that the jury were influenced by passion or prejudice.

The appellee insists that this court has no jurisdiction of this appeal, for the reason that only $195 are in controversy. It will be seen, however, that the title to real estate is in fact involved in the controversy. The case of Stillwell v. Duncan (Ky.) 44 S. W. 357, 39 L. R. A. 863 is conclusive of the question of jurisdiction. Hence the motion of appellee to dismiss must be overruled.

After a careful reading of this entire record, we fail to find any error to the prejudice of the substantial rights of the appellant. The jury, being presumably acquainted with the witnesses, and understanding the description given by them of the various tracts of land and boundaries involved in the suit, were peculiarly well qualified to find the real truth of the matter in controversy. No complaint is made by the appellant as to the instructions; hence no question of that kind is before us.

Judgment affirmed.

CONTINENTAL TOBACCO CO. v. KNOOP. (Court of Appeals of Kentucky. Dec. 17, 1902.)

SERVANT-INJURIES-DEFECTIVE ELEVATOR

EXCESSIVE DAMAGES-INSTRUCTIONS-
CONDITION PRECEDENT TO SUIT.

1. A servant, who had no supervision of an elevator, was not required, before using it in the course of his duties, to examine into its condition with a view to discovering possible defects.

2. A master who provides for the use of his employés an elevator not in a reasonably safe condition is liable for resulting injuries.

3. An employé injured by the fall of an elevator had his leg broken in two places, his back seriously injured, and received a great shock. He was unable to work eight months later, and it was apparent that he was permanently injured. Held, that $4,000 damages was not excessive.

4. In an action for personal injuries, where defendant pleaded and sought to establish accord and satisfaction, failure of the court to charge that defendant's efforts to effect a compromise should not be taken as an admission of liability was not error, it not being called upon to charge on the weight of defendant's evidence, but merely to submit the defense.

5. A servant suing for injuries was not required to first return the money which he had received for wages and medical bills after the accident, where it was not accepted in compromise of the claim.

Appeal from circuit court, Jefferson county, common pleas division.

"Not to be officially reported."

Action by Frank C. Knoop against the Continental Tobacco Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Joyes, Jarvis & Swope, for appellant. Kohn, Baird & Spindle, for appellee.

permanently injured by the falling of its elevator from the third floor to the cellar of its tobacco factory. The appellee and two other workmen were hoisting a hogshead of tobacco from the cellar to the third floor, when the wire cable to which the elevator was suspended slipped from its socket. There is some conflict in the testimony as to what caused the elevator to fall, but there was sufficient evidence tending to prove that it was the result of the defective condition of the elevator to authorize the submission of the case to the jury. In fact, the evidence of the plaintiff tends to show that it was an old elevator, and was frequently found to be out of order. The appellee had no supervision of the elevator, and it was not a part of his duties to examine into the condition of the elevator with a view of discovering any defects in it. He did not have the same opportunity as the master to ascertain the defects, if any existed. It was the business of the appellant to furnish its employés, for their use, an elevator in a reasonably safe condition, and, if one of its employés was injured because of such failure, a cause of action would arise therefor. Whether the appellant performed its duty by furnishing that character of elevator was a question for the jury. Likewise it was a question for the jury to determine whether the appellee was injured in consequence of a breach of such duty. We are of the opinion that the court properly refused to give the jury a peremptory instruction to find for the appellant. Wilson v. Williams (Ky.) 58 S. W. 444.

We must decline to disturb the verdict on the ground that it is excessive. The testimony shows that the appellee's leg was broken in two places; that his back was seriously injured; that he received a great shock; that he has been unable to work since that time. He was injured in the early part of February, and he was unable to perform any labor in the October following. There is no escape from the conclusion that he was permanently and seriously injured.

In addition to other grounds, the appellant relies upon the following: (1) That the appellee has received about $400 by way of compromise, and no part of which had been repaid or tendered to the appellant before the institution of this action. (2) The error of the court in instructing the jury. The appellant pleaded accord and satisfaction. It averred that it had paid the appellee his weekly wages and doctor bills, etc., from the time of his injury until some time in the following September; that it was to take the appellee back into its service when he became able to work; that it had offered to and was willing to do so; that upon these terms the appellee's claim against it was compromised and settled. The appellee denied that such a compromise was made, or that he ever agreed to accept the money and other benefits in compromise and settlement of his claim. Testimony was offered touching this

issue, and the court told the jury that, if they believed that such a compromise was made, to find for the defendant. The jury returned a verdict of $4,000 against the appellant, and, of course, found against it on this issue. In fact, there was little conflict in the testimony upon it. We are of the opinion that the jury properly found that no such compromise had been made. Besides, a fair deduction from the testimony of the witnesses for the appellant would not have justified the jury in reaching a different conclusion.

