discrimination, where a theatre charging an admission fee
of fifteen cents or less is required to pay a tax of only $450.00,
the increase in the tax being more than 1,000%, and the in-
crease in the admission being only 33 1-3%. City of Newport
v. Frankel.
Sale of Oils.-Ky. Stats., sec. 4224, requiring those selling pe-
troleum or other oils at retail to procure a license for each
wagon used in such sales, was not intended to embrace a sale
of not less than 500 gallons of oil at a time to a lighting plant,
which had contracted for the quantity of fuel oil required to
operate its plant, deliverable in the quantities aforesaid. Ken-
tucky Consumers Oil Company v. Commonwealth of Kentucky 437
Sale of Oils-Sale by Retail.-"Retail" means to sell in small
quantities, a little at a time, hence a delivery of oil in quan-
tities of not less than 500 gallons at a time to a customer who
purchased from a refiner all the fuel oil necessary to operate
its plant, was not a sale by retail within the contemplation
of Ky. Stats., sec. 4224. Id.
LIENS-See Appeal and Error; Mortgages; Municipal Corpora-
tions, 10; Taxation.
LIFE ESTATES-See Trusts; Wills.
LIMITATION OF ACTIONS-See Exceptions, Bill of; Execution;
Executors and Administrators; Intoxicating Liquors, 6-
1. Action for Damages for Injury to Land Not Barred Where Suit
Was Brought Within Five Years After the Injury Occurred.-
An action against a railroad company for making an excava-
tion on plaintiff's land and removing the soil therefrom, and
for blasting rocks into the river and drowning his mill, was
not barred by limitation where the suit was brought within
five years after the injury occurred. Louisville & Nashville
Railroad Co. v. Craft.
Action Upon Lost Note.-Evidence upon which the trial court
in this action adjudged the plaintiff administrator entitled to
recover of the defendant administrator the amount of the lost
note in question, and, also, that of a second note to which was
pleaded the statute of limitations, examined, and held suffi-
cient, as a whole, to support the judgment. Sisk's Admr. v.
Sisk's Admr.....
LIQUORS See Intoxicating Liquors.
1. Due Prosecution.-Due prosecution is a fundamental part of
the lis pendens doctrine. Whittaker v. Chenault
Sale Setting Aside.-Proof of a lis pendens on execution levy
eleven years previous to a judicial sale of land for reinvest-
ment under 491 of the Code furnishes no grounds for setting
the sale aside upon exception by the purchaser. Id.
LOOKOUTS-See Master and Servant; Railroads.
Establishment—Evidence-Sufficiency.—Evidence in an action
for the restoration of a lost deed held sufficient to show its ex-
ecution and former existence. Hall v. Hall.
Date and Time of Execution Pleading-Sufficiency.—An al-
legation in a petition for the restoration of a lost deed, that
the deed was executed about fifteen years before the filing
of the petition, was sufficient as to time, in the absence of a
motion to make more specific, since, if the other allegations
of the petition were true, plaintiffs were entitled to recover,
regardless of the date of the deed or the time of its execution.
Pleading-Consideration-Sufficiency of Petition Failing to
State Amount of Consideration.-Where the petition in an ac-
tion for the restoration of a lost deed stated that the entire
purchase money had been paid, the amount of the considera-
tion was not material, and the petition was not bad on demur-
rer because the amount was not stated. Id.
Damages-Pleading.-Humiliation, mortification and loss of
reputation naturally and necessarily result from a malicious
prosecution and are recoverable under a general allegation
of damage, but counsel fees and other expenses which are the
natural and probable result of the wrong but not the neces-
sary consequence thereof are special damages and are not re-
coverable unless specially pleaded. Barnes v. Culver
Excessive Damages-Evidence.-Verdict of $500 in an action
for malicious prosecution by having plaintiff arrested for
vagrancy not excessive under the evidence which clearly es-
tablished malice and want of probable cause. Id.
Discretion-Correction of Decision.-The writ of mandamus
may be issued to compel action on the part of a judicial officer;
but if the latter has a discretion over the subject matter the
writ will not issue to control such discretion, although it may
have been improperly exercised. If, however, there is a re-
fusal to act upon the subject matter, or to pass upon the
question upon which such discretion is to be exercised, then
the writ may be used to enforce obedience to the law. But
when the question has been passed on the writ will not be
used for the purpose of correcting the decision. Williams v.
Howard; Williams v. Davis, Judge.
2. Original Jurisdiction.-The Court of Appeals will not exercise
authority to issue a writ of mandamus if the plaintiff has an
adequate remedy elsewhere. McDonald v. DeHaven, Judge. 679
MANSLAUGHTER-See Criminal Law.
Workmen's Compensation Act-Elective Statute.-The work-
men's compensation act of 1916 is an elective and not a com-
pulsory statute, and neither employer nor employe is brought
under its provisions until they voluntarily accept them. Mc-
Cune v. Pell and Brother
Election by Employe-Signing Notice.-Election by the em-
ploye to operate under the provisions of the act is effected
by his signing the notice prescribed by section 74 of the act,
contained in printed form in the employer's register. Such
signing of the register by the employe makes his acceptance
of the provisions of the act effective from, and including, the
date of signing. Id.
