that near the top there was a box belonging to the telephone company; that just below the box was a messenger wire supporting a telephone cable from which a spur ran into the box and connected with the wires going into the residences in that neighborhood; that there were small iron steps about three feet apart on the east and west side of this pole to be used by the employes of the telephone company in ascending and descending the pole. It further appears from the testimony that there was a small, copper wire attached to the pole, running from the ground to the box mentioned, which was for the purpose of conducting the lightning from the telephone wires to the ground, and that the pole also had attached to it a guy wire about ten and a half feet above the ground and about five feet below the telephone cable; that the electric light wires at this point ran east and west and one was fastened to the north side of the pole with a bracket which held it about two or two and a half inches therefrom, and the other was attached to the south side of the pole but was held about twelve inches therefrom. The testimony shows that one of the telephones in the vicinity was out of working order and that Anglea went up the pole, as it was his duty to do, for the purpose of ascertaining the cause of the trouble and remedying it if he could. He ascended the pole, using the iron steps, with his back to the north until he reached the telephone cable, where he stopped for a little while with one foot on an iron step and the other resting on the messenger wire, with one arm around the pole, his head south thereof, and was, apparently, looking up towards the box through some limbs to see whether or not the limbs were interfering with the wires and causing the trouble, and it was from this point that he fell suddenly which rendered him speechless and caused his death a few hours afterwards. The electric light wire burnt him rather to the back of the shoulder and near the base of the neck, about one and a half inches in depth. There was also a burn about two inches back of his left ear and about an inch long extending from the lower edge of his hair. There was also a small burnt place on the bottom of his foot that was resting on the messenger wire which, as the witnesses stated, showed that the current of electricity passed through his body to the wire. All the evidence shows that the electric light wire at the place where Anglea was killed had lost nearly all of its insula

tion; that the pole was chestnut wood and full of crev ices; that it was very easily saturated with water, at least, that it would absorb water more readily than most poles; that there had been a very heavy rain the night before Anglea was killed and that the pole was damp. The evidence also shows that the copper wire before mentioned, showed signs of having been burnt with electricity at the point where it crossed the guy wire. The expert witnesses who testified stated that the electric light wire was so badly insulated at that point that electricity escaped from it and passed into the pole and copper wire in sufficient quantities to give a person a shock when they come in contact with either of them while standing upon or holding to a conductor of electricity connected with the ground. Anglea was a little over six feet high and the electric light wire was only five feet above him, so he must have stooped a little to get his head out south of the pole to look up through the limbs, and the reasonable inference from the testimony is that when he was so situated he received a shock from the pole or copper wire which caused him to inadvertently throw himself up and thus come in contact with the uninsulated electric light wire which killed him. The wire was carrying a current of about twenty-two hundred volts. A bunch of Anglea's hair was found hanging to one of the electric light wires after he fell.

The electric light company did not defend upon the idea that it had used due care in stringing and insulating its wires, but, on the contrary, its main defense was that its wires were in such a bad condition that Anglea must have known it, and as he took the risk of coming in contact with them, his administratrix should not be allowed to recover. The testimony shows that he knew that it was dangerous to touch one of the electric wires while standing upon a conductor of electricity connected with the ground, and the electric light company claims for that reason his administratrix should not be permitted to recover.

In the case of Overall v. Louisville Electric Light Co., 20 Ky. Law Rep., 759, a case very similar to the one at bar, this court said:

"Appellant at the time he was struck was in a place where his business required him to be, and where he had a right to be, and it was the duty of the electric light company to know that linemen of the telephone company

would have to come in close proximity to its wires in attending to their duties, and it was its duty to use every protection which was accessible to insulate its wires at that point and at all points where people have a right to go for business or pleasure, and to use the utmost care to keep them so; and for personal injuries resulting from its failure in that regard it is liable in damages."

If the electric light company's contention were sustained, it would have the effect to remove all employes of the telephone company from the discharge of their duties. It is true, the evidence shows that Anglea knew that to come in contact with the wire when standing upon a conductor of electricity which was grounded would produce injury or death, but there is no evidence that he intentionally came in contact with the wire. As stated, the inference from the testimony is that he was looking up through the limbs trying to see if they were causing the trouble with the 'phone which had been reported out of repair, and that while thus situated he received a shock in the manner before stated which caused him to unconsciously straighten up and come in contact with the electric light wire. There was no testimony of contributory negligence on his part, and as it cannot be presumed that a person who is dead at the time of the trial was guilty of contributory negligence, it must be proved. (Lexington & Carter County Mining Co. v. Stephens' Admr, 104 Ky., 502, and C., N. O. & T. P. Ry. Co., v. Yocum, 137 Ky., 117.)

