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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 moonshine 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 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 occurred at an isolated point, and the father medical assistance without avail, and finally the and the company's foreman endeavored to get father procured the unlicensed physician at the suggestion of the foreman.

2. Negligence

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

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

3. Damages 62(2)-Submission to suggested 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.

[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. is not required to take the risk of a serious A person injured by the wrong of another Having first introduced evidence tending to surgical operation for the benefit of the wrongprove that a still was found at the spring doer, and his failure to do so does not reduce 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 5. Damages 214—Instruction on mitigation 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 prosecute appellant, but it could not prosecute him for both at the same time under the same indictment, nor was evidence of a second and distinct offense competent upon the trial of the first.

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.

of damages for refusal to undergo operation held favorable to defendant.

it had offered to pay the expenses of an operation to mitigate plaintiff's injuries and testimony by three physicians as to the nature and probable effect of such treatment, while plaintiff denied any such offer had been made, an instruction that, if the jury believed the injuries could be lessened by an operation without 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.

Where defendant introduced evidence that

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

Where a boy had both legs broken and was crippled at the time of the trial, and the evidence was conflicting as to whether defendant had offered to pay for an operation which might lessen the injuries, a verdict for $10,000, though a large sum if plaintiff's former condition could be practically restored by the operation, was not unreasonable if it could not be, and does not show that the jury was moved by passion or prejudice.

Appeal from Circuit Court, Wayne County. Action by Otto Upchurch, by his father, as next friend, against the H. T. Whitson Lumber Company. Judgment for plaintiff, and defendant appeals. Affirmed.

George E. Stone, of Danville, for appel

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MCCANDLESS, J. Otto Upchurch, an infant 12 years of age, was employed by the Whitson Lumber Company to haul lumber from its sawmill to its yard, a short distance away. This was done by an iron truck drawn upon a tramway by a mule; he driving the mule It and assisting in unloading the lumber. appears that some loose plank were scattered along the driveway, and he says that the company's agent promised him to move them out of the way.

In the early morning of his second day at work, while walking beside the truck, his pants leg caught on a plank, and he was thrown between the rails under the truck, and one of the wheels run upon his left thigh, breaking the bone. He shouted to the mule, and it stopped with the wheels still upon his leg, and in an endeavor to extricate him therefrom the truck was run over the other foot and ankle, and they were badly mashed. He was confined to his bed for weeks and was

unable to get around for two or three months, and is now badly crippled. His left leg is bent and shortened by two inches, while his right ankle is swollen, the bones of his foot misplaced, and he is suffering from fallen arches.

For these injuries, by his father, as next friend, he brought suit in the Wayne circuit court against the company and recovered judgment for $10,000.

the father and the company's foreman endeavored to get medical assistance without avail, and finally, at the suggestion of the former, the latter procured Dr. Hill. He arrived 9 or 10 hours after the accident, and, together with Dr. Bertram, a college student, set the limb and dressed the other injuries.

[1, 2] Even an injured adult is only required to exercise ordinary care and prudence in the selection of his physician, and must accept such as the country affords. Certainly no more could be required of this helpless 12 year old boy lying crushed and mangled, as he was for hours. 8 R. C. L. p.

449; C. C. R. Co. v. Saxby, 213 Ill. 274, 72 N. E. 755, 68 L. R. A. 164, 104 Am. St. Rep. 218; L. & N. R. R. Co. v. Mount, 31 Ky. Law Rep. 211, 101 S. W. 1182. Even if the father had been able to procure another physician and negligently failed to do so, this negligence could not be imputed to the boy. A. C. Co. v. Massey, 163 Ky. 796, 174 S. W. 499; L. & N. R. R. Co. v. Wilkins, 143 Ky. 576, 136 S. W. 1023, Ann. Cas. 1912D, 518.

In addition to this the company's foreman was participating in the matter, and not only did not object to Dr. Hill, but actually sent for him himself, and the company is in no position to complain. It is urged that the boy was placed on a sagging cot; that the weights were removed from his feet, and a pillow placed under his leg, which caused it to cup upward. While there is evidence to this effect, it was stoutly denied by the appellee and his witnesses, and the question of contributory negligence in all respects submitted to the jury under instruction No. 3, which reads as follows:

"The court instructs the jury that, if they believe from the evidence that the injury or injuries to the plaintiff, Otto Upchurch, were materially increased or aggravated by failure, if any, on his part to use such personal care

in the effort to effect a cure as would have been by a boy of the age, capacity, and experience used or employed under similar circumstances of Otto Upchurch, they should not allow him any damages that may have resulted from such aggravation, if any, to his injuries."

