S.K. Jones Const. Co. v. Hendley

• Decision Date: 23 March 1928
• Citation: 224 Ky. 83,5 S.W.2d 482
• Parties: S. K. JONES CONST. CO. et al. v. HENDLEY.
• Court: Kentucky Court of Appeals

5 S.W.2d 482

224 Ky. 83

S. K. JONES CONST. CO. et al. v. HENDLEY.

Court of Appeals of Kentucky

March 23, 1928

Rehearing Denied, with Modification, May 8, 1928.

Appeal from Circuit Court, Fulton County.

Action by Tom Hendley against the S. K. Jones Construction Company and others. Judgment for plaintiff, and from such judgment and an order refusing to strike certain matters from a previous order, defendants appeal. Reversed and remanded with directions, as to the appeal on the merits, and dismissed as to appeal from the order.

Hester & Stahr, of Hickman, and Chas. C. Crabtree, of Memphis Tenn., for appellants.

Worth &amp Finch, of Fulton, and F. B. Martin, of Mayfield, for appellee.

SANDIDGE C.

Appellee Tom Hendley, recovered a judgment against appellant S. K. Jones Construction Company in the Fulton circuit court in an action by him against it for injuries alleged to have been received by him as a result of its negligence. Hence the appeal.

Appellee has moved this court to strike from the record the bill of exceptions upon the ground that it was tendered and filed too late in the court below. Section 334 of the Civil Code of Practice provides that the party objecting must except when the decision is made, and that time may be given to prepare a bill of exceptions, but not beyond a day in the succeeding term to be fixed by the court. Provision is then made for approving the bill of exceptions at the time fixed where a different judge is presiding from the one who tried the case, and also for those cases where no term of court is held at the term to which time was given. This section of the Code has frequently been construed by this court, and, in the absence of a showing of some casualty or misfortune preventing the filing of the bill of exceptions within the time given, it has uniformly been held that the trial court has no authority to extend the time beyond the next succeeding term after the judgment is rendered. See Johnson, etc., v. Stivers, etc., 95 Ky. 128, 23 S.W. 957, 15 Ky. Law Rep. 477, and Combs v. Combs, 41 S.W. 7, 19 Ky. Law Rep. 439, and numerous other opinions of this court cited therein.

The judgment appealed from herein was rendered at the January term, 1927, of the trial court. At that term an order was entered giving appellant to and including the sixth day of the next April term of the court in which to prepare and file its bill of exceptions. On April 11, 1927, the day to which by the preceding order appellant was given to tender and file a bill of exceptions, this order was entered:

"The defendants are given to and including the twelfth day of the May term, 1927, to file bill of exceptions and evidence, to which plaintiff objected and excepted."

There appears to be a regular January term, April term, and May term of the Fulton circuit court. It thus will be seen that the circuit court undertook at the next succeeding term after the judgment was rendered to extend the time for filing bill of exceptions to a subsequent term. According to the record herein, no showing of casualty or misfortune was then made. At the May term, when the bill of exceptions was tendered, appellant undertook by filing affidavits to establish the existence of facts which, if shown at the April term, would probably have been sufficient to authorize the trial court to grant a further extension of time for filing the bill of exceptions. That showing came too late to be considered by the trial court. Because of the express provisions of section 334, of our Civil Code of Practice, and under authority of the opinions, supra, construing it, this court is constrained to the view that the motion of appellee to strike the bill of exceptions from the record must be sustained.

The bill of exceptions, having been stricken, leaves for consideration only the question whether the pleadings are sufficient to support the verdict and judgment. The allegations of the petition by which it is sought to charge that appellee's injuries were the proximate result of the negligence of appellant are these:

"The plaintiff further states that on the 26th day of November, 1925, while in the employ of defendants, and in the discharge of his duty, he was, by and through the negligence of the defendants, painfully, seriously, and permanently injured."

This allegation was repeated in an amended petition, and nothing was added to strengthen it. No statement of the answers or replies filed herein adds to the allegations above, except that in the third paragraph of appellant's answer it was alleged that, "at the time of the accident and injury, the plaintiff was assisting to move and set up a concrete mixer, and the accident and injury was one of the necessary risks assumed by plaintiff in his employment and for which no one was answerable." Are these allegations sufficient to support the judgment appealed from?

This court is committed by a long line of opinions to the doctrine that negligence may be pleaded in general terms. The rule prevailing with reference to the question was succinctly stated in Chiles v. Drake, 2 Metc. 146, 74 Am. Dec. 406, thus:

"In actions for personal injuries, resulting from negligence, it has always been regarded as sufficient for the plaintiff to allege, in general terms, that the injury complained of was occasioned by the carelessness and negligence of the defendant. He has not been required to state the circumstances with which the infliction of the injury was accompanied, in order to show that it had been occasioned by negligence. An allegation of the extent of the injury, and of the manner in which it was inflicted, has been always regarded as sufficient. 2 Chitty on Pleading, 650."

The allegation of negligence there was that defendant "by means of his willful neglect shot and killed her said husband to her great damage," etc. Holding the petition good, it was said:

"The injury complained of was the killing of the plaintiff's intestate. The manner of its infliction was by shooting. The shooting and killing were occasioned, as alleged, by the 'willful neglect' of the defendant. These facts were all set forth in the petition, and nothing more was necessary."

The rule there announced has been followed in numerous cases. See Gaines, etc., v. Johnson, 133 Ky. 510, 105 S.W. 381 32 Ky. Law Rep. 58; Davis' Adm'r v. O. V. B. & T. Co., 127 Ky. 805, 106 S.W. 843, 15 L. R. A. (N. S.) 402, 32 Ky. Law Rep. 627; Murray...