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the first annual license fee required by the act should be for the year 1906 rather than for the year 1907. That it intended that the first fee payable thereunder should be for the whole of one or the other of these calendar years is conceded. To construe the act as meaning the calendar year 1906 would make the act retroactive, and, being doubtful of such legislative purpose, it ought, under the general rule heretofore referred to, and without reference to its contemporaneous construction, to be construed as prospective rather than retroactive. Giving any consideration whatever to the uniform and long-continued contemporaneous construction, there seems to us now no warrant whatever for departing therefrom.

As the judgment of the lower court is in conformity with that construction, it is affirmed.

MCFARLAND v. COMMONWEALTH. (Court of Appeals of Kentucky. June 12, 1925.)

I. Homicide 339- Rejection of testimony of deceased's impugning of accused's character for virtue held not prejudicial, in view of verdict of manslaughter.

In murder prosecution where defense was self-defense against an alleged assault of deceased against accused when she charged deceased with having impugned her character for virtue and morality, rejection of testimony disclosing remarks deceased made several days before homicide held not prejudicial, where verdict of manslaughter was returned, and where words could only enrage her and thereby reduce crime from murder to manslaughter. 2. Homicide 244(1)—Evidence held to show accused shot deceased, not in necessary selfdefense, but because of some other motive. Evidence held to show accused shot deceased, not in necessary self-defense, but because of some other motive.

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punished by confinement in the state penitentiary for ten years. Upon this appeal from the judgment pronounced on the verdict, after her motion for a new trial was overruled, her counsel argues but one alleged error, which is: Erroneous ruling of the court in rejecting testimony offered by defendant. Before taking up that question, and in order to have a proper understanding of it, a brief statement of the facts as testified to by the witnesses for both sides is proper.

Deceased was working for a coal operator in the mining village, but was not at work on that day. He had arranged to go squirrel hunting with a companion, and somewhere about 8:30 a. m. on the fatal day he was in front of and perhaps on the porch or platform to a commissary store operated by the mining company. Defendant came from her home about 300 yards distant to that store and had around her shoulders a green shawl. Some witnesses who testified for the commonwealth were on the platform of the store at the time, and one of them testified to hearing defendant and a lady friend talking just inside the store and defendant's friend said, in substance: "I wouldn't do it now; there are too many people present." Defendant left the store and went to her home, but deceased

continued to linger around it for some 20 minutes, and then started in the direction of the home of his companion, who was going squirrel hunting with him, when he met defendant coming from her home towards the store at a point about halfway between her home and the store. The eyewitnesses then testified that when she got within 5 or 10 feet of deceased she drew a pistol and shot him near the heart in the left side, from the effects of which he fell, and while he was falling she fired a second shot, but missed him. She then took the gun, which he carried on his left shoulder and unloaded, and threw it aside and went to his prostrate form and kicked him two or three times. The commonwealth also proved that about that time Dr. Gunn and others started to the place of the killing, and that she shouted to the doctor, "I don't think the dam thing is hurt very bad," and that proven statement of defendant is nowhere denied by her.

Defendant admits shooting the deceased at the time and place proven by the witnesses for the commonwealth, but she claims that she did so in her necessary self-defense. Her testimony as to what occurred immediately at the time of the meeting was:

"Q. Tell the jury why you did not go more than about halfway? A. I met up with Collins. I done heard the talk he had about me, and I asked him about it. He said he hadn't handled the talk. I says: 'Yes, you have.' He says: 'Don't make me out a liar, or I'll knock your brains out.'

(273 S.W.)

"Q. What did he say he was going to knock [ruling of the court is the only one of which your brains out with? A. He didn't say what, complaint is made on this appeal. but he started to knock me down with the gun. "Q. When he said that, tell what he did. A. When he said that, he started up with the gun,

so that is when the trouble occurred.

"Q. What did you do when he brought the gun up that way? A. I shot him.

"Q. How many shots did you fire? A. I fired

two.

"Q. What did he do when you shot him? A. Why, he fell.

"Q. Now tell the jury why you shot him? What made you shoot him? A. Because he threatened to knock my brains out and started

to hit me."