Two officers of the company severally testify that they visited the boy's parents, and in his presence proposed to send him to the hospital for retreatment, and that the company would pay his expenses, or that they would have a surgeon visit him and treat him at home. This treatment was outlined by three

It complains in this appeal: (a) that he was guilty of contributory negligence; (b) that he has aggravated his damages in re- physicians, who testified that the fractured fusing to undergo a second treatment; (c) error in instruction; (d) that the verdict is excessive.

Dr. Hill, the physician who waited upon him, is not a licensed physician in this state, and it is claimed that it was contributory negligence on the boy's part to not procure another physician. The injury occurred at an

limb could be rebroken and straightened, making it just a little shorter than the other leg, or that, by breaking it and grafting a bone upon it, it could be extended to its original length; that the ankle and foot could also be treated, and, while they could not be fully restored to their normal condition, that his injuries as a whole could be reduced to

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(248 S.W.)

In this respect it will be observed that issues of fact were raised as to these matters and submitted to the jury, and it was their province to determine as to the advisability of a surgical operation and its attendant risks, as well as to the result to be obtained thereby, and we are not prepared to say that their verdict strikes one at first blush as a result of passion or prejudice. Judgment affirmed.

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 O. & 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 expensive operation, and quite a long time spent in the hospital. The appellee, his father and mother, all deny that these officers made them any such propositions for surgical treatment or that they refused to accept it. [3,4] It may be considered as a general proposition of law that, where a person claims damages resulting from the negligence of another, and it is shown that by a 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 been reduced by such treatment, less the cost of treatment and compensation for the pain occasioned thereby; but we are not aware of any decision where it has been held that such a course is a condition precedent to a recovery of damages. At any rate one is not required to take the risk of a serious surgical operation for the benefit of the wrongdoer, and his failure to do so does not reduce his verdict to merely nominal damages. 8 R. C. L. 488; L. & N. R. R. Co. v. Kerrick, 178 Ky. 491, 199 S. W. 44; Stewart Dry Goods Co. v. Boone, 180 Ky. 205, 202 S. W. 489.

[5] Indeed, it has been held that under such circumstances a refusal to undergo a serious and critical surgical operation could not be considered in mitigation of damages. Mattis v. P. T. Co., 6 Pa. Dist. R. 94, 19 Pa. Co. Ct. R. 106. On the issue of fact as to this proposition and as to the appellee's duty as affecting the measure of damage the court instructed the jury:

"If you believe from the evidence that the plaintiff's injuries could be lessened and improved by surgical operation without attendant risk of failure and of death, then you are instructed that you may consider the probable result that might be obtained in the mitigation of damages you are authorized to find under instruction number one, but, if you believe that such operation would be successful and improve the condition of plaintiff, then you are authorized to consider as damages to the plaintiff such loss of time, pain, and suffering and expense as might be incurred by reason of such operation."

COOPER et al. v. WILLIAMSON et al. (Court of Appeals of Kentucky. March 2, 1923.)

1. Judgment ~~342(1)—Rule that judgment cannot be vacated after the term applies to judgments in actions for new trials.

A judgment final in its nature cannot be vacated, set aside, or annulled after the adjournment of the term except by proceedings rule applies to final judgments in actions to under Civ. Code Prac. §§ 344, 518; and this procure new trials, as well as in other actions. 2. New trial 167(1)-Action for new trial is independent equity action, and tried as similar actions.

Actions to procure new trials are independent equity actions and are practiced and tried

as others of a similar nature.

3. Appeal and error 76(1) Appellee's right to file transcript not affected by motion to vacate judgment made after adjournment of the term.

A motion to set aside a judgment from which an appeal had been prayed, when made after the special term at which the judgment was rendered had adjourned, did not suspend the judgment or obstruct the right of appellees under Civ. Code Prac. § 741, to file the transcript in the Court of Appeals.