It is insisted that the jury should have been instructed that the efforts to effect a compromise were not to be taken by the jury to be an admission of negligence or liability on the defendant's part. The appellee did not endeavor to show that the appellant had admitted negligence or liability, but sought to recover by proving the circuinstances and conditions under which he received his injuries. The appellant sought to establish its defense of accord and satisfaction. The court was not called upon to instruct the jury as to the weight which should be given the evidence which the appellant introduced, but to submit one of the appellant's defenses, to wit, accord and satisfaction.

It was not incumbent upon the appellee to return the money which he had received for wages and medical bills in order to maintain his action. The doctrine of Railroad Co. v. McElroy (Ky.) 37 S. W. 844, and kindred cases, does not apply to the facts of this case. In that case it was admitted that the noney was received in compromise and settlement of his claim for injuries, but the plaintiff endeavors to avoid the effect of the compromise upon the ground that it had been obtained by fraud. In such a case an action could not be maintained without first tendering or refunding the money received on the compromise. The difference between the McElroy Case and this one is shown in the case of McGill v. Railroad Co. (recently decided by this court) 70 S. W. 1048. The judgment is affirmed.

1. Ky. St. § 4241, requires the sheriff or auditor's agent to cause to be listed for taxation all property omitted by other officers, and to file in the office of the clerk of the county a list of the property; provides that at the next regular term of the county court, if it shall appear to the court that the property is liable to taxation, and has not been assessed, it shall enter an order fixing its value, and, if not liable, it shall make an order to that effect; and that from so much of the order deciding whether the property is liable to assessment either party may appeal. Held that, where the court de

GUFFY, C. J. It appears from the petition in this case that F. Stanley Watson, auditor's agent, filed in the clerk's office of the Mason county court a statement authorized by Ky. St. § 4241, the object of which was to have certain property belonging to the Chesapeake & Ohio Railway Company assessed for taxation. It further appears that the county court of Mason county refused to take jurisdiction of the complaint, and refused to determine whether or not said property was liable to assessment or subject to taxation. The object of this action is to obtain a writ of mandamus against the county judge of Mason county requiring him to entertain jurisdiction of said case, and to decide the same on its merits, to proceed upon the facts placed before him by the relator, to ascertain as near as practicable, and to cause to be forwarded to the auditor, the compulsory reports of these corporations thus obtained, and to proceed as required by law. To this petition a demurrer was filed on behalf of the defendant on the ground that the petition did not state facts sufficient to constitute or support a cause of action, which demurrer was sustained by the court, with leave to plaintiffs to amend, and, they declining to amend, the petition was dismissed, from which judgment this appeal is prosecuted.

The only question which we deem it necessary to consider is whether or not appellants were entitled to the peremptory mandamus, and we shall not undertake to decide whether the property sought to be subjected to taxation was in law liable to assessment or taxation. It will be seen from this record that the appellee county judge refused to try or consider the question as to the liability of the railway, or whether the property in question had been omitted by any of the authorities authorized to assess the same. In short, the county judge declined to try and pass upon the legality of plaintiff's claim, and it appears also that from the petition, and as a matter of law we hold, that no appeal could be prosecuted from the order of the county judge aforesaid. It is contended for appellee that the writ of mandamus could not be legally issued. If this be true, and if also it be true that there is no appeal from the order re

