Rutherford v. Modern Bakery
| Decision Date | 14 February 1958 |
| Citation | 310 S.W.2d 274 |
| Parties | Roy RUTHERFORD, Appellant, v. MODERN BAKERY, a Partnership, etc., Appellees. |
| Court | United States State Supreme Court — District of Kentucky |
Sam M. Ward, Scott E. Duff, Hazard, for appellant.
Willis W. Reeves, Maxwell P. Barret, Hazard, for appellees.
The appellant, Roy Rutherford, instituted this action to recover damages from the appellee, Modern Bakery, for pain, suffering and permanent disability claimed to have been the direct and proximate result of his consuming two poisonously contaminated pies sold by the Bakery. This appeal is from a judgment on a directed verdict given for the Bakery at the conclusion of Rutherford's evidence.
The appellant contends that the trial court erred in directing a verdict against him because it was not necessary for him to prove privity of contract to recover against the Bakery. The appellee contends that (1) we do not have jurisdiction of the case under KRS 21.060 because the judgment and the evidence fail to establish the amount in controversy as exceeding $2,500; and (2) if we do have jurisdiction, the judgment should be affirmed because the appellant failed to establish that the injuries of which he complained were caused by an unwholesome condition of the pies he ate.
The amount in controversy sufficient to give us jurisdiction under KRS 21.060 is ascertained according to the provisions of KRS 21.070. That section directs that the judgment be construed with the pleadings--not with the evidence. The appellant in this case was seeking damages of $10,000. The amount in controversy was certainly fixed under the provisions of KRS 21.070, and the appellant could thus prosecute this appeal as a matter of right under KRS 21.060.
The appellee was a distributor of certain bakery products which were manufactured in Rome, Georgia. Among those products were two small cocoanut pies which were delivered to a retailer about May 16, 1956. The appellant purchased the pies from the retailer on May 17, 1956, and took them home. The next day he carried them to work with him and ate them for lunch. Soon thereafter, the appellant said, he became violently ill, his main complaints being abdominal cramps, vomiting and diarrhea. He claims that his illness resulted from consumption of the pies. The illness necessitated six days' hospitalization near his home, so he said, but he produced no hospital records. Several days later he said he went to Lexington where surgery was required to alleviate his pain and...
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Ward v. Norton
...the judgment, when construed in connection with the pleadings, fixes the value of the amount or thing in controversy. Rutherford v. Modern Bakery, Ky., 310 S.W.2d 274. Appellees filed a pleading in the circuit court designated 'Appeal from Probate.' The county court had admitted the writing......
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Keeney v. Com., Dept. of Highways
...802. We have overruled the appellees' motion to dismiss since the judgment should be considered with the pleadings, Rutherford v. Modern Bakery, Ky., 310 S.W.2d 274, and the appellants had pleaded a right to recover $6,483 more than the county court judgment in their favor. Should the plead......
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Greene v. Flewelling, 78-78
...burden of showing that her subsequent nervous condition and deafness were caused by the defendant's negligence. In Rutherford v. Modern Bakery, 310 S.W.2d 274 (Ky.App.1958) the court held that plaintiff's evidence that he had become violently ill shortly after eating two pies from the defen......
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Creech v. Jackson
...fixed by the court as authorized by KRS 21.070. The judgment must then be construed in connection with the pleadings. Rutherford v. Modern Bakery, Ky., 310 S.W.2d 274; Maslow Cooperage Corp. v. Hofgesang, Ky., 316 S.W.2d 126. Before doing this, appellees' objection must be considered that t......