Kentucky Distilleries & Warehouse Co. v. Wells

• Decision Date: 21 June 1912
• Citation: 148 S.W. 375,149 Ky. 275
• Parties: KENTUCKY DISTILLERIES & WAREHOUSE CO. et al. v. WELLS.
• Court: Kentucky Court of Appeals

148 S.W. 375

149 Ky. 275

KENTUCKY DISTILLERIES & WAREHOUSE CO. et al. v. WELLS.

Court of Appeals of Kentucky.

June 21, 1912

Appeal from Circuit Court, Franklin County.

Action by Phythian Wells, by his guardian, against the Kentucky Distilleries & Warehouse Company and another. Judgment for plaintiff, and defendants appeal. Affirmed.

William Marshall Bullitt, of Louisville, Brown & Nuckols, of Frankfort, and Grover C. Sales and Bruce & Bullitt, all of Louisville, for appellants.

Greene & Van Winkle and Guy H. Briggs, all of Frankfort, for appellee.

WINN J.

This case has been here upon a former appeal. Wells v. Ky Distilleries & Warehouse Co., 144 Ky. 438, 138 S.W. 278. It will not be necessary here to recount the major portion of the facts appearing upon the present trial as the statement in the former opinion sets them out fully. There appeared however, upon the second trial, certain substantial differences in the testimony, which will be elaborated post. Upon the first trial there was a verdict for the defendant which was reversed by this court in the opinion above cited. Upon the second trial the plaintiff obtained a verdict and judgment for $12,000, to reverse which this appeal is prosecuted.

A number of errors are assigned: (1) That the damages are excessive; (2) that the testimony hurtful in character to defendants, resulting from the physical and mental condition of the defendant and witness Morris while testifying for the defendants upon the second trial, was such surprise as that ordinary prudence could not have guarded against it, and as that the trial court erred in refusing to postpone the taking of his testimony until he should have had time to rest and recuperate; (3) that erroneous instructions were given; (4) that incompetent testimony was admitted.

We pass now to a discussion of the differences between the testimony upon the second trial and that given upon the first. This testimony is that of two witnesses, the plaintiff Phythian Wells, and the defendant William Morris. Upon the former trial the boy plaintiff testified that Morris indicated the position of the hole through the brick wall, and said (quoting now from the testimony as detailed in the former opinion), "Go up yonder and pull the hose through that hole in the wall, and I will go around into the building and shove the hose through and turn the water on when you get the end of the hose in the tub." Upon the second trial this same witness testified as to the immediate transaction in the following way: "Q. What did he (Morris) say when he got there, and what was done? A. He pointed up to this hole, and says, 'I want you to pack a hose through.' Q. Where did he say you would get the hose? A. He said he would poke it out the hole. Q. What did you do? A. I come around here and went up this ladder (indicating). Q. Where was he when you started from where you left him to go to the ladder? Had he gone back this way to the gate? A. Yes, sir."

