Frere v. The Missouri

• Decision Date: 09 January 1915
• Docket Number: 19,193
• Citation: 94 Kan. 57,145 P. 864
• Court: Kansas Supreme Court
• Parties: JULES FRERE, Appellee, v. THE MISSOURI, KANSAS & TEXAS RAILWAY COMPANY, Appellant

145 P. 864

94 Kan. 57

JULES FRERE, Appellee, v. THE MISSOURI, KANSAS & TEXAS RAILWAY COMPANY, Appellant

No. 19,193

Supreme Court of Kansas

January 9, 1915

Decided. January, 1915.

Appeal from Cherokee district court; EDWARD E. SAPP, judge.

Judgement affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. ACTION--Within Workmen's Compensation Act--Tried Under Mining Act--Too Late to Complain After Judgment. An action which should have been brought under the workmen's compensation act (Laws 1911, ch. 218, as amended by Laws 1913, ch. 216) was brought and tried as one arising under the act relating to mines (Gen. Stat. 1909, § 4992). No suggestion was made by the defendant that either party had filed its nonacceptance of the provisions of the compensation act, and the pleadings and instructions were in accordance with an action brought under the mining statute, no request being made for different instructions. Held, that the defendant can not be heard to complain for the first time in this court on appeal that the petition contained no allegation that either party had elected not to accept under the terms of the compensation act.

2. PERMANENT INJURIES--Proof--Verdict and Judgment Sustained. Permanent injury is to be proved like any other issuable matter, and when there is competent testimony showing or fairly tending to show its existence, and the jury have found that the plaintiff was permanently injured and the verdict has been approved by the trial court, the judgment will not be disturbed.

W. W Brown, James W. Reid, both of Parsons, and Al. F. Williams, of Columbus, for the appellant.

C. A. McNeill and E. V. McNeill, both of Columbus, for the appellee.

OPINION

WEST, J.:

June 26, 1913, plaintiff filed his petition charging that on April 19, 1913, he was burned while working in a coal shaft in one of defendant's mines, by an explosion of gas. It was charged that the defendant knew or should have known that gas was generating in the mine and that explosions were liable to occur; that the defendant unlawfully and negligently failed to have the working places therein examined or properly inspected. The answer consisted of a general denial and an allegation that whatever injury occurred was due solely to the plaintiff's carelessness and failure to comply with the orders and instructions of the mine foreman; further, that he knew the exact condition; that he assumed the hazards, and that the coal produced by the mine was used in interstate commerce. The jury returned a verdict in favor of the plaintiff for $ 1000, $ 410 of which were for permanent injuries as shown by the special findings. The instructions were strictly in line with an action under the statute for failure to comply with the provisions governing the operation of mines, the jury being expressly told that the laws of this state require the operator of a coal mine to appoint a competent fire boss, whose duty it is to carefully examine and inspect every working place and opening in such mines, and to notify the employees of the existence of fire damp or gas, and that a willful failure to comply with these provisions or any violation of them, which was the proximate cause of the injury, would make the defendant liable. The defendant appeals, and insists that the petition contained no allegation that either party had elected not to accept under the terms of the compensation act, and that there was no evidence to sustain a recovery for permanent injuries.

Under section 7 of chapter 216 of the Laws of 1913 all employers entitled to come within the provisions of the act shall be presumed to have done so unless they file with the secretary of state a written statement that they do not so elect, and under section 8 a similar rule is laid down touching employees. It is argued that in the absence of an allegation of nonacceptance it must be presumed that the parties were acting under the compensation act. The plaintiff replies that under the circumstances of the case he should be permitted to amend his petition...