STEARNS COAL & LUMBER CO. v. (Court of Appeals of Kentucky. Nov. 9, 1915.) 1. MASTER AND SERVANT 285-ACTION FOR INJURY QUESTION FOR JURY-PROXIMATE On evidence in an action for personal injury while cutting coal with a punching machine, held, that whether the machine's defective condition was the proximate cause of the injury was for the jury. Lumber Company, a verdict and judgment for $1,500. The defendant appeals. At the time of the injury plaintiff was engaged in cutting coal with a Sullivan punching machine. The machine weighs about 900 pounds, is 16 inches in diameter, and has a wheel on each side by which it is moved. The machine is placed on a board about 10 feet long and 40 inches wide. The pick which cuts the coal is operated by means of a piston, which pushes in and out. The machine is operated by compressed air, and is put in motion by means of a throttle valve. The pick runs through a shield, and there is a sleeve that holds the pick. The operator of the machine sits at the rear. When the air is turned on, both the machine part and the piston work. According to plaintiff's evidence, the machine would not work. He and Ben Strunk, a fellow workman, rolled the machine back. The piston would not slip out, and plaintiff caught the sleeve with his foot [Ed. Note.-For other cases, see Master and for the purpose of making it start. In some Servant, Cent. Dig. §§ 574-600; Dec. Dig. way he was thrown down, with his feet in [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1002, 1003, 1007, 1008, 1016, 1035, 1043, 1053; Dec. Dig. 285.] 2. MASTER AND SERVANT 217 MASTER'S LIABILITY-ASSUMPTION OF RISK-APPRECIATION OF DANGER. To prevent a recovery in a servant's action for injury on the ground of his assumption of risk, it is not sufficient to show merely that he knew of the defective condition of a machine, or that it was clearly observable; but it must be shown that the danger therefrom was appreciated by him. 217.] 3. MASTER AND SERVANT 205 - PERSONAL INJURY-ASSUMPTION OF RISK-ASSURANCE OF SAFETY. front, and three of his toes were cut off. The machine had been out of order the day before, and was taken out by the electrician for the purpose of repairing it. The electrician told plaintiff that he had fixed it and it was all right. At the time of the accident plaintiff had been working with it about an hour, and it had stopped two or three times [Ed. Note.-For other cases, see Master and before. On cross-examination, plaintiff statServant, Cent. Dig. §§ 547-549; Dec. Dig. ed that he and Strunk were partners on the 205.] Where the master's electrician had repaired its coal-punching machine and assured a servant that it was all right, the servant might rely thereon and continue its use, unless the danger was so obvious that an ordinarily prudent person would refuse to work. 4. MASTER AND SERVANT 288-PERSONAL INJURY-QUESTION FOR JURY-ASSUMPTION OF RISK. On evidence in a servant's action for injury while running a coal-punching machine, held, that whether he assumed the risk was for the jury. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1068-1088; Dec. Dig. mm 288.] 5. TRIAL 255-EVIDENCE-LIMITATION TO SPECIFIC PURPOSE-REQUEST FOR INSTRUCTION. contract. He had been running a coal-cutting machine for about 20 months. He knew, if the air was turned on, that the machine would move. Every time they would set the machine on a new board, the needle hung up. The only thing wrong with the machine at the time of the accident was the fact that the needle would not pull out. While it had been working that morning, it would not work right. His partner, Ben Strunk, turned on the air. If the machine had not started While an instruction that life tables, ad- so quickly, he would have taken his foot off. mitted in evidence in a servant's action for in- Plaintiff further says that, if the machine jury, were competent only to show his expec- had been in good order, it would not have tancy of life, should have been given on re-injured him. quest of either party, a failure to so instruct It was necessary for him to was not error, where no request was made. put his foot on the sleeve that morning, as [Ed. Note.