The testimony of all the witnesses shows that the electric light wires were improperly hung and insulated, and there is no pretense on the part of the company that it made any effort to insulate them, therefore, the instructions criticised by it which required the company to exercise a high degree of care in that regard were not hurtful to it and it is unnecessary to consider the instructions any further.

As before stated, the main defense is that the place and appliances were so unsafe that Anglea must have known it and it was his duty to cease his labor for the telephone company, and as he did not he can not recover. We can not agree with appellant, Franklin Electric Ice Company, in this.

The judgment is, therefore, affirmed in both cases.

Modern Brotherhood of America v. Phelps.

(Decided March 2, 1911.)

Appeal from Jessamine Circuit Court.

Insurance Life Insurance-Representations of Agent.-Presumptions of Agency-Estoppel.-Where an applicant for life insurance had no possible means of knowing the extent to which the agent of an insurance company was authorized to bind the company, but could only judge from appearances, and when the company permitted such agent to exercise such powers as might be exercised by a general agent or the company itself, and transactions were had with him on the faith and belief that he was clothed with power and authority to represent the company to the extent and manner in which he undertook to represent it, the company will not be heard to deny that he had such power and authority. G. ALLISON HOLLAND and JOHN H. WELCH for appellant.

N. L. RUNNAUGH for appellee.

OPINION OF THE COURT BY JUDGE LASSING—Affirming.

About November 30, 1907, appellee, Thomas Clement Phelps, made application for membership in the local lodge of the order known as the Modern Brotherhood of America, which was being organized at High Bridge, Jessamine county, Kentucky. At the same time he applied for a benefit certificate or policy of insurance upon his life in the sum of $1,000. The medical examination required was submitted to and the applicant passed a good examination. On the 9th of December following, the Modern Brotherhood of America issued to said Phelps a benefit certificate or policy, wherein it agreed to pay the beneficiaries named therein the sum of $1,000 upon the death of said Phelps while in good standing. The certificate further provided that, "one-fourth the amount the beneficiary would be entitled to in case of death will be paid to said member should he accidentally lose a hand at or above the wrist, a foot at or above the ankle, or for the total, permanent loss of the sight of an eye." After said certificate of membership or policy was issued it was sent to the local agent at High Bridge to be delivered to Phelps. After he had submitted to his medical examination, but before the policy was issued, he sustained an accidental injury to one of his eyes. Knowledge of this fact was brought home to the local

agent, and, upon the advice of the company, he declined to deliver the policy and collect the premiums and dues thereon. Thus matters stood for some weeks, during which time the injured eye of Phelps continued to improve, and the agent, believing that it would get all right, delivered the policy to him and collected the dues thereon and reported to the company. Before the policy was delivered, however, the local agent caused the applicant's eye to be examined by a competent physician, and not until he had thus satisfied himself was the policy delivered. Subsequently an abscess developed upon the injured eye and it became apparent that Phelps would lose the sight thereof. Knowledge of this fact was communicated to the company and the local agent was directed to return the premiums collected from Phelps and have him surrender the policy. This Phelps declined to do. His eye grew worse, and finally he lost the sight thereof entirely. He demanded of the company the payment of the $250. This was refused. He sued for it, and upon a trial recovered judgment for this amount. The company now appeals and seeks a reversal because of errors in the admission of evidence and in instructing the jury.

The application for the insurance contained a provision that the certificate should not become binding upon the company until the policy had been delivered to the applicant in good health. The facts pleaded were to the effect that, although the application contained this provision, and the policy was not in fact delivered to the applicant while in good health, still, with the knowledge that he had suffered an injury to his eye, the company had gone ahead and delivered the policy to him, and had thereby waived this provision in the application.

Two questions are presented: First, did the agent of the company who delivered the policy have authority to make such a waiver, and second, if he was clothed with this authority, did he exercise it? He admits that he knew, and that the company knew, that appellee's eye was injured between the date of the medical examination and the delivery of the policy. In fact, this delivery was withheld for several weeks because of this injury to appellee's eye. It is further shown, and not denied, that before the policy was delivered the local agent caused the eye to be examined by a physician. This examination evidently satisfied him that there would be a complete recovery, although the eye was not at that time well.

Vol. 142-18