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4. Damages om 187–Plaintiff not entitled to her knees, but held to the door, Mrs. O'Con

recover for permanent impairment of earn- nell was thrown backward across a table, ing power, when injuries not shown to be but recovered sufficiently, shortly afterward, permanent.

to assist in hunting the children. She retired Though plaintiff pleaded permanent injuries, about 8 o'clock, but later collapsed and sent where it was not shown that her injuries were for a physician. She was in bed for some permanent, she was not entitled to recover for time; later went to a hospital, where she permanent impairment of her power to earn

remained for nearly a month, and on her remoney.

turn home had a trained nurse for several 5. Damages Em 210(1)-Instruction predicated weeks, and at the trial a year afterward was on finding that injuries resulted from fright still nervous and suffered from her bip and alone held not authorized and properly re- back-it appearing, though, that her princifused.

Where plaintiff's statement to a witness pal trouble during the entire time was neuthat she received no physical injury from a gas

rasthenia. explosion evidently meant no visible injury, and A number of errors have been assigned, there was no evidence or admission that she among which may be mentioned: (1) Exceswas merely frightened, though there was tes- sive verdict; (2) error of the court in admis. timony that her condition could have resulted sion of improper evidence; (3) error of the from fright, an instruction predicated on a find court in giving instructions, and in refusing ing that her injuries were the result of fright to give proper instructions, and in overruling or shock, unaccompanied by physical injury, the demurrer to the petition. was properly refused.

[1] It is insisted that the demurrer should Appeal from Circuit Court, Kenton County. have been sustained to the petition, for the

Action by Sarah O'Connell against the reason that it did not allege any physical inUnion Light, Heat & Power Company. From Jury. In this respect it does say “she was a judgment for plaintiff, defendant appeals. violently thrown backward against a table,”

and alleges Reversed and remanded. Galvin & Galvin and John L. Rich, all of “that by the force caused by said explosion she

was knocked motionless and speechless for Cincinnati, Ohio, for appellant. John T. Murphy and Edward Tracy, both many seconds; says that within a few hours

thereafter she collapsed, and was confined to of Covington, for appellee.

her bed and a physician called to attend her;

that she has suffered as a result of said acMcCANDLESS, J. Sarah O'Connell recov- cident great mental and physical pain. Plain. ered a judgment for $4,331.50 in the Kenton tiff further says that as a result of said escircuit court against the Union Light, Heat plosion her nervous system was permanently & Power Company, for personal injuries; it destroyed, and that her heart was partially afbeing alleged that these were occasioned by fected, and that it has ceased to function as it an explosion resulting from the ignition of did prior to her injuries; that she has lost natural gas, which was escaping from a de- weight and is unable to perform her household

duties." fective pipe owned by appellant and located in the rear of plaintiff's premises.

From this it is argued that plaintiff sufPlaintiff's lot runs back to an alley in fered no physical injury, and, construing the which appellant's line of pipe was located. pleadings most strongly against the pleader, There was also a privy or vault to the rear her injuries were caused by fright alone, and of the lot next to the alley. For some months under repeated adjudications of this court previous to the explosion odors had been de- no cause of action is stated. This assumes tected in the alley, but it was not known that a physical injury cannot exist without from whence they came. Plaintiff's family external evidence, while it is a fact that an and the neighbors had been sprinkling lime explosion may cause concussion or impact as in the privies and adjoining premises with serious as would a blow, though it comes in out improvement, but they did not seem to contact with so large a portion of the body recognize the odor as coming from gas. that it may leave no external scar or wound; Plaintiff had a toilet in her house, but the such a blow might destroy the nervous sysprivy was used occasionally.

tem and injure the body independent of any On the evening in question her neice, Mrs. fright. “By a violent jolt or jar a physical Garr, and her four children, were visiting injury may be done, though the flesh is not her, and just after dark the children were bruised, and there may be little externally permitted to go to this privy, carrying with to indicate it.” K. T. & T. Co. v. Baine, 161 them a lighted candle; the mother standing Ky. 44, 170 S. W. 499. The plaintiff was in the door and Mrs. O'Connell at an open permitted to testify in reference to what ocwindow, watching them. As they reached curred at the explosion: the door of the privy, the gas ignited, caus

"I fell back; it struck me right across here ing a terrific explosion, fames going as high (indicating back). It is not better yet, and it as the house. Mrs. Garr was staggered to is over a year."

em For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(248 S.W.) Again, referring to the occasion of the , by the jury to have included one or both of injury:

those elements; in either event it was not "I went out. I could hardly get out for the justified. C., N. O. & T. P. Ry. Co. v. Giboney, pain in my back.”

