Mauck v. Southern Ry. Co. in Kentucky

• Decision Date: 01 May 1912
• Citation: 148 Ky. 122,146 S.W. 28
• Parties: MAUCK v. SOUTHERN RY. CO. IN KENTUCKY.
• Court: Kentucky Court of Appeals

146 S.W. 28

148 Ky. 122

MAUCK v. SOUTHERN RY. CO. IN KENTUCKY.

Court of Appeals of Kentucky.

May 1, 1912

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

Action by Solomon Mauck against the Southern Railway Company in Kentucky. From a judgment for defendant on a peremptory instruction, plaintiff appeals. Affirmed.

S. M Sapinsky and J. R. Duffin, both of Louisville, for appellant.

Edward P. Humphrey, of Louisville, for appellee.

CLAY C.

Owen Mauck, an infant 17 years of age, was struck by a hand car and injured while employed by the Southern Railway Company in Kentucky. His father, Solomon Mauck, brought this action against the company to recover damages for loss of his son's services. He bases his action on the fact that the company, without his consent, hired his son, an infant, and put him to work at a dangerous employment, and that he was injured while so employed. The company not only denied the allegations of the petition, but pleaded that the son had been emancipated. At the conclusion of plaintiff's evidence, the court directed a verdict in favor of the defendant. To review the propriety of this ruling, this appeal is prosecuted.

The evidence shows that appellant is a magistrate, residing at Doolittle Mills, Perry county, Ind., but a short distance from Louisville, and near the line of the railway company. According to his evidence, Al Bovinett came to him on June 16, 1910, for the purpose of getting Owen to work on the Southern Railroad at Louisville. He told Bovinett that Owen could not go. After some insistence on the part of Bovinett he told Bovinett he would let him know Saturday. He says that he went away from home on Saturday, but left word with his wife to tell Bovinett that his son could not go. That was on June 18, 1910. After that he did not see Owen any more until he was sent home on crutches. He heard Owen was in Louisville, but had no means to go up there, or he would have come and seen about it. On cross-examination, he admits that when he returned home they told him that Bovinett had taken Owen off, and he supposed that they had gone off to work on a section. Owen afterwards returned home and had some washing done. Appellant, however, was absent at the time. Owen came for the purpose of getting others to work for the railroad. Appellant, when he came home, was informed of this fact. It was partly his understanding that his son had gone to Louisville to work for the railroad, and he supposed that he did not work for nothing. He tried to get word to his son, but could not find anybody who could tell him about him, although the railroad passed within about six miles of his house. Appellant admitted that his son had worked for the Southern Railroad in East St. Louis, and he knew of this fact. When at home, he gave his son his board. His son went away and worked for wages, and after paying his expenses, would send the balance home.

Mrs Mauck testifies that her husband left word with her to tell Bovinett that Owen could not go with him. This message was communicated to Bovinett. Notwithstanding the message, they both left. Appellant was absent at the time. She knew where the boy went. She knew that he was in Louisville working on a railroad section. Did not think her husband knew it all the time. Her husband knew where Owen was in a general way. After he went off with Bovinett, he knew Owen went to work on a railroad. Nothing was done about getting him back. Owen had worked away from home several times before, and after taking what he needed for clothes and board, he would bring his wages home. When Owen returned home the first time after going to Louisville, he told her where he was working. Owen stayed at home a couple of days, but his father was absent. When his father returned, he heard about it, and said he wished he had been there. When Owen returned on crutches, he brought his money with him, and gave every cent to the family, and it was used by them for their benefit. She guessed that appellant knew this fact. Owen Mauck, who was injured, testifies that Al Bovinett came down on the 16th of June to get him to go to work for the Southern Railroad. Bovinett asked his father if he could go, and his father told him he could not. On the 18th his mother told him that his father, who was absent, had left word for him not to go. Bovinett kept on begging, so he decided to go. Al Bovinett and his brother, Charlie, both of whom were working for the railroad, had...