- pital for retreatment, and that the company ered judgment for $10,000.

would pay his expenses, or that they would It complains in this appeal: (a) that he have a surgeon visit him and treat him at was guilty of contributory negligence; (b) home. This treatment was outlined by three that he has aggravated his damages in re- physicians, who testified that the fractured fusing to undergo a second treatment; (c) limb could be rebroken and straightened, error in instruction; (d) that the verdict is making it just a little shorter than the other excessive.

leg, or that, by breaking it and grafting a Dr. Hill, the physician who waited upon bone upon it, it could be extended to its orighim, is not a licensed physician in this state, inal length; that the ankle and foot could and it is claimed that it was contributory also be treated, and, while they could not be negligence on the boy's part to not procure fully restored to their normal condition, that another physician. The injury occurred at an his injuries as a whole could be reduced to

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

(248 S.W.) such an extent that there would be practical- , not unreasonable. C., N. O. & T. P. Ry. Co. ly no physical impairment of his power to v. Nolan, 167 Ky. 11, 179 S. W. 1046; C., N. earn money; that this operation would be 0. & T. P. R. R, Co. v. Goode, 169 Ky. 102, attended with slight risk and but little pain. 183 S. W. 264; Gnau v. Ackerman, 166 Ky. They admitted, however, that it would re- 258, 179 S. W. 217. quire the administration of anesthetics, an In this respect it will be observed that isexpensive operation, and quite a long time sues of fact were raised as to these matters spent in the hospital. The appellee, his fath- and submitted to the jury, and it was their er and mother, all deny that these officers province to determine as to the advisability made them any such propositions for surgical of a surgical operation and its attendant treatment or that they refused to accept it. risks, as well as to the result to be obtained

[3, 4] It may be considered as a general thereby, and we are not prepared to say proposition of law that, where a person that their verdict strikes one at first blush claims damages resulting from the negli- as a result of passion or prejudice. gence of another, and it is shown that hy a Judgment affirmed. practical treatment he can reduce his injuries or secure relief from them without serious danger to himself, it is his duty to do so, or to have his damages minimized in proportion to the amount his injuries would have

COOPER et al. v. WILLIAMSON et al.' been reduced by such treatment, less the cost of treatment and compensation for the pain

(Court of Appeals of Kentucky. March 2, occasioned thereby; but we are not aware of

1923.) any decision where it has been held that such a course is a condition precedent to a 1. Judgment 342(1)-Rule that judgment recovery of damages. At any rate one is

cannot be vacated after the term applies to not required to take the risk of a serious sur

judgments in actions for new trials. gical operation for the benefit of the wrong

A judgment final in its nature cannot be doer, and his failure to do so does not reduce vacated, set aside, or annulled after the adhis verdict to merely nominal damages. 8 journment of the term except by proceedings R. C. L. 488; L. & N. R. R. Co. v. Kerrick, rule applies to final judgments in actions to

under Civ. Code Prac. 88 344, 518; and this 178 Ky. 491, 199 S. W. 44; Stewart Dry procure new trials, as well as in other actions. Goods Co. 7. Boone, 180 Ky. 205, 202 S. W. 489.

2. New trial Co 167(1)-Action for new trial [5] Indeed, it has been held that under is independent equity action, and tried as such circumstances a refusal to undergo a

similar actions. serious and critical surgical operation could

Actions to procure new trials are independnot be considered in mitigation of damages. ent equity actions and are practiced and tried Mattis v. P. T. Co., 6 Pa. Dist. R. 94, 19 Pa.

as others of a similar nature. Co. Ct. R. 106. On the issue of fact as to 3. Appeal and error (76(1) Appellee's this proposition and as to the appellee's duty right to file transcript not affected by motion as affecting the measure of damage the court to vacate judgment made after adjournment instructed the jury:

of the term.

A motion to set aside a judgment from "If you believe from the evidence that the which an appeal had been prayed, when made plaintiff's injuries could be lessened and im- after the special term at which the judgment proved by surgical operation without attendant was rendered had adjourned, did not suspend risk of failure and of death, then you are in the judgment or obstruct the right of appellees structed that you may consider the probable under Civ. Code Prac. $ 741, to file the tranresult that might be obtained in the mitigation script in the Court of Appeals. of damages you are authorized to find under instruction number one, but, if you believe that 4. Pleading aww218(2)-Demurrer need not such operation would be successful and im- have been made 30 days before trial of the prove the condition of plaintiff, then you are question thereby raised. authorized to consider as damages to the plain- Civ. Code Prac. § 367a, subd. 5, providing tilf such loss of time, pain, and suffering and that suits in equity shall stand for trial at the expense as might be incurred by reason of first term when issue shall have been comsuch operation."

pleted 30 days before the commencement of the

term, relates to issues of fact, and does not [6] This instruction appears as favorable require that a demurrer must have been made as appellant could ask. So that in the last 30 days before it stands for trial. analysis the real question is as to whether or

5. Appeal and error Com 1030-Plaintiff not not the verdict is excessive. It is for a

prejudiced because defendant's attorney filed large sum, and, if the injuries are of a char

demurrer before they were summoned. acter that he could be practically restored under the conditions above set out, the ver- fendant's attorney entered the appearance of

Plaintiffs were not prejudiced because dediet might seem excessive, while, if he is to his nonsummoned clients by filing a demurrer go through life in his present condition, it is in their names.

