purposes. The top of the journals was loose, and could be raised and lowered. The work in which the construction company was engaged was completed about May 1, 1911. When the work being done by the two steam shovels was completed, they were run on the trucks out of the cut, and then backed on a temporary track to the high ground some 20 or 25 feet above the level of the railroad track passing through the cut. The beaten path referred to ran between the two steam shovels and the cut. During the progress of the work many people-men, women, and children-visited the cut for the purpose of watching the operation of the machines, and many persons used the beaten path leading by the machines after they were placed on top of the cut. During the progress of the work many explosives, including dynamite caps, were used by the construction company. About 1 o'clock p. m. on the 19th of June, 1911, plaintiff, William Cooper Weaks, who was 15 years and 9 months of age, together with Cyrus Radford, a boy 14 years of age, and Christy Smith, 15 years of age, went to the cut, and turned into the beaten path leading by the machines. It was a hot day, and when they reached the steam shovel nearest to them they all sat down on the ends of the cross-ties in the shade of the steam shovel, and on its east side. While in this position Radford discovered that the cast-iron lid of the journal on one of the trucks was partly open. Upon further examination, he saw a small tin box projecting out of the journal between the top and framework of the journal. The tin box had some lettering on it, including the words "blasting caps." Radford pulled the tin box out of the journal and opened it, dropping the top on the ground. It was partly filled with metal caps containing nitroglycerine. The boys then proceeded to appropriate the caps, and divide them into three portions. They then threw the tin box on the ground. The boys all claim that they did not know that these caps were dangerous. Later in the afternoon they went to the tennis grounds to play tennis with some girls. While there plaintiff, Weaks, who was not playing tennis, took some of the blasting caps and began to cut the explosive material out of them with the blade of his pocketknife. He removed the contents of one of the caps and placed it on a post. He attempted to explode it by throwing a match at it. His attempt, however, was not successful, but Cyrus Radford came up and struck a match to the explosive, and it promptly went off, making considerable noise. Plaintiff, Weaks, then proceeded to cut the explosive out of another cap. While so engaged the cap exploded, severely injuring his left hand. the construction company in such an exposed The evidence complained of as being in- [1] The question was: Did any employé of the construction company place the caps in the journal? There was no direct evidence to this effect. The only evidence introduced on behalf of the plaintiff was that caps like those found in the journal had been used for some time by the employés of the company in blasting near the steam shovels. On the other hand, the witnesses for the defendant testified that the caps could not have been put in the journal before the shovel was moved, for in that event there would have been an explosion. No blasting caps were used by the company after the machine was moved. Even when they were used they were used by the powder man, who never permitted any of the other employés to handle them. He did not place them in the journal. At the time of the trial, the various employés engaged in the construction work were scattered over the country, and could not be secured as witnesses. It was also shown that the explosives, including the dynamite caps, were kept in a magazine, which was some distance away. This magaThe case was submitted to the jury on the zine was securely built and fastened by a theory that the defendants were liable if the Yale padlock. The powder man also had a blasting caps were unusually attractive to chest in which he removed the explosives children, and were placed by the employés of | from the magazine to the place where they 1 1 1 1 1 were to be used. This chest was always [ of 1911, and before the work of blasting was kept securely locked. It was the theory of completed, they saw gunpowder and dynathe plaintiff that some one of the employés mite lying loose on the bank of the cut and negligently placed the caps in the journal, unprotected, and that one of them, just a intending thereafter to remove them. As few days before plaintiff was hurt, found a said before, there was no direct testimony on blasting cap lying loose on the ground on the this question. Plaintiff's theory is based en- east side of the cut. The affidavits further tirely on the use and possession of the caps state that when they saw the explosives the by the company's employés. The question, powder man was not near, but the same therefore, was one of inference or probabil- could have easily been taken away by any ity. In the absence of any evidence tending one disposed to do so, without the knowledge to show that other persons were in the pos- of the powder man or any one connected session of caps like those found in the jour- with the work. It is the invariable rule not nal, it was the reasonable inference that to grant a new trial on the ground of