[1] Prior conversations by the deceased concerning the defendant, which form no part of the immediate transaction so as to be a part of the res gestæ, are never admissible in complete justification of a homicide. 30 C. J. 66. They are sometimes admitted in corroboration of the plea of self-defense when they amount to threats to do bodily harm to the defendant, upon the ground that they have a tendency to prove the state of feeling of the deceased toward defendant and thereby to support the probability that he was the aggressor, but some courts do She was partially corroborated by a Mrs. not allow their introduction for even that McIntosh, who was some 30 or 40 yards away purpose, except in cases where the evidence sitting on her front porch stringing beans, of the killing is circumstantial and not estabbut both she and defendant were impeach-lished by eyewitnesses. C. J. supra, 191. ed by the commonwealth as possessing bad moral character, though defendant supported her good reputation in that respect by three or four witnesses, but who, upon crossexamination, revealed that about the only person they had heard discussing defendant's reputation was Mrs. McIntosh, and since the date of the killing, and whose reputation for morality, as we have seen, was impeached with no witness sustaining it.

Here the offered conversation of the deceased, which the court rejected, concerned the relations between the deceased and the defendant and impugned her character for virtue and morality, and their ultimate effect on defendant could, in no event, be any greater than to enrage her and thereby reduce the homicide from murder to manslaughter. Without holding in this case that the words of the deceased, spoken some days before the homicide, were competent or incompetent for even that purpose, it is sufficient to say that defendant was convicted of manslaughter and not of murder. So that if we were to attribute the utmost legal effect to the reject

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it is unnecessary to extend the opinion in
discussing the relevancy of that offered tes-
timony, since, as we have seen, the defend-
ant got the benefit of all of the legal effect,
that it could have had upon the trial.
over, the jury were fully informed by de-
fendant herself of the extreme vulgarity of
the statements of the deceased concerning
her when she declined to testify concern-
ing. them on account of that fact. To have
them repeated before the jury after defend-
ant so declined would not materially add to
their effect, and we are convinced that in no
view of the case were defendant's substantial
rights prejudiced by the ruling of the court
complained of.

Defendant was allowed to testify that, on the evening before the killing the next morning, the deceased came into her house when she was alone and made indecent proposals to her, but he was driven away by her without accomplishing his purpose if he entered statements of deceased, it then appears tained such. She was also permitted to and that defendant got the full benefit of the did testify that on the same morning of the mitigating effect of them had they been inkilling, but some time before, she was introduced. Having arrived at that conclusion, formed of extremely slanderous and vulgar statements of the deceased concerning her made some time prior thereto. She was asked to detail those statements as told to her to the jury, but she declined to do so. The witness who told them to her was also permitted to testify as to that fact, but she did not tell, nor was she asked to tell, the actual statements supposed to have been made by the deceased concerning defendant; and there was much testimony in the record that deceased on a prior occasion had used scandalous language toward defendant, and that she had been informed of that fact. Indeed, her above-copied testimony shows that she had been informed as to such prior conversations of the deceased concerning her, and that he then denied any such. She did not pretend that she shot him on account of any such slander, but only in her necessary self-defense, but because of some other motive, defense. She later introduced two witnesses who claim to have heard the slanderous statements of the deceased concerning her virtue and his relations with her, and she offered to prove by them the details of those conversations, which are too vulgar and shocking to insert in this opinion, and the court sustained an objection to it and declined to permit it to be introduced, and that | affirmed.

[2] No fair-minded person can read this record without concluding that defendant shot the deceased, not in her necessary self

which may or may not have been his alleged slanderous remarks concerning her, and if for the latter she obtained by the verdict of the jury under the most favorable view all that the law entitled her to by reason thereof.

Finding no error authorizing our interference with the judgment, it is accordingly

32

V.

MCKNIGHT et al.
BROADWAY
FOURTH AVENUE REALTY CO.

(Court of Appeals of Kentucky. June 5, 1925.
Rehearing Denied July 14, 1925.)

1. Landlord and tenant 156-Lessors held
to have waived strict compliance with lease.
Where 99-year lease, executed in 1912, re-
quired lessee to insure buildings and deposit
indorsed policies with trust company, which
not done, but not complained of until
1923, lessor held to have waived strict compli-

was

ance.