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

6. Judges 18-Designation of special judge properly recorded in the Governor's office. The proper place for recording the designation of a special judge to hear and determine cases in which the regular judge is disqualified is in the Governor's office.

7. Pleading 218(5)—Motion to set aside order sustaining demurrer and dismissing petition because plaintiffs desired to amend held without merit.

A motion to set aside order sustaining demurrer and dismissing petition on the ground that plaintiffs were deprived of the opportunity to amend was without merit, where no amendment accompanied the motion, and it did not appear that plaintiffs were deprived of the opportunity to offer the amendment; the order dismissing the petition having been made after the demurrer was sustained.

Appeal from Circuit Court, Pike County.

Action by R. H. Cooper and others against Parlee Williamson and others. Judgment for defendants, and plaintiffs appeal. Af

firmed.

Stratton & Stephenson and R. H. Cooper, all of Pikeville, for appellants.

J. J. Moore, of Pikeville, for appellees.

THOMAS, J. This is an equity action filed in the Pike circuit court by appellants, R. H, Cooper and others, as plaintiffs, against appellees, Parlee Williamson and others, as defendants, under the provisions of section 344 of the Civil Code of Practice, to obtain a new trial in a case between the same parties in which defendants herein were plaintiff's and plaintiffs herein were defendants. The controversy involved the ownership of a tract of land containing about 63 acres situated in Pike county, and it was adjudged in the former case to belong to the plaintiffs therein (defendants herein), and that judgment was aflirmed in the case of Cooper v. Williamson, 191 Ky. 213, 229 S. W. 707, in an opinion delivered on March 11, 1921, to which reference is made for the facts.

8. Appeal and error 1170(1)—Technical error will not be allowed to defeat policy to bring litigation to early close.

It is the policy of the courts to hasten litigation as much as is consistent with fairness and justice to the parties to the end that the parties entitled thereto may reap their benefits therefrom, and that undue congestion of the docket may be prevented, and the carrying out of such policy may not be obstructed by mere technical errors not possessing substantial matter affecting the material rights of the litigant. 9. New trial 100-That witness testifying on the trial will now modify his testimony does not make evidence newly discovered.

Since a prerequisite to the granting of a new trial for newly discovered evidence is that due diligence must be shown, the testimony of a witness who testified on the trial, but who

will now modify his testimony, is not newly

discovered evidence.

10. New trial 108(2)—Evidence of transmission of title from one whose own title was not proved does not require new trial.

Where, in an action involving the title to

land, it was decided that the execution of an

alleged title bond to O. was not properly established, newly discovered evidence as to the transmission of the title from O. to another in plaintiffs' chain of title does not require a new trial.

11. New trial 104 (3)-Alleged newly discovered evidence of matter gone into on the trial held cumulative.

In action involving title, newly discovered evidence that plaintiffs or their agents were never in possession is only cumulative where the question was gone into fully at the trial. 12. New trial 108(2)-When case went off on question of paper title, newly discovered evidence that successful party never had possession insufficient.

Where, in action involving title, it was decided that neither side had shown possession, and the case went off entirely on the question as to which side had the superior paper title, newly discovered evidence that plaintiffs or their agents were never in possession is irrelevant and immaterial, and does not require a

new trial.

The special term of the court, presided over by Judge Gaines, was then adjourned, and on the 23d day of May, 1921, plaintiffs filed with the circuit court clerk a motion to set aside the order sustaining the demurrer and dismissing the petition, upon the grounds that (1) the case did not properly stand for trial at that term of court, (2) the special judge had not been designated by the Governor to try the case, and (3) that plaintiffs desired to amend their petition, and had not been given an opportunity to do so after the demurrer was sustained and before it was dismissed. On May 27, 1921, and while the motion filed with the clerk of the court after the adjournment of the special For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

relief sought is that of newly discovered maThe ground relied on in this case for the terial evidence on behalf of defendants in the original suit and plaintiffs herein. The action was filed April 9, 1921, a few days before the issual of the mandate from this court. The regular judge of the Pike circuit court, Hon. Roscoe Vanover, was counsel in the case, and the Governor designated Hon. Sidney Gaines, judge of the Fifteenth circuit court judicial district, as special judge to hear and determine this and other cases pending in the Pike circuit court in Defendants filed a demurrer to the petition which the regular judge was disqualified. on May 17, 1921, which the court sustained two days thereafter with leave for plaintiff to amend, but later, and on the same day (no amendment having been offered or filed), the petition was dismissed, to which plaintiffs objected and accepted, and prayed an appeal to this court.