4. Pleading 218(2)-Demurrer need not have been made 30 days before trial of the question thereby raised.

Civ. Code Prac. § 367a, subd. 5, providing that suits in equity shall stand for trial at the first term when issue shall have been completed 30 days before the commencement of the term, relates to issues of fact, and does not require that a demurrer must have been made 30 days before it stands for trial.

5. Appeal and error 1030-Plaintiff not prejudiced because defendant's attorney filed demurrer before they were summoned.

[6] This instruction appears as favorable as appellant could ask. So that in the last analysis the real question is as to whether or not the verdict is excessive. It is for a large sum, and, if the injuries are of a character that he could be practically restored under the conditions above set out, the verdiet might seem excessive, while, if he is to go through life in his present condition, it is in their names.

Plaintiffs were not prejudiced because defendant's attorney entered the appearance of his nonsummoned clients by filing a demurrer

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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.

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

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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 plaintiffs and. plaintiffs herein were defendants. The controversy involved the ownership of a tract of land containing about 63 acres situated in

It is the policy of the courts to hasten liti-Pike county, and it was adjudged in the forgation 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 mat

ter 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.

mer case to belong to the plaintiffs therein
(defendants herein), and that judgment was
affirmed in the case of Cooper v. Williamson,
191 Ky. 213, 229 S. W. 707, in an opinion de-
livered on March 11, 1921, to which refer-
ence is made for the facts.

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 10. New trial 108(2)-Evidence of trans-judge to hear and determine this and other mission of title from one whose own title was not proved does not require new trial.

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.

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.

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.

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

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(248 S.W.)

should be duly and regularly sent to the special judge, we would then be inclined to hold that it was substantially done by the telegram referred to.

term was still pending, appellees filed the transcript in this court, pursuant to the provisions of section 741 of the Civil Code, and appellants have moved to dismiss the appeal 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 latat 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 section 741, supra, to file the transcript in this court. If, however, the practice was otherwise, and we were permitted to consider the merits of the motion, it then appears that the motion was wholly insufficient to authorize the court to set aside the order sustaining the demurrer to the petition and dismissing it.

[4,5] The first ground relied on in the motion is wholly untenable, since the issue raised by a demurrer to a pleading is not one which must be made as much as 30 days before it stands for trial, as is contended by attorney for appellants. That requirement of the Code relied on (section 367a, subd. 5) relates to issues of fact upon which testimony is required; nor did it operate to the prejudice of plaintiffs for the attorney of defendants to enter the appearance of his nonsummoned clients by filing the demurrer in their names, as is also insisted on by plaintiffs' counsel.

[6] An examination of the record refutes the second ground relied on, since it appears that the case was regularly set for a hearing at the special term, and the special judge was designated by the Governor to try it. The proper place for the recording of such designation is in the Governor's office, a copy of which does not appear in the record, but there is in the record a telegram to the special judge designating him to try the case, but it is only signed "Governor" without the name of that officer. If it were essential to a valid designation that such notification

the litigant. The motion to dismiss the appeal is therefore overruled.

[9] Coming now to the merits of the case, it is alleged in the petition that plaintiffs since the former trial have discovered that John Goosling, a witness who testified for them on that trial, would modify his testimony given on that trial, and would now state that T. J. Owens, to whom an alleged title bond for the land in question had been given by Henry Smith, the patentee, on the occasion while Owens and the father of witness Goosling, through whom plaintiffs claim, while on a trip to Catlettsburg in, a flat-boat, executed to witness' father his title bond, which was in the year 1882, instead of transferring to the father of witness the title bond executed by Smith to Owens in 1850, as appeared in the former case. Evidently, if that testimony was material, it cannot be classified as newly discovered evidence for which a new trial will be granted, since a prerequisite to the granting of a new trial for such testimony is that due diligence must be shown; and no one will contend that a litigant may rely on any additionally produced testimony of his introduced witness on the former trial as newly discovered evidence within the meaning of the Code. Indeed, we had before us in the case of Dunn v. Commonwealth, 193 Ky. 842, 237 S. W. 1072, the exact question, and in disallowing the defendant's right to rely on the undeveloped testimony of his own witness as newly discovered evidence for which a new trial would be granted we said:

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