Davidson v. Perkins-Bowling Coal Co.
| Decision Date | 09 October 1934 |
| Parties | DAVIDSON v. PERKINS-BOWLING COAL CO. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Knott County.
Action by Beckham Davidson against the Perkins-Bowling Coal Company. From a judgment dismissing the amended petition, plaintiff appeals.
Affirmed.
C. A Noble, of Hazard, for appellant.
H. H Smith, of Hindman, for appellee.
Beckham Davidson, an employee of the Perkins-Bowling Coal Company claims that on the 18th day of August, 1932, he sustained an injury by an accident arising out of, and in the course of his employment, resulting in the amputation of the thumb of his left hand; the enduring of great pain; loss of time for a period of two months, and the incurring of hospital bills. At the time he sustained the injury, the Perkins-Bowling Coal Company was eligible to, but had not accepted, the Workmen's Compensation Act (Ky. St. § 4880 et seq.), and he avers his injury was "brought about by gross negligence on the part of the defendant."
By an amended pleading, he asserted at the time he sustained the injury he was engaged in mining and loading coal, and "it was necessary for him to set certain timbers or props for the purpose of supporting the roof of the mine," and in the setting them "it was necessary to use cap boards which were placed on top of the posts"; the posts or props were furnished by the company, but it "failed and refused" to furnish cap boards according to specifications, and, in order to set the props for his protection, it was necessary for him to hew or alter the thickness of the cap boards before they could be used on the top of the props, and "the company carelessly and negligently failed and refused to furnish cap boards of proper thickness and because of the wrongful and careless acts on the part of the defendant, the plaintiff in attempting to hew or trim the cap boards so that they could be used, cut off the thumb of his left hand and his injury was brought about wholly on the part of the defendant company in failing and refusing to furnish cap boards and posts of proper thickness."
In a second amendment, he alleged, "in addition to the wrongful and careless acts on the part of the defendant," set out in his first amendment, "the coal company at the time it employed its men knew they would be required to use an ax in the mine for various purposes and that it wrongfully and negligently failed to instruct the plaintiff as to what use he would be required to use said ax, or how he should hold or trim a wedge in connection with the fastening of the post or cap boards, or to instruct them that it was necessary or that he would be required to trim said cap boards or wedge before using same; that this plaintiff did not know of the requirements as to fixing said cap boards at the time of the said employment."
To the petition as amended, the court sustained a general demurrer, and dismissed the same.
Davidson insists it is the general rule in an action for personal injury that "it is sufficient to allege in general terms the injury complained of was occasioned by the negligence and carelessness of the defendant, his servant or agent, without stating the circumstances which accompanied the injury in order to show it was occasioned by negligence," and "the allegations are adequate when they are such as to enable a person of ordinary understanding to know what is intended to be relied upon as the basis of liability." Newman's Pleading, Practice & Forms (3d Ed.) vol. 1, § 324-A, pp. 428, 429; Chiles v. Drake, 2 Metc. 149, 74 Am. Dec. 406; Gaines & Co. v. Johnson, 133 Ky. 507, 105 S.W. 381, 32 Ky. Law Rep. 58; Park Circuit & Realty Co. v. Coulter, 233 Ky. 1, 24 S.W.2d 942.
The correctness of this rule is not doubtful. Its application to the facts alleged in the petition as amended is one of the decisive questions now to be determined.
Davidson had no cause of action for the injury he sustained unless the coal company, although not operating under the Workmen's Compensation Law, was guilty of negligence of some sort or in some degree. Perkins-Harlan Coal Co. v. Mercer, 235 Ky. 618, 32 S.W.2d 14; Ray v. United Elkhorn Coal Co., 244 Ky. 417, 51 S.W.2d 248; Deboe's Adm'r v. West Ky. Coal Co., 216 Ky. 198, 287 S.W. 568; Duvin Coal Co. v. Fike, 238 Ky. 376, 38 S.W.2d 201.
Therefore, in order to state a cause of action, it was incumbent upon him to allege facts giving rising to a duty, alleged to have been breached, by either general or specific negligence as the proximate cause of his injury. Consolidated Coach Corp. v. Burge, 245 Ky. 631, 54 S.W.2d 16, 85 A. L. R. 1086; Ingraham v. Blevins, 236 Ky. 505, 33 S.W.2d 357; American Savings Life Ins. Co. v. Riplinger, 249 Ky. 8, 60 S.W.2d 115, 119.
In the last-cited case we stated the familiar, elemental rules of pleading, thus:
Our view of the original petition is, it contains no allegation of general negligence, but assumes Davidson was entitled to recover solely because the coal company was eligible to accept, but had not accepted, and was not operating under, the Workmen's Compensation Act.
The first amendment endeavors to allege specific acts of...
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Wilhelmi v. Berns
... ... and right of recovery will be confined to the specific ... negligence alleged. Davidson v. Perkins-Bowling Coal ... Company, 255 Ky. 649, 74 S.W.2d 1; Wigginton's ... Adm'r v ... ...
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Couch's Adm'r v. Black
... ... Ky. 287, 75 S.W.2d 1046; Braden's Adm'x v ... Liston, 258 Ky. 44, 79 S.W.2d 241; Davidson v ... Perkins-Bowling Coal Co., 255 Ky. 649, 74 S.W.2d 1. It ... is an equally well established ... ...
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Couch's Adm'R v. Black
... ... Co., 256 Ky. 287, 75 S.W. 2d 1046; Braden's Adm'x v. Liston, 258 Ky. 44, 79 S.W. 2d 241; Davidson v. Perkins-Bowling Coal Co., 255 Ky. 649, 74 S.W. 2d 1. It is an equally well established and ... ...
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