fusing to entertain jurisdiction, then the appellant is without any remedy. It will be seen from an examination of section 4241, Ky. St., that it is made the duty of the sheriff or auditor's agent to cause to be listed for taxation all property omitted, or any portion of property omitted, by the assessor, board of supervisors, board of valuation and assessment, or railroad commission, for any year or years. The section further provides for the filing of a statement containing a description, etc., of the property, and the value of corporate franchise, if any, together with the names and places of residence of the parties owning such property. It is further provided that at the next regular term of the county court after notice has been served five days, if it shall appear to the court that the property is liable for taxation, and has not been assessed, the court shall enter an order fixing the value thereof at its fair cash value, estimated as required by law; if not liable, he shall make an order to that effect. It is further provided as follows: "From so much of the order of the court deciding whether or not the property is liable to assessment, either party may appeal, as in other civil cases, except that no appeal bond shall be required where the court decides that the property is not liable to assessment or taxation." Various other provisions are embraced in the section not necessary to refer to. It seems clear to us that there can be no appeal from any order of the county court in respect to the matter in controversy, except as provided by the section supra; and, inasmuch as the court refused to adjudge whether or not the property was liable to assessment or taxation, and that being the only judgment or order from which an appeal is allowed, it seems clear that no appeal could be prosecuted from an order dismissing the proceeding without rendering a judgment as provided by law.

If the facts stated by plaintiff are true, the property in question was omitted; but, as before stated, we shall not undertake to decide whether the property ought to have been assessed in Mason county, or whether it had been omitted. That question must be primarily decided by the county court of Mason county. It seems to us that the duty and power of the circuit court to issue a mandamus in a case like the present one is not an open question. This court, in Hoke v. Com., 79 Ky. 567, discussed at great length the duty of the county court to make an assessment of omitted property upon the institution of proceedings in the county court by the auditor's agent; and also expressly held that, where the county court failed to hear and determine as to the liability of the property to assessment, a mandamus should be awarded against him,-not to control his judgment as to the liability of the property to assessment, but merely to compel him to hear and determine that question. The common pleas court of Jefferson county had awarded a mandamus

to compel the county judge to hear, consider, and determine the question, and this court, in a very exhaustive opinion, affirmed the judgment of the common pleas court.

We

We deem it unnecessary to discuss the various authorities relied on by the parties. are of opinion that it was the duty of the county judge to hear the case presented by the auditor's agent, and render a judgment holding the property liable to be assessed, or holding that it was not liable; in which event either party could have appealed to the circuit court. The dismissal by the county judge for lack of jurisdiction was in no sense a judgment determining whether the property was liable to assessment or not.

For the reasons indicated, the judgment appealed from is reversed, and cause remanded, with directions to the circuit court to overrule the demurrer, and for proceedings consistent herewith.

1. Const. 190, declares that every corporation existing at the time of its adoption must file with the secretary of state an acceptance of the constitution to entitle it to take advantage of any future legislation. Ky. St. § 4093, enacted as Act March 23, 1894, changed the hitherto existing provision as to the mode of assessment and taxation of building association stock requiring it to be assessed to the stockholders, instead of to the company. Held, that a building association existing before the adop tion of the constitution, and which had not accepted the same as required by section 190, was not liable to assessment on its shares of stock on the ground that it was not entitled to take advantage of the statute changing the mode of assessment, but that such change was a matter over which they had no control.

Appeal from circuit court. Fayette county. "Not to be officially reported."

Proceeding by the commonwealth against the Fayette Building & Loan Association. From an order sustaining a demurrer to the reply, plaintiff appeals. Affirmed.

Webb & Farrell and R. J. O'Mahoney, for appellant. Mat Walton and J. H. Mulligan, for appellee.

BURNAM, J. This proceeding was instituted in the county court by the auditor's agent for Fayette county to require the defendant, the Fayette Building & Loan Association, to assess certain mortgage notes owned by it, which it was alleged they had omitted to assess from 1891 to 1900, inclusive. The building and loan association filed a response to the motion in four paragraphs. In the first it denied the right of the auditor's agent to require the notes recited in his motion to

