Gould Const. Co. v. Childers' Admr.

the drop signal, when McEwan saw the man take hold of the log to push it over to its proper place, he should have given the engineer the signal to let it down slowly; and, if this had been done, Childers would not have been hurt. The drop signal should not have been given until the log had reached the truck and been placed in its proper position. McEwan could see the log. He could see the men at the truck. He could not but know that Childers was at the side of the truck, and that the dropping of the log at the time it was dropped would imperil him. We do not think it is material that McEwan was not the regular boss. He was there at the time in the place of the boss. The gang of men had not been left without any head. McEwan for the time stood in the place of the boss, and the men were under the same obligation to obey his orders as the orders of the boss. He was not at the time a fellow laborer. The other men could not control him, or exercise any supervision over him. His signals were his orders, and it was their duty to obey these orders. In giving these orders he represented the master, and they were not his equals, but his inferiors, for the time being. The case of Dana v. Blackburn, 121 Ky. 706, 90 S. W. 237, 28 Ky. Law Rep. 695, is not in point. There it was held that the engineer was a fellow servant of the men who loaded the coal at a coal elevator, and that one of the loaders was a fellow servant of the other loader. The same rule was in effect applied in Cooper's Adm'r v. Oscar Daniels Co., 96 S. W. 1100, 29 Ky. Law Rep. 1172. There it was also held that the engineer in charge of the engine employed in lifting the girders in a building was a fellow servant of the other men employed in handling the girders. But this case does not turn on the negligence of the engineer. The engineer here

Gould Const. Co. v. Childers' Admr.

simply obeyed the signal that was given him. The negligence was in the giving of the signals, and these signals were given by the man who was directing the work, and who for the time being was the foreman.

2. Every one knows that a log 1 foot thick and 12 feet long, tied in the center with a rope, when drawn up will not always stay in one position, and that when it got above the truck it might be at right angles to the track, or parallel with it, or in any position between the two, so that it must necessarily be that the men who had to handle the log would have to leave the ends of the truck at times and push the log at the side back to its position. The testimony for the plaintiff clearly shows that such was the case when Childers went to the side of the truck. He could not reach the log from the end of the truck, and he went to the side, because that was the only practicable way of getting it into position. He was not, therefore, guilty of contributory negligence in taking this position. He was not required to anticipate that the log would be dropped before it reached the truck, or to anticipate, if it was dropped, which way it would jump when it rebounded on the truck. In cases of this sort the question of contributory negligence is ordinarily for the jury, and in this case there was no error in submitting the question of contributory negligence to the jury.

The weight of the evidence sustains the verdict of the jury. There was conflict in the testimony on several questions; but we think the facts as we have stated them are shown by the weight of the evidence. The instructions of the court submitted to the jury substantially the material questions in the case. There was no showing made which would warrant the court in continuing the case for the defendant after

Brocking v. O'Bryan.

the plaintiff's proof was introduced on the trial. The decedent was a healthy young man 24 years of age. The verdict for $4,000 is a reasonable one, and on the whole record we see no reason for disturbing it. Judgment affirmed.


Brocking v. O'Bryan

Appeal from Daviess Circuit Court.

T. F. BIRKHEAD, Circuit Judge.

Judgment for defendant, plaintiff appeals-Reversed.

1. Taxation-Sale of Property of One for Taxes of Another.Taxes against a man not being a lien on his wife's property, sale of such property for such taxes is void.

2. Same-Purchase at Void Tax Sale-Remedies of Owner.-The purchaser of property at a void tax sale, who takes it and converts it to his own use, is liable to the owner for conversion, though the owner may, at his election, sue for the property.

3. Estoppel.-If the owner of property stood by and without objection allowed it to be sold for taxes of another, this is matter of estoppel, which, to be available in an action by the owner against the purchaser for conversion, must be pleaded by answer.

R. G. HILL for appellant.

LAVEGA CLEMENTS for appellee.

Brocking v. O'Bryan.




Anna L. Brocking brought this suit in the Daviess circuit court which sustained a demurrer to her petition, and she appeals.

The facts stated in the petition, as the case is presented, are these: J. C. O'Bryan in the year 1907 was tax collector for the city of Owensboro. As such he had in his hands for collection taxes against B. B. Brocking, the husband of Anna L. Brocking. He levied the taxes on a phaeton, which was the individual property of Anna L. Brocking, and sold it at public auction. The defendant, P. D. O'Bryan, became the purchaser at the sale, and took and carried away the phaeton, and appropriated it to his own use. The tax collector had no claim against her, and it is alleged in the petition that the sale was void, and that thereby she was damaged in the sum of $200, for which she prayed judgment.

The taxes against B. B. Brocking were not a lien upon the property of the wife, Anna L. Brocking The officer might legally sell the property of the husband for his taxes; but he was without authority to levy the taxes which he held against the husband upon the property of the wife. His levy upon the wife's property, and his sale of her property under the taxes which he held against her husband, were void. A void act is a nullity. It is as though it had never been done. It confers no rights. It protects no one. The sale of Mrs. Brocking's phaeton for the taxes of her husband being void, the purchaser, P. D. O'Bryan, stands as though the sale had never been made, so far as her right to compensation for the in

Brocking v. O'Bryan.

jury goes. He has taken and carried away and converted to his own use her phaeton, if the petition is true, without any right so to do. The rule is that the officer who sells the property of a stranger under a writ is liable to the owner for the damages that he sustains. Christopher v. Covington, 2 B. Mon. 357. The purchaser of personal property at a void tax sale, who takes it and converts it to his own use, is also liable for conversion, although he may have acted in good faith. There is no distinction in this regard between a purchaser at a private sale, which is void, and the purchaser at a void tax sale. 28 Am. & Eng. Encyc. of Law, 702.

The owner of the property may either bring an action to recover the property or its value, or he may sue in damages for its conversion. The rule that he may waive the trespass and sue in trover was well settled at common law. 1 Chitty on Pleadings, 161. He is not compelled to sue for the property, but may sue to recover damages for the conversion, and even where he sues for the property, or its value, he may at his election take an execution for the assessed value of the thing, and not an execution commanding the officer to take the thing and deliver it to him. Ky. St. 1903, section 1665. In 21 Encyc. Pleading and Practice, 1025, the rule is thus stated: "Trover and detinue are concurrent remedies, either of which the plaintiff may pursue at his election; trover being an action for damages for the conversion of the property, and detinue being an action for the recovery of the property in specie, or for damages for its unlawful detention.""

If it be true that the plaintiff stood by and allowed her property sold without making objection, when under the circumstances she was called upon to make

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