Bannon v. Watson

• Decision Date: 27 January 1925
• Parties: Bannon v. Watson.
• Court: United States State Supreme Court — District of Kentucky

207 Ky. 23

Bannon v. Watson.

Court of Appeals of Kentucky. Common Pleas, Second Division.

Decided January 27, 1925.

1. Master and Servant — Election of Both Master and Servant to Operate Under Compensation Act Necessary, and Master's Acceptance Must Be Registered. — To make an injury compensable under Workmen's Compensation Act, both employer and employee must have elected to operate under its provisions, in view of Ky. Stats., Supp. 1918, sections 4882, 4956, 4957, and the employer's acceptance must have been registered as required by law, a condition that cannot be waived by the employee.

2. Pleading — Answer Alleging Jurisdiction of Compensation Board Construed most Strongly Against Employer and Inferences Not Drawn to Supply Essential Allegations. — In employee's action for personal injuries, employer's answer affirmatively alleging jurisdiction in Workmen's Compensation Board must be most strongly construed against him, and, where no allegation is made that defendant accepted provisions of Compensation Act or elected to operate under it, such allegation will not be supplied by inference, particularly where other allegations of the answer deny that plaintiff was requested to elect or had elected to work under Compensation Act.

3. Master and Servant — Findings that Employee was Entitled to Sue for Injuries at Common Law Held Sustained by Pleadings. — Findings of court that plaintiff had not accepted Workmen's Compensation Act, and conclusion of law that plaintiff was entitled to sue at common law for personal injuries, held sustained by pleadings, where nowhere in such findings or conclusions, nor in the court's opinion overruling motion for new trial, did the court intimate that there was any evidence to show that employer had accepted provisions of Compensation Act.

4. New Trial — New Trial Not Granted to Permit Defeated Litigant to Plead and Prove Entirely New Issue. — Notwithstanding the wide discretion given to trial courts under Civil Code of Practice, section 134, as to amendments to conform to proof, a new trial will not be granted to enable the defeated party to plead and prove an issue essential to his recovery which was not pleaded or proved on the trial; there having been no stipulation relative thereto.

Appeal from Jefferson Circuit Court

O'NEAL & O'NEAL, A.M. MARRETT, E.W. SPRAGUE, and JOHN D. CARROLL for appellant.

R.L. PAGE and CHAS. F. OGDEN for appellee.

OPINION OF THE COURT BY JUDGE McCANDLESS.

Affirming.

W.P. Bannon is a plastering contractor, and James Watson a laborer in that trade. While working for the former stuccoing the walls of the Transylvania University in Lexington, a defective scaffold upon which Watson was standing gave way, and he was precipitated to the ground below, receiving serious and permanent injuries.

Alleging negligence, Watson sued Bannon in the Jefferson circuit court, and recovered a judgment for $8,000.00. On this appeal the only ground relied upon for reversal is that at the time of the injury Watson and his employer had both accepted the provisions of the workmen's compensation act, and that an action would not lie at law for personal injuries.

A separate trial was had upon this issue in the lower court, and by agreement the law and facts as to it were submitted to the court without a jury and a finding made in favor of plaintiff.

The court's findings of law and facts were separated and are in these words:

"As a matter of fact the court concludes that a former employment of the plaintiff by defendant under which plaintiff had accepted the provisions of the Workmen's Compensation Act, had terminated and the relationship of employer and employe had ended several months before plaintiff's new employment by the defendant had begun, and that under the later employment, which existed at the time of plaintiff's alleged injury, the plaintiff had not accepted the provisions of the Workmen's Compensation Act.

"As a matter of law the court concludes that where an employe is not engaged under the Employers' Liability Act, as in this case, he may sue at common law to recover for personal injury."

Afterwards defendant filed grounds and entered motion for a new trial, but this was not acted upon at the time. Something over a year after this trial, the case was heard by a jury on its merits, with the result above indicated.

Grounds were filed and motion entered for a new trial on this branch of the case and both motions argued, but before they were acted on defendant tendered and offered to file an elaborate amended answer perfecting his defense in the first branch of the case, by stating that he had accepted the provisions of the compensation act. The court refused to permit this to be filed but made it a part of the record, and thereupon overruled the motion for a new trial.

The evidence heard by the court on the trial of the jurisdictional issue is not in the record before us, hence we are unable to say whether the pleading tendered conforms to the evidence heard on the trial of that branch of the case; and apparently the only question to be considered by us is as to whether the pleadings sustain the finding of the court on that issue.

On this question it is said in the petition:

"Plaintiff says that he is and has been for thirty years a plasterer, and that at different times he has been employed by the defendants to do plastering in various buildings that defendant had the contract to do the plastering work in. He states that in March, 1920, the defendant had a contract to do certain plastering work for the Sun Varnish Company, and did employ him to do that work as a plasterer; that he was paid wages in the sum of $7.00 per day; that when defendants had completed their contract with the said Sun Varnish Company they were through with the services of plaintiff and he ceased to work for the defendants; that when employed by the defendants at said Sun Varnish Company's plant, the defendants asked this plaintiff to elect whether or not he would work under what is known as the Workmen's Compensation Act, and he did so elect by signing the required notice as provided by law."

It is further stated that after he ceased working for the defendant in March, 1920, until the latter part of May, 1920, the plaintiff worked for other contractors and concerns and was not employed by defendant in any way; that in the latter part of May, 1920, he was employed by defendant as a plasterer on the Francis building in Louisville; that:

"When he went to work in said building in May, 1920, defendant presented a notice accepting and electing to work under the Workmen's Compensation Act and requested the plaintiff to make an election to so work or to reject said notice and act, and this plaintiff says he did then and there at said time and place decline to work under said Workmen's Compensation Act and did elect not to work thereunder, and did refuse to sign said notice, and notified the defendants of said fact; that he then elected to waive all rights that might accrue to him by virtue of the provisions of said act in the event he was injured while so employed. That his refusal to elect to work under the compensation act was satisfactory to the defendants, and that he continued in the employ of the defendants until the date hereinafter set out."

That following the work on the Francis building he worked for defendant in Lexington, but at no time signed the workmen's compensation register or was requested to do so, and was so engaged on October 9th, the day of the injury.

The answer denies:

"That at different times the plaintiff has been employed by the defendant named in the petition, in buildings that the defendant had the contract to do the plastering work in; he denies that in March, 1920, or at any other time, the said defendants had a contract to do certain plastering for the Sun Varnish Company, or that they did employ plaintiff to do said work as a plasterer, or that the plaintiff was paid wages in the sum of $ ____; or that when the said defendant had completed their contract with the Sun Varnish Company they were through with...