be assessed for taxation, or that they were of the value therein set forth. In the second paragraph they allege that they are a jointstock company, their capital being represented by certificates of stock and invested in loans to the members and shareholders in the association, and secured by mortgages on real estate; that by the express terms of the statute the shares of stock of the association are made liable for assessment and taxation in the hands of the individual holders of the same, and not in that of the association. In the third paragraph they allege that the mortgage notes and other choses in action in which the capital of the association is invested is not liable for assessment. In the fourth paragraph they plead and rely upon the act of the general assembly approved May 23, 1890, in bar of plaintiff's right to maintain this proceeding. General demurrers were sustained to the first and fourth paragraphs of the response, and overruled as to the second and third. Plaintiff then filed a reply to the second and third paragraphs, in which they allege that the defendant was incorporated and organized on the 29th of February, 1888, and was in existence prior to the adoption of the present constitution; that it has never at any time filed in the office of the secretary of state any acceptance of the present constitution, as required by section 190; and that by reason of their failure to comply with this provision of the constitution and the stat ute passed pursuant thereto they were not entitled to avail themselves of the act of the general assembly approved on the 23d of March, 1894, now known as "section 4093 of the Kentucky Statutes," which provides that the shares of building associations or build. ing and loan associations shall be taxed as other individual personal property, and shall be listed with the assessor by the owners of said shares; the amount so listed by every owner or shareholder to correspond with the amount paid in, and not withdrawn by the said shareholder, on the 15th of September of each year. A general demurrer was sustained to the reply, and, plaintiff declining to plead further, the trial court dismissed the proceedings; hence this appeal.

Under the provisions of the general law as it stood prior to the adoption of the act of the 23d day of March, 1894, the property of building and loan associations was required to be assessed in the name of the corporation in the same manner as that of natural persons; that is, they were required to list for taxation their capital, surplus, undivided profits, etc., but they were not required, in addition, to list in items their notes, mortgages, and other evidences of indebtedness in which their capital stock was invested. The general assembly. by the act of March, 1894, changed this mode of assessment so far as building and loan associations were concerned, and required that the shares of stock should be assessed by the individual stockholder, instead of by the company. There can be no ques

tion of the power of the general assembly to prescribe this mode of assessing the property of this class of corporation. It was wholly a matter of legislative discretion, and after the enactment of this statute it was not a matter over which the defendant had any control. They were bound to comply with the provisions of the law, and assess the property in the manner pointed out by the statute. We are therefore of opinion that from the time this statute took effect on the 23d of June, 1894, the corporation itself was not liable for the taxes. It is unnecessary for us to determine whether the statute approved May 23, 1890, would be available as a defense to a proceeding instituted by the auditor's agent to assess the capital stock, surplus, etc., of the defendant for the years prior to 1894, as that question is not before us.

For reasons indicated, the judgment is affirmed.

KLOSTERMAN et al. v. CHESAPEAKE & O. RY. CO. et al.

(Court of Appeals of Kentucky. Dec. 17, 1902.) RAILROADS-TRACKS IN STREET-INJURIES TO ABUTTING OWNERS-LIMITATION OF ACTIONS-MEASURE OF DAMAGES.

1. Though the right to sue a railway company for damages caused to abutting property by reason of the construction and operation of railway tracks in the street pursuant to legislative and municipal authority is barred after five years, an action for damages arising from the construction and operation of tracks in the street without such authority is barred by the 15year statute of limitations.

2. A railway company, by Acts 1885-86, pp. 340, 343, was authorized to construct and operate railroad tracks on or across streets for the purpose of making connections with other railroads in the city, but could not acquire more than one right of way from any depot without giving a week's notice of its intention to make application to the city council for additional privileges. It could purchase the rights of other companies. It requested the city council to approve a selection made by it for its tracks, but no action was taken thereon. Subsequently it purchased the rights of a company having a right of way on a certain street, and having authority to construct one track on other streets of the city. And thereafter it concurrently constructed and operated two tracks. in one of such streets. Held, that but one of the tracks was constructed and operated under legislative and municipal authority.

3. A railroad company concurrently constructed and operated two tracks in a street. It had legislative and municipal authority to construct and operate one track only. Held, in an action by an abutting owner for damages to his property, brought after the right to sue for damages arising from the construction and operation of the track authorized by law was barred, that the measure of recovery was the damages sustained by reason of the construction and operation of the two tracks, less the damage which would have been caused by the construction and operation of one only. Burnam, Du Relle, and O'Rear, JJ., dissenting.

Appeal from circuit court, Kenton county. "To be officially reported."

Action by Angelina Klosterman and others against the Chesapeake & Ohio Railway

Company and others. Judgment for defendants, and plaintiffs appeal. Reversed.

Harvey Myers, for appellants. Simrall & Calvin and C. P. Chenault, for defendant Chesapeake & O. Ry. Co. J. W. Bryan and E. W. Hines, for defendant Louisville & N. R. Co.