-For other cases, see Trial, Cent. he had been doing. If the machine had been Dig. §§ 627-641; Dec. Dig. 255.] in good order, it would not have jumped so hard. It was the starting of the machine that caused him to be jerked around and his foot thrown in front of the pick. Appeal from Circuit Court, McCreary County. Action by Mart Calhoun against the Stearns Coal & Lumber Company. Judgment for plaintiff, and defendant appeals. Affirmed. J. N. Sharp, of Knoxville, Tenn., for appellant. John W. Rawlings and Robert Harding, both of Danville, and John W. Sampson, of Whitley City, for appellee. CLAY, C. In this action for damages for personal injuries, plaintiff, Mart Calhoun, recovered of defendant, the Stearns Coal & fendant's contention that the defect in the [1] There might be some merit in de machine was the occasion and not the cause of the accident, if the proof merely conduced to show that the turning on of the air, which was done by a fellow servant, was the real cause of the accident. Plaintiff's evidence, however, is to the effect that, if the machine had been in good order, it would have worked smoothly when the air was turned on, and, had it worked smoothly, the accident would not have occurred. Being out of or For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes der, the turning on of the air caused the machine to start with a jerk; and, according to plaintiff, the jerk is what caused the accident. In view of this evidence, and of the further fact that the jury had before it a cut of the machine, by which its operation was explained, we conclude that the question whether or not the defective condition of the machine was the proximate cause of the injury was for the jury. [2-4] The further point is made that, as the machine had stopped two or three times before, its defective condition was known to plaintiff, and as he, with knowledge of that condition, continued to work with the machine, he assumed the risk, and cannot recover. To prevent a recovery in a case like CARROLL, J. This is the second appeal of this case. The former opinion may be On this, it is not sufficient to show merely that found in 159 Ky. 581, 167 S. W. 872. the plaintiff knew of the defective condition, this appeal it is conceded by the commonor that it was clearly observable. In addi- wealth that it was error to give interest on tion thereto, it must be shown that the dan- the judgment from January 31, 1909, as inger from such condition was known, or clear-terest should only have been allowed from January 31, 1910, and that for this error the ly observable, and appreciated by him. C. & O. Ry. Co. v. De Atley, 159 Ky. 687, 167 judgment must be reversed. S. W. 933. Though the evidence conduces to show that the machine had stopped on two or three occasions that morning, it does not appear that when it was started it began to move with such violence that the danger therefrom was clearly observable. Furthermore, the electrician, who repaired the machine, assured plaintiff that it was all right. That being true, plaintiff had the right to rely on the assurance thus given, and to continue to use the machine, unless the danger was so obvious that an ordinarily prudent person would refuse to work. Under these circumstances, it cannot be said, as a matter of law, that plaintiff assumed the risk. [5] Another error relied on is the failure of the trial court to admonish the jury that the life tables, which were admitted as evidence, were competent only for the purpose of showing the probable duration of life. While we have ruled that such an instruction should be given when requested by either party (L. & N. R. R. Co. v. Irby, 141 Ky. 145, 132 S. W. 393), a failure so to instruct is not error, where no such request is made. Judgment affirmed. The only other question in the case is the contention that sections 4226, 4230a, of the Kentucky Statutes are violative of the fourteenth amendment to the federal Constitution, and therefore void, and, this being so, the insurance company is not liable for any part of the tax sought to be collected, as the right of the state to collect the tax rests entirely on sections 4226 and 4230a. In 1906 the Legislature enacted, in connection with other statutes on the subject of insurance, the section that is now 4230a of the Kentucky Statutes. This section, which is merely supplementary to 4226, provides: "Any insurance company that has been authorized to transact business in this state shall continue to make the reports required herein as long as it collects any premiums as provided for herein, and shall pay taxes thereon, even after it has voluntarily ceased to write insurance in the state or has withdrawn therefrom, or its licommissioner, and for failure to make report of cense suspended or revoked by the insurance the premiums collected and pay the taxes due thereon, shall be fined five hundred dollars for such offense." The Washington Life Insurance Company continued to do business in this state until December 30, 1908, when it withdrew from the state, and reinsured its policy holders in this state in the Pittsburg Life & Trust Com WASHINGTON LIFE INS. CO. v. COMMON. pany, a Pennsylvania corporation. It appears