Upon the second trial it was made to appear beyond question that a boy the size of Phythian Wells could have gone between or through the space between the two tubs, and reached a point immediately under the hole through which the hose was to be protruded without going upon the top of the tub into which he fell. The boy denied all knowledge of this route between the tubs. Upon the first trial his testimony was, in effect, that he was told to go up yonder (i.e., to the hole) and pull the hose through, directions which, if followed, necessitated his pursuing the route which carried him over the top of the tub; while upon the second trial his testimony was that he was directed to pack a hose "through," the argument being that "through" could not mean "over." The instruction given upon the first trial (which, subject to a certain criticism set out in the former opinion, was said to be correct, and which the court indicated should be given upon the second trial) subjected the defendants to liability if the jury believed from the evidence that the boy "was requested or directed by said Morris *** to go on said tank or .vat." This instruction, with the modification named in the former opinion, was given upon the second trial; and of this the appellants make complaint upon the theory that the boy's testimony on the second trial did not tell of any request or direction to go over the tub. The only other witness who gave any substantive testimony upon this precise point was the defendant Morris, who, upon the second trial, testified that he did not tell the boy to go upon the tub; that it was not necessary for him to go there to get the hose; that he had no reason to think that the boy would go upon the tub; and that he expected him to go through between the tubs, and not upon it. No other witnesses were present, and no other witnesses saw, so far as the record discloses, the boy and Morris together just prior to or at the time of the accident. The appellants therefore say that, since there was no evidence in the record of a substantive nature tending to show that the boy was directed to go upon the tub, it was error for the trial court to submit to the jury any right to find for the boy upon their belief, drawn from the testimony, that he was requested or directed to go upon the tub. Upon the other hand, the appellee says that the trial court gave the instruction with its modification as approved in the former opinion, that the evidence was substantially the same on both trials, and that the law of the case then is the law of the case now. There were, in addition, several witnesses introduced who testified that Morris had stated in their presence, in substance, that it was his (Morris') fault that the boy was hurt, and that he had sent the boy upon the tub. The court limited the effect of this testimony to its sphere as contradictory of the witness Morris. These witnesses testified in rebuttal. The trial court permitted as well a witness in chief, one A. F. Van Hoose, affirmatively to testify that in a conversation with Morris the latter had told the witness that he had directed the boy to go upon the tub. Over objection the court admitted this testimony; but, at the conclusion of the trial, the court, evidently having reconsidered its ruling upon the general admissibility of this testimony, instructed the jury that Van Hoose's testimony as to this conversation was to be regarded only as contradictory of Mr. Morris, and not as substantive testimony. It results, therefore, that the court in submitting the case to the jury must have done so upon the testimony of the boy alone. In the testimony above detailed the boy said that Morris pointed up to the hole and told him to go get the hose. He further says that he did not know of the route around between the tubs, and, in substance, that the route over the tub was the only feasible or known route to him. Under these conditions, it seems to us that there was sufficient evidence to take the case to the jury upon the question of whether Morris had requested or directed the boy to pursue the route which he did pursue in reaching the point where he was to go, the hole in the wall to which Morris had pointed and through which the end of the hose was to be obtained. It results, therefore, that the trial court committed no error in the instructions given submitting the case to the jury upon the testimony detailed.

The second marked distinction between the testimony given upon the first trial and that upon the second rests in the testimony of the defendant and witness William Morris, the servant of the appellant Kentucky Distilleries & Warehouse Company, whose immediate fault, if fault there was, was the cause of the boy's injury. Upon the second trial this witness testified upon cross-examination that in his conversation with the boy he did not tell him a word about how to get the end of the hose, while upon the first trial he testified that he told the boy to go right through there to that hole in the wall. Upon the first trial this witness testified that, after talking with the boy and making the arrangement, he went around inside the distillery for the purpose of putting the hose through the wall, and, just as he was ready to put it through, he looked through the hole and saw the boy disappear. Upon the second trial, upon his direct examination, he testified that he did not see the boy at all after he (the witness) had gone inside the building. He testified upon the first trial in detail about which way the boy was seen standing over the tub, and that he had not been aware of the boy's presence upon the tub until he had seen him there. Upon the second trial the witness testified that he had no recollection of making any such statement. Upon the second trial Morris testified that there was no difference or enmity between him and the witness Van Hoose. Upon the first trial he testified that he did not tell Van Hoose that he had directed the boy to go on the tub, and that he (the witness) and Van Hoose were not on speaking terms at that time. Upon the second trial he further elaborated that he and Van Hoose had never had a cross word in their lives. There were other distinctions or contradictions between his testimony upon the second trial and that upon the first. When the plaintiff's rebuttal testimony came on, his counsel introduced the transcript of the testimony upon the first trial and showed the detail of each contradiction. Counsel for defendants, realizing that Morris was not testifying as he had before, near the close of the direct examination of Morris moved the court to adjourn the hearing until the following morning, or to temporarily excuse Morris until he could be treated by a physician and procure sufficient rest to regain his normal state. This motion was overruled...