(248 S.W.) mere scum or showing of oil on the barrels or The question of fact being determined in much. [1] The question therefore is: Was the les see, Enfield, entitled, under the terms of the contract, to longer hold the lease? He relies upon that part of the contract providing that the lease shall continue for five years from date, and "as long thereafter as oil and gas, or either, is produced therefrom by the lessees, their successors and assigns." It will be observed that the lessee is not required to produce oil in paying quantities, but he is required to produce oil or gas, one or the other, from the premises. This, of course, means a production of oil or gas in such quantities as to be susceptible of division, so as to pay the landowner a royalty, even though small. A mere showing of oil manifestly is not sufficient, even though produced. The production must be tangible and substantial, but it need not be great. In discussing this subject, Thornton on Oil and Gas, § 149, in substance says: Where the lessee claimed to have found oil in paying quantities, but admitted he had never pumped any from the well, it was held that this was not a prosecution of the business to success, because it was not a production of oil in quantities capable of division between the parties, according to the terms of the lease. Kennedy v. Crawford, 138 Pa. 561, 21 Atl. 19. The same author, in section 150, says: "If a lease is to continue so long as oil or gas is produced. then it is immaterial whether the lease is a paying one or not; for as long as the wells drilled produce either oil or gas the lease continues. The lessor cannot complain of his own folly in granting such a lease. This is especially so, if the lessee made and is making a faithful effort to make the wells sunk productive." The general rule, however, is to hold the expression "oil well" or "gas well," as used in a lease contract, to mean an oil well or gas well which can be profitably operated as such. Prichard v. Freeland Oil Co., 75 W. Va. 450, 84 S. E. 945, L. R. A. 1915D, 1186. [2] The chancellor, on the facts above recited, found that the well was a nonproducer. The evidence sufficiently supports this finding, and we are not inclined to disturb it. Indeed, we are not warranted in doing so, unless it be against the weight of the evidence. Here it appears to be with the weight | of the evidence. LOCKHART et al. v. ATWOOD et ux. 1923.) Mines and minerals 68(1)-Answer alleging lessor's consent to assignment and release of lessees held to state defense to action for rent, in lieu of operation. In an action for rent, to be paid in lieu of operation, due under the terms of a lease, had assigned their interests in the lease after an answer by the original lessees, alleging they paying all rentals due thereunder to the date of the assignment, and that the lessor, for a valuable consideration, had acquiesced in the assignment, and had agreed to release the lessees from all liability under the lease, and to look to the assignee alone for the performance of its terms, states a good defense. Appeal from Circuit Court, Livingston County. Action by F. E. Atwood and wife against C. E. Lockhart and others to recover past-due rent under a mineral lease. Judgment for plaintiffs, after demurrer to the amended answer was sustained, and certain defendants appeal. Reversed. J. R. Well, of Smithland, for appellants. Ferguson & Montgomery, of Smithland, for appellees. wife entered into a written lease contract SAMPSON, C. J. Appellees Atwood and with appellants, Lockhart and Matlock, whereby the Atwoods let to Lockhart and Matlock their farm for the purpose of mining and taking certain named minerals therefrom for a period of 20 years from September 12, 1919. In the contract it was provided: "Parties of the second part are to pay to parties of the first part one dollar per day, twenty days from date, for each day that mines are not operated, and to be paid every fifteen (15) days; on failure to pay same this contract is to be null and void. * * * If the said parties of the second part fail to keep and perform the covenants and agreements by them to be kept and performed, then this lease shall be null and void, and surrendered to said party of the first part, and all obligations of both parties be canceled and discharged. In case the said parties of the second part fail to prospect or work said property within twenty days, then the parties of the second part shall pay an annual rental thereafter of one dollar per day when not in operation." This action was commenced by Atwood and wife against Lockhart and Matlock and For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes one E. G. Stribling, to recover of them the sum of $309 as past-due rent under the clauses above providing for the payment of $1 per day for all time the mines were not operating. Appellants answered, and denied in an imperfect way their undertaking to pay $1 per day for all days on which the mines were not operated, and undertook to plead, but