WEALTH, by, etc. ATION 113 that since December 30, 1908, the Washington Life has not done any business in this state, but the premiums on the business it did in this state before its withdrawal were paid in 1908 and thereafter, by the policy Ky. St. §§ 4226, 4230a, imposing a tax on holders, to the Pittsburg Life & Trust Compremiums collected by life companies and authorizing the collection of the tax after such a company, which has never done any business in pany has voluntarily ceased to do business in the the state, and the purpose of this suit on the state, are not in violation of the fourteenth part of the commonwealth was to collect amendment to the federal Constitution. [Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. §§ 625-648, 685, 891, 892, 904906; Dec. Dig. 206, 229, 283; Taxation, Cent. Dig. § 207; Dec. Dig. 113.] from the Washington Life the tax due on the premiums paid by policy holders to the Pittsburg Life & Trust Company after the withdrawal of the Washington Life from this state and the reinsurance of its policy hold-on a general demurrer filed to the petition ers in the Pittsburg Life & Trust Company. by the defendant, which seems to present all We think the question presented in this questions raised by the parties. case, that sections 4226 and 4230a of the Kentucky Statutes are void because in violation of the fourteenth amendment to the Constitution of the United States, cannot be sustained. Com. v. Provident Savings Life Assurance Society, 155 Ky. 197, 159 S. W. 698; Com. v. Illinois Life Insurance Co., 159 Ky. 589, 167 S. W. 909; Com. v. Washington Life Insurance Co., 159 Ky. 581, 167 S. W. 872; Provident Savings Life Assurance Co. v. Com., 160 Ky. 16, 169 S. W. 551. We, therefore, expressly hold that these sections, and neither of them, violate the federal Constitution, but for the purpose of having the error as to interest corrected, the judgment must be reversed; and it is so ordered. It appears from the averments of the petition, and is admitted by the demurrer, that the action pending in the Jefferson circuit court, of which the defendant, Charles T. Ray, is the presiding judge, was brought to recover of the Old Dominion Steamship Company damages for alleged insult and maltreatment sustained by the plaintiff at the hands of its servants and employés while a passenger on one of its steamships sailing from Norfolk, Va., to New York, of which they were in charge. It further appears from the petition that the plaintiff, in August, 1914, purchased of the Louisville agent of the Chesapeake & Ohio Railway Company a ticket from Louisville to New York, which entitled her to be carried as a passenger from Louisville to Norfolk, Va., over the line of the railway company and from Norfolk to New York on the steamship of the Old Dominion Steamship Company. Two summonses were issued against the Old Dominion Steamship Company upon the filing of the petition, one of which was served upon R. E. Parsons, who is the district passenger agent of the Chesapeake & Ohio Railway Company at Louisville. The other was served upon C. A. Pennington, the superintendent of terminals of the Louisville & Jeffersonville Bridge Company, which terminals are used by the Chesapeake & Ohio Railway Company In an action pending in the circuit court at Louisville. The return upon the first sumthe judge sustained a motion to quash the re-mons was as follows: turn upon service of summons, on the ground that the defendant was not served. Const. § "Executed December 29, 1914, on Old Domin110, authorizes the Court of Appeals to issue ion Steamship Company by delivering a copy of such writs as may be necessary to give it gen- the within summons to Robert E. Parsons, agent eral control of inferior jurisdictions. Held, that of said company, he being chief officer found in as the circuit judge had exercised his discretion this county at this time, he refusing to accept and made a finding on the facts, mandamus same. C. J. Cronan, S. J. C., by E. D. Waters, would not lie to compel him to decide otherwise, though petitioner, plaintiff in the action, had no adequate remedy by appeal, for the purpose of the writ of mandamus is merely to command action and not to coerce the discretion of the lower court, and if petitioner desired to take no further steps, the lower court would doubtless have SPECKERT v. RAY, Judge. (Court of Appeals of Kentucky. Nov. 10, 1915.) 1. PROHIBITION 3, 10-RIGHT TO WRIT. The writ of prohibition may be issued by a circuit court against an inferior court, or by an appellate court against a circuit court, where the inferior or circuit court is attempting to act out of jurisdiction, or the writ is the only adequate remedy to which the party applying there for can resort. [Ed. Note. For other cases, see Prohibition, Cent. Dig. §§ 4-19, 37-56; Dec. Dig. 3, 10.] 