Noe v. O'Neil
| Decision Date | 16 February 1951 |
| Citation | 314 Ky. 641 |
| Parties | Noe v. O'Neil. |
| Court | Supreme Court of Kentucky |
Action by Mrs. Myrtle Noe against C.G. O'Neil to recover for injuries suffered by plaintiff in fall down stairway of apartment building leased by defendant. The Circuit Court, Whitley County, J.B. Johnson, J., overruled plaintiff's motion for a new trial and motion to substitute verdict returned at a previous trial and plaintiff appealed. The Court of Appeals, Sims, J., held that granting a new trial was not abuse of discretion, where verdict was excessive unless plaintiff's injuries were permanent and the evidence presented a border line case on question of whether plaintiff had suffered permanent injuries.
Judgment affirmed.
1. Appeal and Error. — The provisions of statute limiting the time within which an appeal may be taken are mandatory. Civil Code of Practice, sec. 745.
2. Time. — The two years limited by statute for taking an appeal
from order entered on October 17, 1947, expired on October 16, 1949. Civil Code of Practice, sec. 745.
3. Appeal and Error. — Ordinarily the Court of Appeals looks only to the record in passing on a motion to dismiss an appeal for failure to file it in time. Civil Code of Practice, sec. 745.
4. Appeal and Error. — Where record and check for filing fee were delivered to office of clerk of Court of Appeals on October 14, 1949, appeal from order entered on October 17, 1947, overruling plaintiff's motion for new trial and motion to substitute verdict at previous trial was not dismissable for failure to file record within two years from date of entry of order as required by statute, though endorsement on record showed that it was not filed until October 17, 1949. Civil Code of Practice, sec. 745.
5. Landlord and Tenant. — Petition stated a cause of action against lessee of apartment building for injuries suffered by plaintiff in fall down unlighted stairway after visit to tenant of defendant.
6. Limitation of Actions. — A petition may be amended after applicable statute of limitations has run, if amendment merely restates the cause of action originally pleaded in a different form and does not introduce a new claim or different cause of action.
7. Limitation of Actions. — Petition alleging that injury sustained in fall down stairway of apartment building after visit to defendant's tenant was caused by defendant's failure to properly light halfway and stairs and provide handrail and that floor plank at head of stairs was defective could be amended after expiration of one-year period of limitations so as to allege that fall was caused by defective top step, since amendment did not change plaintiff's cause of action. KRS 413.140.
8. Trial. — Where defendant testified that stairs on which plaintiff fell were in the same condition at time of trial as they were when accident happened, plaintiff was entitled to prove in rebuttal that defendant had repaired the steps after accident.
9. Negligence. — While evidence of subsequent changes in conditions or repairs to premises is not admissible to prove owner's negligence, if owner testifies that premises are in the same condition at time of trial as they were when accident happened, plaintiff may rebut such testimony by showing that repairs were made after accident.
10. Appeal and Error. — The Court of Appeals will not interfere with the broad discretion of trial judge in granting a new trial unless abuse of such discretion clearly appears.
11. Appeal and Error. — Trial judge's discretion in granting a new trial is a judicial discretion and not absolute and if it is clear that new trial was granted because court took an erroneous view of the law of the case, the order granting a new trial will be set aside.
12. Appeal and Error. — Order granting a new trial could not be set aside on ground that trial court took an erroneous view of the law of the case in granting the new trial, where record did not disclose upon which of the 10 grounds assigned, the court granted the new trial.
13. Appeal and Error. — Where verdict was excessive unless plaintiff's injuries were permanent and the evidence presented a border line case on question of whether plaintiff had suffered permanent injuries, granting a new trial was not abuse of discretion.
R.L. Pope and Oscar Black for appellant.
Glenn H. Stephens, L.O. Siler and Thomas F. Young for appellee.
Before J.B. Johnson, Judge.
Affirming.
This is the second appeal of this case. Our former opinion reported in 301 Ky. 472, 192 S.W. 2d 366, under the style of O'Neil v. Noe, gives a clear and concise statement of the facts involved and they will not be restated here, except when necessary for an understanding of the issues raised on this appeal.
The parties here will be referred to as plaintiff and defendant, the positions they occupied in the trial court. There have been four trials of the case. The first resulted in a verdict for the plaintiff in the sum of $2500, but that judgment was reversed for the reasons set out in the first opinion. There was a hung jury on the second trial. On the third trial there was a verdict of $5000 for plaintiff but the trial judge set it aside, without indicating his reasons for so doing, to which ruling plaintiff objected and filed her bill of exceptions. A verdict was returned for defendant on the fourth trial and the court overruled plaintiff's motion for a new trial, as well as her motion to substitute the verdict on the third trial for that rendered on the fourth and to enter judgment for her in the sum of $5000.
At the outset we are confronted with a question of procedure. It was on Oct. 17, 1947, when the trial court overruled plaintiff's motion to which we have just referred. The record was filed in the office of the clerk of this court on Oct. 17, 1949, and the defendant asks that the appeal be dismissed because it was not filed within two years from the date on which the final order was made, as required by Civil Code of Practice sec. 745, citing Board of Councilmen of City of Frankfort v Farmers' Bank of Kentucky, 105 Ky. 811, 49 S.W. 811; Sickmeier v. Merchants & Mechanics Loan & Bldg. Ass'n of Newport, 291 Ky. 182, 163 S.W. 2d 475; Kudelle v. Vizzard Inv. Co., 194 Ky. 604, 240 S.W. 54. These authorities sustain defendant's position that sec. 745 of the Civil Code of Practice is mandatory; also, that the two years within which an appeal may be taken from an order entered on October 17, 1947, expired on Oct. 16, 1949.
But plaintiff's attorney filed his affidavit to which was attached the receipt the express company took from the clerk of this court when it delivered to him the record. This receipt shows the record was delivered to the clerk's office and receipted for by his deputy on Oct. 14, 1949. Also attached to his affidavit is his cancelled check for $5 dated October 12, 1949, payable to the clerk for the filing fee. The affidavit shows this check was included in the express package containing the record.
Ordinarily, we look only to the record on a motion to dismiss an appeal for not having been filed in time. But here plaintiff conclusively shows the record and his check were delivered to the clerk's office on Oct. 14, 1949. He did all the law required of him when he delivered the record and his check to the clerk on Oct. 14, 1949, and should not be held responsible for the clerk's failure in not filing the record, or endorsing thereon that it was filed, until Oct. 17th. The motion to dismiss the appeal is overruled. See Bobbitt v. Cundiff, 296 Ky. 802, 177 S.W. 2d 596.
Plaintiff's brief does not call attention to any error made on the fourth trial, therefore we are only concerned with the one question of whether the trial judge abused his discretion in setting aside the $5000 verdict for plaintiff on the third trial. Defendant's motion for a new trial set out ten grounds among which were the court erred: 1. in permitting plaintiff to file the second amended petition; 2. in allowing plaintiff to introduce in rebuttal testimony that defendant had repaired the steps after the accident; 3....
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