Samuels v. Spangler

• Decision Date: 31 January 1969
• Citation: 441 S.W.2d 129
• Parties: Russell SAMUELS, Appellant, v. Jack SPANGLER and his wife, Lillian McArthur Spangler, Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 129

441 S.W.2d 129

Russell SAMUELS, Appellant, v. Jack SPANGLER and his wife, Lillian McArthur Spangler,

Appellees.

Court of Appeals of Kentucky.

Jan. 31, 1969.

Rehearing Denied June 20, 1969.

John S. Kelley, Fulton, Hubbard & Kelley, Bardstown, for appellant.

Athol L. Taylor, Taylor & Pike, Shepherdsville, for appellees.

CULLEN, Commissioner.

Russell Samuels brought action against Jack Spangler and wife to recover damages for personal injuries sustained by Samuels when he fell from a tree on the Spangler property while he was engaged, as a temporary, part-time employe of the Spanglers, in cutting some wood in the tree. At the close of the opening statement on the trial, by Samuels' attorney, the Spanglers moved for a directed verdict. After a conference in chambers the trial court sustained the motion and entered judgment dismissing the action. Samuels has appealed.

The opening statement was as follows:

'The plaintiff is a 56 year-old farmer who had an 8th grade education, and as a part of his farm duties, he purchased slop from the distillery as feed; that the defendant, Jack Spangler, was the manager of that distillery and requested and hired plaintiff to come to his home in Mt. Washington and cut some stumps at ground level so that he could run his mower over them. Plaintiff owned a power driven say and went to the home of the defendant, and at the direction of the defendant, Jack Spangler, who was then and there present, proceeded to cut the stumps. When he finished cutting the stumps, Jack Spangler requested that plaintiff cut some plywood that was nailed to the limbs in a tree some eight or nine feet up in the air; that the defendant then proceeded to secure a ladder, which he did. The ladder was six feet high; that the plaintiff, under the direction of the defendant, proceeded up the ladder which was not high enough and it became necessary for him to get in the tree where he did some cutting and was straddling a limb and sawing the limb under him when the saw pinched, and fearing that the defendant Spangler was in danger of the saw falling on him, he shoved the saw away, and in doing so, fell to the ground, injuring himself; and that is the contention of the plaintiff, that the defendant, Spangler, who had employed plaintiff to do the work, failed in the duties outlined in KRS 338.030.'

After the Spanglers moved for a directed verdict the court called the parties into chambers and gave Samuels' counsel the opportunity to 'state any fact upon which relief can be granted.' The counsel then repeated the substance of his opening statement. The court expressed the view that the facts as stated would not warrant a recovery, and again offered Samuels' counsel the opportunity 'to restate his case, if he can state any actionable negligence against the defendant.' The counsel offered no further statement and made no indication that his proof would develop other facts. The court thereupon dismissed the action.

Samuels says here that the trial court dismissed his action simply because of the failure of the opening statement to 'state a cause of action,' and he argues that a case cannot properly be dismissed on opening statement merely because of...