2. MANDAMUS 34-WRITS-RIGHT TO. dismissed the suit. [Ed. Note. For other cases, see Mandamus, Cent. Dig. § 77; Dec. Dig. 34.] Petition by Rosalee Speckert for writ of mandamus against Charles T. Ray, Judge. Petition denied. David R. Castleman and Pryor & Castleman, all of Louisville, for plaintiff. Humphrey, Middleton & Humphrey, of Louisville, for appellee. SETTLE, J. The plaintiff, Rosalee Speckert, seeks in this action a writ of mandamus to compel the defendant, Charles T. Ray, judge of the Jefferson circuit court, common pleas branch, fourth division, to try an action pending in his court, wherein she is plaintiff and the Old Dominion Steamship Company is defendant; the writ being asked in this court. The case has been submitted D. S." The return upon the second summons was as follows: Dominion Steamship Company by delivering a "Executed January 2, 1915, on defendant Old nington, the chief agent of the Chesapeake & true copy of the within summons to C. A. PenOhio Railway Company found in this county, and which said railway company, as the agent of said defendant, in charge of its business in this county. C. J. Cronan, S. J. C., by C. Mueller, D. S." The Old Dominion Steamship Company, entered its special appearance and made a motion to quash the return upon each of these summonses, and in support of the motion filed the affidavits of Parsons and Pennington. Plaintiff, as against the motion, filed her own affidavit. The circuit court, after considering the motion to quash, sustained it, to which ruling plaintiff excepted. Thereafter the plaintiff entered a motion to set aside the order quashing the return on each summons, and that the case be set on the docket for trial. This motion was also overruled by the circuit court, to which ruling the plaintiff excepted. No further orders were entered or steps taken in the case. The affidavit of Parsons contains the statements that the Chesapeake & Ohio Railway Company operates passenger trains from Louisville to Norfolk, Va.; that the old Dominion Steamship Company is a nonresident corporation, separate and distinct from the Chesapeake & Ohio Railway Company, and that it operates a steamship line over which passengers and freight are transported from Norfolk, Va., to New York; that he (Parsons) is not, and was not at the time the summons was served on him, the agent in Kentucky of the Old Dominion Steamship Company, and that it has never had any officer or agent in Kentucky; that in selling tickets like that purchased by the plaintiff, the Chesapeake & Ohio Railway Company acts for itself as far as the transportation on its line is concerned, and sells tickets for the connecting carrier, Old Dominion Steamship Company, as far as the transportation of passengers on the line of the latter is concerned; and that each line acts independently in the matter of such transportation. The affidavit of Pennington contains the statements that, though the terminals of the Louisville & Jeffersonville Bridge Company, of which he is the superintendent, are used by the Chesapeake & Ohio Railway Company at Louisville, that company bills freight from Louisville to New York over the Chesapeake & Ohio Railway to Newport News and over the Old Dominion Steamship Company from Newport News to New York, according to the usual custom of freight transportation; that each company acts separately and not jointly in regard to such traffic; that he (Pennington) is not, and has never been, the agent of the Old Dominion Steamship Company in this state; and that company has never had an officer or agent in this state. The counter affidavit of the plaintiff was to the effect that in purchasing the ticket in question from R. E. Parsons, he held himself out as the agent in this state of the Old Dominion Steamship Company; that as the agent of the Chesapeake & Ohio Railway Company he kept in the office of that company at Louisville pamphlets and advertising matter of the Old Dominion Steamship Company, and that the Chesapeake & Ohio Railway Company solicits freight and passenger business for the Old Dominion Steamship Company; moreover, that subsequent to the infliction upon her by the servants of the latter company of the injuries complained of in the petition, Parsons, acting for it, entered into negotiations with her looking to the settlement of her claim for damages. lines all over the United States, the time of arrival and departure of trains, etc.; that when a person, desiring to go to New York, applies at the ticket office of the Chesapeake & Ohio