2. Landlord and tenant 106-Failure of lessee to comply with terms of lease in reliance on agreement with lessor held not to work forfeiture.

Where 99-year lease provided for construction of permanent building in certain year, and maintenance of temporary building in meantime, failure of lessee to repair temporary building after fire, pursuant to agreement with three of four lessors, held not ground for forfeiture.

Appeal from Circuit Court, County, Chancery Branch, First Division. Jefferson Suit by the Broadway & Fourth Avenue Realty Company against Stuart McKnight and others. Judgment for plaintiff, and defendants appeal. Affirmed.

(Ky.

leasehold, any improvements erected there on, and all appurtenances belonging therederived therefrom, to secure the payment of to, and upon the proceeds of any insurance rentals, and are also given a lien upon the of all rents due, or to become due, and to deposit of securities "to secure the payment secure the performance of all the covenants nent building, or buildings, hereinafter reof this lease up to the time that the permaferred to are erected, free of lien and in

cumbrance."

It is also stipulated that:

stroyed or damaged by fire, or otherwise, and "In the event that the buildings shall be deshall not be repaired in the manner provided in this lease within 12 months from the date destruction or damage, all money received by of the collection of the insurance due upon such the said trust company, or its successors, as inthe lessors, their heirs, legatees, devisees, personal representatives, and assigns, as liquidated surance upon said buildings, shall be paid to damages for the breach of the covenants of this lease in regard to rebuilding and repairing the improvements on the leased premises."

lessee constructed a temporary building upon the lot at a cost of more than $100,000, Within the time provided in the lease, the and the time for beginning the construction of the permanent building was subsequently

John Bryce Baskin and Haswell & Lukins, extended from January 1, 1923, to January all of Louisville, for appellants.

Ap

Burnett, Batson & Cary and Fred Forcht, proved securities in the sum of $50,000 were 1, 1929, by agreement of the parties. all of Louisville, for appellee.

deposited with the trustee, and insurance with the terms of the lease, but the policies was carried on the building, in accordance were

There has never been any default by the never deposited with the trustee. lessee in the payment of rentals, or of any taxes or other charges against the property.

CLARKE, J. On June 1, 1912, appellants' father and predecessor in title leased to appellee for 99 years a lot on the northwest corner of Broadway and Fourth avenue in Louisville. The lease obligated appellee: (1) To pay rentals, ranging from $12,000 to $18,000 per annum, plus all taxes, assessments, and other charges against the property; (2) to construct on the lot, prior to December 31, 1912, a temporary building, or buildings, to cost not less than $25,000; (3) to supplant same building, at a cost of not less than $400,with a permanent 000, to be begun on January 1, 1923, and completed within two years thereafter; (4) to keep all buildings insured against fire, lightning, and wind for 80 per cent. of their value, to indorse all such policies to and deposit same with a named trust company, which was to collect and hold any proceeds payable thereunder, and to expend same at the direction of appellee in rebuilding or repairing the buildings destroyed or damaged, "Said improvements shall be at least equal in value, size, character, and height to the buildings or improvments which they replace"; and, (5) to deposit with the trustee securities to be approved by the lessor, and worth not less than $50,000. The lessors are given a lien upon the January 1, 1929, at the latest, and that he

building on the lot was so damaged by fire On the 11th day of October, 1923, the that the appellee collected from the insurance companies having policies thereon the sum of $57,057. The lessee thereupon sought and produced a conference with appellants, Miller, who, with their brother, Henry McStuart McKnight, Mrs. Bowmer, and Mrs. Knight, became the owners of the property upon the death of their mother and father, under the will of the latter. ference, held in the Brown Hotel, on October 26, 1923, the lessee was represented' At the conby its president, Mr. Brown, and its attorney, Mr. Forcht. Mr. Brown stated that he had called the meeting to see if there could be an agreement arranged whereby it would not be necessary to restore the building to its former state, explaining that it seemed to appellee to be foolish waste of money to restore the temporary building to a condition "equal in value, size, character, and height," as provided in the lease, when the building would have to be torn down on