newly some employé of the company, having the discovered evidence, unless the evidence be use and possession of the caps, actually plac- of a decisive character and such as to rened the caps in the journal. If any employé der a different result reasonably certain. did this, he did it either maliciously or neg- Hays v. Davis, 46 S. W. 212, 20 Ky. Law ligently. Though plaintiff's theory is that Rep. 342; C. & O. Ry. Co. v. Friel, 39 S. W. it was done negligently, this was a mere the- 704, 19 Ky. Law Rep. 152. The evidence in ory, and as a matter of fact it may have question does not come up to the required been done maliciously. To rebut the infer- standard. It is as favorable to the defendence based on the use and possession of the ants as to the plaintiff. While it shows that caps by the employés of the company, the the company's employés had an opportunity defendants proved that the employés knew to obtain possession of the explosives, it althat the caps were dangerous, and that none so shows an equal opportunity on the part of them had any ill will towards the com- of the people who in such large numbers frepany or any motive for placing the caps in quented the place where the work of excathe journal. Being a case of mere probabil-vation was being carried on. In the latter ity, the evidence in question, though of but little probative value, was admissible for the purpose of rendering less probable the inference that some employé of the company, either negligently or maliciously, placed the caps in the journal. In addition to this, it was competent to show that the magazine and tool chest had been broken open and dynamite caps taken therefrom for the purpose of establishing the fact that the caps in question were not in possession of the employés alone, but were in possession of others who had an equal opportunity to place them in the journal. In other words, where there is no direct testimony in the case, and possession of the caps is relied on to establish the fact that some employé placed the caps in the journal, then possession by persons other than employés is equally admissible for the purpose of overcoming the inference deducible from the possession by the employés. In each case the question is one of inference or probability, based on opportunity. By showing that others than employés had possession of similar caps, and therefore an opportunity of placing them in the journal, the probability that they were placed there by employés was necessarily reduced. It is simply a case where plaintiff's evidence shows that the caps might have been placed in the journal by some employé of the construction company, while defendants' evidence shows that they might have been placed in there by some one else. [2, 3] The only newly discovered evidence relied upon for a new trial is the affidavits of Raymond West and Willard Hawkins to the effect that during the winter and spring respect its probative effect is similar to defendants' evidence that the magazine and chest containing its explosives had frequently been broken into, and explosives removed therefrom. Judgment affirmed. ISON et al. v. WOLF et al. (Court of Appeals of Kentucky. May 8, 1913.) 1. DEEDS (§ 69*)-PROPERTY CONVEYED-MIS TAKE. Where the sons of a decedent, to whom he devised all of his property, executed deeds interest in the farm owned by him without dewhich described the property conveyed as their scribing it by metes or bounds or courses or distances, they could not defeat the title of a person claiming under such deeds by a claim that they did not at the time know that their father owned a particular part of such land, where there was no claim of fraud or mistake and it was not shown that the grantees knew did not convey all their interest in all the land or had any reason to suspect that the deeds owned by their father, or that the grantees knew that they did not know that their father owned such land or did not have that land in contemplation in making the sale. [Ed. Note.-For other cases, see Deeds, Cent. Dig. 88 154-164; Dec. Dig. § 69.*] 2. DEEDS (8 38*)-VALIDITY-DESCRIPTION OF PROPERTY. That deeds did not describe the land conveyed by metes and bounds or give the number of acres did not affect their validity. [Ed. Note.-For other cases, see Deeds, Cent. Dig. 88 65-79; Dec. Dig. § 38.*] Appeal from Circuit Court, Letcher County. Action by Elijah Ison, Sr., and others against George W. Wolf and others. From For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes a judgment for defendants, plaintiffs appeal. | down said ridge to opposite the beginning; Affirmed. See, also, 149 S. W. 1124. Wootton & Morgan, of Hazard, and O'Rear & Williams, of Frankfort, for appellants. Dishman, Tinsley & Dishman, of Barbourville, and D. D. Fields, of Whitesburg, for appellees. J. Morgan Chinn, of Frankfort, guardian ad litem, for infant appellees. CARROLL, J. In 1859 Isaac D. Stamper and wife sold and conveyed to Elijah Ison a tract of land in Letcher county, located on the Rock House fork of the Kentucky river and containing 200 acres more or less. The deed describes the land generally and not by metes and bounds or courses and distances. In 1867 Stamper and wife conveyed to Ison another tract of land situated on the Rock House fork of the Kentucky river, containing 500 acres more or less. The deed describes the land