Mayse v. Martin

• Citation: 435 S.W.2d 71
• Parties: Milford Homer MAYSE, Appellant, v. Lucille Gallup MARTIN, Appellee.
• Decision Date: 13 December 1968
• Court: United States State Supreme Court (Kentucky)

Page 71

435 S.W.2d 71

Milford Homer MAYSE, Appellant, v. Lucille Gallup MARTIN, Appellee.

Court of Appeals of Kentucky.

Dec. 13, 1968.

John Simpson, Catlettsburg, Charles S. Sinnette, Ashland, for appellant.

Creech & Hogg, Ashland, for appellee.

CULLEN, Commissioner.

Milford Mayse, while undertaking to repair a roof on a bathroom addition to a dwelling owned by Lucille Martin, fell from the roof and was injured. He sued Mrs. Martin for damages, alleging that she had failed to provide a safe place for his work and that she was an employer 'affected by' the Wrokmen's Compensation Act who had not elected to operate under the Act wherefore, under KRS 342.410, she could not avail herself of the defense of contributory negligence. The circuit court held a pre-trial hearing on the workmen's compensation question and thereupon entered an order finding as a fact and as a conclusion of law that Mrs. Martin did not have 'three or more employes regularly engaged in the same occupation or business,' KRS 342.005, and therefore was not subject to the Workmen's Compensation Act. The case thereafter went to the jury on the issues of negligence and contributory negligence and at the close of the plaintiff's evidence the court directed a verdict for the defendant, apparently on the ground that the plaintiff was contributorily negligent as a matter of law. Judgment was entered dismissing the action, from which judgment the plaintiff Mayse has appealed.

The appellant contends, first, that the trial court erred in ruling that Mrs. Martin did not have three or more employes regularly engaged in the same occupation or business and was therefore not subject to the Workmen's Compensation Act. The record indicates that the trial court's ruling was based on evidence taken at the pre-trial conference. That evidence is not in the record on appeal. Accordingly there is no basis upon which this court can review the trial court's finding.

The appellant's second contention is that the direction of a verdict against him was error. We shall briefly review the evidence.

Mayse, whose occupation was that of a painter and paperhanger, was a tenant of Mrs. Martin's. He 'worked out' his rent doing repair and maintenance work on various rental properties owned by Mrs. Martin. At her request he undertook to repair the roof on a bathroom addition to one of her rental houses. After removing the composition roofing paper and wooden sheathing he found that the rafters were rotten and needed replacing. He ordered new materials but was told by the supplier that delivery could not be made until the following day. Mayse so informed Mrs. Martin and she directed him to put a temporary covering over the roof to protect it from rain during the night. She then left the premises and he proceeded with the undertaking to install the temporary covering. He went up on the roof and nailed three 1 10 sheathing boards across the rafters; one next to the house, one across the middle of the roof, and one along the outer ends of the rafters. Next, he laid sheets of aluminum roofing material over the sheathing and proceeded to nail the roofing to the sheathing boards. He completed nailing the roofing to the board next to the house and to the one across the middle of the roof, and was in the process of nailing to the board along the ends of the rafters when, he said, the roof 'bent' or 'gave way' along the edge, causing him to lose his balance and fall to the...