(273 S.W.)

trol. A temporary restraining order was granted, but, at the expiration of the 12 months in which, according to the lease, appellee had to restore the building to its former state, appellants filed an action at law seeking a forfeiture of the $50,000 of securities in the hands of the trustee. The chancellor required them to set up that claim in this action, which they did by an answer, counterclaim, and cross-petition.

proposed, if his plans materialized, to be- ment with three of appellants were to congin the construction of the permanent building on January 1, 1926. For this reason he sought permission to make less expensive repairs, which would protect the first-floor tenants, and leave the second floor unoccupied. He also asked permission to withdraw the $50,000 of securities and to substitute a $400,000 bond therefor. This latter proposition was declined by the three appellants, but that they agreed that the second floor need not be restored, and that the building might be repaired as proposed by Mr. Brown, if the building inspector of Louisville would agree thereto, is made certain by the fact that in their answer, counterclaim, and cross-petition filed herein, they assert that "they agreed for themselves only," and that they had no power to represent or bind their brother, Henry McKnight.

Appellee then had plans and specifications prepared for restoring the temporary building in accordance with this agreement, and after same had been approved by the building inspector of Louisville, let the contract, and same was nearing completion when, on November 26, 1923, Mrs. Bowmer made complaint that appellee had violated the terms of its lease by failing to deposit the insurance policies with the Trust Company prior to the fire, and demanded payment to it of the $57,057 of insurance collected by appellee. The next day appellee delivered to Stuart McKnight for deposit with the Trust Company all insurance policies on the property, but it did not turn over the $57,057 of insurance it had collected, at which time Stuart McKnight assured appellee's attorney that, so far as he knew, this would be satisfactory.

A few days later Mrs. Bowmer again demanded that the insurance policies and money be turned over to the Trust Company, whereupon appellee requested another conference. The reply to its letter making this request was the institution of a forcible detainer proceedings in Judge Tincher's court. The trial there having resulted in a peremptory instruction to find appellee not guilty, an appeal was taken by appellants to the circuit court, where the case was submitted to a jury, upon the evidence, and it also found appellee not guilty Appellants filed a motion for a new trial. Thereupon appellee filed this action in equity to enjoin appellants from further prosecuting the forcible detainer proceedings, or claiming a forfeiture of the lease and the $50.000 of securities, and requiring them to present all their claims with reference thereto in this action.

This was on May 2, 1924, and there then remained to appellee less than four months of the 12 months in which it had to restore the buildings to their former state, if the terms of the lease rather than the agree273 S.W.-3

The issues having been completed, the case was submitted upon the evidence produced at the trial of the forcible detainer writ in the circuit court, and which discloses the facts to be as above stated, and the chancellor found appellee was not guilty of the forcible detainer, and that appellants were not entitled to insist upon a forfeiture or damages, and granted the prayer of appellee's petition. It is from that judgment this appeal is prosecuted.

[1, 2] We shall not attempt to answer separately the many complaints of that judgment pressed upon our attention by counsel for appellants, since all of them are based upon the single theory that the chancellor erred in refusing to declare a forfeiture of the lease and award them $50,000 as liquidated damages because of appellee's admitted failure to comply with the strict terms of the lease with reference to depositing insurance policies and money with the trustee, and in the restoration of the damage done to the temporary building by fire. Or, stated otherwise, that the chancellor erred in refusing to ignore the admitted fact that the failure to deposit the policies with the trustee had been acquiesced in by appellants, their father. and their mother, ever since the lease was executed in 1912, and that the failure to restore the buildings to their former state was due solely to an express agreement by three of the four joint owners of the property that it might be restored temporarily, or possibly until January 1, 1929, in a less expensive manner, but in such manner as cannot possibly jeopardize in the least any benefit due appellants under the lease, or their security for the future compliance therewith by the appellee.

That this was not error seems to us too obvious to admit of serious discussion. The chief insistence for appellants, in support of their many complaints of the judgment, is that the chancellor has made a different contract for the parties from the one they themselves made, in violation of their right to contract as they please, which is clearly not true He has simply held that a failure strictly to comply with the contract they made will not work a forfeiture, where the failure of appellee so to comply was either agreed to or asquiesced in with knowledge by appellants, and where, too, appellants have sustained and will sustain no material

damage because thereof, and a forfeiture, a fatal variance, where both application and would impose great and unconscionable proof referred to same occurrence. losses upon appellee, and correspondingly 7. Master and servant

enrich them.

