as supposed. If the commission exonerates the carrier, this order continues in force until revoked by the commission, and until then both the carrier and the shipper know how to order their affairs. It is the duty of the carrier to conform to the order of the commission, where it refuses to exonerate. If a change of circumstances arises, either the carrier or the shipper can bring this matter to the attention of the commission, and have the question reinvestigated. In the first case it was objected to the statute, among other things, that it gave the carrier no right to complain, and was therefore inconsistent with the constitution; but the court held that the provision of the constitution was to this extent self-executing, and that either the carrier or the shipper could complain. L. & N. Railroad v. Commonwealth, 104 Ky. 232, 46 S. W. 707, 47 S. W. 210, 598, 43 L. R. A. 541. If, after the commission refuses to exonerate the carrier, he, in disobedience of its order, continues his discrimination, the state of case arises which the legislature contemplated in section 820, and which it, by its severe penalties, undertook to prevent. To construe the statute to mean that the carrier cannot be indicted without action by the railroad commission, and that it can only be indicted then as to the particular shipment it has investigated, is to deny the people of the state all reasonable protection from the statute. It seems to me that there is no reason for departing now from the conservative middle line which the court has heretofore laid down, to which the business of the state has been adjusted, and which gives a reasonable protection to both the shipper and the carrier.

The separate concurring opinion is devoted mainly to showing that the court was wrong in the case of The I. C. Railroad v. Commonwealth. Space does not permit a reargument of the question then decided. Suffice it to say that, if the statute is unconstitutional, it is the only authority of the court for inflicting criminal punishment. The penalties therein denounced are the punishment of the acts therein provided for, and it does not follow, by any means, that the legislature would have provided these penalties for a greater charge for the short than for the longer haul, unless it had provided for an exoneration of the carrier; for the plain purpose of the section was to provide a modus for carrying into effect the provisions of the constitution, and to provide an adequate penalty to secure respect for the orders of the commission. It is not one of those cases, therefore, where the court could reject part of the statute as unconstitutional, and enforce the remainder. The case of Illinois Railroad v. Commonwealth was written upon the idea that this court had settled that the exoneration of the carrier was not as

to each shipment, but as to the rate between localities, and that an exoneration once made thereon protected the carrier until this order of the commission was revoked. The court then merely followed its previous ruling. It did not decide that there must be a refusal to exonerate on each shipment before an indictment of the carrier could be had. The doctrine now announced is not warranted by anything in that opinion, but, on the contrary, is a departure from the principles on which that opinion is based. The ground of that decision was simply that, as the exoneration or refusal to exonerate went to the rate between the localities, the commission was to pass on the rate before the carrier could be indicted. If the commission approved the rate. there could be no indictment. If it refused to exonerate the carrier, he might be indicted, not only for what he had done, but for what he might do thereafter, in violation of the ruling of the commission. One reason which the legislature probably had in mind in framing the statute as it did was that emergencies might arise when im mediate action by the carrier might be neces sary before the commission could decide; and it was allowed, at its peril, to trust to the commission giving an exoneration, if it saw fit. where the public necessities demanded it, as in the case of a coal famine, or the burning of a town, or the like. The commission was given general supervision over the matter, as it had been before, and it was supposed that no great. harm in this way could be done, as complaint might be made any time to the commission.

As heretofore construed by the court, the carrier cannot suffer unduly, and may safely carry on his business after the commission has once acted; and, on the other hand, the shippers are adequately protected by the pow er to indict and punish the carrier not only for all violations of the order of the board. but for his previous acts, if he is not exonerated.

The

The order of the board made in 1899 in this case, by its terms following the decision of this court, exonerated the carrier from that time and for the future, and until the further order of the board. It does not purport, on its face, to have any retroactive effect. commission did not assume to exercise condoning power. It has no such power. It has only the power of exoneration, and, when it refuses to exonerate. its order must be obeyed while in force; and, if it is not obeyed, the carrier can only appeal for pardon to the executive as to acts done in violation of the orders of the commission.

I therefore dissent from the judgment of the court.

SETTLE, J., concurs in this dissent.

1. In an action by a shipper of horses against the carrier for damages to the animals from the length of time they were on the cars without feed and water, and from failure to furnish proper facilities for feeding and watering them, statements of defendant's agents at the shipping point, made as an inducement to ship over their line, as to what facilities defendant would furnish for watering and feeding the stock while en route, and what time would be required for the journey, are competent testimony, they not tending to vary the contract or alter the terms of the bill of lading.

