Chesapeake & O. Ry. Co. v. De Atley

• Decision Date: 10 December 1912
• Citation: 151 S.W. 363,151 Ky. 109
• Parties: CHESAPEAKE & O. RY. CO. v. DE ATLEY.
• Court: Kentucky Court of Appeals

151 S.W. 363

151 Ky. 109

CHESAPEAKE & O. RY. CO. v. DE ATLEY.

Court of Appeals of Kentucky.

December 10, 1912

Appeal from Circuit Court, Mason County.

Action by W. L. De Atley against the Chesapeake & Ohio Railway Company. Judgment for plaintiff, and defendant appeals. Reversed, with directions.

Worthington Cochran & Browning, of Maysville, for appellant.

Allan D. Cole, of Maysville, and Holmes & Ross, of Carlisle, for appellee.

CARROLL J.

John De Atley, a minor, was injured while working for the appellant and this action was brought by the appellee, his father, to recover from the appellant damages for the loss of the services of his son during the time he was unable to work on account of the injuries, and reimbursement for amounts he had paid out in furnishing medical service and attention to him during the time he was suffering from the injuries. He averred that his son was employed by appellant without his knowledge or consent, and received injuries while engaged for it in the performance of dangerous work. For answer the appellant, after traversing the averments of the petition affirmatively pleaded that, when it employed John De Atley it believed he was of age, and had no knowledge or information that he was under 21 years of age, and could not have obtained such information by the exercise of ordinary care. It further pleaded that the appellee knew that his son was working for it as an employé in its train service, and that he permitted him to continue in the service without objection. It further averred that appellee had emancipated his son and voluntarily relinquished all right to control his employment or to have the benefit of his services, and, this being so, had no cause of action upon the grounds stated. Upon a trial before a jury a verdict was returned in favor of appellee for $500, and a reversal of the judgment on this verdict is asked upon the single ground that the trial court should have directed a verdict in its favor.

If appellee had not emancipated his son, and he was employed by appellant without the consent of appellee and with notice of his minority and received injuries while in this employment, then appellee was entitled to recover, not only for the loss of the service of his son while unable to work on account of injuries received, but also the money necessarily expended by him in giving to his son medical care and attention. McGarr v. National & Providence Worsted Mills, 24 R.I. 447, 53 A. 320, 60 L. R. A. 122, 96 Am. St. Rep. 749; Dennis v. Clark, 2 Cush. (Mass.) 347, 48 Am. Dec. 671; Meers v. McDowell, 110 Ky. 926, 62 S.W. 1013, 23 Ky. Law Rep. 461, 53 L. R. A. 789, 96 Am. St. Rep. 475; Illinois Central Ry. Co. v. Henon, 68 S.W. 456, 24 Ky. Law Rep. 298; L. & N. R. R. v. Willis, 83 Ky. 57, 4 Am. St. Rep. 124. But if appellee had emancipated his son, or if appellant employed him without notice of his minority, he was not entitled to compensation for loss of his services, or to be reimbursed for amounts expended by him in care and attention to his son during the time he was suffering from the injuries received. When the father loses by manumission the right to control the services of his son, who is old enough to work for himself and make his own living, he also loses the right to recover from the person in whose service his son was engaged the amount expended by him in care and attention to his son, made necessary by injuries received while so employed, as the right to recover for this expense depends on the right to recover for loss of service. In such a state of case the right of action to recover for lost time and medical expenses is in the son, not the father. Rounds Bros. v. McDaniel, 133 Ky. 669, 118 S.W. 956, 134 Am. St. Rep. 482, 19 Ann. Cas. 326.

This being the law applicable to the case on this point as we understand it, we will now look into the evidence for the purpose of determining whether or not the appellee had emancipated his son before he accepted employment with appellant. The evidence shows that the son, John De Atley, was born in September, 1891, and lived with the appellee, his father, until December, 1909, when he left home and went to a relative of his father's in Bourbon county, Ky. to assist him in stripping tobacco. He remained in Bourbon county for about 10 days, and went from there to Covington, Ky. at which place another relative of his father's lived.

While he was in Bourbon county his father testifies that he went to see him twice, but did not succeed in finding him, and that he supposed he went away from home because he wanted to work for himself. He further testifies that, after he went to Covington, his mother received a letter or two from him, which she answered, but that he did not know his address in Covington, although he heard he was living there and was working at a wholesale whisky house, and that he took no steps to find out where he was, as he expected he would get homesick and come back. He also said he did not write to his brother-in-law who lived in Covington, although he suspected that his son was making his home with him, or that he knew where his son was, and that he did not send his son any money, nor did his son send him any. He was asked these questions: "Q. From the time your son left your home in Bourbon county, in the fall of 1909, until he was injured in January, 1911, you acquiesced in his remaining away from home and at work, and permitted him to do this without requiring any portion of his wages to be sent to you? A. I never gave him any authority to work for anybody. Q. But you permitted him to work away from home for other people without requiring his wages to be sent to you? A. No, sir; he never worked away from home. Q. Did you think he was living without expense? A. I allowed the boy was trying to earn his wages. Q. You knew he had to have money to live on away from home, didn't you? A. I suppose a man could not live without doing something. Q. You knew that six or eight months prior to the time of his injury you had heard he was at work? A. I heard it rumored about the house. Q. And that he was working in a whisky house in Covington? A. I heard it.

Q. You never went to Covington to ascertain his whereabouts? A. I never went for the reason I had bought a little place, and didn't have the money to spend running around hunting the boy. Q. Did you know the name of the whisky house? A. No sir. Q. Did you ever try to find out? A. No, sir. Q. Did you write to your son in Covington, or to your brother-in-law in Covington, to ascertain where he was, or for whom he was working? A. No, sir; I did not. Q. Did you undertake to ascertain just exactly where he was and just exactly what he was doing, in order that you might write him to get a portion of his wages to assist you? A. I did not. Q. Guy Bell told you he was in Covington and was not coming home Christmas? A. He did not think he was. He was thinking of going...