did so in an imperfect way, that appellants, Lockhart and Matlock, had, shortly after the execution of the lease, assigned and transferred the same to appellee Stribling, and were themselves released. A general demurrer was sustained to this answer, with leave to amend. Appellants by amended answer pleaded that they had sold and transferred their right in the lease to Stribling, with the knowledge and consent of the Atwoods, and that the said transfer was made with the acquiescence of the said Atwoods, and after the payment to the said Atwoods of a valuable consideration for the release of appellants, Lockhart and Matlock; that appellants had paid to the Atwoods all the rentals due up to said time, and that the said Atwoods agreed to and did in fact release appellants Lockhart and Matlock, and allowed Stribling to assume the lease, and agreed to look to him alone for the performance of the terms of the lease contract. The answer as amended was held bad by the court on general demurrer. If, as the answer shows, appellee Atwood for a valuable consideration released appellants Lockhart and Matlock, and accepted appellee Stribling as tenant, he had no valid cause of action against the former two. To sustain a demurrer to the answer containing such averments was error. The amended answer stated a good defense, and the general demurrer should have been overruled, and the parties allowed to plead to an issue. For this error the motion for appeal is sustained, and the judgment is reversed for further proceedings not inconsistent herewith. Judgment reversed. WEBB v. ELKHORN MINING CORPORA- (Court of Appeals of Kentucky. March 16, 1923.) 1. Master and servant 276(3)--Presence of refuse under coal cutting machine held not proximate cause of injury. In an action for injuries to a miner whose body came in contact with the knives of a coal cutting machine when his feet slipped off! from a pipe on which they were resting, evidence held to show that the presence of refuse under the machine was not a proximate cause of the injury, but its only effect was to lessen the force with which his body struck the machine. 2. Master and servant 265(13)-Operator of machine presumed to assume risks. Ordinarily, when one understands a machine and how to operate it, it will be presumed he understands, and therefore assumes, the risks of the dangers incident to its operation. 3. Master and servant 217(2)-Appreciation of risk, and not knowledge of defect, bars recovery. It is an appreciation of the danger from a I defective machine, and not mere knowledge of the defect by which the danger is threatened, which bars an employee's action for injuries. 4. Trial 139(1) Testimony contrary to physical laws is not scintilla of evidence. Testimony given by a plaintiff which is contrary to well-known physical laws, so as to be incredible, does not furnish the scintilla of evidence which requires an issue to be submitted to the jury. 5. Master and servant 288(5)-Testimony servant did not appreciate risk of operating unguarded coal cutting machine does not take case to the jury. Where plaintiff was injured when he fell against the unguarded knives of a coal cutting machine which he was operating, his testimony that he did not appreciate the result of operating the machine cannot be construed as meaning that he did not appreciate the risk of injury if he came in contact with the unguarded knives, which would be contrary to natural law, but means only that he did not appreciate the danger of his falling against the machine while operating it, and such evidence does not require the submission to the jury of the issue of assumption of risk, especially where he did not comply with a rule requiring him to report any unsafe condition in his tools to the mine superintendent. Appeal from Circuit Court, Letcher County. Action by Joseph K. Webb against the Elkhorn Mining Corporation and others. Judgment for defendants on directed verdict, and plaintiff appeals. Affirmed. Morris & Jones, of Frankfort, and David Hays, of Whitesburg, for appellant. E. C. O'Rear, of Frankfort, Allie W. Young. of Morehead, Fields & Fields, of Whitesburg, and Morgan Atchison, of Frankfort, for appellees. CLARKE, J. While cutting coal with an mine, appellant, in attempting to turn off the electrically driven machine in appellee's current and stop the machine, fell against it, and his back and right arm were severely cut. To recover for his injuries, he instituted this action, alleging that same resulted from the defendant's failure to furnish him a rea For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (248 S.W.) sonably safe place, or reasonably safe appli- | tiff's falling against the machine was that ances, for his work. At the conclusion of his evidence, the court sustained a motion of the defendant for a directed verdict, and he has appealed from the judgment entered thereon dismissing his petition. At the time of the accident, plaintiff had been engaged in operating this particular machine in defendant's