generally but not by metes or bounds or courses or distances. In January, 1878, Elijah Ison made a will devising all of his land to his six sons, Gideon, Jonah, James, Stephen, Elijah, and Elisha, and some time after this died. The record does not give the date of his death. In 1887 Stephen, Elijah, and Elisha conveyed to their brothers Jonah and James "a tract of land lying on Rock House creek in Letcher county, being an undivided interest in the farm owned by our father, Elijah Ison (deceased), and known as the I. D. Stamper place, our interest being one half of said farm." This deed was recorded in 1889. In 1884 Gideon and his wife conveyed to Jonah and James a body of land described as follows: "Their interest in the farm known as the Elijah Ison farm on Rock House creek, a tributary of the North fork of the Kentucky river, in the county of Letcher and the state of Kentucky." This deed was recorded in 1885. By these two deeds Jonah and James became owners of all the land owned by their father and conveyed to Jefferson Ison a body of land described as "all our interest in our father's Elijah Ison's deceased estate in one tract or parcel of land situated, lying and being in the county of Letcher, state of Kentucky, on the waters of Rock House, a tributary of the North fork of the Kentucky river, bounded as follows: Beginning at the mouth of a small drain on High Mill branch of Rock House creek on west side of said branch at upper end of the field known as Rye Field; thence with the meanders of said drain to the top of the hill between High's Mill branch and Orchard hollow; thence up the point to the top of the mountain between High's Mill branch and Garner branch; thence with the top of the hill round to the Wolf Pen gap; thence with the conditional line between William R. Stamper and I. D. Stamper to the top of the mountain between Rock House and High's Mill branch; thence thence a straight line to the beginning.” This deed was recorded in 1895, and Jonah and James do not controvert that it conveyed all the land their father had purchased from Stamper in 1859 and 1867. In 1901 Jefferson Ison conveyed to Grant Ison the land conveyed to him by Jonah and James. This deed describes the land conveyed by metes and bounds, courses and distances, and recites that the tract contained 430 acres. This deed was recorded in 1902. In 1906 Grant Ison conveyed this land to George and J. H. Wolf, and this deed was recorded in 1906. In 1909 Elijah Ison, one of the sons of Elijah Ison, deceased, and Elisha Ison, a son of Gideon Ison, who died after the death of his father, Elijah Ison, and Stephen Ison, a son of Elisha Ison, who died subsequent to the death of his father, Elijah Ison, and Melissa Draughn and Elisha Ison, children of Stephen Ison, who died subsequent to the death of his father, Elijah Ison, brought this suit against George and J. H. Wolf to recover a one-sixth interest each in a part of the tract of land conveyed by Stamper to Elijah Ison in 1867. They averred that the plaintiff, Elijah Ison, and the decedents, Stephen, Gideon, and Elisha, conveyed their interest, as before stated, to Jonah and James in the tract of land conveyed by Stamper to Elijah Ison in 1859, but that they did not convey their interest in all of the tract conveyed by Stamper to Elijah Ison in 1867. They further set out that they did not know at the time of the conveyance of their interest to Jonah and James that their father, Elijah Ison, owned at the time of his death, or that there was devised to them by his will that part of the tract of land conveyed by Stamper in 1867 which they claimed, and hence they did not either sell or convey to Jonah and James, the remote vendors of the Wolfs, their interest in that part of the tract of land conveyed by Stamper in 1867 claimed by them. They further set out that the tract conveyed by Stamper in 1859 was separate and distinct from the tract conveyed by him in 1867, and they asked that the part of the land in which they claimed an interest be divided and that they be allotted four-sixths thereof and the Wolfs two-sixths. In an amended petition they averred, that the statement in the original petition that the tracts of land conveyed by Stamper to Elijah Ison in 1859 and 1867 were separate and distinct bodies was a mistake, and that these two deeds conveyed land lying in one body. They further set out in the amended petition that Elijah Ison lived and died on the tract of land conveyed to him by Stamper in 1867 and identified in the record as tract No. 2. The Wolfs, for answer to this suit, set out their chain of title and averred that the plaintiff Elijah Ison, and the ancestor of the other plaintiffs, conveyed all their interest in the land owned by their father at his death to James and Jonah, from whom they de- of his father's ownership of the land in conrived title, as above set out. They further pleaded and relied on adverse holding and the statute of limitation. On hearing the case the lower court decided in favor of the Wolfs, and the plaintiffs below prosecute this appeal. It seems to be conceded by both parties that Elijah Ison resided until his death on the land conveyed to him by Stamper in 1867, and that Stamper continued to reside on this tract of land until his death, which did not occur until some time after the death of Elijah Ison, although