Railway Company, the agent of that company solicits such person to travel over its line as far as Norfolk, Va., and represents at the time that it has a connection at Norfolk for New York, via the Old Dominion Steamship Company, and that a through ticket from Louisville to New York by the steamship company's line can be obtained in the Louisville office of the Chesapeake & Ohio Railway Company, and also freight transportation. It does not seem to be claimed by the plaintiff that the service of process on Pennington is good, but it is insisted for her that the service of Parsons is valid and sufficient to give the circuit court jurisdiction in the action as to the Old Dominion Steamship Company. The two questions presented for decision by the record in this case are: (1) Whether the writ of mandamus will lie to compel a judicial officer to decide that service of process, which he had already adjudged insufficient, is good; (2) whether, if mandamus is the proper remedy, the service of process had on the defendant, Old Dominion Steamship Company, is good, and therefore sufficient to give the circuit court jurisdiction to entertain and try the action. [1, 2] It is not claimed in the instant case that the defendant judge refused to act at all. On the contrary it is conceded that he entertained the case for the purpose of considering the single question presented to him, that is, whether the service of process was good or bad, and that he did decide it; and, the decision being that the service was not good, an order was entered quashing the return. The only meaning of the plaintiff's complaint is that the decision was adverse to her interest and therefore incorrect, for which reason she asks the writ of mandamus, to compel a different decision of the question, and one that will be favorable to her. In other words, what the plaintiff now seeks is, not that the judge of the circuit court be required to take action, but that he act in a manner that will deprive him of the discretion with which he is clothed as a judicial officer by the law. Section 110 of the Constitution provides that the Court of Appeals shall have power to issue such writs as may be necessary to give it general control of inferior jurisdictions. We have never held that the above provision of the Constitution authorizes this After the filing of the affidavit of the plain- court to exercise the power of determining tiff there was filed by the defendant a sup- questions that necessarily belong to courts of plemental affidavit of Parsons, in which it original jurisdiction and over which they was denied that he had any negotiations with have complete control, subject to an appeal plaintiff regarding her claim for damages, to this court, where an appeal is allowed. or that he was authorized by the Old Do- The writ of mandamus cannot be issued to minion Steamship Company to negotiate with compel an inferior court to decide a matter her; that all railroads kept pamphlets in in any particular manner. The chief office their ticket offices, showing their connecting of the writ, as applied to courts, is to com pel action by them; but where, as in the instant case, the petition of the plaintiff alleges that the court acted, but acted in a way different from what the plaintiff desired, this court is without power to interfere to the extent of compelling, by mandamus, such action or decision on the part of the circuit court as will deprive it of the discretion conferred upon it by law. As said in Commonwealth v. McCrone, 153 Ky. 296, 155 S. W. 369: "The general principle which applies to the issue of a writ of mandamus is familiar. It may be issued to compel the performance of a ministerial act, but not to control discretion. It may also issue against a tribunal, or one who acts in a judicial capacity, to require it or him to proceed, but the manner of proceeding must be left to his or its discretion. If the case here presented were one in which the fiscal court of Campbell county had refused to act at all, the writ would lie to compel it to do so, but it would have to be left to its discretion to consent or refuse its consent to the appointment to the office of county road engineer of the person named by the county judge therefor. But such is not the case; the fiscal court did act, and a majority of its members by voting refused to consent to the appellant Traver's appointment to the office of county road engineer; this being true, they cannot again be required to vote upon the question whether they will consent to the appointment of Traver." There cannot be found a clearer or more concise statement of the doctrine in question than is contained in the following