124 Ky. 806, 100 S. W. 216, 30 Ky. Law Rep.

1007; Weil v. Hagan, 161 Ky. 295, 170 S. W. In referring to her subsequent pain and 618; Acton v. Smith, 150 Ky. 703, 130 S. W. suffering, she said:

854. In another trial, if the pleadings re"I had severe sick headaches; my back near- main in their present condition, the only elely killing me all the time."

ments of damage which can be submitted to

the jury will be as to the mental and physi. At another place, as to her suffering a year cal pain and suffering, and the expense inafter the injury, she said:

curred in payment of physicians, nurses, hos"I am still very nervous; I suffer so much pital, and drug bills. with my back; I just nearly die with my back, [5] The appellant offered an instruction deand a little of everything, it seems."

nying a recovery if the jury believed from the Dr. Hoppe testified as to her condition some result of a shock or fright, not accompanied

evidence that the plaintiff's injuries were the time subsequent to her injury, and after de- by physical injury. This was based on the scribing her nervous troubles, he added, “also statement of Dr. Hoppe that her present conI should have mentioned that she was unable aition could have resulted from fright alone, to lie on her left side,” and accounted for and from the testimony of Dr. Ryan that that by saying that "she had pain and tenderness in the small of her back, over her plaintiff, in giving him the history of her right hip.” He further testified that her case, said she received no physical injury. nervous trouble had improved, but that he Admitting both statements, it is evident that could not say about her hip, or as to whether by physical injuries she nieant some kind of or not the injuries to it would prove pernra- her, or proven by any one else, that she was

visible injury; it being nowhere admitted by nent.

[2] By reference to the averments of the merely frightened at the time, and to so aspetition as set out above, it will be seen that sume would not be in accordance with the

other facts proven. We conclude that inthe plaintiff did not plead any injury to her struction on that point was properly refused. back or bip, and this evidence was introduc

Judgment reversed, and cause remanded ed over the objection and exception of the for proceedings consistent with this opinion. defendant, and without any admonition upon the part of the court as to the purpose for which it was admitted. This was Louisville R. Co. v. Ellerhorst, 129 Ky. 142, 110 $. W. 823, 33 Ky. Law Rep. 605; L. & N. v. Henry, 167 Ky. 157, 180 S. W. 74. While

COX et al. V. BURRUS. the testimony was competent as tending to show the violence of the concussion and the (Court of Appeals of Kentucky. March 2, resultant injury, the jury should have been

1923.) instructed that they could only consider her physical injuries, for the purpose of showing Guardian and ward aww 42–Guardian's contract the extent of the injury to her nervous sys

to sell ward's property at specified price if

decree for sale is secured is invalid. tem, and not as a cause for which damages

A contract whereby a guardian agreed to could be allowed. L & N. R. R. Co. v. Gaugh, sell land belonging to herself and ward to the 133 Ky. 474, 118 S. W.276; Louisville Ry. Co. v. other party in the event that a decree for the Ellenhorst, 129 Ky. 142, 110 S. W. 823, 33 Ky. sale of the lands could be secured, and by which Law Rep. 605; L. & N. v. Henry, 167 Ky. 151, the other party agreed to bid a specified price 180 S. W. 74.

at such sale, was invalid as a contract binding [3, 4] In her petition the appellee did not the guardian to sell at the specified price, so plead loss of time, but alleged permanent in- that she cannot recover damages because the juries. There was proof of loss of time from other party failed to bid at the sale the sum

he agreed to bid. service, but it was not shown that the injuries were permanent. In the measure of damage

Appeal from Circuit Court, Madison instruction the jury were authorized to award

County. damages for the impairment of her power to earn money. This was also erroneous. Loss Action by Josephine D. Cox, as guardian, of time from service is of the nature of special and others against E. H. Burrus. Judgment damage, and must be pleaded in order to re- for defendant, and plaintiffs appeal. Afcover therefor; nor was she entitled under firmed. the proof to a recovery for permanent im- G. Murray Smith, of Richmond, and pairment of her power to earn money. The Foster V. Cox, of Carlisle, for appellants. instruction given might have been construed C. C. Wallace, of Richmond, for appellee.

