172 Ky. 568
Court of Appeals of Kentucky.
HENDRICKSON v. NEW HUGHES JELLICO COAL CO.
Dec. 5, 1916.
ACTION: Judgment reversed, and cause remanded.


Appeal from Circuit Court, Knox County.
Action by James Hendrickson against the New Hughes Jellico Coal Company.
From a judgment for plaintiff, he appeals.

CLARKE, J.
Appellant, then 19 years of age, was employed on the 11th day of December, 1913, in the mines of appellee at Ely in Knox county, and while riding on a car of timber that was being taken into the mine he was caught between the timbers and a low set-off in the roof of an entry and was severely injured. Upon a trial of this cause instituted by him against appellee to recover for the injuries thus sustained, he recovered a judgment for $1,000, from which he is appealing upon the grounds that the trial court erred in the instruction upon the measure of damages and in limiting the argument to 30 minutes on a side. The instruction upon the measure of damages limited appellant's right of recovery to the pain and suffering he had already endured, while the instruction offered by appellant upon the measure of damages would have authorized in addition thereto a finding for appellant for the pain and suffering it was reasonably certain he would endure in the future as a direct and proximate result of his injury. The refusal of the court to include future as well as past pain and suffering as a measure for the damages appellant had sustained was clearly prejudicial error, as there was substantial evidence to the effect that appellant's injuries were permanent and reasonably certain to cause pain and suffering in the future. As future suffering is an element of general damages it was not necessary that it be specially pleaded.

2. Although we do not think 30 minutes was a sufficient time for argument of this case, in the trial of which 26 witnesses testified, whose testimony covers 194 typewritten pages, and eight instructions were given which cover 4 1/2 pages of typewritten matter, but the question is not presented by the record before us since it does not appear that the argument was limited, or that appellant asked for more time, or objected to the action of the court limiting the time of argument.

3. The record discloses the fact that after judgment was rendered herein, appellee paid to appellant the amount of the judgment, interest, and cost, and that the attorneys for appellant made the following indorsement on the margin of the order book where the judgment is recorded: "Received payment of the sum of $1,058.26 in full satisfaction of this judgment, interest and cost. This Dec. 3, 1915. James Hendrickson by Golden & Lay by W. R. Lay."

Counsel for appellee argues in brief that this constitutes cause for dismissal of the appeal; that by accepting satisfaction of the judgment appellant is precluded from appealing therefrom. This was the rule in this state prior to the amendment in 1888 to section 757 of the Civil Code, which changed the rule, as the amendment expressly allows an appeal to be prosecuted from a judgment, although the judgment may have been enforced.

There is nothing in the above receipt to indicate that the payment was made or accepted in compromise of the cause of action, but upon the other hand upon its face it states it was simply in satisfaction of the judgment. Since by the provision of our Code the enforcement of a judgment does not prevent an appeal therefrom, the acceptance of a voluntary payment of the judgment will not do so.

No motion having been made as required by rule 8 of this court (154 S. W. viii), the question as to costs for transcript of part of record stated in brief not to be necessary to this appeal cannot be considered.

For the reasons indicated the judgment is reversed, and the cause remanded.

Ky.App. 1916.
HENDRICKSON v. NEW HUGHES JELLICO COAL CO.
189 S.W. 704, 172 Ky. 568


     

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