Carter Coal Co. v. Love

• Decision Date: 04 January 1917
• Citation: 173 Ky. 49,190 S.W. 481
• Parties: CARTER COAL CO. v. LOVE.
• Court: Kentucky Court of Appeals

190 S.W. 481

173 Ky. 49

CARTER COAL CO. v. LOVE.

Court of Appeals of Kentucky.

January 4, 1917

Appeal from Circuit Court, Knox County.

Action by James Love, administrator, against the Carter Coal Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Black Black & Owens, of Barbourville, for appellant.

J. D Tuggle and J. B. Campbell, both of Barbourville, for appellee.

CARROLL J.

David Love, a boy under 16 years of age, was killed while working as a trapper in the mine of the appellant company, and in this suit by his administrator to recover damages for his death, there was a judgment for $5,000.

The grounds relied on for reversal will be stated in the order in which they are set out in the brief of counsel for appellant.

(1) It is urged that reversible error was committed by the trial court in putting 13 bystanders on the panel of 18 persons from whom the jury were to be selected. But the error in this respect committed by the trial judge, assuming the statements in the brief of counsel to be correct, is not available here because we do not find in the record that any objection was raised or exception taken at the time the jury was being selected to the fact that the panel offered counsel contained 13 bystanders.

Counsel however, in their brief excuse the failure of the record to show what occurred when the jury was being selected by the statement that the trial judge refused to permit counsel to put on the order book of the court a motion, supported by affidavit, raising the question that the panel offered contained 13 bystanders, and this charge in the brief is accompanied by the affidavit of counsel filed with the brief in which there is set out what occurred between the court and counsel when objection was made to the number of bystanders on the panel before the jury was selected.

Counsel have the right, not as a matter of favor on the part of the trial judge, but as a privilege conferred by law and sanctioned by practice, to make objections and save exceptions in proper form to every material ruling of the trial judge which in the opinion of counsel affects the substantial rights of his client and have the same appear in the record. And it is hardly necessary to say that the trial judge, in the exercise of the functions of his office, has no discretion or right to refuse to permit counsel to make, in proper time and manner, such objections as are not plainly frivolous as he desires to make, and to save, in proper time and manner, such exceptions as he desires to save to the rulings of the court. And if the trial judge arbitrarily refuses to permit counsel to make a part of the record or put on the order book his objections to the manner in which the jury is selected, or to make a part of the bill of exceptions or put on the order book, whichever may be the appropriate place, his timely objections or exceptions to any other action or ruling, the proper course for counsel to pursue is to prepare a bystander's bill setting out the manner complained of in the manner provided in section 337 of the Civil Code and bring it to and file it in this court with and as a part of the record. Otherwise the error complained of will not be available on appeal, because it is manifest that in the regular and due course of procedure we cannot take cognizance of questions of practice that appear only in the brief of counsel.

We had before us in Trosper Coal Co. v. Rader, 166 Ky. 797, 179 S.W. 1023, the question as to the proper practice when a motion to discharge a jury panel for error in its selection was made, and in disposing of the matter said:

"The defendant made a motion to discharge the jury panel, on the ground that the sheriff, in violation of section 2274, Kentucky Statutes, summoned 15 bystanders to try the case. The motion was overruled and defendant insists that this was error. The facts on which the motion is predicated appear only in the motion itself. No affidavit accompanies the motion. There is no order of court showing that 15 bystanders were summoned by the sheriff; nor are the facts certified to in the bill of exceptions. This court cannot assume that facts appearing only in a motion are true. For aught that the record shows, the trial court may have overruled the motion because the facts stated were not true. Unless the facts relied on to obtain the discharge of a jury panel are supported by an affidavit which is made a part of the record, or are verified by an order of court, or are certified to in the bill of exceptions, the action of the trial court in refusing to discharge the jury panel is not subject to review."

It may also be noticed that in the motion and...