2. Though the shipper of stock agrees to accompany and feed and water it, the carrier is liable for damage thereto from failure to furnish proper facilities for feeding and watering.

Appeal from circuit court, Henderson county.

"To be officially reported."

Action by Frank Eblen and others against the Illinois Central Railroad Company. Judgment for plaintiffs. Defendant appeals. Affirmed.

Lockett & Lockett, S. B. & R. D. Vance, Pirtle & Trabue, and J. M. Dickinson, for appellant. Yeaman & Yeaman and A. O. Stanley, for appellees.

BURNAM, C. J. This is an appeal from a judgment of the Henderson circuit court in an action instituted by the appellees, Frank Eblen, etc., against the Illinois Central Railroad Company, for damages alleged to have been done to two car loads of horses while being transported over the defendant's line of road from Omaha, Neb., to Henderson, Ky. As their cause of action the plaintiffs allege in their petition that at the time of making the contract for the shipment of their horses the defendant, through its authorized agents, agreed to deliver the horses at Decatur, Ill., in not less than 32 hours after leaving Omaha; and that they would furnish at that point ample opportunity for unloading, feeding, and watering the horses; and that the horses should remain at Decatur not less than 12 hours, in the pens of the company, for feeding, watering, and resting; and that there after they would be transported to Henderson, Ky., in not less than 24 hours after leaving Decatur; and that the defendants failed to perform their agreement to deliver the horses at Decatur in 32 hours, and also failed to furnish sufficient means for feeding and watering them at that point, or to afford facilities for their remaining at that point 12 hours; and that they also failed to transport

T2 See Carriers, vol. 9, Cent. Dig. § 928.

them to Henderson within 24 hours after leaving Decatur; and that by reason of this breach of contract on the part of the defendant their horses were kept in the cars between Omaha and Decatur for 46 hours without food or water or rest, and, after leaving Decatur, were kept for more than 30 hours without food, water, or rest; and that by reason of this treatment on the part of the defendant their horses were famished and starved to such an extent that they lost flesh rapidly, and in their extreme hunger and thirst devoured their manes and tails; and that when they landed in Henderson they presented a gaunt and famished condition which materially depreciated their usefulness and salable value; that two of them died on the road; and altogether they were damaged in at least the sum of $600. The railway company, by way of answer, alleged that it was expressly provided in the contract of shipment that the cars containing the stock were to be in charge of the shipper or his agent while in transit; that the railroad company should not be liable for any injury the animals might do to each other, or loss not resulting from the gross negligence of the railroad company; that the shipper should at all times feed, water, and take care of said stock at his own expense and risk; that the railroad company should not be liable for damages resulting from the delay of trains unless the same was caused by their gross negligence-and put in issue all the affirmative allegations of the petition for relief tending to show a breach of the contract of shipment. The issues were made up by reply and rejoinder, and a trial before a petit jury resulted in a verdict for plaintiff for $600, and the defendant appeals.

The chief grounds relied on for reversal are that the trial court erred in admitting evidence of the statements of the agent of defendant at Omaha as to what the company would do in the way of furnishing facilities for watering and feeding the stock while en route, and the time that would be required for the journey; and that the verdict is flagrantly against the weight of evidence, and contrary to the instructions. The testimony for the plaintiffs is to the effect that the horses were shipped from Baker City, Or., to Omaha, Neb., a distance of about 1,700 miles, in eight days; that during the journey they were stopped and unloaded three times, and allowed to rest and feed each time about 24 hours; that they arrived at Omaha in good condition; that the agent of the defendant company at Omaha represented to the plaintiff's that they would deliver the cars in Decatur, Ill., in 32 hours, where abundant facilities for feeding and watering them would be furnished, and where they would be allowed to remain in the pens for rest and exercise, after being unloaded, 12 hours, and would then reach their destination at Henderson, Ky., in 24 hours after leaving Decatur; that as a matter of fact the horses left Omaha at