excerpt from the opinion in City of Louisville v. Kean, 18 B. Mon. 9; "But the doctrine seems to be well settled that when the inferior tribunal or the subordinate public agents have a discretion over the subjectmatter, that discretion cannot be controlled by mandamus, although it may have been improperly exercised. If there be a refusal to act upon the subject, or to pass upon the question on 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 upon, it will not be used for the purpose of correcting the decision." Board of Trustees v. McCrory, 132 Ky. 89, 116 S. W. 326, 21 L. R. A. (N. S.) 583. One of the later cases on this question is that of Commonwealth on Relation, etc., v. Weissinger, Judge, 143 Ky. 368, 136 S. W. 875, in the opinion of which it is said: "The only question presented by the record is, did the Jefferson county court have power to vacate and set aside the judgment by default? If it did not have jurisdiction to vacate and set aside the default judgment, the writ of prohibition should have been granted; on the other hand, if it did have jurisdiction, the writ should be denied. If the county court had power to vacate the judgment, it is wholly immaterial whether the reasons for so doing were sufficient or not; and so we will not inquire into the sufficiency of the reason, as a writ of prohibition will not lie to restrain an inferior tribunal from acting within its jurisdiction, however erroneous its action may be." Goldsmith v. Owen, Judge, 95 Ky. 420, 26 S. W. 8, 16 Ky. Law Rep. 806; L. S. L. & B. A. v. Harbeson, Judge, 51 S. W. 787, 21 Ky. Law Rep. 278; Weaver v. Toney, 107 Ky. 426. 54 S. W. 732, 21 Ky. Law Rep. 1157, 50 L. R. A. 105; Galbraith v. Williams, 106 Ky. 431, 50 S. W. 686, 21 Ky. Law Rep. S. W. 999, 22 Ky. Law Rep. 1892; Carter County v. Mobley, 150 Ky. 482, 150 S. W. 497. We do not overlook the fact that in some jurisdictions it has been held that where a court declines jurisdiction by mistake of law, erroneously deciding as a matter of law and not as a decision upon the facts that it has no jurisdiction, and either declines to proceed or disposes of the case, the general rule has been announced that a mandamus to proceed will lie from any higher court having supervisory jurisdiction, unless there is a specific and adequate remedy by appeal or writ of error. But in so far as we have been enabled to discover, it has never been held that mandamus will issue to review the decision of a lower court which has refused jurisdiction after determination of a question of fact. In some of the cases a distinction is made between a refusal to take jurisdiction ab initio and a determination that there is no jurisdiction, it being held that where the court has acted and judicially determined that it has no jurisdiction, its determination cannot be reviewed; appeal or writ of error being in such case the proper remedy. Cahill v. San Francisco Superior Court, 145 Cal. 42, 78 Pac. 467; People v. Garnett, 130 Ill. 340, 23 N. E. 331; State v. Judges Orleans Parish Court of Appeals, 105 La. 217, 29 South. 816; State v. Smith, 105 Mo. 6, 16 S. W. 1052; Nevada Central Railroad Co. v. Lander County District Court, 21 Nev. 409, 32 Pac. 673; Commonwealth v. Judges Philadelphia County C. Pl., 3 Bin. (Pa.) 273; In re Key, 189 U. S. 84, 23 Sup. Ct. 624, 47 L. Ed. 720; In re Morrison, 147 U. S. 14, 13 Sup. Ct. 246, 37 L. Ed. 60. In most of the states, however, the doctrine is, as held in this jurisdiction, that if an inferior tribunal has a discretion and proceeds to exercise it, its discretion cannot be controlled by mandamus; but if it has a discretion and refuses to exercise it, it can be compelled to do so, though not in any particular direction. It is insisted for the plaintiff that she is entitled to the mandamus sought on the ground that there is no other adequate means of relief open to her. This ground of relief has so frequently been recognized in this jurisdiction, in applications for the writ of prohibition, that it may be said to be a well-established rule that the writ of prohibition may be issued by the circuit court against an inferior court, or by the appellate court against a circuit court, where the inferior or circuit court is attempting to act out of its jurisdiction, or where the writ of prohibition is the only adequate remedy to which the party applying therefor can resort. Cullins et al. v. Williams et al., 156 Ky. 57, 160 S. W. 733; Arnold v. Shields, 5 Dana, 18, 30 Am. Dec. 669; Pennington v. Woolfolk, 79 Ky. 13: N. N. & M. V. Co. v. McBrayer, 15 Ky. Law Rep. 399; Clark County Court v. Warner, 116 Ky. 801, 76 S. W. 828, 25 Ky. Law Rep. 857; McCann v. City of Louisville, 63 S. W. |