183 Ky. 29
Court of Appeals of Kentucky.
Jan. 24, 1919.
ACTION: Reversed.

Appeal from Circuit Court, Knox County.
Suit by Ira Bays against the Carter Coal Company. Judgment for plaintiff, and defendant appeals.

The record in this case is most unique. Appellee (plaintiff below) recovered judgment in the sum of $700 for injuries caused through the alleged defective ventilation of appellant's mine. The record, certified by the clerk, shows the filing of the pleadings and orders usual in such cases. Sometimes after the case had been submitted in this court, and briefs filed, appellee filed a motion to set aside the submission and to correct the record by striking therefrom what purported to be the order filing a demurrer and the submission thereon; the order filing an answer, the answer itself, and the order controverting of record the affirmative allegations of the answer.

The affidavit of the circuit clerk is filed, and he states that the above orders and pleadings were erroneously copied; that his record does not show any such were filed; indeed, the order controverting the affirmative allegations of the answer, he says, was copied from the record in an entirely different case. It appears from the affidavits that, at the time the case was called for trial, no answer had been filed. Counsel for appellant insisted, however, that an answer had been filed, and he had a carbon copy in his office, and time was given for him to go to his office and get this carbon copy, which, it appears, he did.

Appellee had brought suit against the appellant on a previous occasion, growing out of the accident complained of in the instant case, and this case had been called for trial and evidence introduced, when it was dismissed by the plaintiff. The carbon copy of the answer brought to the court was doubtless a copy of the answer filed in the previous case, and it seems that, while there is no order filing this answer, the court treated it as having been filed. This being true, the court will assume that to all intents and purposes this case was tried as if the answer had been filed.

In submitting the case to the jury, the court gave four instructions, and it is evident from the wording of the first instruction the court treated this case as one in which the parties had pleaded to an issue. Instructions are required to be based upon the pleadings and the evidence.

In Burchett v. Herald, 98 Ky. 530, 33 S. W. 85, 17 Ky. Law Rep. 918, the court holds:
"The sole question presented by this appeal is whether, on the face of this petition, and on the allegation made as to the damage, the court was authorized to render judgment without evidence either to the court or to a jury for the amount claimed in damages. This question has often been decided by this court in the negative."

In tort cases, the effect of a failure to answer is an admission of plaintiff's right to recover, but same will not be treated as an admission of the amount of damages, if any, to which the plaintiff is entitled; hence it is necessary to submit the question of the amount of damages to a jury, under proper instructions, and these should limit the recovery to such damages as are claimed or may be justified from the allegations of the petition. In the absence of an answer, the court would have instructed the jury as above indicated; but from the instruction given it is manifest the court considered the case as at issue.

Had the clerk dated any of the orders, he would doubtless have discovered the incorrectness of the record filed in this court, the erroneous parts of which are now sought to be stricken from the transcript; but this he did not do.

What is said about the answer applies with equal force to the order controverting the affirmative matter of record. The answer in the second paragraph pleads contributory negligence, but instructions tendered by the appellant covering this and other defenses were refused by the court. This was error. If the court considered the answer as filed for one purpose, it was filed for all purposes. This being true, the court erred in not giving an instruction on contributory negligence to the jury.

The motion of appellee to correct the record is overruled. Upon the return of the case, the court will see that an order is entered filing the answer, and likewise the order controverting the affirmative allegations of the same.

Wherefore the judgment is reversed for further proceedings consistent with this opinion.

Ky.App. 1919.


208 S.W. 1, 183 Ky. 29


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