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(248 S.W.) term was still pending, appellees filed they should be duly and regularly sent to the transcript in this court, pursuant to the pro- special judge, we would then be inclined to visions of section 741 of the Civil Code, and hold that it was substantially done by the appellants have moved to dismiss the appeal telegram referred to. because the judgment appealed from was sus- [7,8] The third ground is equally without pended by the motion, and it is therefore merit because (a) no tendered amendment acnot a final one from which an appeal lies. companied the motion, nor (b) does it any.

[1-3] It is a rule of practice strictly ad- where appear in the record that the action hered to by this court that a judgment final of the court deprived plaintiffs of the opin its nature cannot be vacated, set aside, or portunity to amend or offer to amend their annulled after the adjournment of the term petition before it was dismissed, which lat. at which it was rendered, except by proceed- ter order was after that sustaining the deings under sections 344 and 518 of the Civil murrer, as is disclosed by the record. So Code. Some of the many cases so holding that, for the reasons stated, the motion was 'are: Hocker v. Gentry, 3 Metc. 463; McMan- without merit, even if the practice was such ama v. Garnett, 3 Metc. 517; Algee v. Algee, as to authorize us to consider it. Besides, 168 Ky. 362, 182 S. W. 197; and Noe v. Dav-it appears that this action has been pendis, 171 Ky. 482, 188 S. W. 457. We can see ing since 1916, and the opportunities have no reason why the same rule of practice been abundant for all the litigants, by the would not apply to final judgments in actions exercise of even moderate diligence, to preto procure a new trial as to final judgments pare and present their case. It is the policy in other actions. The former are independ of courts to hasten litigation as much as is ent equity actions, and are practiced and consistent with fairness and justice to the tried as others of a similar nature, and the parties, to the end that it may be terminated same rule as to the finality of the judgments and the parties entitled thereto may reap in other equity actions should prevail. Un- their benefits therefrom, as well as to prevent der that rule the filing of the motion relied an undue congestion of the dockets of the on before the clerk of the court, after the courts. The carrying out of that policy will special term of the court was adjourned, therefore not be allowed to be obstructed by cannot be given the effect of suspending it, mere technical errors not possessing substanand it did not obstruct the right of defend- tial matter affecting the material rights of ants and appellees, under the provisions of the litigant. The motion to dismiss the apsection 741, supra, to file the transcript in peal is therefore overruled. this court. If, however, the practice was [9] Coming now to the merits of the case, otherwise, and we were permitted to consid. it is alleged in the petition that plaintiffs er the merits of the motion, it then appears since the former trial have discovered that that the motion was wholly insufficient to au- John Goosling, a witness who testified for thorize the court to set aside the order sus- them on that trial, would modify his testitaining the demurrer to the petition and mony given on that trial, and would now state dismissing it.

that T. J. Owens, to whom an alleged title [4, 5] The first ground relied on in the mo- bond for the land in question had been givtion is wholly untenable, since the issue en by Henry Smith, the patentee, on the Taised by a demurrer to a pleading is not occasion while Owens and the father of one which must be made as much as 30 days witness Goosling, through whom plaintiffs before it stands for trial, as is contended by claim, while on a trip to Catlettsburg in a attorney for appellants. That requirement flat-boat, executed to witness' father his title of the Code relied on (section 367a, subd. 5) bond, which was in the year 1882, instead of relates to issues of fact upon which testimony transferring to the father of witness the is required; nor did it operate to the preju- title bond executed by Smith to Owens in dice of plaintiffs for the attorney of defend- 1850, as appeared in the former case. Eviants to enter the appearance of his nonsum- dently, if that testimony was material, it moned clients by filing the demurrer in their cannot be classified as newly discovered evinames, as is also insisted on by plaintiffs'dence for which a new trial will be granted, counsel.

since a prerequisite to the granting of a new [6] An examination of the record refutes trial for such testimony is that due diligence the second ground relied on, since it appears must be shown; and no one will contend that that the case was regularly set for a hear- a litigant may rely on any additionally proIng at the special term, and the special judge duced testimony of his introduced witness was designated by the Governor to try it. on the former trial as newly discovered eviThe proper place for the recording of such dence within the meaning of the Code. Indesignation is in the Governor's office, a copy deed, we had before us in the case of Dunn v. of which does not appear in the record, but | Commonwealth, 193 Ky. 812, 237 S. W. 1072, there is in the record a telegram to the spe. the exact question, and in disallowing the cial judge designating him to try the case, defendant's right to rely on the undeveloped but it is only signed "Governor” without the testimony of his own witness as newly disname of that officer. If it were essential to covered evidence for which a new trial would a valid designation that such notification be granted we said:

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