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MOORMAN, J. Josephine D, Cox entered be sold in certain states of case, pointed out into a contract with E. H. Burrus, by in the statute, and must then be sold at pubwhich she agreed to sell to him some real lic outcry, to the highest and best bidder, on estate jointly owned by herself and her such terms as the chancellor may direct; 'and infant children. The contract was to be in cases of this character the share of the in

fant remains a lien on the land until his maeffective upon the granting of a decree for

jority, or until the guardian executes an addithe sale of the real estate by the Madison tional bond, to be approved by the chancellor. circuit court, Burrus agreeing in that event The clear intent of all this is to protect the to bid $6,000 for the property. The decree infant as to his real estate, and, in all cases was granted, and the property sold at public where a sale is had, to guard against his inoutcry, but Burrus did not bid on it. This terests being sacrified by his guardian or othsuit was instituted by Josephine D. Cox in ers. Any contract which tends to smother bidher own name, and as guardian for herding at the sale of an infant's real estate is children, to recover the difference between cleardy contrary to the policy of the statute,

and will not be enforced." the price for which the property was sold and the amount that Burrus agreed to bid. It is suggested, however, that the Stan. The lower court sustained a demurrer to the hope Case is inapplicable, because in that petition, and the plaintiffs are appealing. case the land sold for more than the con

In the suit for the sale of this property tract price, whereas in this case it sold for Mrs. Cox included other real estate owned less than the contract price. We do not rejointly by herself and her children, the basis gard that difference as material. The prinof the action being that none of the property ciple announced in that case is controlling could be divided without materially impair- here. It is that an infant's real estate can ing its value. It was not, however, shown in only be sold in the manner provided by stat' that suit that an offer of $6,000 for the prop- ute, and the character of the bargain is not erty that she claims to have sold Burrus had a question to be considered. It follows that been received, nor does it appear that a mini- the contract relied on is unenforceable, and, mum price of $6,000 for that property was that being true, an action for its breach canfixed in the order of sale. The contract not be maintained. sued on purports to be an absolute sale, al- The judgment is affirmed. though it recognizes the necessity of obtaining a decree of court. Mrs. Cox bound herself to obtain the decree; and, while she did not agree that the property would not bring more than $6,000 at the decretal sale, MAMMOTH BLUE GEM COAL CO. v. she nevertheless obligated herself to sell it to

ELSWICK. Burrus at that price in the event an order of sale was obtained. The question, then, is:

(Court of Appeals of Kentucky. March 6, Can a guardian make a valid contract for the

1923.) sale of his ward's real estate for a stipulated 1. Mines and minerals en 109-in action for amount, upon the condition that he will ob- breach of mining contract, instructions held tain a decree of court for the sale of the as favorable to defendant as it could ask. property?

In a miner's action for breach of contract It is the general rule that a guardian can- by which he was to be paid a specified price not make a valid contract to sell his ward's for mining all the coal in a certain entry in lands unless he has testamentary authority claimed on ground that plaintiff abandoned the

defendant's mine, in which defendant counterso to do. 21 Cyc. 82, 83; 12 R. C. L. 1126. contract, instructions as to the rights of the And it is the rule in this jurisdiction that a parties and the measure of damages held as facourt of equity has no power to confirm a vorable to defendant as it could ask. private sale of an infant's real estate made

2. Mines and minerals Cm109_Evidence as to by an unauthorized person. Kinslow, etc.,

profits which would have been made on brok. v. Grore, 99 Ky. 266, 32 S. W. 933, 17 Ky.

en contract held to sustain verdict. Law Rep. 815; Vickers v. Vickers, Trustee,

In miner's action for breach of a contract 189 Ky. 323, 225 S. W. 44. It has also been for the mining of all the coal in a certain entry held that the land of an infant can be sold of defendant's mine at a specified price, evionly at public outcry to the highest and best dence as to the profits he would have made if bidder on such terms as the chancellor may permitted to complete the contract held to direct, and that a contract for the sale of au sustain a verdict for the amount awarded. infant's land which contemplates that the purchaser shall become the accepted bidder Appeal from Circuit CourtWhitley at a public sale is void. Clark, etc., v. County. Stanhope, 109 Ky. 521, 59 S. W. 856. In the Action by J. H, Elswick against the Mamlast-mentioned case it was said:

moth Blue Gem Coal Company. From a “A guardian bas no authority to sell his judgment for plaintiff, defendant appeals. ward's land. The land of an infant can only ! Affirmed.