mine for about three months, and he had worked with it as a helper for about six months before he was put in charge of same. He was about 24 or 25 years of age, and had been working in coal mines for a number of years. his feet slipped off of the jack-pipe, and that the presence of the pile of gob thereunder was not the proximate cause of his fall, or his injuries, and did not affect what happened in any way, unless to retard in a measure the force with which he struck the machine as a result of his feet slipping off of the jack-pipe, for which it is not even claimed the defendant was in any way responsible. Unless, therefore, despite this primary cause of the accident for which plaintiff alone was responsible, the defendant is yet liable because of the dangerous condition of the machine by reason of the unguarded cutting appliance attached thereto, it is apparent the court did not err in directing the verdict for defendant. And in discussing this phase of the case we may assume, without deciding, that plaintiff's falling against the machine was but a remote cause of his injuries, and that the proximate cause was the defective condition of the machine, except for which he at least could not have been injured as he was. About 15 minutes before the accident occurred, plaintiff had run the heavy engine, upon rails laid for the purpose, up to the face of the coal, and had braced same firmly in the desired position by setting a piece of iron pipe, about two inches in diameter and six or seven feet in length, against a groove in the machine at one end, and against the face of the coal at the other end. After he had started the machine, he sat down on the casing which inclosed the body of it with his feet resting upon this iron pipe, called a "jack-pipe" and when the engine had cut a seam across the face of the coal, he attempted from his sitting position to reach the cur-sumes, the risks of the dangers incident to rent control and turn it off. As he did so, his feet slipped off of the iron pipe, striking a loose pile of refuse called "gob" underneath the pipe, which slipped down when his feet struck it, and he fell against the unprotected knives or teeth, which are inserted in a revolving chain and mounted on top of the machine body. It is his contention that the place was rendered unsafe by reason of the pile of gob under the jack-pipe upon which his feet were resting, and that the proximate cause of his injury was the slipping of this pile of gob when his feet struck it after having slipped off of the jack-pipe, and that he, even then, would not have been injured except that the guard, with which the machine should have been and was equipped originally for protection against the revolving teeth, had been removed from the machine before it was furnished to him. He admits, however, that he saw the pile of gob over which he placed the jack-pipe before he began his work at that place, and that he had known of the absence of the guard about the revolving teeth during the whole of the three months during which he had been operating the machine. Obviously the primary cause of his falling against the machine in such a way that he could be cut by it was the fact that his feet slipped off of the jack-pipe, and he would have fallen against the machine from this cause alone, even if there had not been a pile of gob under the jack-pipe. [1] From his own evidence, and there is no other on the question, it is plain, we think, that the proximate and sole cause of plain [2, 3] Ordinarily, when one understands a machine and how to operate it, it will be presumed he understands, and therefore as its operation. Consolidation Coal Co. v. Hamilton, 170 Ky. 393, 186 S. W. 197. But as stated in 18 R. C. L. 695, it is an appreciation of the danger, and not mere knowledge of the defect by which the danger is threatened, that bars an employee's action. [4, 5] Plaintiff testified that, although he knew that the guard was off of this machine when he commenced using it three months before the accident, he did not realize there was any danger in his operating the machine in that condition, and it is upon this evidence principally, if not alone, that counsel for plaintiff insist the court erred in taking the case from the jury. We are clearly of the opinion, however, that his evidence is insufficient to bring this case within the class of which the case of Consolidation Coal Co. v. Carter, 187 Ky. 570, 219 S. W. 1074, relied upon by plaintiff, is but one of many in which it is held that where the servant continues to work with a machine after knowledge of its defective condition, but without appreciation of the danger resulting therefrom, the master is yet liable for injuries proximately resulting from the defective condition of the machine. A person of plaintiff's understanding, age. and experience could not possibly help but know that if he fell against an unprotected revolving knife he would be injured, and his testimony to the contrary is of no probative value whatever. Hence