the record does not disclose why Ison permitted Stamper to occupy this tract of land. The evidence also shows virtually, without contradiction, that, after the death of Stamper, his widow and his son-in-law, Jefferson Ison, continued to reside on and occupy the land that he had resided on and occupied from 1867 until his death; and in 1894, when Jefferson Ison obtained the deed from Jonah and James, he was yet in the occupancy of this land. It further appears that Jefferson, who had been living on this land for many years, claiming to own it, after the death of I. D. Stamper, learned in 1894 that Stamper had conveyed the land in 1867 to Ison, and thereupon he purchased, as before stated, the interest of Jonah and James, thus uniting in himself the legal title and the adverse holding to this tract of land, and it is this particular tract of land that the appellants claim was not embraced by the deeds mentioned. The questions of limitation and adverse holding present very serious obstacles in the way of the appellants' assertion of ownership to this land; but, passing these issues, we think the case may be disposed of under the evidence upon the single issue that the deeds made by Elijah and the others conveyed to Jonah and James all their right, title, and interest in whatever land their father owned at his death, and this included the land now in controversy. Of course if these deeds conveyed the interest of the parties in all of the land owned by their father at his death, the appellants have no standing in court. On the other hand, if these deeds only conveyed the interest of the grantors in a part of the land owned by their father, they would yet own and be entitled to the other land owned by him and not disposed of by them unless their claim should be barred by limitation or adverse possession. The appellant, Elijah Ison, is the only material witness in his behalf. He testifies, in substance, that his father lived for many years and died on the land bought by him from Stamper in 1867 and known as tract No. 2, and that I. D. Stamper continued to live on a part of this land until his death, and that after his death his widow and his son-in-law, Jefferson Ison, continued in pos troversy, which is that part of tract No. 2 on which Stamper lived and died, until within a short time before this suit was brought, and that he did not convey, or intend to convey, any interest he might have in this particular piece of land. It is, however, true that he lived on and in the neighborhood of this land all of his life, and in 1887, when he conveyed his interest to Jonah and James, he was presumably over 21 years of age, but he did not take any steps to recover this land until more than 20 years after the execution of this deed, when he brought this suit. The record does not furnish a satisfactory explanation of his long delay in asserting ownership to this land; nor is his evidence convincing that he was ignorant, at the time he made the deed, of his father's ownership of the land now claimed by him. All of the land owned by his father was situated on Rock House creek, which ran entirely through it, and it is quite improbable that the appellant, Elijah, should have been ignorant of the boundary of land owned by his father and have remained in ignorance of it for more than 20 years. We have not mentioned the circumstances surrounding Gideon, Stephen, and Elisha, because there is no evidence that they did not know what land their father owned when they conveyed. [1] But, passing these matters and getting back to the deeds made by the four children to Jonah and James, it will be noticed that Stephen, Elijah, and Elisha conveyed their undivided interest in the land owned by their father, situated on Rock House creek, and that Gideon conveyed all his interest in the land owned by his father, situated on Rock House creek. There is no intimation in these deeds that any part of the interest the grantors had in the land of their father was reserved or excepted from the conveyances. The deeds in plain and unambiguous terms convey all the interest the grantors owned in the land of their father, and the only land he owned, so far as the record shows, was the two tracts conveyed to him by Stamper. [2] It is true these deeds did not describe the land conveyed by metes or bounds or give the number of acres, but the failure to do this does not at all affect the validity of the deeds, and, under the evidence, we think these deeds conveyed all the interest the grantors had in the two tracts conveyed to their father by Stamper, which include the land in controversy, and that they are estopped, by the terms of these deeds, from asserting that the deeds did not include their interest in all the land their father owned. We do not mean to say that a state of case might not appear in which grantors would not be estopped from showing that deeds conveying their interest in certain lands did not include lands of which they had no knowl were made. We can easily imagine a state | no claim for benefits on the death of any one of case in which it might clearly appear engaging in the liquor business, and that no benefits should be paid where decedent had been that a decedent owned land that his children, received into membership in violation of the at the time of his death, or when they sold laws of the