195 Ky. 14 | Ky. Ct. App. | 1922
Opinion of the Court by
Affirming.
On the 15th day of February, 1918, and for some time prior thereto the defendants and appellants, Eureka Elk-horn Coal Company and Kingdom Come Coal Company, were engaged in grading a track for a spur line of railroad running from a line of the Louisville & Nashville Railroad Company near the mouth of Sand Lick creek in Letcher county to the coal mines of defendants located a short distance up the creek. Between 11 and 12 o’clock A, M. on the day mentioned the agents and servants of defendants engaged in the work set off and exploded a charge of dynamite or other explosive used by them in mailing the necessary excavations, and it threw
This suit was filed by her against the two defendants to recover damages for the injuries she suffered, which she fixed at the sum of $6,000.00. The original answer was in the nature of a denial but it is doubtful if it is sufficient to deny the allegation of the petition that defendants were doing the excavating at the time, or that their agents and servants produced the explosion complained of. In an amended answer defendants averred contributory negligence of plaintiff which was denied, and upon
■ In support of the plea of contributory negligence evidence was offered by defendants and some of it heard before the jury to show (a), that the house in which plaintiff was residing was badly constructed and its roof and ceiling weak and perhaps to some extent rotten, and was, therefore, insufficient to withstand the assault; (b), that plaintiff at the time should have gotten out of her house pursuant to the warning of “fire,” which defendants claim was given just before the explosion, and (c), that the particular explosion complained of was no greater, if as great, as a number of others which had been made prior thereto. We have searched our office, the library and the capitol building from basement to dome and have failed to find any law supporting either of those defenses, and of course we have been cited to none. On the contrary we find that from time immemorial the right of the citizen to occupy his home, free from assaults and molestations, exist whether it be a palace or a hovel, and that he is not compelled to construct it after the fashion of forts so as to repel trespassers vi et armis. Neither is he compelled to vacate his home at the behest of one who intends to invade it for purposes purely his own; nor does ene acquire the right to commit a wrong by repeated prior efforts to do so. All of the testimony, therefore, of defendants to establish facts (a), (b) and (c) about which they interrogated a large number of their witnesses, was wholly irrelevant, leaving as the only controverted issue on which they could or did introduce evidence the one relating to the amount of damages, which indeed was the only defense available.
On this appeal two points are urged as constituting error sufficient to authorize a reversal of the judgment, which are (1), the refusal of the court to grant a continuance because of the illness of S. E. Baker, who, it is claimed, was the only counsel representing defendant, Eureka Elkhorn Coal Company, and (2), that the verdict was excessive. In support of the first one the affidavit of the vice-president of that defendant was filed supported by those of Dr. Back and attorney W. F. Hawk, the latter of whom, it is insisted, represented the other defendant, Kingdom Come Coal Company, only. The affidavit of the physician states that the attorney was suffer
But, waiving these matters, we find the general rule of practice in such cases well stated in 13 Corpus Juris, 145, in this language: “It is usually considered a good ground for continuance that the counsel employed is too ill to conduct the cause when the same is called for a hearing, but in such case it must appear that the applicant has a meritorious cause or defense, that the particular counsel was necessary to the -proper presentation of the cause, and that there was no time or opportunity to employ other counsel to conduct it. The denial of the motion for continuance will be sustained where, in view of all the facts, the absence of the attorney was not prejudicial to his client.” This court has substantially followed the statement of the rule in the above excerpt in the cases of Dowdy v. Preston, 3 Ky. L. R. 760 (reported in full in 11 Ky. Opinions, 623); Chapeze v. Hathaway, 153 Ky. 519, and L. H. & St. L. Ry. Co. v. Wilson’s Executrix, 156 Ky. 657.
In the Wilson case the ruling of the court denying a continuance for the same ground supported by almost identical affidavits was upheld, the opinion saying: “We see no error, however, in this ruling of the court. While Mr. Miller was chief counsel-for appellant,-it was ably and efficiently represented by two -other attorneys, who, from every indication that can be gathered from the record, admirably presented the appellant’s case, and left nothing undone to properly present it to the court and the jury.”
In the Chapeze case the affidavit stated that the client “was depending entirely upon him (the absent attorney)
In the Dowdy case, which was one of illness of counsel, in upholding the court in refusing a continuance therefor the opinion says: 44 There is nothing in the record to indicate that the presence of counsel at the trial would have in any way been beneficial to appellants.”
The opinion in the case relied on of Kentucky Union Co. v. Patton, 24 Ky. L. R. 701, does not militate against the rule as stated in the cases .referred to. The illness of the attorney in that case prevented the litigant from obtaining the deposition of a most material and important witness, and it was more because of the failure to obtain that deposition on account of the illness of the counsel that an error was committed in refusing the continuance than because of the inability of counsel to be present at the trial. In other words, it distinctly appeared that the illness of counsel prevented the litigant frorn properly preparing his case and presenting his evidence at the trial.
We have no such circumstances here. As we have seen, the only available defense was to reduce the damages. Two well known, reputable attorneys, W. P. Hawk and John M. Cook, were present and actively participated in the trial on behalf of defendants and it is not intimated that they failed to fully perform their duty, or that defendants or either of them were prevented from introducing any witness they desired, or that the absence of Baker resulted in any detrimental consequence to them, either through any act of omission or commission. The case had been pending for more .than two years and with the single simple issue presented it would be a great perversion of the rule of practice to hold that a continuance should have been granted under the circumstances. We do not mean to say that under a proper showing it would not be the duty of the court to grant a continuance because of the sudden illness or absence of counsel, but each case must depend largely upon its peculiar facts and circumstances, and they, in this case, fully demonstrate that no possible prejudice to any of the rights of defendants resulted from the refusal of the court to sustain the motion.
As to the second point urged as a reason for reversing the judgment, but little need be said. We have hereinbe
Lastly it is intimated, and to some extent argued, that a peremptory instruction should have been given upon the motion -of defendants upon the ground that plaintiff failed to prove that either of them was engaged in the work or produced the explosion complained of. Waiving the question of the sufficiency .of the denials in the answer to put that fact in issue, we ¡are clearly of the opinion that plaintiff’s testimony was sufficient to submit the issue to the jury though not as full and complete as it could have been made. But ¡beyond all this, defendants did not see proper to submit the action on the testimony introduced by plaintiff alone but introduced witnesses in their behalf who admitted that it was the defendants who were engaged in the excavating work in which the explosives were used. They thereby waived their right to rely -on the insufficiency, if any, of plaintiff’s testimony on that issue and themselves supplied the omission of which they now complain.
We are thoroughly convinced that the defendants had a fair trial and that the record discloses no error prejudicial to their substantial rights, and the judgment is affirmed.