the only reasonable inference to be drawn from his statement that he did not realize it was dangerous to use the machine in its unprotected condition is that he did not realize that in operating it there was any danger that he might fall against the open and visible revolving knife; | moving band, in Oyen v. Willings, 183 Ky. but he did not say, and he could not have 742, 210 S. W. 464; or a hot water vat, in meant, that he did not fully realize that if Wilson v. Chess-Wymond Co., 117 Ky. 567, he should by accident fall against it he would 78 S. W. 453, 25 Ky. Law Rep. 1655; or a be injured. stone gatepost from which the support had been removed, in Louisville Water Co. v. Darnell, 189 Ky. 771, 225 S. W. 1057; or the dangers from instrumentalities or places which in many cases we have held were so patent that an employee must have appreciated the danger and assumed the risk of working with or about them. To hold that any man of ordinary intelligence and of mature age, such as is plaintiff, must not necessarily know that he would be hurt if he fell against what is substantially a circular saw, would amount to a denial of the existence of well-established and universally recognized physical laws, since every sane person of experience and mature age knows that a human body will be injured if placed in contact with an electrically driven revolving knife that will cut coal. Upon different facts, but with reference to this character of evidence, we said in L. & N. R. R. Co. v. Chambers, 165 Ky. 703, 178 S. W. 1041, Ann. Cas. 1917B, 471: Besides, plaintiff practically admits knowledge of a rule of the company, posted in a conspicuous place at the mine opening, that required him, upon discovery of any unsafe condition in his tools or place, to cease work and report same to the mine superintendent, and that he did not do this, but simply reported the defective condition of his machine accident, and continued to use same without assurance, even from him, of safety or when the defect would be cured. We are therefore of the opinion the court did not err in directing a verdict for the defendant, and the judgment is affirmed. MORGANFIELD NAT. BANK v. UNION COUNTY BANK & TRUST CO. et al. (Court of Appeals of Kentucky. March 16, 1923.) "It is undoubtedly well settled in this juris-to the "repair man" some weeks before the diction that the credibility of witnesses is for the jury; that upon a motion for a directed verdict, the evidence for the adverse party must be taken as true and every reasonable inference fairly deducible therefrom must be indulged; and that as to the quantity of evidence necessary to convey a case to the jury, the 'scintilla rule' prevails. But these rules,. in sound judicial administration, do not become applicable unless the evidence of such adverse party be something of relevant consequence, possessed of the quality of proof, and having fitness to induce conviction. Clark v. Young's Ex'x, 146 Ky. 377, 142 S. W. 1032. Of necessity, these rules cannot apply where the only evidence upon which such adverse party rests his right to succeed, consists of a statement of alleged facts, inherently impossible and absolutely at variance with well established and universally recognized physical laws. In such case, that which purports to be evidence is insufficient to constitute a compliance with the requirements of the scintilla rule, for it is the essence of that rule that there must be some evidence (however slight) upon which the jury might rationally find a verdict for the party producing it." By the above rule the statement of plaintiff that he did not appreciate the danger of operating this unprotected circular saw, or knife, must be confined as above indicated, and cannot be accepted as evidence that he did not realize that he would be injured if he fell against it, or otherwise unintentionally came in contact with it. 1. Mortgages 178-Tax provisions held to give lien for taxes paid regardless of statute. Where both the first and second mortgages on land provided that the mortgagor could pay taxes which the mortgagee did not pay and that the mortgage should secure the sums so paid, the first mortgagor who paid delinquent taxes on the land had a contract lien for the amount paid which was superior to the second mortgage, regardless of whether it also had a statutory lien under Ky. St. § 4032, without having first required the sheriff to exhaust the personalty for payment of the taxes under section 4149. 