The chancellor's action was in exact accord with recognized principles of equity, and his power and duty so to act in such circumstances is fully authorized by the authorities, as well as by reason and good conscience. Wilson v. Jones & Tapp, 1 Bush 173; Hogg v. Forsythe, 198 Ky. 462, 248 S. W. 1008; Edwards-Pickering & Co. v. Rodes, 203 Ky. 95, 261 S. W. 885. Judgment affirmed.

KINGSTON-POCAHONTAS COAL CO. v.

MAYNARD.

(Court of Appeals of Kentucky. May 29, 1925. Rehearing Denied July 14, 1925.)

1. Master and servant 417(7)-Compensation Board's findings of fact on evidence conclusive.

Where there is no claim of fraud, Workmen's Compensation Board's findings of fact are conclusive, unless there is an entire absence

of evidence to support them. 2. Master and servant

398-Notice of injury held sufficient under Compensation Act. Employee, who gave notice of his injury within a few minutes thereafter to assistant mining foreman, who was his immediate superior, and at that time directing his work, sufficiently complied with Workmen's Compensation Act as to giving notice of injury.

401-Sufficiency of

application for compensation not determined by strict rules of pleading.

Although employee's application for compensation for injuries, under Workmen's Compensation Act, serves somewhat same office as does a petition in an action at law, its sufficiency is not to be determined by strict rules of pleading.

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CLARKE, J. This is an appeal by the em

ployer from a judgment of the Pike circuit court affirming an award of the Workmen's Compensation Board in favor of the employee. The fourfold complaint of the appellant is that the evidence does not sustain the board's findings of fact: (1) That the claimant gave notice of his injury as required by the Compensation Act (Acts 1916, c. 33); (2) that the injury arose out of and in the course of his employment; (3) that

3. Master and servant 405 (4)-Finding of such injury proximately and solely caused compensable injury sustained.

Evidence held to sustain finding of Workmen's Compensation Board that injury to employee arose out of and in course of his employment.

4. Master and servant 405 (4) Evidence held not to sustain Compensation Board's finding of total disability caused by injury. Evidence held not to sustain finding of Workmen's Compensation Board that ployee's total disability was caused by an injury arising out of and in course of his employment, and not from a pre-existing disease.

em

5. Master and servant 376 (2)-Compensation Board must apportion award, where disability not caused solely by injury.

Where disability sustained by employee suffering from pre-existing disease, is not caused solely by an injury arising out of his employment, Workmen's Compensation Board must apportion the award.

6. Master and servant 401-Application for compensation held not at fatal variance with proof.

his disability; and (4) that the evidence proves a different injury, if any, from that alleged in the application for compensation. [1] As it is admitted that both parties had accepted the provisions of the Compensation Act, and there is no claim of fraud, the board's findings of fact are conclusive, unless there is an entire absence of evidence to support them. Robinson-Pettet Co. V. Workmen's Compensation Board et al., 201 Ky. 719, 258 S. W. 318; Beaver Dam Coal Co. v. Hocker, 202 Ky. 398, 259 S. W. 1010; Northeast Coal Co. v. Castle, 202 Ky. 505, 260 S. W. 336.

[2] Appellee testified he gave notice of his injury within a few minutes thereafter to Crit Thornhill, the assistant mining foreman, and that Thornhill was his immediate superior, and at that time directing his work. This was a sufficient notice of the injury, under the provisions of the Compensation Act. Bates & Rogers Construction Co. v. Allen, 183 Ky. 815, 210 S. W. 467.

[3] Appellee also testified that about 11 a. That employee's application for compensation, under Workmen's Compensation Act, de- m., Saturday, July 8, 1923, while engaged in scribed his injury without any reference to building a buttress wall in appellant's mines, cause thereof, as detailed in his proof, held not a rock weighing 15 or 20 pounds that he

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