11:30 Tuesday night, and arrived at Decatur at 9:30 p. m., Thursday, having been on the road about 46 hours; that when they arrived at Decatur they were directed by the agents of the company to unload their stock in a lot of about 35 feet square, which contained no mangers or water troughs; that, although they had ordered 600 pounds of hay before they got to Decatur, the company only furnished about 150 pounds, which was scattered around the edges of the lot; that the only facilities for watering the horses were two washing tubs; that the water was carried in two buckets from an engine, and poured into the tubs; that the horses soon broke down one of the tubs, also one side of the pen fence, compelling them to remain to prevent their escape; that only a part of the horses got any water at all; that the lot was so crowded that many of them got no hay; that, after remaining in Decatur about 4 hours, they were directed to load their horses; that they left Decatur at 1:30 a. m. on Friday morning, and arrived at Henderson at 7:30 on Sunday morning; that when they arrived at Henderson two of the horses were dead, and that all were poor, gaunt, and famished, and had eaten off each other's manes and tails. The testimony for the plaintiff also fixes the depreciation in their value at from $10 to $20 per head, whilst the testimony of the defendant is to the effect that plaintiffs were notified at the time they shipped their horses that the schedule time be tween Council Bluffs and Evansville, Ind., a point in transit to Henderson, was 61 hours; and that they were also informed that they could feed and water at Decatur, Ill., that being about half the distance; and that this was satisfactory to the plaintiffs. The testimony of their employés at Decatur is to the effect that the horses were given 600 pounds of hay, and all the water needed; and that plaintiff's were given the privilege of remaining at that point for 24 hours, if they desired. But it is perfectly apparent, even from the testimony of the defendant, that the lot into which the horses were turned at Decatur was wholly insufficient; and that there were really no facilities for taking care of stock at that point. We are of the opinion that the statements and representations made to the plaintiffs by the agents of the defendant at Omaha as an inducement to ship over their line was competent testimony, as it did not tend to vary the contract, or alter the terms of the bill of lading. It is not denied that the horses were on the car in transit between Omaha and Decatur about 46 hours without food or rest, and that they were more than 30 hours in transit from Decatur to Henderson, without being fed or watered. The Revised Statutes of the United States provide as follows:

"Sec. 4386 [U. S. Comp. St. 1901, p. 2995]. No railroad company within the United States whose road forms any part of a line of road over which cattle, sheep, swine, or

other animals are conveyed from one state to another, or the owners or masters of steam, sailing, or other vessels carrying or transporting cattle, sheep, swine, or other animals from one state to another, shall confine the same in cars, boats, or vessels of any description, for a longer period than twenty-eight consecutive hours, without unloading the same for rest, water, and feeding, for a period of at least five consecutive hours, unless prevented Irom so unloading by storm or other accidental causes. In estimating such confinement the time during which the animals have been confined without such rest on connecting roads from which they are received shall be included, it being the intent of this section to prohibit their continuous confinement beyond the period of twenty-eight hours, except upon contingencies hereinbefore stated. "Sec. 4387 [U. S. Comp. St. 1901, p. 2996]. Animals so unloaded shall be properly fed and watered during such rest by the owner or person having the custody thereof, or in case of his default in so doing, then by the railroad company or owners or masters of the boats or vessels transporting the same. at the expense of the owner or person in custody thereof; and such company, owners or masters shall in such cases have a lien upon such animals for food, care and custody furnished, and shall not be liable for any detention of such animals.

"Sec. 4388 [U. S. Comp. St. 1901, p. 2996]. Any company, owner or custodian of such animals who knowingly and willingly fails to comply with the provisions of the two preceding sections, shall for every such failure, be liable for and forfeit and pay a penalty of not less than one hundred nor more than five hundred dollars. But when animals are carried in cars, boats, or other vessels in which they can and do have proper food, water, space and opportunity for rest, the provisions in regard to their being unloaded shall not apply.

"Sec. 4389 [U. S. Comp. St. 1901, p. 2997]. The penalty created by the preceding sections shall be recovered by civil action in the name of the United States, in the circuit or district court of the United States, holden within the district where the violation may have been committed, or the person or corporation resides or carries on its business; and it shall be the duty of the United States marshals, their deputies and subordinates to prosecute all violations which come to their notice or knowledge."