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( 248 S.W.) Tye & Siler, of Williamsburg, for appel- / but two issues to be considered by the jury, lant.

and they were as to which party breached Stephens & Steely, of Williamsburg, for the contract, and the amount of damages, appellee.

if any, sustained by the party aggrieved.

[1] The first instruction set out the conMcCANDLESS, J. In July, 1918, J. w. tract and authorized a recovery for appellee Elswick and the Mammoth Blue Gem Coal if it was abandoned and repudiated by appelCompany entered into a written contract in lant, at a time when appellee was ready, which it was agreed that Elswick was to able, and willing to perform it. While unmine all the territory of coal known as the necessarily long, we cannot see how the jury third right entry in the No. 2 mine and de- was confused by it, and, as the measure of liver same at the room neck, and the com- damage was correctly stated, the appellant pany was to haul the coal, furnish him track was not prejudiced thereby. age, and keep the water, in excess of three

Instruction No. 2 told the jury, if they barrels per day, bailed out of the working believed from the evidence that Elswick places in the entry, and pay him $2 per ton was a member of the miners' union, and as for coal at the room neck.

such obeyed the order to strike on October At that time miners were receiving $1.60 31, 1919, and that while the strike was on the per ton for their work, this to include pow- company through its president requested Elsder, and it was agreed that, if the scale of wick to comply with his part of the contract, wages on that field should be raised, the con- and that he refused to do so, they should find tract price to Elswick should be raised the for the defendant on its counterclaim, fursme amount.

ther setting out the measure of damage. Elswick began his work in that month and

Instruction A-1, given on motion of appelcontinued to. October 31, 1919, at which time lant, further restricted the measure of damthe mine was closed down. It was claimed age if a verdict was given appellee. It by the company that this was caused by a

reads: strike of the miners; that Elswick was a "If you find for the plaintiff, then in estimatunion man and went out with the other min- ing his reasonable profits you should deduct ers; that it had information on November from $2 per ton not on the actual cost of min12 that the strike was declared off, and that ing the coal and the expense of the dead work, it tried at that time to get him to go back such as shooting slate, laying track, etc., but to work, and that he refused to do so; that as you may believe from the evidence is rea

you should also make such further deduction this was an abandonment of the contract; sonable for the less time engaged by him, and and that it made other arrangements for also for his release from the care, trouble, risk, further development of the mine.

and responsibility attending a full execution of On the other hand, Elswick claims that he the contract.” and his hands could only work when the reg.

It will be observed that these instructions ular force of the mine was working; that otherwise he could not get his coal hauled not more so, and, while the evidence was

were as favorable as appellant could ask, if and water bailed; that during the month of conflicting, it was sufficient to uphold a verApril the company did but three days' work; dict for appellee. The chief question is as to and that he acquiesced in that then, and on whether the verdict is excessive. different occasions, only working when it did.

[2] Under the contract the appellant furHe claims that on October 31, 1919, the com- nished the brattice cloth, track timbers, and pany shut the mine down and brought out his all necessary material, and hauled the water tools without consulting hins; that the mine in connection with the coal, and also paid so continued closed during the month of Novem much per yard for driving entry into rock or ber; that on the 24th of the month he went to slate; but appellee was to do the dead work, see the president of the company about going back to work, and was informed by him that is, laying the track and keeping up the that he could only go back as a laborer, as

timbers, shooting the slate and running it to the company was going to work the mine.

the entry, keeping up the brattices, and driv

AS Subsequently thereto he brought suit in the ing the airways or widening the rooms. Whitley circuit court for breach of contract, stated, the miners were paid $1.60 per ton, praying a recovery of $4,200 in damages and the cost of these items must be added to The company, denying a breach on its part, this sum, and the total of this deducted from pleaded a corresponding breach by him, al- $2 would represent his net profit. Appellee leging that it would have made a profit of claims that he kept an account of his operat$1.60 a ton on the coal he failed to produce ing expenses during the year 1919, and gives under the contract. It made its answer a the total cost of various months at an avercounterclaim and asked $12,800 damages age of 1042 cents per ton during those against him. A jury trial resulted in a ver- months, or that he made a net profit of 2942 dict of $1,400 for Elswick, and the company cents per ton. has appealed.

