Reuff-Griffin Decorating Co. v. Wilkes

• Decision Date: 30 January 1917
• Citation: 191 S.W. 443,173 Ky. 566
• Parties: REUFF-GRIFFIN DECORATING CO. v. WILKES.
• Court: Kentucky Court of Appeals

191 S.W. 443

173 Ky. 566

REUFF-GRIFFIN DECORATING CO. v. WILKES.

Court of Appeals of Kentucky.

January 30, 1917

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

Action by Ira Wilkes against the Reuff-Griffin Decorating company. Judgment for plaintiff, and defendant appeals. Reversed, with directions.

Furlong Woodbury & Furlong, of Louisville, for appellant.

Blakey Quin & Lewis, of Louisville, for appellee.

THOMAS J.

The only question on this appeal which we deem it necessary to consider is whether the limitation of one year for the bringing of an action for the recovery of damages on account of personal injury, as provided by section 2516 of the Kentucky Statutes, was under the facts appearing of record "obstructed" within the meaning of section 2532 of the same Statutes so as to enable the appellee, who was plaintiff below, to maintain this action against appellant, who was defendant below, and which action was not brought until 29 days after the expiration of one year from the time he sustained the injuries for which he sued.

Plaintiff was injured by the turning over of a tower wagon upon which he was at work in adjusting and repairing some decorating lights on Market street between Fourth and Fifth, in the city of Louisville, which had been constructed and agreed to be maintained by defendant during the Perry Centennial celebration of 1913. It occurred between 7 and 8 o'clock p. m. on September 30th of that year, and it is claimed in the petition that the wagon was defectively constructed, and was therefore an unsafe place provided by the defendant for the plaintiff in performing his work, and because of its defective and unsafe condition it was caused to and did turn over, and produced the injuries resulting in his damage. The suit was filed on October 29, 1914, and one of the defenses relied upon is the limitation provided by the first section of the statute before mentioned.

The reply attempted to avoid the limitation thus pleaded by setting up facts which plaintiff contends constituted an obstruction to the running of the statute for more than 29 days, and that he was entitled, under the statute, to deduct the time covered by the obstruction from the limitation period provided for the bringing of such actions. Section 2532, under which this insistence is made reads:

"When a cause of action mentioned in the third article of this chapter accrues against a resident of this state, and he, by departing therefrom or by absconding or concealing himself, or by any other indirect means obstructs the prosecution of the action, the time of the continuance of such absence from the state, or obstruction, shall not be computed as any part of the period within which the action may be commenced. But this saving shall not prevent the limitation from operating in favor of any other person not so acting, whether he is a necessary party to the action or not."

Whether there exists such an obstruction as would toll the limitation statute must be ascertained from the facts as disclosed by the testimony. In so far as they are pertinent to this point they are substantially as follows:

Previous to September 18, 1913, J. T. Griffin was engaged in business in the city of Louisville which was conducted in the name of Falls City Electric Company, and which business consisted in handling electric fixtures and apparatus, which, perhaps, may have included repair work in that line of business. Before that day William J. Reuff and J. T. Griffin had formed a partnership under the style and firm name of Reuff-Griffin Decorating Company, with an office on Market street between Fourth and Fifth. This partnership appears to have been formed for the purpose of procuring the contract for the street decorating work for the Perry Centennial celebration to be held in the city of Louisville in the fall of 1913. The firm was awarded that contract, and shortly afterward a corporation was formed bearing the same name of that partnership, and in which corporation Reuff and Griffin were the principal stockholders, the former being made secretary and treasurer and the latter president of that corporation. A few days before the incorporation the plaintiff applied to Griffin for employment, which was given him, and he was put to the work of carrying out the decorating contract for the Centennial celebration, and at which he continued to work until he was injured. When plaintiff was employed and first began work the Reuff-Griffin Decorating Company was only a partnership composed of the members hereinbefore stated, but it was incorporated in the same name before the plaintiff was injured. The business of Griffin, conducted in the name of Falls City Electric Company, continued, but neither the partnership of Reuff-Griffin Decorating Company nor the corporation of the same name had any interest in that business.

As to what occurred at the time the plaintiff was employed is stated by him to be:

"I asked him [Griffin] for employment; asked him if he was doing the decorating for the Falls City Electric Company, and he said he was; said he was the proprietor of it. I asked him for work, and he told me to report at his office at Fifth street between Market and Jefferson."

Directly after that the plaintiff was employed and worked, as hereinbefore stated, and received his pay at the office of the defendant on Market street, and not at the office of Falls City Electric Company on Fifth street. Upon this point Griffin, when asked if he had represented to the plaintiff at the time of the employment that he was being employed by the Falls City Electric Company, said:

"No; there was no occasion for me to represent myself. Mr. Wilkes asked me for a job, and I told him certainly, I needed a lineman and would give him work."

He then proceeds to explain why the contract for the decorating was taken by a concern other than the Falls City Electric Company, which, as he claims, was because the latter employed nonunion men, and in carrying out the decorating contract the authorities managing the Centennial insisted on the use of union labor.

The next morning after the accident Griffin, in company with Reuff, called upon the plaintiff at his mother's home, to which he had been carried, and at which he resided, and left him $9, which plaintiff insisted on not accepting, but, according to his statement, it was left there on the bed, and was presumably appropriated by him. On that occasion plaintiff says that Griffin told him this:

"Well, he told me that he would carry me on my regular pay roll, carry me on the regular pay roll until I got well or able to go to work, and when they got ready to leave the house he got some money from Mr. Reuff and made up $9 between them. I told them that I didn't need any money that morning. They insisted on my taking it," etc.

This conversation as detailed by plaintiff with reference to keeping him on the pay roll is denied by both Griffin and Reuff, but if it was a controlling factor the plaintiff's testimony would be sufficient to justify the submission of the issue to the jury. Neither Griffin nor Reuff saw the plaintiff afterward until November 8, 1913, when he appeared at the office of the defendant on Market street, at which time he was given a check for $25, upon which was printed the name of the defendant, showing that it was incorporated, as well as its business card, and signed by William J. Reuff secretary and treasurer. This check was indorsed and cashed by the plaintiff. The plaintiff continued to make visits to the office of the defendant, over which there was and had been all the time, according to the great preponderance of the proof, a large sign which was illuminated at night, and which sign bore the name of the defendant. Somewhere between the 10th and 15th of December plaintiff claims that he was told that defendant could not pay him any more money, and on the 19th day of December he employed attorneys to bring this suit. Some negotiations occurred between his attorneys and Griffin looking to a settlement of the claim, but nothing was said by the latter upon any occasion calculated to in any way mislead or deceive either plaintiff or his attorneys as to the true and correct employer of plaintiff; the only objection to a settlement being that, if there was any negligence at all producing the injuries to plaintiff, it was that of his fellow servant, and that he...