This prohibition against the confinement of stock transported for more than 28 consecutive hours without unloading for food and water and rest, and prescribing a penalty therefor, and for the recovery of damages, was intended to prevent cruelty to animals in interstate commerce, as well as danger to the public from diseases in animals which are to be used for food. See Brockway v. The American Express Co., 168 Mass. 259, 47 N. E. 87. So rigorously has the statute

been enforced in some jurisdictions, that the fact that the stockyards of the railroad company at a station were on fire when the train arrived is not held a sufficient excuse for not furnishing to a person in charge of the animals being transported thereon proper facilities for unloading them for food, rest, and water, and for not stopping the cars for five hours, in accordance with the provisions of the act. See N. C. & St. L. R. R. Co. v. Heggie, 86 Ga. 210, 12 S. E. 363, 22 Am. St. Rep. 453. And a carrier will not be relieved from liability for a violation of the statute by the mere fact that a special contract existed, under which the shipper assumed the duty of feeding such stock, unless the railroad company in fact furnished the necessary facilities to enable the shipper to do so, as the negligence belongs to that class against which a common carrier is not permitted to contract. See C. & O. R. R. Co. v. The American Exchange Bank, etc., 92 Va. 495, 23 S. E. 935, 44 L. R. A. 449; and Comer v. Columbia, N. & L. R. R. Co., 52 S. C. 36, 29 S. E. 637. In the Virginia case it was held that, while the penal features of the federal statute could not be enforced in a state court, this did not prevent one who had been specially injured by its violation from recovering damages therefor; and in support of their conclusion cite Cooley on Torts (1st Ed.) 654; Shearman and Redfield on Negligence, § 3; Dennick v. Central R. R. Co., 103 U. S. 11, 26 L. Ed. 439; N. C. & St. L. R. R. Co. v. Heggie, 86 Ga. 210, 12 S. E. 363, 22 Am. St. Rep. 453; Grey v. Mobile Trade Co., 55 Ala. 387, 28 Am. Rep. 729; and numerous other authorities. The common-law rule on this subject is stated by Mr. Ray in his work on Imposed Duties in these words: "The carrier is liable for injuries to stock delivered it for transportation arising from a failure to furnish proper facilities for feeding and watering them, though the shipper has agreed to accompany his stock, and feed and water them at his own risk." Hutchinson on Carriers, 222a, and Wood on Railroads (Minor) § 452b, are to the same effect.

or that they were in very bad condition when they arrived at Henderson; and that this was due to appellant's negligence is clear. The jury, under our system, are the sole judges of the weight and credibility of the testimony. Our duty is performed when we see that there is sufficient evidence to support their finding. We do not feel that we would be justified in disturbing the verdict on the ground that it was not supported by the proof, and appellant has failed to point out any error in the instructions in the case. In fact, they seem to state the law as favorably to appellant as the facts warrant.

1. What facts are sufficient to constitute probable cause, in an action for malicious prosecu tion, is a question of law, for the court.

2. Where, in an action for malicious prosecu tion, it was clearly proved that plaintiff had collected money for defendant insurance company, and had not charged himself with it or accounted therefor, and had failed to make good the amount after the default was discovered, it was error to fail to charge that, if the jury believed such facts, then there was probable cause for plaintiff's arrest, and they should find for defendant.

3. In an action for malicious prosecution. plaintiff must prove malice in fact, which is an evil or unlawful purpose in causing plaintiff's arrest, as distinguished from a motive to promote justice.

ty.

Appeal from circuit court, McCracken coun

"To be officially reported."

Action by William L. Miller against the Metropolitan Life Insurance Company and others. From a judgment in favor of plaintiff, defendants appeal. Reversed.

J. D. Macquot and James Campbell, for appellants. Hendrick & Miller, for appellee.

HOBSON, J. Appellee, Miller, was agent for appellant Metropolitan Life Insurance Company, and appellant the National Surety Company was surety on his bond. It was the duty of Miller to pay over to the company weekly all the money he collected, and his commissions were paid back to him by the company. from the home office a few days later. The mode of doing the business was to collect the premiums from the policy holders weekly. The policy holder had a book, and in this his weekly payments were entered by the agent when made. The agent had a similar book, in which the payments were also entered, and he settled weekly with the superintendent by his book. Once in three

