191 Ky. 568 | Ky. Ct. App. | 1921
Opinion op the Court by
Affirming.
This action was brought in the Jefferson circuit court by the appellee and plaintiff below, Bernard Kindgen, an infant, by his statutory guardian, against the appellant and defendant below, Louisville Woolen Mills, seeking to recover damages against the defendant in the sum of $30,000:00 resulting from injuries sustained by plaintiff while he was employed by defendant, as alleged, in “willful and known violation” of the child labor law (subsection 9 of section 331a Kentucky Statutes), and upon trial there was a verdict against defendant for the sum of $10,000.00, which the court declined to set aside upon defendant’s motion for a new trial and rendered judgment against it for that amount, to reverse which defendant prosecutes this appeal.
To understand the grounds urged before us for a reversal it will be necessary to give a brief history of the proceedings had in the case from the time of the filing of the petition to the rendition of the judgment, and also to state some of the undisputed and admitted facts upon which the suit was based. The injury sued for occurred on October 11, 1918, and was caused-by plaintiff having his right arm caught in the fly wheel of some machinery while he was at work at and around a carding machine and while he was employed to oil and clean that and, perhaps, other pieces of machinery, and his arm was mashed,, lacerated and torn so that it had to be amputated some weeks afterwards when it became evident that it could not be saved, and during which time plaintiff suffered intense and excruciating pains. There were also injuries to other parts of his body. At the time of his employment, as well as at the time of the injury, he was but slightly past 15 years of age, of which' fact defendant had knowledge through a certificate furnished it by plaintiff at its request, but, notwithstanding, it through its foreman in charge continued plaintiff in its employ and assigned him to the work above stated. The petition relies solely upon the prohibited employment of plaintiff
At the close of all the evidence defendant moved the court to dismiss the action without prejudice, which was overruled, and it then moved for a peremptory instruction in its favor, which was also overruled, and both of which motions seem to have been made -upon the ground that plaintiff by his- involuntary appearance before the compensation board and the introduction of testimony before it after its jurisdiction had been challenged, elected to proceed before it and, thereby, waived his right to prosecute the common law action. .After the overruling of those motions and after the court had instructed the jury the record shows this: “After the instructions had been given and before argument counsel for defendant offered to argue -with the testimony as admitted as a basis therefor, circumstances in mitigation of damages, to which plaintiff, by counsel objected, and the court sustained the objection to which the defendant, by counsel, excepted. ’ ’
The court gave to the jury only one instruction, the first part of which directed a verdict for plaintiff, and the latter part of which stated the correct rules- for the meas
It is seriously insisted that the court erred in refusing to sustain defendant’s motion to dismiss the common law action without prejudice and, failing to do that, in overruling its motion for a peremptory instruction upon the grounds, as stated, that plaintiff in appearing before the compensation board, though involuntarily and at the behest of defendant, waived his right to further prosecute this action and thereby ousted the circuit court of any jurisdiction thereof. We cannot agree with counsel in this contention; but if we should give the effect contended for to plaintiff’s action in appearing before .the board under the circumstances, we are then of the, opinion, as will hereinafter appear, that the alleged error of the court in overruling the motions referred to did not prejudicially affect the rights of defendant under the facts of this case.
In disposing of this question we cannot dismiss from our minds the inconsistent position (as it appears to us) assumed by counsel in its discussion. The ground of the contention is, that in going before the board, though involuntarily and for the purpose of responding to the proceedings instituted before it by defendant, plaintiff thereby abandoned his common law action. The argument is founded upon the provisions of section 4911, stipra, of the statutes, which says: “If a claim to compensation be made under this section, the making of such, claim shall be a waiver and bar to all rights of action on account of said injury or death of said minor as to all persons, and the institution of an action to recover damages on account of such injury or death shall be a waiver and bar of all rights to compensation under this act.” In support of this point it is argued in brief that whichever of the two remedies is first adopted by-the guardian of the infant if not killed, or by his representative if he is killed, ipso facto becomes the exclusive one and it cannot thereafter be abandoned, but must be prosecuted to a finality. It is, therefore, said that in going before the board, and in remaining before it until it determined the preliminary question as to the nature of the employment of plaintiff, he was compelled to thereafter prosecute his claim exclusively before that board. But this conclusion,