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Finding of Board-Evidence. The finding of the workmen's
compensation board in this case that the appellant's decedent
did not upon entering the employment in which he met his
death, or while engaged therein, elect to operate under the
provisions of the compensation act by signing the employer's
register, is sustained by the evidence; hence, the award of
the board rejecting appellant's claim to compensation under
the act for his death will not, on appeal, be disturbed. Id... 22
Election of Employe-Signing Notice.-Where, as in this case,
the decedent had several years prior to his death upon enter-
ing the service of the same employer, elected to accept the
provisions of the compensation act by signing the employer's
register, but thereafter quit the service of the latter and enter-
ed into, and for sixteen months continued in, the employ of
another in a different state, and then re-entered the service of
the first employer his signing of the register under the first
employment in acceptance of the provisions of the compen-
sation act, did not, if he wished to accept its provisions under
the last employment, relieve him of the necessity of making
his election to do so, by again signing the employer's reg-
ister, upon undertaking the last employment. Id.
Injuries to Servant-Assumption of Risk.-The statement
that a servant never assumes risks arising from a master's neg-
ligence is too broad, the correct statement of the rule being
that the servant never assumes risks growing out of the mas-
MASTER AND SERVANT-Continued—
ter's negligence unless he knows of the failure of duty and
consequent danger or the failure of duty and the danger there-
from are so obvious that an ordinarily prudent person in his
situation would have observed the one and appreciated the
other. Hines, Director General of Railroads v. Cox
Liability for Injuries-Overtaxing Strength-Failure of Mas-
ter to Furnish Sufficient Force to Do the Work-Assumption
of Risk. Though the master fail to furnish a sufficient force
to do the work, a servant engaged with others in lifting steel
rails assumes the risk if he knows, or it is plainly obvious
to a person of ordinary prudence in his situation, that, be-
cause of the lack of a larger force, he is being subjected to a
severe strain and nevertheless continues the work and suffers
an injury from overstraining.
Safe Place to Work.-No duty devolves upon a contractee
to furnish the employees of an independent contractor a safe
place to work. Mattingly's Admr. v. Hines, Director General 176
Lookout Duty-Independent Contractor.-Where an overhead
crane is operated on a track elevated twelve feet from the
ground, and the crane operator had no notice that the em-
ployees of an independent contractor that worked on the
ground had placed a ladder against the framework, upon
which the elevated track rested, in such a way that the
crane in passing that point would collide with the top of
the ladder, no lookout duty was required of him. Id.
Lookout Duty.-A lookout duty or warning is only required
of a contractee where he knows of, or has notice of, the
danger to an employee of an independent contractor. Id. ........ 176
10. Inexperienced or Youthful Employe.-A master who employs
a servant contrary to the provisions of Ky. Stats., sec. 331a,
is liable for all injuries sustained by the infant, having a
casual connection with his employment, and he is not relieved
of this liability by the fact that the infant misrepresented
his age, although the master may have engaged the servant
in good faith upon the belief that his age was as represented.
Blanton v. Kellioka Coal Company
11. Infants-Employment of in Violation of Law.-Under the
provisions of Ky. Stats., sec. 4911, where an infant is employed
in known and wilful violation of law has been injured, the
right to determine the existence of the requisite facts authoriz-
ing an election to sue at law or accept the benefits under the
compensation act rests with the guardian, or in case of the
infant's death with his representative. Id.
12. Workmen's Compensation Acts-Award.-Under section 4890,
Ky. Stats., an employer who has paid or becomes obligated to
pay an award under the Workmen's Compensation Act, may
maintain an action in his own name or that of the injured
employe against a third person guilty of negligence which
MASTER AND SERVANT-Continued-
brought about the injury of the employe and recover the
amount of award so paid by or assessed against the employer;
but an insurance company has no such right of action under
our statute, or the general principles of equity, even though it
pay the award. Henderson Telephone & Telegraph Co. v.
Owensboro Home Telephone & Telegraph Co.
13. Negligent Operation of Coal Car-Pleading.-A petition alleg-
ing that plaintiff had sustained injuries through the reckless
and negligent operation of a car operated by defendant coal
company, upon which he had been invited by defendant's
employes to ride and which invitation was in accordance with
a custom of carrying passengers on said car, which had ex-
isted for eight or ten years, was known to, acquiesced in an/
approved by the company, states a cause of action. Wolford v.
Majestic Colleries Company.
14. Negligent Operation of Coal Car.-Though plaintiff had paid
no fare, his presence on a car operated by defendant at the in-
vitation of its employes, and in accordance with a long in-
dulged in custom of carrying passengers thereon, same being
with the knowledge, acquiescence and approval of the com-
pany, imposed upon the company the duty to exercise ordinary
care for plaintiff's safety. Id.
15. Award by Workmen's Compensation Board-Evidence.-An
award by the board of workmen's compensation, if supported
by any evidence, although the preponderance thereof appear to
be to the contrary, will not be distributed by a court on review
Andrews Steel Company v. McDermott.
16. Finding of Fact by Workmen's Compensation Board. It is the
duty of the board of workmen's compensation to make a find-
ing of fact, and if this finding of fact be supported by the evi-
dence, or any part of it, it is conclusive upon the courts. Id. 679
17. Award by Workmen's Compensation Board-Evidence.-Only
in cases where there is no controversy about the facts or where
the award is unsupported by any evidence is the award subject
to review by court, there being only a question of law pre-
sented. Id.
18. Assumption of Risk-Contributory Negligence. If the work
being performed and the place where it is done are not neces-
sarily dangerous and are so simple that any person of ordinary
intelligence can readily see and understand the dangers at-
tendant upon its performance the master is not liable for an
injury to his servant who possesses ordinary intelligence for
any injuries sustained, since the injury is one assumed by the
servant or was produced by his contributory negligence,
dependent upon the facts. Baldridge v. W. M. Ritter Lumber
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