order. The local lodge knew of a their interest in his estate, had no knowl-member engaging in the liquor business and reedge or information whatever of, and in the order knew the facts. Held, that the or ceived assessments, but none of the officers of such a case facts might be developed that der was not estopped from insisting that the would allow them to recover their interest certificate was forfeited. in land of which they were ignorant of the ownership. Smith v. Cornett, 80 S. W. 1188, 26 Ky. Law Rep. 265. But the appellants here have not shown themselves entitled to be relieved from the effect of deeds purporting to convey all the interest the grantors had in the estate of their father. There is no claim of fraud or mistake in the execution of the deeds. It is not shown that the grantees knew or had any reason to suspect that the deeds did not convey all the interest of the grantors in all the land owned by their father, or that the grantees knew, when the deeds were made, that the grantors did not know that their father owned the land now in dispute, or that they did not have this land in contemplation in making the sale. If, under the evidence in this record, the appellants could succeed in limiting the terms of the deeds so as to defeat the express intention, recorded title papers would furnish little or no security to purchasers depending on them. Pennington v. Cumberland Valley Land Co., 150 Ky. 576, 150 S. W. 655. The judgment is affirmed. NATIONAL COUNCIL JUNIOR ORDER UNITED AMERICAN MECHANICS v. THOMPSON.† (Court of Appeals of Kentucky. May 8, 1913.) 1. INSURANCE (§ 748*)-FRATERNAL INSURANCE-PROHIBITED EMPLOYMENTS-AGENT. An administrator of a decedent operating a saloon under a license, who procured a renewal of the license for three years in his own name, and who during that time conducted the saloon for the benefit of decedent's estate, employing all the help and buying and paying for all the supplies, is within the by-laws of a fraternal insurance order declaring that no person shall be admitted who is engaged in the sale of intoxicating liquor, either as proprietor or agent. [Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 1893, 1894; Dec. Dig. § 748.*1 2. INSURANCE (§ 755*)-FRATERNAL INSUBANCE-FORFEITURE-ESTOPPEL. [Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 1907-1916; Dec. Dig. § 755.*] Appeal from Circuit Court, Franklin County. Action by Amanda Thompson against the National Council Junior Order United American Mechanics. From a judgment for plaintiff, defendant appeals. Reversed and remanded. Brown & Nuckols, of Frankfort, and Smith W. Bennett, of Columbus, Ohio, for appellant. Scott & Hamilton, of Frankfort, for appellee. HOBSON, C. J. William Thompson was a member of the Junior Order United American Mechanics, a fraternal society which maintains a funeral benefit department. He joined the order on April 16, 1909, and was admitted to the funeral benefit department on November 6, 1909. He died in the year 1911, having paid all his assessments as they fell due. The order refused to pay to his | beneficiaries the amount of the funeral benefit, $250, and this suit followed. The company defended the suit on the ground that William Thompson was engaged in the liquor business, and that a person engaged in this business was not eligible for membership in the funeral benefit department. The certificate which was sued on is in these words: "Junior Order United American Mechanics will pay to Capital City Council, No. 29, Junior Order United American Mechanics of Frankfort, state of Kentucky, for the legal dependent of William Thompson within thirty days from the receipt of the proof of his death the sum of two hundred and ($250) fifty dollars upon the condition that the said Capital City Council No. 29 is now and shall be at the time of the death of the said William Thompson in good standing in the funeral benefit department of the National Council Junior Order United American Mechanics of the United States of North America; that is to say, that it has paid all assessments due to the funeral benefit department at the time of the death of the said William Thompson and has complied with all laws, rules and regulations governing the funeral benefit department, and is in good standing with the National Council and State Council having jurisdiction over said council. Also, upon the further condition that the said William Thompson was not received to membership nor retained as a member in violation of the laws and decisions of the order, and that at the time of his death he was a beneficial member in good standing of said The by-laws of a fraternal beneficiary society on the lodge plan declared that no person engaged as proprietor or agent in the liquor business should be eligible to membership, and a member engaging in the business should ipso facto forfeit his rights of membership. It established a funeral benefit department, and issued a certificate binding it to pay a local lodge a specified sum for the legal dependent of a person named, on condition that the latter should not be received into membership nor retained in violation of the laws of the order. The application for the certificate was made by the local lodge, and therein it agreed to make For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes Rehearing denied June 3, 1913. |