1. See Malicious Prosecution, vol. 33, Cent. Dig.

months the agent's book was compared with the policy holders' books, to see if he had accounted to the company on his book for all the money that he had collected, as shown by the policy holders' books. Miller left the service of the company in December, 1899. The superintendent then went around with Miller, comparing his book with the policy holders' books, and found that Miller had not entered on his book some collections he had made, amounting to $9.34, and Miller executed to the company his duebill for the amount. Subsequent investigation showed that he was behind in a larger amount, and, while he says that he did not agree as to the correctness of the settlement, the weight of the evidence is the other way. Still he paid nothing, and on January 25, 1900, his surety in his bond, the National Surety Company, wrote him a letter, telling him that it had paid the insurance company $15.58 for a shortage in his account, and calling on him to reimburse it. To this letter he made no reply. On February 20th the surety company again wrote him in regard to the shortage it had paid, and to this letter he made no reply. The agents of the insurance company had some interviews with him near this time about settling the remainder of the shortage, but nothing came of it. Things ran along for some months, and then, at the request of the surety company, the insurance company directed its agent to institute a criminal proceeding against Miller for embezzlement. A consultation was held with an attorney, and on his advice a warrant was issued on July 14, 1900. Miller was arrested under the warrant, remaining in custody about an hour before he gave bond. This was on Saturday. The case was called on Monday morning, and laid over until Thursday; one of the witnesses having left the state. On Thursday morning, before the county attorney reached the court house, the case was called again; and there being no witnesses present, and no one to prosecute, the case was dismissed. Miller then filed this suit to recover damages of the two corporations, and their agents taking the proceeding against him, on the ground that the prosecution was malicious and without probable cause. The jury found in favor of the plaintiff, and assessed the damages at $1,800, and the defendants have appealed.

The court properly instructed the jury as to the advice of counsel, constituting probable cause, but he did not give any instruction on the probable cause outside of the advice of counsel. The rule is that what facts constitute probable cause is a question of law, for the court, and that the court must, by its instructions, inform the jury what these facts are, and let them determine from the evidence whether the facts exist, where the evidence is conflicting. Anderson v. Columbia Finance & Trust Company (Ky.) 50 S. W. 40; Ahrens & Ott Manufacturing Co. v. Hoeher (Ky.) 51 S. W. 194.

Appellant was charged in the criminal proceeding with the crime of embezzlement, under section 1202, Ky. St., which provides. among other things, that if an agent of any corporation shall embezzle or fraudulently convert to his own use, or the use of another, any money, property, or effects of the corporation coming into his hands, as such agent, he shall be confined in the penitentiary not less than one year nor more than ten years. Embezzlement is defined as the fraudulent appropriation or conversion of the property of another by one who is intrusted with the possession. 2 Bishop, Criminal Law, § 325 (2); 10 Am. & Eng. Ency. of Law, 978. The words, therefore, "embezzle and fraudulently convert," are synonymous. To constitute the offense, it is necessary there must be a criminal intent; but, where the money of the principal is knowingly used by the agent in violation of his duty, it is none the less embezzlement because at the time he intended to restore it. 10 Am. & Eng. Ency. of Law, 996, 997, and notes. The proof before the jury showed very clearly that Miller had collected the money of the insurance company, and had not charged himself with it or accounted for it, and had failed to make good the amount after the default was discovered. It is true, he testified that the balance against him did not arise in this way, but under the proof this was a question for the jury; and the court should have instructed them that if the agent or agents of the company in taking out the warrant believed, and had such grounds as would induce a man of ordinary prudence to believe, that Miller, while agent for the insurance company, had collected and received money belonging to the company, and had fraudulently kept the same, and had failed to pay it to the company or its authorized agent, then there was probable cause for taking out the warrant, and they should find for the defendants. The instructions of the court, as given to the jury, gave them no light as to what constituted embezzlement or fraudulent conversion; and although the defendants may, in the judgment of the jury, have shown that they had reasonable cause to believe Miller in fact guilty, as above defined, the jury were required by the instruction to find for the plaintiff.

Instruction "f" asked by the defendants is not as favorable to them as the law warrants, in that the definition of malice therein is not as favorable to the defendants as that established by the authorities elsewhere, and heretofore sanctioned by this court. In a proceeding of this kind, there must be malice in fact. This is not necessarily ill will to the defendant, but it is any evil or unlawful purpose, as distinguished from that of promoting justice. Ahrens & Ott v. Hoeher (Ky.) 51 S. W. 194. With this modification, instruction "f" should have been given, to the effect that there must be both malice and a want of probable cause, to justify a recov