Black Star Coal Co. v. Garland

• Decision Date: 10 June 1930
• Parties: BLACK STAR COAL CO. v. GARLAND.
• Court: Kentucky Court of Appeals

30 S.W.2d 900

235 Ky. 204

BLACK STAR COAL CO. v. GARLAND.

Court of Appeals of Kentucky

June 10, 1930

Rehearing Denied Sept. 23, 1930.

Appeal from Circuit Court, Harlan County.

Action by Jessie Garland against the Black Star Coal Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

J. B Snyder and H. H. Fuson, both of Harlan, for appellant.

G. G Rawlings, of Harlan, for appellee.

WILLIS J.

Jessie Garland instituted an action against the Black Star Coal Company to recover damages for personal injuries. He recovered a judgment for $1,000, which was reversed by this court because of error in the instructions given to the jury. Black Star Coal Co. v. Garland, 228 Ky. 473, 15 S.W.2d 265, 266. It was held, however, that "there was sufficient evidence tending to show negligence on the part of the defendant to authorize a submission of the case to the jury." A new trial resulted in a judgment for $1,500 in favor of the plaintiff, and the defendant again appeals. The material facts are delineated in the opinion on the previous appeal, and we proceed to discuss and dispose of the various reasons for reversal urged upon the present appeal.

1. An amended answer was tendered by the appellant, but the court refused to file it. The new pleading was in three paragraphs. The first paragraph contained a traverse of the averments in plaintiff's pleadings. No harm came from refusal to receive the denials, since the allegations of plaintiff's pleadings were treated as traversed of record. The amended answer added nothing on that score. The second paragraph of the tendered answer pleaded that both parties to the action had duly accepted the provisions of the Workmen's Compensation Law, and that the relation of employer and employee was existing at the time of the injury. The failure of the pleading to allege that the injuries complained of "arose out of and in the course of the employment" was a fatal defect. Section 4882, Ky. Stats.; Stearns C & L. Co. v. Smith, 231 Ky. 269, 21 S.W.2d 277. The liability asserted against the defendant in this case did not arise out of the relationship of master and servant, and was not an injury compensable under the Workmen's Compensation Act (Ky. St. § 4880 et seq.). January-Wood Co. v. Schumacher, 231 Ky. 705, 22 S.W.2d 117. The defendant's liability, as noted in appellant's brief was predicated upon its negligence as a landlord in failing to exercise proper care to maintain for the common use of its tenants the steps over the wire fence. It was immaterial in this case whether the parties sustained some other relationship, or were in some other situation governed by the Workmen's Compensation Law. The third paragraph of the amended answer invoked the statute of limitations on the ground that the action was barred when the amended petition was filed. The original petition was filed in time, and the amendment merely perfected the statement of the plaintiff's case. It set up no new cause of action, and was not affected by the statute of limitations. Middlesboro Home Telephone Co. v. L. & N. R. Co., 214 Ky. 822, 284 S.W. 104; New York Cent. & H. R. R. Co. v. Kinney, 260 U.S. 340, 43 S.Ct. 122, 67 L.Ed. 294. Indeed, the able counsel for appellant candidly concede as much when they state in brief: "In deference to the rulings of this court we will say that our plea of limitation may not have been good, but we interposed it chiefly to call the court's attention to laches and negligence on the part of the plaintiff to combat what he might say about the delay of defendant in offering its answer." It is plain, therefore, that no error prejudicial to appellant was involved in rejecting its amended answer.

2. Appellant argues that plaintiff's proof was insufficient to justify submission of the case to the jury, and that a peremptory instruction duly demanded by it should have been granted. The carefully prepared argument develops two grounds for the claim; first that no negligence of appellant was shown, and then that the contributory negligence of plaintiff was established as a matter of law. The contention was advanced when the case was considered before, and the court concluded that the evidence was adequate to require determination of the ultimate facts by the jury. That opinion constitutes the law of the case, binding on the appellate, as well as the trial court, unless the facts on the new trial were materially different. L. & N. R. Co. v Rowland, 227 Ky. 841, 14 S.W.2d 174; Wilson v. Caughlin, 187 Ky. 221, 218 S.W. 1010. We have compared the facts found in the two transcripts, and while differences in some details may be discovered, the evidence as a whole on each trial is substantially the same. The defense is developed more clearly, and the plaintiff's version of the happening is more cogently contradicted in the last record, but the essential elements of the controversy remain the same. The evidence was in sharp conflict, and the jury was the proper tribunal to try the issues both of negligence and contributory negligence upon which the result necessarily hinged. It is not a situation...