He further claims that most of the entries No work was done under the contract sub-) had been driven and track laid, and that the sequent to October 31, 1919, and there were remaining work would have been cheaper,

248 S.W.-16

especially in "robbing” the mine, this being a term applied to removing the pillars or JACKSON v. COMMONWEALTH. stumps which are left to support the roof so long as the work is being extended, but when (Court of Appeals of Kentucky. March 6, driven up these are removed and require but

1923.) little, if any, of the dead work mentioned, and that he could have made 35 cents net. 1. Intoxicating liquors @mw 174–Owning, pos.

sessing, selling, and loaning moonshine still It is admitted by both parties that there was

are different offenses. as much as 8,000 tons of coal remaining in

Under the new prohibition act, owning, posthe mine, and at the rate of profit he claim's sessing, selling, and loaning a moonshine still to have made on the previous work he would are separate offenses. have made $2,280 if the contract had been completed, or more if the “robbing" work had 2. Indictment and information om 125(3)-10. yielded a higher rate of profit. It is evident

dictment charging defendant with owning and that he includes his own labor in this.

controlling moonshine still and assisting in

its operation was duplicitous. On the other hand, the appellee claims

Under the new prohibition act, an indictthat the actual cost of the dead work and

ment charging defendant with owning and conextra mining in robbing was more than the trolling a moonshine still and aiding and as40-cent margin allowed him in the contract. sisting in operating it, was duplicitous. It is shown that it paid his miners at the rate of $1.60 per ton. Its books show that 3. Criminal law cm369(6)-Error to admit appellant run an account with it up to May, evidence showing operation of moonshine

still at different times and places. 1919, and his earnings just about paid his

On a trial for violating the prohibition act, monthly account, though the amount thereof is not shown. After that month only his mine es- introduce evidence tending to prove two distinct

it was error to permit the commonwealth to penses were charged to him, and the books offenses by showing that he was guilty of opshow that there was credited to him from erating a moonshine still at two different times his profits from then on over and above his and places. expenses, in May, $115.83; June, $146.36; July, $144.43; August, $121.15; September, 4. Criminal law m678(3)- Introduction of

evidence showing finding of still held election $167.14; October, $187.97. But it appears

rendering subsequent evidence concerning that the company divided the earnings be

different still inadmissible. tween him and his two sons, and, if his

On a trial for violating the prohibition act, monthly profits were three times as large as where the commonwealth first introduced evi. set out above, it would seem that bis con- dence tending to prove that a still was found tract was a profitable one.

at a spring near defendant's house, it elected The appellant's president itemizes the dead to try defendant for that offense, and it was work and figures the total cost thereof at not thereafter competent to prove that defendfrom 26 to 32 cents a ton. The mine foreman ant was in possession of a still at an entirely

different time and place. makes it just a little higher, though•they do not agree as to the items. The president in

Appeal from Circuit Court, Knox County. cluded brattices and driving airways, while

William Jackson was convicted of offenses, the mine foreman included both, and also the

and he appeals. Reversed for new trial. item of widening rooms, but on cross-examination states that in this work they widened J. D. Tuggle, of Barbourville, for appellant. the rooms and did not drive separate air- Chas. I. Dawson, Atty. Gen., and Thos. B. ways. However that may be, taking the McGregor, Asst. Atty. Gen., for the Compresident's figures, it will be seen that in the monwealth. cost of previous work they indicate a net profit to appellee of from 8 to 14 cents a ton. SAMPSON, C. J. Appellant Jackson was The appellee claims a profit of 2942 cents. convicted on an indictment accusing him of The jury gave a verdict for $1,400 which is several different offenses denounced by the equal to 1742 cents a ton, or very little more new prohibition act (Acts 1922, c. 33) apd his than the maximum figures of the president. punishment fixed at a fine of $500 and conIt is true that the appellant's witnesses state finement in the county jail for a term of 6 that to "rob" a mine would require experi- months. In prosecuting this appeal he reenced miners at a higher price, but, on the lies upon the following grounds for a reversal other hand, appellee's witnesses, while they of the judgment: (1) Error of the court in admit that it would require experienced min- overruling the demurrer to the indictment; ers, deny that the mining would cost more, (2) error of the court in admitting incompeand assert that the dead work would be tent evidence against the appellant and remuch cheaper. On the whole case we cannot jecting competent and material evidence ofsay that the verdict is excessive.

fered by him; (3) error of the court in inJudgment affirmed.

structing the jury. For other cases see same topic and KEY-NUMBER in all ney-Numbered Digests and indexes

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