PAYNTER, J. The former opinion of this court, delivered herein by Judge HOBSON, is as follows:

"Frank A. Klosterman died on February 10, 1892, the owner of certain real estate in Covington, Kentucky. Appellants are his widow and children, six of the latter being infants. They filed this suit December 5, 1895, against the Chesapeake & Ohio Railway Company, the Covington & Cincinnati Elevated Railroad & Transfer & Bridge Company, and the Louisville & Nashville Railroad Company, to recover damages in the sum of $7,000 for alleged injuries to the real estate received by them from the decedent; the widow being executrix of his will, and guardian of his children, and as such joined also in the suit. Issue was joined upon the petition, and on final hearing the court gave the jury a peremptory instruction to find for the appellees.

"Appellants' property is situated at the corner of Lewis and Craig streets. It has on it two brick houses. One is a three-story brick building, situated on the corner, and fronting on both streets. The first story is used as a storeroom for mercantile purposes; the second and third, as a residence. The other is a two-story dwelling fronting on Craig street. There is a small area or yard between the two houses. The railroad tracks complained of run diagonally across Craig and Lewis streets at their intersection. The nearest rail is six and one-half feet from the gutter curb. Inside of the gutter curb is a sidewalk six feet wide. Both the buildings extend out to the sidewalk, so that at the corner the three-story brick house is only about fourteen feet from the nearest rail of the railroad track, or about eleven and onehalf feet from the side of the cars when passing. Craig and Lewis streets are each thirty feet wide, including the sidewalk on either side. The railroad at this point is a double track, and is used almost constantly day and night. Before the railroad was built the property rented for forty-two dollars a month. Now it brings scarcely enough to pay taxes and insurance. The trains operated are many of them heavy freights, which jar and shake the houses to such an extent as to alarm the occupants and wake them at night. A large quantity of cinders and smoke is thrown into and upon the property, sometimes filling the front rooms with smoke, and to such an extent that it is impracticable to keep the front windows open at all. Large quantities of cinders fall upon the roof and yard, burning the paint off the roof, causing it to rot, and unfitting the yard

for such uses as the yard of a residence is designed for. The wall of the two-story building is settled. The noise, vibration, and discomfort from smoke and cinders are such that only an undesirable class of tenants will rent the property for a residence, and the storeroom is not desirable for a business place. The tracks take up substantially the intersection of the streets, with the exception of six feet on each side, so as in a great degree to interfere with the ingress or egress of wagons and teams, from the fact that trains are passing so often day and night. There is no doubt, under the evidence, that the property is desirably located, and was valuable before the construction of the railroad, and by reason of its construction has been largely unfitted for the purposes for which it was intended, and greatly depreciated in value. The railroad was constructed precisely as it is now in the year 1889, and, the action not having been filed within five years thereafter, the appellees interpose the plea of limitation, and it was on this ground that the court below gave the jury a peremptory instruction to find for appellees.

"In Railroad Co. v. Orr, 91 Ky. 109, 15 S. W. 8, this court held that a railroad must be regarded as a permanent structure, and, when its construction in the streets of a city is authorized by legislative and municipal authority, all damages naturally resulting from the proper operation of the road can then be ascertained and determined, and the cause of action therefor is barred by limitation after five years from the time the action might first have been instituted. This case has been followed in so many subsequent causes that the question is not now an open one, but we are not inclined to extend the rule beyond the limits thus laid down, or to apply it to a case where the construction of the railroad in the street is not authorized by legislative and municipal authority. As has been held by this court in several cases, and is recognized in section 242 of our present constitution, the injury to property in cases of this character is substantially a taking of private property for public use, and, where this taking has not been done under proper authority of law, it should stand, as to limitation, on the same plane as any other taking of real estate. The structure being permanent, the action is not for a trespass upon the property, in which damages within the preceding five years may be recovered; but the question to be determined is, what will be a fair compensation to the owner of the property for the depreciation of the value of his property by the servitude that is thus placed upon it? When the construction of the railroad is authorized by law, all persons must take notice of this; and there are sound reasons of public policy for not extending the bar of limitation to those cases where the construction is not by authority of law, and the citizen cannot well understand his rights. It remains, therefore, to