Louisville Woolen Mills v. Kindgen

• Decision Date: 20 May 1921
• Citation: 231 S.W. 202,191 Ky. 568
• Parties: LOUISVILLE WOOLEN MILLS v. KINDGEN.
• Court: Kentucky Court of Appeals

231 S.W. 202

191 Ky. 568

LOUISVILLE WOOLEN MILLS v. KINDGEN.

Court of Appeals of Kentucky.

May 20, 1921

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Fourth Division.

Action by Bernard Kindgen, by his statutory guardian, against the Louisville Woolen Mills. Judgment for plaintiff, and defendant appeals. Affirmed.

Baskin & Vaughan, of Louisville, for appellant.

Richard P. Dietzman, Chas. Carroll, Martin T. Moran, and Geo. A Schuler, all of Louisville, for appellee.

THOMAS J.

This action was brought in the Jefferson circuit court by the appellee and plaintiff below, Bernard Kindgen, an infant, by his statutory guardian, against the appellant and defendant below, Louisville Woolen Mills, seeking to recover damages against the defendant in the sum of $30,000 resulting from injuries sustained by plaintiff while he was employed by defendant, as alleged, in "willful and known violation" of the Child Labor Law (subsection 9 of section 331a, Kentucky Statutes), and upon trial there was a verdict against defendant for the sum of $10,000, which the court declined to set aside upon defendant's motion for a new trial and rendered judgment against it for that amount to reverse which defendant prosecutes this appeal.

To understand the grounds urged before us for a reversal, it will be necessary to give a brief history of the proceedings had in the case from the time of the filing of the petition to the rendition of the judgment, and also to state some of the undisputed and admitted facts upon which the suit was based. The injury sued for occurred on October 11, 1918, and was caused by plaintiff having his right arm caught in the flywheel of some machinery while he was at work at and around a carding machine and while he was employed to oil and clean that and perhaps other pieces of machinery, and his arm was mashed, lacerated, and torn so that it had to be amputated some weeks afterwards, when it became evident that it could not be saved, and during which time plaintiff suffered intense and excruciating pains. There were also injuries to other parts of his body. At the time of his employment, as well as at the time of the injury, he was but slightly past 15 years of age, of which fact defendant had knowledge through a certificate furnished it by plaintiff at its request, but, notwithstanding it through its foreman in charge continued plaintiff in its employ and assigned him to the work above stated. The petition relies solely upon the prohibited employment of plaintiff as a ground for recovery, making no reference to any act of negligence committed by defendant. The answer contained two paragraphs, the first of which was a denial, and the second relied on contributory negligence, which was denied by a reply, the latter pleading being filed May 19, 1919. On June 7, 1919, an amended answer was filed in which defendant set up the fact that it was operating under our statute commonly known as Workmen's Compensation Act, being chapter 33, p. 354, Session Acts 1916, as amended by chapter 176, p. 690, Session Acts 1918, and being chapter 137, vol. 3, present Kentucky Statutes; that the plaintiff had by writing accepted the provisions of that act, and it alleged that the Workmen's Compensation Board, provided for therein, had exclusive jurisdiction of the matters complained of in the petition, and it relied upon the facts so pleaded by it in abatement of the jurisdiction of the circuit court in which the suit had been brought. A reply to that pleading denied the exclusive jurisdiction of the Workmen's Compensation Board, and it further alleged that plaintiff sustained his injuries while he was "employed in willful and known violation" of the Child Labor Law, hereinbefore referred to, and that he, through his guardian, had elected to sue and recover damages for his injuries as if the Workmen's Compensation Act "had not been passed" (section 30 of that act, now section 4911, Kentucky Statutes); that reply to the amended answer was filed October 4, 1919, and on the 15th of that month an amended reply was filed by plaintiff in which he alleged that in June, 1919, and after the issues herein had been made up by the filing of the original reply, defendant, ignoring the pendency of this suit, applied to the Compensation Board, as provided by section 4932, vol. 3, of the Statutes, for the purpose of procuring a settlement of the claim; that defendant therein (plaintiff here) appeared before the Board and demurred specially to its jurisdiction upon the ground that he, through his guardian, had exercised the election which the Compensation Act gave him in section 4911, supra; and that the Board was thereby ousted of jurisdiction to consider the case in any of its phases, or to legally pass upon any question connected therewith. This objection to its jurisdiction was overruled by the Board, and it proceeded to hear evidence and determine whether plaintiff had been employed in "willful and known violation" of the Child Labor Law, which it found to be true and rendered an opinion to that effect. Its judgment stopped at that point, saying:

"And this award is limited to the ruling upon said issue. Bernard Kindgen, through his statutory guardian, has not elected to claim compensation under section 30 of the act" (now section 4911 of the Statutes).

Plaintiff filed with that amended reply a copy of the opinion and award of the Board of Compensation, and alleged that defendant, by invoking its jurisdiction, was estopped to deny that award, and that the finding of the Board that plaintiff was employed in "willful and known violation" of the Child Labor Law was conclusive upon it. On November 22, 1919, defendant filed a responsive pleading to that amended reply, but styled it "amended answer," in which it alleged that plaintiff appeared before the Board in the proceedings instituted by the defendant as above related, and that, after its plea to the jurisdiction was overruled, each party introduced evidence as to the age of plaintiff at the time he was employed and at the time he was injured, and as to other facts bearing upon the nature of the employment, and that such appearance was an election on his part to prosecute the action before the Board; and it pleaded such facts in abatement of the common-law action in the circuit court. The record shows no responsive pleading to the one last referred to, and the parties went to trial, with the result above indicated.

At the close of all the evidence defendant moved the court to dismiss the action without prejudice, which was overruled, and it then moved for a peremptory instruction in its favor, which was also overruled, and both of which motions seem to have been made upon the ground that plaintiff, by his involuntary appearance before the Compensation Board and the introduction of testimony before it after its jurisdiction had been challenged, elected to proceed before it, and thereby waived his right to prosecute the common-law action. After the overruling of those motions and after the court had instructed the jury, the record shows this:

"After the instructions had been given and before argument counsel for defendant offered to argue with the testimony as admitted as a basis therefor circumstances in mitigation of damages, to which plaintiff by counsel objected, and the court sustained the objection to which the defendant, by counsel, excepted."

The court gave to the jury only one instruction, the first part of which directed a verdict for plaintiff, and the latter part of which stated the correct rules for the measurement of the amount of recovery, of which no criticism is made on this appeal. The alleged errors of the court in the rulings hereinbefore recited, with the peremptory instruction to find for plaintiff, constitute the errors relied on for a reversal of the judgment.

It is seriously insisted that the court erred in refusing to sustain defendant's motion to dismiss the common-law action without prejudice, and, failing to do that, in overruling its motion for a peremptory instruction upon the grounds, as stated, that plaintiff in appearing before the Compensation Board, though involuntarily and at the behest of defendant, waived his right to further prosecute this action, and thereby ousted the circuit court of any jurisdiction thereof. We cannot agree with counsel in this contention; but, if we should give the effect contended for to plaintiff's action in appearing before the Board under the circumstances, we are then of the opinion, as will hereinafter appear, that the alleged error of the court in overruling the motions referred to did not prejudicially affect the rights of defendant under the facts of this case.

In disposing of this question we cannot dismiss from our minds the inconsistent position (as it appears to us) assumed by counsel in its discussion. The ground of the contention is that in going before the Board, though involuntarily and for the purpose of responding to the proceedings instituted before it by defendant, plaintiff thereby abandoned his common-law action. The argument is founded upon the provisions of section 4911, supra, of the Statutes, which says:

"If a claim to compensation be made under this section, the making of such claim shall be a waiver and bar to all rights of action on account of said injury or death of said minor as to all persons, and the institution of an action to recover damages on account of such injury or death shall be a waiver and bar of all rights to compensation under this act."

In support of this point it is argued in brief that whichever of the two remedies is first adopted by the guardian of the infant if not killed, or by his representative if he is killed, ipso facto becomes the exclusive one, and it...