2. Appeal and error 878 (7)-Cross-appeal is necessary to entitle appellee to complain of provision in judgment favoring coappellee. from a judgment denying a lien for taxes paid by it in a controversy between itself, the junior mortgagee of the land, and the mortgagee of the personalty, the junior mortgagee, which did not take a cross-appeal from the judgment in so far as it exempted the personalty from the lien, cannot claim that the personalty rather than the land was liable under Ky. St. § 4149, for the taxes paid by the senior mortgagee. Where the senior mortgagee alone appealed Appeal from Circuit Court, Union County. The danger from operating this machine without a guard about the revolving knives Suit between the Morganfield National was not less patent than the danger from a Bank, as trustee and the Union County For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (248 S. W.) Bank & Trust Company, as trustee, and oth-p It is the contention of appellant that secers, to determine the right to a lien for tion 4032, rather than 4149, of the Statutes, taxes paid by the National Bank. From a is controlling here, and that whether so or judgment denying the lien, the bank appeals. not it had the right under the terms of its Reversed. mortgage on the land to pay the taxes on the land as it did, and has a contract lien Truman Drury, of Morganfield, for appel lant. Allen, Harris & Allen, of Morganfield, for appellee Union County Bank & Trust Co. T. S. Waller, Jr., of Morganfield, for other appellees. CLARKE, J. In 1921, appellee T. W. H. Hamner owned about 1,200 acres of land, and personal property worth something less than $3,000. Upon the land the appellant Morganfield National Bank, as trustee, held a first lien to secure $33,000 first mortgage bonds, and appellee Union County Bank & Trust Company, as trustee, held a second lien to secure an issue of $30,000 of second mortgage bonds. Upon his personalty, appellant J. N. Anderson and three others held a mortgage of $3,000. Hamner paid the taxes for 1921 upon his personal property, but, being hopelessly insolvent, was unable to pay the taxes upon his real estate, amounting to $1,247.45, and same became delinquent on December 1, 1921. On March 6, 1922, appellant paid these taxes, and in this three-cornered contest between the three mortgagees as to whether it has a lien for same upon the land or personalty, or either, it is agreed that neither the land nor the personalty is sufficient to discharge the mortgage liens against same. The judgment from which only the Morganfield National Bank has appealed, in so far as involved, is as follows: "The court finds that the Morganfield tional Bank elected to and did pay these taxes thereon for same superior to the second mort cause such "The parties of the first part further agree to keep all taxes and assessments against mortgaged premises paid, and that the same shall be kept free from liability therefor; and on default of payment of taxes or assessments, or failure to cause such insurance to be made and kept on said property, the second party or the holder of any said bonds, may payments to be made and insurance to be had and maintained, and shall have the right to collect the cost of same from said first parties, their heirs or assigns with six per cent. per annum interest thereon until paid, and this mortgage shall extend to, include and secure the payment of all such sums so paid for such insurance, taxes or assessments." Clearly therefore the trust company, when it took its second mortgage on the land, did so with full knowledge that if the owner failed to pay the taxes due thereon in any year, the first mortgagor could pay same, and that its mortgage would "extend to, include and secure the payment of all such sums so paid" by it for taxes. The conclusion seems to us unavoidable that by contract the first mortgagee has a lien on the land for the taxes thus paid, and that this lien is necessarily prior to the second mortgage which appellee trust company took with full knowledge of the prior contract expressly providing therefor. [2] It is therefore immaterial whether apNa-pellant also had a statutory lien under 4032, or as a condition precedent thereto was bound first to exhaust the personalty under 4149 supra, and since appellee trust company has not cross-appealed, it cannot now complain that the lower court denied its contention as against appellees Anderson, etc., who have a mortgage on the personalty, that it, rather than the land, was liable under 4149 for the taxes on the land, even if the court erred in so holding, which we do not think is true. on Hamner's land without requiring the sheriff to exhaust Hamner's personal property, as the court finds was required by section 4149 of the Kentucky Statutes, and in the opinion of the court it prejudiced the lien of the junior mortgage, and for that reason its lien upon the land of said Hamner to secure the repayment of the taxes so paid is inferior to and subject to the lien of the second mortgage, the Union County Bank & Trust Company, trustee. The court finds and adjudges that to secure the payment to it of said taxes, the Morganfield National Bank, trustee, is entitled to no lien on the personal property of the said Hamner upon which the said J. N. Anderson, etc., have a mortgage lien for a sum exceeding the value of said property." Wherefore the judgment is reversed, with directions to adjudge appellant's lien on the land for the taxes paid by it, prior to the lien of appellee Union Bank & Trust Company thereon. |