It was held by us in the Frye case that no such determination by the compensation board was necessary to enable the guardian or the administrator of the infant to make the election given by section 4911, and, of course, it results that the determination by the board in this case of the nature -of the employment of. plaintiff was without any foundation in law and, technically, the court erred in accepting its findings, as to the unlawful nature of plaintiff’s employment, as final. But there is considerable authority, however, supporting the contention of plaintiff’s counsel in their brief in this case, that defendant is Tjound by that finding, since it voluntarily went before the board after the institution of this suit for the very purpose of obtaining, among other things, that adjudication. Stevenson v. Miller, 2 Litt. 306; Ashbury v. Powers, 23 Ky. L. R. 1622; Doniphan and Smoot v. Gill, 1 B. Mon. 199, and Bledsoe v. Seaman, 77 Kan. 679. But, whether this be so or not, we are thoroughly convinced that plaintiff is. not estopped from prosecuting this common law action in the circuit court by his appearance before the board nnder
It is next insisted that in view of this court’s opinion in the Frye case the court committed error in accepting as final the finding of the board in the proceeding instituted before it by defendant to the effect that plaintiff had been “employed in willful and known violation” of law. Besides what has already been said concerning this contention, we may here add that the court was justified in assuming the ¡existence of the fact, and in peremptorily instructing the jury accordingly, under the undisputed and admitted facts in the record as proven by defendant’s witnesses; and the practice in this jurisdiction is that a judgment will not be reversed for an. error which does not operate to the substantial prejudice of the appellant. CivilCode, sections 134, 338 and 756. Numerous cases are cited in the notes to the sections referred to in substantiation of the rule. As an outgrowth of that rule it has been constantly and uniformly held by this court that a judgment, if correct, will not be reversed though based by the trial court upon an erroneous reason. Prewitt v. Wilborn, 184 Ky. 638; Lunsford v. Hatfield Coal Co., 166 Ky. 119; Graves County v. First National Bank, 108 Ky. 194; Shewmaker v. Yantsey 23 Ky. L. R. 1759; Dudley v. Goddard, 11 Ky. L. R. 480, and Davidson v. Johnson, 113 Ky. 202, and other cases therein cited.
At the trial defendant read the testimony of its superintendent and foreman who, it seems, employed plaintiff and who also assigned him to his work. That witness testified that some two months or more before the accident he was furnished by plaintiff with an employment certificate issued by the superintendent of schools’ in and for the city of Louisville, as is required by subsection 3 of section 331a, supra, of the Statutes. That certificate was filed with the deposition of the witness and it shows' that plaintiff was born on June 11, 1903, and in it plaintiff is permitted to be employed by the defendant, Louisville Woolen Mills, but prohibits it from employing him at any work except “filling boxes.” Instead of assigning to him the work mentioned in the certificate the superintendent
The next complaint of counsel is that relating to the argument proposed to be made in “mitigation of damages” as embodied in the above excerpt from the bill of evidence. In disposing of this- question it is needless for us to discuss the point, so ably argued by counsel, that a litigant has the right to be heard by himself and counsel, and if this is.denied him by the court a new trial should
It is tbe rule in tbis jurisdiction, by wbicb tbis court bas uniformly been guided, that improper argument of counsel will not be considered on appeal unless it is made a part of tbe record by a bill of exceptions, so that it may be determined from tbe argument itself whether it was proper or improper, and if improper, whether it was sufficiently prejudicial to authorize a reversal of tbe judgment. Tbe same rule prevails without exception, so far as we are aware, in all other jurisdictions. Some of tbe later cases from tbis court so bolding are: Sparks v. Sipple, 140 Ky. 542; C. & O. R. Co. v. Stapleton, 134 Ky. 351; United Furniture Co. v. Willis, 158 Ky. 806; Pine Mountain Manufacturing Co. v. Bishop, 160 Ky. 575; St. Paul, etc., Insurance Co. v. Kendle, 163 Ky. 146, and Chreste v. Louisville Railway Co., 173 Ky. 486. Tbe converse of tbis rule must necessarily follow, since the reason requiring alleged improper argument to be brought before tbe appellate court in the manner indicated exists with as much force where a proposed proper argmment w;as rejected by tbe court, as where an improper argument was allowed over objections. There was no sort of avowal made by defendant’s counsel in tbis case as to tbe nature of the argument that be expected to make or would have made but for tbe refusal of tbe court to permit him. Nor did be avow tbe substance of tbe proposed argument, or any facts or circumstances in tbe case looking to “tbe mitigation of damages,” wbicb be desired to discuss; tbe reason for wbicb was, doubtless, that be could not well do so, since there are no sucb facts or circumstances appearing in tbe record. He bad no right to discuss before tbe jury any contributory negligence of plaintiff, or any assumption of risk by him, since neither of these defenses were available to the defendant in a suit for damages to an infant employed in violation of tbe child labor law. L. H. & St. L. R. R. Co. v. Lyons, 155 Ky. 396; Standard Laundry Co. v. Adams, 183 Ky. 39, and cases referred to therein.
Finding no error prejudicial to the substantial rights of the defendant the judgment is affirmed.